Ex Parte NowlingDownload PDFPatent Trial and Appeal BoardJun 19, 201714317618 (P.T.A.B. Jun. 19, 2017) Copy Citation 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. 14/317,618 06/27/2014 SHAWN NOWLING KASAA-14-01 4482 31083 7590 06/20/2017 THOMTE LAW OFFICE, L.L.C. 2120 S. 72ND STREET, SUITE 1111 OMAHA, NE 68124 EXAMINER MATTEI, BRIAN DAVID ART UNIT PAPER NUMBER 3633 MAIL DATE DELIVERY MODE 06/20/2017 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 SHAWN NOWLING ____________ Appeal 2016-004948 Application 14/317,618 Technology Center 3600 ____________ Before ELENI MANTIS MERCADER, KRISTEN L. DROESCH, and STEVEN M. AMUNDSON, Administrative Patent Judges. AMUNDSON, Administrative Patent Judge. DECISION ON APPEAL Appellant seeks our review under 35 U.S.C. § 134(a) from a final rejection of claims 4–6, i.e., all pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE The Invention According to the Specification, the invention “relates to a grain storage structure and more particularly to a grain storage structure of the Appeal 2016-004948 Application 14/317,618 2 hoop style.” Spec. 1:8–9.1 The Specification explains that a grain storage structure includes a circular upstanding support wall with an upstanding support tower being centrally positioned within the support wall, a plurality of curved and spaced-apart first roof trusses have their lower ends secured to the upper end of the support wall and have their upper ends secured to the upper end of the support tower, and a plurality of curved and spaced-apart second roof trusses have their lower ends secured to the upper end of the support wall between adjacent first roof trusses with the upper ends of the second roof trusses connected to the first roof trusses below the upper ends thereof. Abstract. Exemplary Claim Independent claim 4 exemplifies the subject matter of the claims under consideration and reads as follows: 4. A grain storage structure, comprising: a first semi-circular support wall having a first end, a second end, a lower end and an upper end; a first straight support wall having a first end, a second end, a lower end and an upper end; said first end of said first straight support wall being connected to said first end of said first semi-circular support wall; a second semi-circular support wall having a first end, a second end, a lower end and an upper end; 1 This decision uses the following abbreviations: “Spec.” for the Specification, filed June 27, 2014; “Final Act.” for the Final Office Action, mailed July 16, 2015; “Adv. Act.” for the Advisory Action, mailed September 9, 2015; “App. Br.” for the Appeal Brief, filed November 11, 2015; “Ans.” for the Examiner’s Answer, mailed March 2, 2016; and “Reply Br.” for the Reply Brief, filed April 5, 2016. Appeal 2016-004948 Application 14/317,618 3 said second end of said first straight support wall being secured to said second end of said second semi-circular support wall; a second straight support wall has a first end, a second end, a lower end and an upper end; said first end of said second straight support wall being secured to said second end of said first semi-circular support wall; said second end of said second straight support wall being secured to said first end of said second semi-circular support wall; a first vertically disposed support tower, having upper and lower ends, centrally positioned between said first and second ends of said first semi-circular support wall; a second vertically disposed support tower, having upper and lower ends, centrally positioned between said first and second ends of said second semi-circular support wall; an elongated, horizontally disposed beam means secured to and extending between said upper ends of said first and second support towers; a plurality of spaced-apart curved first roof trusses having lower end [sic] upper ends; said lower ends of said first roof trusses being secured to said upper end of said first semi-circular support wall; said upper ends of said first roof trusses being secured to said upper end of said first support tower; said first roof trusses extending upwardly and inwardly in a constant unchanged curved arc manner for their entire lengths from said first semi-circular support wall; each of said first roof trusses having spaced-apart outer and inner sides with the spacing therebetween being constant for a majority of the lengths thereof; a plurality of spaced-apart curved second roof trusses having lower and upper ends; Appeal 2016-004948 Application 14/317,618 4 said lower ends of said second roof trusses being secured to said upper end of said first semi-circular support wall between adjacent first roof trusses; said upper ends of said second roof trusses being operatively interconnected to said first roof trusses below said upper ends of said first roof trusses; said second roof trusses extending upwardly and inwardly in a constant unchanged curved arc manner for their entire lengths from said second semi-circular support wall; each of said second roof trusses having spaced-apart outer and inner sides with the spacing therebetween being constant for a majority of the lengths thereof; a plurality of spaced-apart curved third roof trusses having lower and upper ends; said lower ends of said third roof trusses being secured to said upper end of said first straight support wall; said upper ends of said third roof trusses being secured to said beam means; said third roof trusses extending upwardly and inwardly in a constant unchanged curved arc manner for their entire lengths from said first straight support wall; each of said third roof trusses having spaced-apart outer and inner sides with the spacing therebetween being constant for a majority of the lengths thereof; a plurality of spaced-apart fourth curved roof trusses having lower and upper ends; said lower ends of said fourth roof trusses being secured to said upper end of said second semi-circular support wall; said upper ends of said fourth roof trusses being secured to said upper end of said second support tower; said fourth roof trusses extending upwardly and inwardly in a constant unchanged curved arc manner for their entire lengths from said second semi-circular support wall; Appeal 2016-004948 Application 14/317,618 5 each of said fourth roof trusses having spaced-apart outer and inner sides with the spacing therebetween being constant for a majority of the lengths thereof; a plurality of spaced-apart and curved fifth roof trusses having lower and upper ends; said lower ends of said fifth roof trusses being secured to said upper end of said second semi-circular support wall between adjacent fourth roof trusses; said upper ends of said fifth roof trusses being operatively interconnected to said fourth roof trusses below said upper ends of said fourth roof trusses; said fifth roof trusses extending upwardly and inwardly in a constant unchanged curved arc manner for their entire lengths from said second semi-circular support wall; each of said fifth roof trusses having spaced-apart outer and inner sides with the spacing therebetween being constant for a majority of the lengths thereof; a plurality of spaced-apart curved sixth roof trusses having lower and upper ends; said lower ends of said sixth roof trusses being secured to said upper end of said second straight support wall; said upper ends of said sixth roof trusses being secured to said beam means; said sixth roof trusses extending upwardly and inwardly in a constant unchanged curved arc manner from their entire lengths from said second straight support wall; each of said sixth roof trusses having spaced-apart outer and inner sides with the spacing therebetween being constant for a majority of the lengths thereof. App. Br. 15–19 (Claims App.). Appeal 2016-004948 Application 14/317,618 6 The Prior Art Supporting the Rejections on Appeal As evidence of unpatentability, the Examiner relies on the following prior art: The Rejections on Appeal Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over DeGarie and Liu. Final Act. 2–5; App. Br. 8. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as unpatentable over DeGarie and Saito. Final Act. 5–7; App. Br. 8. ANALYSIS We have reviewed the rejections of claims 4–6 in light of Appellant’s arguments that the Examiner erred. For the reasons explained below, we disagree with Appellant’s assertions regarding error by the Examiner. We adopt the Examiner’s findings in the Final Office Action (Final Act. 2–8), Advisory Action (Adv. Act. 2), and Answer (Ans. 2–5). We add the following to address and emphasize specific findings and arguments. The Rejection of Claim 4 Under 35 U.S.C. § 103(a) “FIRST VERTICALLY DISPOSED SUPPORT TOWER” AND “SECOND VERTICALLY DISPOSED SUPPORT TOWER” Appellant argues that the Examiner erred in rejecting independent claim 4 because “the Examiner’s combination of references does not disclose first and second support towers having the upper ends of the roof trusses secured thereto.” App. Br. 10. Appellant also argues that the Examiner wrongly relied on element 18 in Liu as a tower because Liu Saito et al. (“Saito”) US 5,146,719 Sept. 15, 1992 Liu US 5,867,948 Feb. 9, 1999 DeGarie US 6,324,792 B1 Dec. 4, 2001 Appeal 2016-004948 Application 14/317,618 7 describes element 18 as “a semi-circular multi-head bullet connector” instead of a tower. App. Br. 10; Reply Br. 3. Appellant further argues that “Liu does not teach or suggest any towers.” Reply Br. 3. Appellant’s arguments do not persuade us of Examiner error. The Examiner finds that (1) DeGarie discloses a circular structure with a centrally located tower and (2) Liu teaches “an alternate shape consisting of two semi-circular walls spaced apart with parallel spaced apart walls.” Ans. 2; see Final Act. 2–4; see also DeGarie Figs. 1–2; Liu Figs 1–2. The Examiner reasons that modifying DeGarie’s circular structure according to Liu produces two semi-circular structures “with each semi-circle being spaced apart by parallel walls as taught by Liu.” Ans. 2–3; see Final Act. 4– 5. The Examiner also reasons that DeGarie’s centrally located tower will be “split as well in the center of each semi-circle” and “duplicated on the other end of the straight segment and connected by [the] beam means” taught by Liu. Ans. 3; Final Act. 5; see In re Harza, 274 F.2d 669, 671 (CCPA 1960) (explaining that “the mere duplication of parts has no patentable significance unless a new and unexpected result is produced”). The Examiner further finds that the two towers “would be at the locations of elements 18 of Liu.” Ans. 3. Liu Figure 2 discloses elements 18 centrally positioned between diametrically opposite ends of semi-circular walls. See Liu Fig. 2. Accordingly, the Examiner relies on the combination of disclosures taken as a whole to teach or suggest a “first vertically disposed support tower” and a “second vertically disposed support tower” as recited in claim 4. Appellant’s arguments do not address the combination of disclosures taken as a whole and, therefore, do not establish Examiner error. See App. Br. 9–10; Reply Br. 2–3; see also Adv. Act. 2; Ans. 2. Appeal 2016-004948 Application 14/317,618 8 “FIRST ROOF TRUSSES” AND “THIRD ROOF TRUSSES” Appellant argues that the Examiner erred in rejecting claim 4 because the references do not disclose “first roof trusses” and “third roof trusses” as recited in claim 4. App. Br. 10–11; Reply Br. 1–3. More specifically, Appellant asserts that the references do not disclose trusses “extend[ing] upwardly and inwardly in a constant unchanged curved arc manner for their entire lengths” or trusses “hav[ing] spaced-apart outer and inner sides with the spacing therebetween being constant for a majority of the lengths thereof.” App. Br. 10–11; Reply Br. 1–3. Appellant also asserts that DeGarie’s trusses initially extend “upwardly and inwardly” but after an approximate midpoint extend “downwardly and inwardly” to the centrally located tower. App. Br. 10–11; Reply Br. 1–2. Appellant concedes that DeGarie Figure 20 depicts a truss 152 having an outer chord (outer side) 153 and an inner chord (inner side) 154 that “are curved and parallel for a portion of their lengths.” Reply Br. 2. But Appellant contends that those chords (sides) comprise part of the “upwardly and inwardly” extending “outer trusses” rather than the “downwardly and inwardly” extending “inner trusses.” Id. Appellant’s arguments do not persuade us of Examiner error. The Examiner finds that Liu teaches placing the center tower “at a higher height” than the support wall. Adv. Act. 2 (citing Liu Figs. 3, 19); see Final Act. 5. Liu Figures 1 and 3 show an arched framework with its topmost portion substantially higher than its bottommost portion. Liu 7:50–54, 8:20–23, Figs. 1, 3. To support the topmost portion of Liu’s framework, the height of DeGarie’s tower would exceed the height of a support wall. The Examiner reasons that in DeGarie’s structure as modified by Liu the “constant Appeal 2016-004948 Application 14/317,618 9 unchanged arc manner” of DeGarie’s trusses “will extend upwardly and inwardly for their entire lengths” to achieve a suitable “height and shape” and “attach to the taller tower structure” taught by Liu. Final Act. 5 (citing Liu Figs. 3, 19); Ans. 3 (citing Liu Fig. 2). The Examiner further finds that DeGarie Figure 20 “disclose[s] the outer and inner sides [of truss 152] having spacing therebetween being constant.” Ans. 3. Figure 20 shows only an “outer truss” 152. But Figures 1 and 2 show “inner trusses” that mirror “outer trusses.” DeGarie Figs. 1–2. The Examiner finds that trusses according to Figure 20 “extend to the center support in the same manner as every other embodiment even though only the outer portion is seen in the drawings.” Adv. Act. 2. Consequently, DeGarie teaches or suggests an “inner truss” that mirrors the “outer truss” 152 and includes “outer and inner sides having spacing therebetween being constant.” See Ans. 3; see also Final Act. 4 (citing DeGarie 7:33–43, Fig. 21). Accordingly, the Examiner relies on the combination of disclosures taken as a whole to teach or suggest trusses “extending upwardly and inwardly in a constant unchanged curved arc manner for their entire lengths” and trusses “having spaced-apart outer and inner sides with the spacing therebetween being constant for a majority of the lengths thereof.” See Final Act. 4–5; Adv. Act. 2; Ans. 3. Appellant’s arguments do not address the combination of disclosures taken as a whole and, therefore, do not establish Examiner error. See App. Br. 10–11; Reply Br. 1–3; see also Adv. Act. 2; Ans. 2. Appellant contends that Liu “does not teach or suggest that the upper and lower portions of the trusses are spaced therebetween in a constant manner for a majority of their lengths.” Reply Br. 3. As noted above, Appeal 2016-004948 Application 14/317,618 10 however, the Examiner relies on DeGarie, not Liu, to teach or suggest that feature. See Final Act. 2–4; Ans. 3. SUMMARY FOR CLAIM 4 For the reasons discussed above, Appellant’s arguments have not persuaded us that the Examiner erred in rejecting claim 4 for obviousness based on DeGarie and Liu. Hence, we sustain the rejection of claim 4. The Rejection of Claims 5 and 6 Under 35 U.S.C. § 103(a) “SAID TOWER STRUCTURE HAVING A HEIGHT GREATER THAN THE HEIGHT OF SAID CIRCULAR SUPPORT WALL” Appellant argues that the Examiner erred in rejecting independent claims 5 and 6 because DeGarie and Saito do not teach or suggest “said tower structure having a height greater than the height of said circular support wall” as recited in each claim. App. Br. 11–12, 13; see Reply Br. 2. In particular, Appellant contends that (1) “DeGarie does not have a height greater than the height of the circular support wall thereof” and (2) “Saito does not teach a tower structure at all but merely shows a center post 7 of a crane 10 which will be removed when the roof thereof has been constructed.” App. Br. 12, 13; see Reply Br. 2. Appellant’s contentions do not persuade us of Examiner error. The Examiner finds that DeGarie teaches “the central column” or tower and Saito teaches a “taller tower structure.” Adv. Act. 2 (citing Saito Fig. 8); Ans. 4; see Final Act. 7 (citing Saito Fig. 8). Saito Figure 8 depicts a fully elevated dome with its topmost portion substantially higher than its bottommost portion. Saito 2:39–41, Fig. 8. To support the topmost portion of Saito’s dome, the height of DeGarie’s tower would exceed the height of a support wall. Hence, the combination of disclosures taken as a whole Appeal 2016-004948 Application 14/317,618 11 teaches or suggests “said tower structure having a height greater than the height of said circular support wall.” “FIRST ROOF TRUSSES” AND “THIRD ROOF TRUSSES” Appellant argues that the Examiner erred in rejecting claims 5 and 6 because DeGarie and Saito do not disclose “first roof trusses” and “third roof trusses” as recited in the claims. App. Br. 11–14; Reply Br. 1–3. More specifically, Appellant asserts that the references do not disclose trusses “having spaced-apart outer and inner sides” with the sides “extending upwardly and inwardly in a constant unchanged curved arc manner for their entire lengths” and the sides “being spaced-apart with the spacing therebetween being constant for a majority of the lengths thereof.” App. Br. 11–14. Appellant further asserts that (1) Saito’s trusses “do not extend upwardly and inwardly in a constant unchanged curved arc manner” and (2) the upper and lower sides of Saito’s trusses “are not spaced apart in a constant manner for a majority of their lengths.” Reply Br. 2–3. Appellant’s assertions do not persuade us of Examiner error because, as the Examiner notes, those assertions address the references individually. Ans. 4; see Final Act. 7–8. Where a rejection rests on a combination of references, an appellant cannot establish nonobviousness by attacking the references individually. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The Examiner finds that “the combination of references teaches the claim limitations” because: (1) DeGarie teaches trusses with a “constant and unchanged” curve; (2) Saito teaches a “taller tower structure”; and (3) the “constant unchanged arc manner of the trusses of DeGarie will extend upwardly and inwardly for their entire lengths in order to attach to the taller tower structure” taught by Saito. Final Act. 7–8 (citing DeGarie Appeal 2016-004948 Application 14/317,618 12 Figs. 2–3; Saito Fig. 8); Adv. Act. 2 (citing DeGarie 7:33–43, Fig. 2; Saito Fig. 8); Ans. 4 (citing DeGarie Figs. 2–3; Saito Fig. 8). Moreover, as discussed above for claim 4, the Examiner finds that DeGarie teaches trusses having space-apart sides “with the spacing therebetween being constant for a majority of the lengths thereof.” Ans. 5; see Final Act. 4, 6–7 (citing DeGarie 7:33–43, Fig. 21); Adv. Act. 2; Ans. 3; see also DeGarie 4:19–23, 5:1–11, 7:33–43, Figs. 1–3, 20–21. In addition, Appellant’s assertions are not commensurate in scope with claim 6 because claim 6 does not recite “third roof trusses.” App. Br. 21–22 (Claims App.). SUMMARY FOR CLAIMS 5 AND 6 For the reasons discussed above, Appellant’s arguments have not persuaded us that the Examiner erred in rejecting claims 5 and 6 for obviousness based on DeGarie and Saito. Hence, we sustain the rejection of claims 5 and 6. DECISION We affirm the Examiner’s decision to reject claims 4–6. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation