Ex Parte Levine

Patent Trial and Appeal BoardSep 25, 2012

11673504 (P.T.A.B. Sep. 25, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/673,504 02/09/2007 BRUCE LEVINE LE07002 2821 7590 09/25/2012 Keith L. Jenkins Registered Patent Attorney, LLC 44075 W. Neely Drive Maricopa, AZ 85138-9460 EXAMINER LUGO, CARLOS ART UNIT PAPER NUMBER 3674 MAIL DATE DELIVERY MODE 09/25/2012 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BRUCE LEVINE ____________ Appeal 2010-001240 Application 11/673,504 Technology Center 3600 ____________ Before STEFAN STAICOVICI, JAMES P. CALVE, and SCOTT A. DANIELS, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-001240 Application 11/673,504 2 STATEMENT OF THE CASE Bruce Levine (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting under 35 U.S.C. § 103(a) claims 1-12 and 14-25 as unpatentable over Trewhella (US 5,795,044, issued Aug. 18, 1998) and Barr (US 6,955,380 B1, issued Oct. 18, 2005) and claims 13 and 26 as unpatentable over Trewhella, Barr, and Brown (US 4,542,924, issued Sep. 24, 1985). We have jurisdiction over this appeal under 35 U.S.C. § 6. THE INVENTION Appellant’s invention relates to “a drawer safety latch that can be quickly and easily installed in one of two orientations on a top surface of a drawer side structure.” Spec. 1, para. [0001]. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A drawer safety latch for a drawer having at least one drawer side structure, said drawer safety latch comprising: a first mounting portion having comprising a first surface installable, in a first orientation, to engage and to be secured to at least a portion of at least one top surface of one drawer side structure; a bracing extension comprising a second surface extending at an angle from said at least one first surface of said mounting portion, operable, in said first orientation, to abut at least one exterior surface of the drawer side structure; a flexible portion extending forwardly from said bracing extension; an obstructing portion extending forwardly from said flexible portion, biased outwardly from the drawer, operable to engage at least one environmental obstacle, and comprising at least one panel oriented in a plane at said angle to said bracing extension; and a releasing portion extending forwardly from said at least one panel and operable to release said obstructing portion; wherein said drawer latch is operable to be installed in one of said first orientation and a second orientation, wherein, in said second orientation, said second surface is installable to engage and to be Appeal 2010-001240 Application 11/673,504 3 secured to the at least one top surface of the drawer side structure and said first surface is operable to abut the at least one interior surface of the drawer side structure. SUMMARY OF DECISION We REVERSE. ANALYSIS The Examiner found that Trewhella discloses a “drawer safety latch (10) that comprises a bracing extension (41); a flexible portion (42, 43); an obstructing portion (44) and a release portion (65).” Ans. 3. The Examiner noted that Trewhella “fails to disclose that the latch comprises a mounting portion extending at an angle from the bracing portion.” Id. The Examiner further found that Barr discloses a safety latch “that includes a mounting portion (36) and a bracing portion (12) to support the latch on the drawer.” Id. The Examiner concluded that it would have been obvious to a person of ordinary skill in the art “to provide the latch described by Trewhella with a mounting portion [36], as taught by Barr ‘380, in order to support the latch when is mounted over the drawer.” Id. Appellant argues that: [T]he examiner used impermissible hindsight when he combined two references [Trewhella and Barr], neither of which teach or suggest engagement of the top surface of the drawer side, neither of which teach or suggest engagement of two drawer surfaces (top and side) simultaneously, and neither of which teach or suggest engagement (with the drawer) of drawer safety latch surfaces that are interior to an angled portion of the drawer safety latch to make applicant's claimed invention, Appeal 2010-001240 Application 11/673,504 4 which does claim (Claims 1, 14, and 21) engagement of the top surface, simultaneous engagement of top and side surfaces, and engagement of interior surfaces of an angled portion of the drawer safety latch with surfaces of the drawer side structure. App. Br. 40.1 According to Appellant, “Trewhella teaches a safety latch that works only on the exterior sides or exterior bottom of the drawer and Barr ‘380 teaches a safety latch that works only on the interior sides of the drawer.” App. Br. 41. Thus, Appellant contends that, “Barr and Trewhella cannot be combined to teach or suggest what neither teaches nor suggests without relying on applicant’s disclosure.” Reply Br. 5. In response, the Examiner notes that the Trewhella safety latch “is capable of being positioned on the top of the sidewalls” of the drawer “if the distance between the top of the sidewalls and the opening is [large] enough.” Ans. 5 and Attachment #4, Ans. 11. See also, Attachment #3, Ans. 10. The Examiner further notes that Barr’s safety latch “could be capable of having mounting portion 36 over the top of the drawer sidewalls” and “a bracing portion that is capable of being placed on any side surface of the sidewalls.” Ans. 6 and Attachment #5, Ans. 12. Then, the Examiner concludes that “Trewhella, as modified by Barr ‘380, will [disclose] the invention as claimed.” Ans. 6. It is undisputed that Trewhella fails to disclose a mounting bracket of a drawer safety latch having a mounting portion that extends at an angle from a bracing portion. Ans. 3, 5. App. Br. 40. Barr discloses a drawer safety latch mounted to the interior of a drawer sidewall that includes a vertical leg 12, a horizontal leg 36, and an engaging arm 20 that is 1 We refer to the Appeal Brief filed Jun. 1, 2009. Appeal 2010-001240 Application 11/673,504 5 cantilevered from the horizontal leg 36 to pivot upwardly and downwardly to allow closing and respectively, opening of the drawer. Ans. 3. App. Br. 32. See also, Barr, col. 2, ll. 18-24. Although we appreciate the Examiner’s position that the safety latches of both Trewhella and Barr may be capable of being positioned on the top surface of a drawer sidewall, nonetheless, we find the Examiner’s rejection insufficient to explain what in the prior art would have prompted a person having ordinary skill in the art to modify the latch of Trewhella to include the horizontal leg 36 (mounting portion) of Barr, particularly in view of the Examiner’s finding that the safety latches of Trewhella and Barr already are capable of being positioned on the top surface of a drawer sidewall without any modification. Ans. 5-6. While a proposed combination of teachings does not necessarily require that the structure taught by one of the references be bodily incorporated into the structure of the other reference, we fail to see how or in what manner Trewhella is proposed to be modified to include the horizontal leg 36 of Barr, which is merely a portion of Barr’s L-shaped latch 10, a modification asserted by the Examiner as something that would have been obvious to a person of ordinary skill in the art. The Examiner has not provided any findings that Trewhella recognized a problem with mounting its safety latch on the exterior sides or exterior bottom of the drawer. See, e.g., Trewhella, col. 5, ll. 33-38 and figs. 7 and 9. Furthermore, the reason proffered by the Examiner, i.e., “in order to support the latch when is mounted over the drawer,” appears to already be performed by bores 51 and fasteners 52. Trewhella, figs. 2 and 7. Specifically, as shown in Attachment #3 on Page 10 of the Examiner’s Answer, because bores 51 and fasteners 52 may be used to mount Appeal 2010-001240 Application 11/673,504 6 Trewhella’s safety latch either to the top or the side of a drawer sidewall, absent hindsight, it is not clear why a person of ordinary skill in the art would further modify the latch of Trewhella to include the horizontal leg 36 of Barr. The Examiner has not provided any evidence that modifying the safety latch of Trewhella to include the horizontal leg 36 of Barr would support the latch when mounted on the top surface of a drawer sidewall. Without a persuasive articulated rationale based on rational underpinning for modifying the reference as proposed, the Examiner’s rejection appears to be the result of hindsight analysis. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)) (“rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness”). Therefore, absent hindsight, we fail to see why one having ordinary skill in the art would have been led to include the horizontal leg 36 of Barr in the safety latch of Trewhella, as the Examiner proposes. Thus, the rejection of claims 1-12 and 14-25 under 35 U.S.C. § 103(a) as unpatentable over Trewhella and Barr cannot be sustained. See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988) (If an independent claim is nonobvious under 35 U.S.C. § 103, then any claim dependent therefrom is nonobvious). With respect to the rejection of claims 13 and 26, the addition of Brown does not remedy the deficiencies of Trewhella and Barr as described supra. Thus, the rejection of claims 13 and 26 over the combined teachings of Trewhella, Barr, and Brown likewise cannot be sustained. Appeal 2010-001240 Application 11/673,504 7 SUMMARY The decision of the Examiner to reject claims 1-26 is reversed. REVERSED mls