Ex Parte MayerDownload PDFPatent Trial and Appeal BoardMar 28, 201813410494 (P.T.A.B. Mar. 28, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/410,494 03/02/2012 William T. Mayer 23403 7590 03/30/2018 SHERRILL LAW OFFICES 4756 BANNING A VE SUITE 212 WHITE BEAR LAKE, MN 55110-3205 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 ATTORNEY DOCKET NO. CONFIRMATION NO. PELCN038USPT01 1039 EXAMINER GRANO, ERNESTO ARTURIO ART UNIT PAPER NUMBER 3788 NOTIFICATION DATE DELIVERY MODE 03/30/2018 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): michaels@sherrilllaw.com izag@sherrilllaw.com docketing@sherrilllaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WILLIAM T. MA YER Appeal2017-000849 Application 13/410,494 Technology Center 3700 Before MICHAEL L. HOELTER, JILL D. HILL, and PAUL J. KORNICZKY, Administrative Patent Judges. KORNICZKY, Administrative Patent Judge. DECISION ON APPEAL Appeal2017-000849 Application 13/410,494 STATEMENT OF THE CASE Appellant William T. Mayer 1 appeals under 35 U.S.C. § 134(a) from the Examiner's decision, as set forth in the Final Office Action dated June 5, 2015 ("Final Act."), rejecting claims 1-14. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER The claims are directed to a passive thermally regulated knockdown shipping container. Claims 1 and 8 are the independent claims on appeal. Claim 1, reproduced below with disputed limitations italicized for emphasis, is illustrative of the claimed subject matter: 1. A sidewall component suitable for use in construction of a passive thermally regulated knockdown shipping container, comprising at least two hingedly interconnected rigid structural panels configured and arranged for pivoting of the structural panels relative to one another as between a planar stowage position and an orthogonal assembly position, each panel carrying a detachable separate and independent panel of fragile thermal insulation. REFERENCES In rejecting the claims on appeal, the Examiner relied upon the following prior art: Van Iperen David Merritt-Munson Mitchell us 4,923,077 us 5,129,519 us 5,361,603 us 6,223,551 May 8, 1990 July 14, 1992 Nov. 8, 1994 May 1, 2001 Appellant identifies Pelican BioThermal LLC as the real party in interest. Appeal Brief, dated November 10, 2015 ("Appeal Br."), at 2. 2 Appeal2017-000849 Application 13/410,494 Sawaki Romero Williams us 8,348,087 US 2002/0134962 Al US 2009/0039088 Al REJECTIONS The Examiner made the following rejections: Jan. 8,2013 Sept. 26, 2002 Feb. 12,2009 1. Claims 1--4 and 7 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Mitchell and David. 2. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Mitchell and Romero. 3. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Mitchell and Merritt-Munson. 4. Claims 8-12 and 14 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Williams and Van Iperen. 5. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Williams, Van Iperen, and Sawaki. Appellant seeks our review of these rejections. DISCUSSION The Rejection of Claims 1-4 and 7 as Unpatentable Over Mitchell and David Appellant argues claims 1--4 and 7 as a group. Appeal Br. 8-9. We select claim 1 as the representative claim, and claims 2--4 and 7 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that Mitchell discloses all of the limitations of claim 1 except for two hingedly interconnected rigid structural panels, which the Examiner finds is taught by David. Final Act. 3--4. The Examiner 3 Appeal2017-000849 Application 13/410,494 specifically finds that Mitchell discloses two detachable panels of thermal insulation. Appellant asserts that the Examiner's rejection is erroneous for several reasons. First, Appellant contends that the Examiner's construction of the term "thermal insulation" is erroneous. The Examiner determines that a "thermal insulated panel" is "a panel that reduces heat loss in any amount from an item being stored." Final Act. 9. The Examiner, relying on the plain meaning found in a dictionary, states that the well-known definitions of "thermal insulation" are "1 ): the process of insulating against transmission of heat; 2): material of relatively low heat conductivity used to shield a volume against loss or entrance of heat by radiation, convection or conduction." Ans. 7 (citing the Merriam-Webster Dictionary). The Examiner also explains that "there are three modes of heat transfer: radiation is transmission of electromagnetic rays space, convection is transport of heat within a gas or liquid, and conduction is direct heat flow through matter." Id. at 7. Appellant argues that "[t]hermal insulation is defined as and recognized by persons of routine skill in the art to be a material of low thermal conductivity that provide a high resistance to heat flow." Appeal Br. 6. Appellant also quotes the Specification, which states that the "panels of thermal insulation 30 may be constructed of any material having good thermal insulating qualities, (i.e., having a high thermal resistance "R"), such as Styrofoam, vacuum insulated panels, or the like." Id. (quoting Spec. ii 30). The Examiner's and Appellant's proposed definitions and the dictionary definitions are consistent with the usage of "thermal insulation" in 4 Appeal2017-000849 Application 13/410,494 the Specification. However, because the plain meaning in the dictionary is more complete than Examiner's and Appellant's definitions, we believe that, in light of the Specification, the broadest reasonable interpretation of "thermal insulation" is a "material of relatively low heat conductivity used to shield a volume against loss or entrance of heat by radiation, convection or conduction." Second, Appellant contends that the Examiner erroneously finds that the panels of phase change materials (PCM) disclosed in Mitchell and other prior art are not thermal insulation panels. Appeal Br. 7. According to Appellant, "[ t ]hermal insulation panels and PCM panels have completely different functionalities and are used by those of skill in the art for completely different purposes." Id. Appellant argues that "[t]hermal insulation panels are panels of low thermal conductivity that provide a high resistance to heat flow, used to slow heating or cooling of a particular environment," whereas "PCM panels [] are latent heat storage units, used to store and release large amounts of energy." Id. In response to Appellant's argument, the Examiner correctly finds that It is well known that PCM materials are used in a number of ways, such as thermal energy storage whereby heat or coolness can be stored from one process or period in time, and used at a later date or different location and very useful in providing thermal barriers or insulation, for example in temperature controlled transport. Ans. 8 (citing http://www.pcmproducts.net/). We agree with the Examiner that PCM panels have multiple uses, and commonly are used as thermal insulation barriers in a temperature-controlled transport. See, e.g., http://www.pcmproducts.net/; Mitchell 1 :27-55; Romero, Abstract; Merrit- 5 Appeal2017-000849 Application 13/410,494 Munson 1 :60-65; Williams, Abstract. Thus, Appellant's argument is not persuasive. Third, Appellant argues that "the structural panels of the Mitchell envelope are flexible, not rigid." Appeal Br. 9. However, Appellant is attacking the teachings of Mitchell individually. Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, the Examiner finds that David, not Mitchell, discloses a rigid structural panel. Final Act. 4; Ans. 9. Appellant does not address the rejection as articulated by the Examiner, and, thus, does not identify error by the Examiner. Fourth, Appellant argues that Mitchell's thermal insulation (i.e., bubble wrap) is a "single common and continuous layer of thermal insulation," not a "separate and independent panel of thermal insulation" as recited in claim 1. Appeal Br. 9. Appellant also argues that Mitchell's thermal insulation (i.e., bubble wrap) is not "detachable" from the structural panel. Id. However, the Examiner finds that the thermal insulation panels are the PCM panels, not the bubble wrap. Final Act. 4; Ans. 10. We are not aware of any legal support permitting Appellant to rewrite the present rejection. Appellant does not address the rejection as articulated by the Examiner, and, thus, does not identify error by the Examiner. For the reasons above, the rejection of claim is sustained. Claims 2--4 and 7 fall with claim 1. 6 Appeal2017-000849 Application 13/410,494 The Rejection of Claim 5 as Unpatentable Over Mitchell and Romero Appellant argues that the Examiner's rejection of claim 5 is erroneous for several reasons. First, Appellant repeats the arguments presented with respect to claim 1 that Mitchell's PCM panel: ( 1) is not a thermal insulating panel, and (2) is not a "detachable" and "rigid" structural panel. Appeal Br. 10. For the reasons discussed above, Appellant's arguments are not persuasive. Second, Appellant argues that a person of routine skill in the art would not be motivated to substitute Romero's "rigid" vacuum insulated panels for Mitchell's "flexible" thermal insulating layer (i.e., bubble wrap) because the proposed modification would be unsatisfactory for its intended purpose. Appeal Br. 10. As the Examiner correctly explains, the rejection finds that Mitchell's PCM panel, not the bubble wrap, is the thermal insulating panel. Ans. 10. We also note that Mitchell's "longitudinal divisions 4" and "lateral divisions 5 and 6" permit a rigid panel to flexibly accommodate materials inside the package. See, e.g., Mitchell 4:45-56. We are not aware of any legal support permitting Appellant to rewrite the present rejection. Appellant does not address the rejection as articulated by the Examiner, and, thus, does not identify error by the Examiner. For the reasons above, the rejection of claim 5 is sustained. The Rejection of Claim 6 as Unpatentable Over Mitchell and Merritt-Munson Appellant argues that the Examiner's rejection of claim 6 is erroneous for several reasons. First, repeating the arguments presented with respect to claim 1, Appellant argues that Merritt-Munson's PCM panel 11 is not a 7 Appeal2017-000849 Application 13/410,494 thermal insulating panel. Appeal Br. 11. For the reasons discussed above, Appellant's argument that a PCM panel cannot be a thermal insulating panel is not persuasive. Second, Appellant argues that Merritt-Munson does not remedy the deficiencies in Mitchell presented with respect to claim 1. Appeal Br. 11- 12. Because the rejection of claim 1 over Mitchell is sustained, Appellant's argument is not persuasive. For the reasons above, the rejection of claim 6 is sustained. The Rejection of Claims 8-12 and 14 as Unpatentable Over Williams and Van Iperen Appellant argues claims 8-12 and 14 as a group. Appeal Br. 8-9. We select claim 8 as the representative claim, and claims 9-12 and 14 stand or fall with claim 8. 37 C.F.R. § 41.37(c)(l)(iv). Appellant argues that the Examiner's rejection of claim 8 is erroneous for several reasons. First, repeating the arguments presented with respect to claim 1, Appellant argues that Williams' PCM panel 18 is not a thermal insulating panel. Appeal Br. 13. For the reasons discussed above with respect to claim 1, Appellant's argument that a PCM panel cannot be a thermal insulating panel is not persuasive. Second, Appellant argues that "the structural panels of Williams (i.e., the sidewalls of the cardboard box) are not configured and arranged for pivoting relative to one another as between a planar stowage position and an orthogonal assembly position." Appeal Br. 13. Appellant also argues that the sidewalls of the cardboard box do not carry thermal insulation panels. Id. Finally, Appellant argues that 8 Appeal2017-000849 Application 13/410,494 The combination of Williams and Van Iperen et al. proposed by the Examiner creates an inner layer of hingedly interconnected PCM panels, surrounded by an outer layer of thermal insulation panels, both enclosed within a structural shell (i.e. a cardboard box). This resultant combination would not have hingedly interconnected structural panels, nor would the structural panels detachably carry a panel of thermal insulation. Appeal Br. 13. As the Examiner correctly explains, the rejection finds that Williams' panels 16, not the sidewalls of the cardboard box, are the structural panels recited in claim 8. Ans. 11. According to the rejection, Williams' closed cardboard box holds the structural panels 16 and the thermal insulation panels 18. Id. The rejection proposes modifying two side-by-side structural panels 16 of Williams with Van Iperen's living hinge 13 to create two attached structural panels 16. Id. We are not aware of any legal support permitting Appellant to rewrite the present rejection. Appellant does not address the rejection as articulated by the Examiner, and, thus, does not identify error by the Examiner. For the reasons above, the rejection of claim 8 is sustained. Claims 9-- 12 and 14 fall with claim 8 The Rejection of Claim 13 as Unpatentable Over Williams, Van Iperen, and Sawaki Appellant argues that the Examiner's rejection of claim 13, which depends from claim 8, is erroneous for several reasons. First, Appellant argues that the combination of Williams, Van lperen, and Sawaki do not disclose, teach or suggest all of the claim limitations in claim 8. Appeal Br. 9 Appeal2017-000849 Application 13/410,494 14. Because the rejection of claim 8 is sustained, Appellant's argument is not persuasive. Second, Appellant argues that "[u]se of hook and loop tape to attach thermal insulation panels to the inside of the Williams cardboard box would result in an undesired permanent attach[ ment] of the thermal insulation panels to the box" because "hook and loop tape cannot, absent application of extreme force, be separated by sliding one layer past the other (i.e., applying a shear force)." Appeal Br. 14--15. According to Appellant, the thermal insulation panels of Williams et al. could only be detached from the cardboard box by pulling the panels upward and out through the open top of the box. Id. at 15. Appellant's argument is not persuasive. We agree with the Examiner the hook and loop fasteners are well-known detachable and releasable fasteners, and using hook and loop fasteners does not create a permanent attachment. Ans. 12. We also agree with the Examiner that, contrary to Appellant's argument, Williams does not disclose, much less require, that the panels must be slid into and out of the box, such that releasable hook and loop fasteners cannot be used to releasibly attach the panels to each other. Id. (citing Williams Fig. 1 ). Thus, the rejection of claim 13 is sustained. 10 Appeal2017-000849 Application 13/410,494 DECISION For the above reasons, the Examiner's rejections of claims 1-14 are AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 11 Copy with citationCopy as parenthetical citation