Ex Parte QIAN et al

Patent Trial and Appeal Board

Mar 27, 2018

13779026 (P.T.A.B. Mar. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
131779,026 02/27/2013
56352 7590
GLOBAL IP SERVICES
7285 Eagle Court
Winton, CA 95388
03/27/2018
FIRST NAMED INVENTOR
DA VY ZIDE QIAN
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.
DAQ-109 7507
EXAMINER
CRANE, LAUREN ASHLEY
ART UNIT PAPER NUMBER
3754
MAILDATE DELIVERY MODE
03/27/2018 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 DA VY ZIDE QIAN, BENYU QIAN, and LEQUN LU
Appeal2017-003601
Application 13/779,026
Technology Center 3700
Before EDWARD A. BROWN, ARTHUR M. PESLAK, and
SEAN P. O'HANLON, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Davy Zide Qian et al. ("Appellants") appeal under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 1-11. We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
Appeal2017-003601
Application 13/779,026
THE CLAIMED SUBJECT MATTER
Claim 1, the only independent claim, is reproduced below.
1. A portable water and energy saving bathtub comprising:
a body, it is defined by a first and a second side walls, a first
and a second end walls as well as a bottom to become an
opened container without a water discharge hole, a step on the
bottom is located beside the second end wall;
a flashboard gate, which is the first end wall, includes a groove
on inner faces of the container, a flashboard capable of moving
is inserted into the groove, a water seal ring is set between the
groove and the flashboard, when the flashboard gate is closed
the container holds water without, when the flashboard is
opened water is discharged;
a reducing-volume-chunk for raising water level in the bathtub,
liking a cube, a width of the cube is little smaller than the
same of the container, a height of the cube is smaller than a
distance between legs of a bath person sitting on the step and a
top of the container; the reducing-volume-chunk has two
hanging arms extending to outside of the cube, each hanging
arm has a groove, the grooves sit on the first and second side
walls of the container, therefore, the reducing-volume-chunk is
hanged in the container;
a locking-releasing-device for the reducing-volume-chunk,
which can lock the reducing-volume-chunk together with the
container or release the lock to separate the reducing-volume-
chunk from the container.
REJECTIONS
1) Claims 1-11 1 are rejected under 35 U.S.C. § 112, first paragraph,
as failing to comply with the enablement requirement.
2) Claims 1-11 are rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite.
1 The heading for this rejection lists claims 1-14. Final Act. 2. However,
claims 12-14 are cancelled. Appeal Br. 24 (Claims App.).
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Application 13/779,026
3) Claims 1-9 and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Johansson (US 4,112,524, issued Sept. 12,
1978), Bailey (US 906,992, issued Dec. 15, 1908), and Gourlay
(US 77 ,480, issued May 5, 1868).
4) Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Johansson, Bailey, Gourlay, and Lofquist (US 6,381,769 Bl,
issued May 7, 2002).
DISCUSSION
Rejection 1
The Examiner finds that the limitation in claim 1 of a "container
without a water discharge hole" is not described in the originally filed
Specification and determines that the subject matter of the claims is "not
described in the specification in such a way as to enable one skilled in the art
... to make and/or use the invention." Final Act. 2.
"The test of enablement is whether one reasonably skilled in the art
could make or use the invention from the disclosure in the patent coupled
with information known in the art without undue experimentation." United
States vs. Telectronics, Inc., 857 F.2d 778, 785 (Fed. Cir. 1988). When
rejecting a claim under 35 U.S.C. § 112 for lack of enablement, the
Examiner bears an initial burden of setting forth a reasonable explanation as
to why the scope of protection provided by the claim is not adequately
enabled by the description of the invention provided in the specification of
the application. See In re Wright, 999 F.2d 1557, 1561---62 (Fed. Cir. 1993).
We appreciate the Examiner's finding that the limitation "container without
a water discharge hole" is not described verbatim in the Specification.
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Application 13/779,026
Appellants' drawings, however, do not appear to show a water discharge
hole in the body of the device, which supports Appellants' position. Reply
Br. 6. In any event, we determine that the Examiner has not stated an
adequate explanation as to why one of ordinary skill in the art would have
been unable to make or use a portable water and energy saving bathtub that
does not include "a water discharge hole" without undue experimentation.
We, thus, do not sustain the rejection of claims 1-11under35 U.S.C. § 112,
first paragraph.
Rejection 2
The Examiner rejects claims 1-11 due to the use of the word "little"
in claims 1, 5, and 6 because, according to the Examiner, the term is relative
and renders the claims indefinite. Final Act. 3--4. Appellants do not dispute,
but accept, the "Examiner's ... rejection and will delete" the term "little"
from the claims. Appeal Br. 10. Therefore, we summarily sustain the
rejection of claim 1 and claims 2-11, which depend directly or indirectly
from claim 1, as being indefinite under 35 U.S.C. § 112, second paragraph.
Although we sustain the rejection of claims 1-11 as being indefinite, the
indefiniteness does not impact our consideration of the rejections under 35
U.S.C. § 103.
Rejection 3
The Examiner finds that Johansson discloses many of the limitations
of claim 1 including a "flashboard gate (10), which is the first end wall,
includes a groove (9) on inner faces of the container" and "[a] water seal
ring is set or formed between the groove and the flashboard" but, "fails to
show a reducing-volume-chunk." Final Act. 4--5. The Examiner finds that
Bailey "teaches a reducing volume chuck[ sic] (10)" as recited in claim 1. Id.
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Application 13/779,026
at 5. The Examiner additionally finds that Bailey discloses "[a] locking-
releasing device (4) for the reducing-volume-chunk which can lock the
reducing-volume-chunk together with the container or release, when the
chunk is vertical." Id. at 5-6. The Examiner finds that Gourlay "teaches a
portable bath house ... includ[ing] a[n] opened container (C) without a
water discharge hole." Id. at 6. The Examiner concludes that it would have
been obvious to one of ordinary skill in the art "to have included a bath
house without a drain in order to prevent leaks." Id. The Examiner further
concludes that "[t]he combination yields the groove located in the sidewalls,
is wider than the hanging arm of the locking-releasing-device. The hanging
arm is easily put in the groove to fix a correct position of the locking-
releasing-device." Id.
Appellants contend that Johansson does not disclose "a water seal ring
is set between the groove and the flashboard" as recited in claim 1. Appeal
Br. 13. Appellants also contend that Bailey does not disclose the recited
"locking-releasing-device," because Bailey's "plate 9 and basin 10 can be
freely turned to the position shown by the dotted lines in Fig. 1 without
releasing lock." Id. at 14 (citing Bailey 11. 26-48). Appellants argue "[i]f
the basin 10 meets water, the basin will be floated up." Id. at 15.
The Examiner responds that "Johansson teaches a water seal ring is
set or formed between the groove and the flashboard." Ans. 8. The
Examiner maintains that "Bailey teaches a locking-releasing-device (4) that
secured the basin to the bathtub. The locking device locks or secured the
basin to the bathtub." Id. (citing Bailey 1:25-50). For the following
reasons, we do not sustain the rejection of claim 1.
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Application 13/779,026
Johansson discloses "shower-bath tub 1 ... and the front wall 6 has
guideways 9 enabling a door 10 to be withdrawn and removed." Johansson,
1:50-57, Fig. 1. The Examiner does not direct us to any disclosure in
Johansson of a water seal ring between guideways 9 and door 10. Final Act.
5; Ans. 8. Consequently, the Examiner's finding that Johansson discloses "a
water seal ring [is] set between the groove and the flashboard," as required
by claim 1, is not supported by a preponderance of the evidence.
Bailey discloses "wash basins of the type adapted to be movably
mounted adjacent an ordinary bath-tub ... and capable of being folded back
against the wall when not in use." Bailey p. 1, 11. 8-14, Fig. 1. Bailey
discloses that element 4, which the Examiner finds corresponds to the
recited "locking-releasing-device," engages "the under edge of' the back rim
1 of the tub 2. Id. at p. 1, 11. 33-34. As shown in Figures 1and3 of Bailey,
basin 10, which is secured to plate 9, rotates about point 5 to an upright
position when not in use. Id. at Figs. 1, 3. Element 4 also moves from a
first position shown in Figure 1 to a second position shown in Figure 3 when
the basin is rotated. Id.
We initially note that the Examiner does not provide a reason (i.e.,
rationale) why one of ordinary skill in the art would modify Johansson's
device with Bailey's teaching of a reducing volume chunk. See Final Act. 5.
Further, the Examiner has not adequately explained how Bailey's element 4
"can lock the reducing-volume-chunk together with the container or release
the lock to separate the reducing volume chunk from the container" as
required by claim 1. Bailey's element 4 is disclosed as moving between two
different positions when basin 10 is rotated from the first position to the
upright position and, thus, is part of a mechanism that allows basin 10 to
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Application 13/779,026
rotate. It appears that locking would need to occur at the side of tub 2
opposite to element 4 near element 12 to provide locking, as asserted by the
Examiner. See Bailey, Fig. 1. Therefore, the Examiner's finding that
Bailey's element 4 corresponds to the recited "locking-releasing device" is
not supported by a preponderance of the evidence.
As the rejection is based on erroneous factual findings, the conclusion
of obviousness cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA
1967) (holding that "[t]he legal conclusion of obviousness must be
supported by facts. Where the legal conclusion is not supported by facts it
cannot stand."). We, thus, do not sustain the rejection of claim 1. Claims 2-
9 and 11 depend directly or indirectly from claim 1. Appeal Br. 22-24
(Claims App.). We, thus, do not sustain the rejection of claims 2-9 and 11
for the same reasons.
Rejection 2
Claim 10 depends from claim 1. Appeal Br. 24 (Claims App.). The
Examiner rejects claim 10 based on the combination of Johansson, Bailey,
and Gourlay with additional disclosure from Lofquist. Final Act. 6-7. The
Examiner does not rely on Lofquist to cure the deficiencies in the
combination of Johansson, Bailey, and Gourlay stated above. Id. We, thus,
do not sustain the rejection of claim 10 for the same reasons stated above for
claim 1.
DECISION
The Examiner's decision rejecting claims 1-11 under 35 U.S.C.
§ 112, first paragraph is reversed.
The Examiner's decision rejecting claims 1-11 under 35 U.S.C.
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Application 13/779,026
§ 112, second paragraph is affirmed.
The Examiner's decision rejecting claims 1-11 under 35 U.S.C.
§ 103(a) is reversed.
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)(l )(iv).
AFFIRMED
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