Ex Parte Renforth et al

Patent Trials and Appeals Board

Apr 29, 2019

14045043 - (D) (P.T.A.B. Apr. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/045,043 10/03/2013
22919 7590 05/01/2019
GLOBAL IP COUNSELORS, LLP
David Tarnoff
1233 20TH STREET, NW
Suite 600
WASHINGTON, DC 20036-2680
FIRST NAMED INVENTOR
Jack W. Renforth
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.
PM-US156455 2425
EXAMINER
TSANG, LISA L
ART UNIT PAPER NUMBER
3642
NOTIFICATION DATE DELIVERY MODE
05/01/2019 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):
mailpto@giplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JACK W. RENFORTH, ANN HANSON,
and DOUG GOLENZ
Appeal2017-009162
Application 14/045,043 1
Technology Center 3600
Before LINDA E. HORNER, STEFAN STAICOVICI, and
EDWARD A. BROWN, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek review under 35 U.S.C. § 134(a) of the Examiner's
decision rejecting claims 1-20. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 The Appeal Brief identifies Doskocil Manufacturing Company, Inc. as the
real party in interest. Appeal Br. 3.
Appeal2017-009162
Application 14/045,043
CLAIMED SUBJECT MATTER
Appellants' disclosure "pertains generally to animal feeders and, more
particularly, to animal feeders that are more easily transported and stored."
Spec. ,r 2.
Claim 1 is representative of the subject matter on appeal, and reads:
1. An animal feeder comprising:
a pair of food containers;
a base comprising a pair of base members upon which the
pair of food containers are situated, the pair of base members
being structured to be movable between a deployed position and
a collapsed position, the pair of food containers being situated
adjacent one another in a plane during the deployed position, the
pair of food containers at least partially overlying one another
during the collapsed position; and
a pair of leg elements upon which the pair of base
members are situated,
a first leg element of the pair of leg elements being
connected to a first base member of the pair of base members at
a first end portion and a second end portion of the first leg
element, the first and second end portions of the first leg element
being located on opposite ends of the first leg element with
respect to each other,
a second leg element of the pair of leg elements being
connected to a second base member of the pair of base members
at a first end portion and a second end portion of the second leg
element, the first and second end portions of the second leg
element being disposed on opposite ends of the second leg
element with respect to one another,
the first and second leg elements being structured to be
movable between an extended position and a retracted position,
the first and second leg elements being structured to support the
first and second base members in the extended position when the
first and second base members are in the deployed position in
which the first and second leg elements extend outwardly beyond
a longitudinal length of the first and second base members, the
first and second leg elements being in the retracted position such
2
Appeal2017-009162
Application 14/045,043
that the first and second leg elements are collapsed completely
within the first and second base members such that the first and
second leg elements do not protrude from the first and second
base members along the plane to enable the food containers to
overlie one another when the first and second base members are
in the collapsed position.
Appeal Br. 12 (Claims App.).
REJECTI0N2
Claims 1-20 stand rejected under 35 U.S.C. § I03(a) as unpatentable
over Shamoon (US 2009/0199775 Al, published Aug. 13, 2009), Wagner
(US 8,490,551 Bl, issued July 23, 2013), and Noble (US 5,660,117, issued
Aug. 26, 1997).
ANALYSIS
Appellants argue claims 1-20 as a group. Appeal Br. 7-11.
Accordingly, we select claim 1 as the representative claim for this grouping,
and claims 2-20 stand or fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
For claim 1, the Examiner finds that Shamoon discloses an animal
feeder comprising a base (main support frame 20) comprising a base
member; a pair of food containers ( membranes 12, 14) situated upon the
base member and "situated adjacent one another in a plane during a
deployed position"; and a first leg element (legs 22, 24) and a second leg
element (legs 26, 28) movable between an extended position (Fig. 1) and a
2 The rejection of claims 1-20 under 35 U.S.C. § 112(a), written description
requirement, was overcome by Appellants' Amendment After Final
Rejection filed on October 11, 2016. See Adv. Act. (mailed Oct. 28, 2016);
Final Act. 5-6.
3
Appeal2017-009162
Application 14/045,043
retracted position (Fig. 6). Final Act. 7-8. The Examiner finds that, in the
retracted position, the first and second leg elements are collapsed completely
within the base member. Id. at 8 ( citing Shamoon, Fig. 6). The Examiner
further explains this finding, stating "it is arguable that Figure 7 depicts the
leg members completely within a horizontal plane of the base member,
given the perspective view of the animal feeder and at least leg member #26
being depicted completely within the horizontal plane." Id.
The Examiner determines that Shamoon fails to disclose several
limitations recited in claim 1. First, the Examiner finds that Shamoon does
not disclose a pair of base members. Id. The Examiner relies on Wagner as
teaching a base having a first base member (first section 20) and a second
base member (second section 40) movable between a deployed position (Fig.
1) and a collapsed position (Fig. 4), where the first and second base
members are adjacent one another in a plane in the deployed position and at
least partially overly one another in the collapsed position. Id. at 9. The
Examiner concludes that it would have been obvious to one of ordinary skill
in the art to modify Shamoon' s base to comprise first and second base
members, as taught by Wagner, "to allow the animal feeder to be folded in
half and stored for even more compact storage." Id. The Examiner explains
that this modification would further result in the pair of food containers of
Shamoon at least partially overlying one another during the collapsed
position, and in the first and second leg elements being connected to a first
base member and a second base member, respectively. Id. at 9-10.
Second, the Examiner finds that Shamoon does not disclose that "the
first and second leg elements extend[] outwardly beyond a longitudinal
length of the base." Final Act. 8. The Examiner determines, however, that it
4
Appeal2017-009162
Application 14/045,043
would have been obvious to a person of ordinary skill in the art to modify
Shamoon's first and second leg elements to extend outwardly beyond a
longitudinal length of the base "to provide more stability or a lower-situated
animal feeder." Id. at 9.
Third, the Examiner finds that Shamoon does not disclose that the first
and second leg elements do not protrude from the base member along the
plane. Final Act. 8. The Examiner finds, however, that Noble teaches a
base comprising first and second base members (top panels 14) movable
between a deployed position (Fig. 1) and a collapsed position (Fig. 5), and
first and second leg elements (legs 24) movable between extended and
retracted positions, where, in the retracted position, the first and second leg
elements are collapsed completely within the first and second base members
such that the first and second leg elements do not protrude from the first and
second base members along the plane (Figs. 2, 3) when the first and second
base members are in the collapsed position. Id. at 10. The Examiner
concludes that it further would have been obvious to one of ordinary skill in
the art to modify the leg elements of Shamoon/Wagner to not protrude from
the first and second base members along the plane, as taught by Noble, to
provide a flatter collapsed position that would improve stackability while in
storage. Id.
In regard to the Examiner's proposed modification of Shamoon' s legs
to extend outwardly beyond the longitudinal length of the main support
frame, Appellants contend that "[t]he Examiner's assertion of stability or the
supposed benefits of a lower-situated animal feeder" lacks any evidentiary
support. Appeal Br. 9. Appellants assert that the Examiner is simply relying
5
Appeal2017-009162
Application 14/045,043
on "common knowledge in the art," and thus, fails to cite any reason in the
record to modify Shamoon's feeder in this manner. Id.
These contentions are not persuasive because the Examiner correctly
asserts, "Shamoon arguably discloses that the legs extend outwardly beyond
the longitudinal length of the support frame. Figures 3 and 5, for example,
appear to show the legs extending just slightly beyond the longitudinal
length of the support frame." Ans. 5. More specifically, we note Shamoon
discloses that Figure 3 is a top view of the pet feeder shown in Figure 1 in
the use configuration. See Shamoon ,r,r 6, 8. We agree with the Examiner
that Figure 3 appears to show that the bottom portions of each of legs 22, 24,
26, and 28 extend beyond the longitudinal length of support frame 20 by
some distance. As claim 1 does not require that "the first and second leg
elements extend outwardly beyond a longitudinal length of the first and
second base members" by any specific distance, we agree with the Examiner
that the structural configuration depicted in Figure 3 appears to meet this
limitation.
Alternatively, the Examiner finds that Figure 5 of Shamoon shows the
leg elements extending to a longitudinal length of the base. Final Act. 9.
Even if Figure 5 does not show, and Shamoon does not describe, that legs
22, 24, 26, and 28 extend beyond the longitudinal length of support frame
20, the Examiner reasons that modifying Shamoon to meet this limitation
"would result in a pet feeder that sits closer to the ground, and that also has a
wider base, thus improving the stability of the pet feeder." Ans. 5-6.
Appellants do not apprise us of any error in this reasoning. And, as an
artisan must be presumed to know something about the art apart from what
the references disclose, a skilled artisan would acknowledge that having
6
Appeal2017-009162
Application 14/045,043
extending legs as described increases stability because it supports a larger
area of support frame 20. See In re Jacoby, 309 F .2d 513, 516 (CCP A
1962). To the extent Appellants may be contending that Shamoon, Wagner,
or Noble must explicitly disclose the longitudinal length limitation, we
disagree. As stated in KSR, "the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ." KSR Int'! Co. v. Teleflex, Inc., 550
U.S. 398, 418 (2007).
Appellants also contend that Wagner's legs 22, 24 are not completely
collapsible within sections 20 and 40 such that legs 22 and 24 do not
protrude from the first and second base members along the plane of sections
20 and 40 to enable these sections to overlie one another. Appeal Br. 10.
Instead, Appellants contend, when legs 22 and 24 are collapsed, they remain
on the outside of sections 20 and 40, and, thus legs 22 and 24 do not collapse
to enable sections 20 and 40 to overlie one another. Id.
The Examiner responds, "[ c ]laim 1 requires that the legs do not
protrude from the first and second base members along the plane of the food
containers, but not that the legs do not protrude from the first and second
base members along the plane of the first and second base members." Ans.
9. The Examiner states, "'a plane' of the claim could be any plane of the
food containers, including a plane along the base of the food containers,
which extends well below the plane of the base member (20)." Id. at 4--5.
The Examiner determines that in the retracted position of the legs shown in
Figure 6 of Shamoon, the first and second leg elements are collapsed
completely within the base member such that they do not protrude from the
7
Appeal2017-009162
Application 14/045,043
base member along the plane, that is, below the bottom-most plane of the
food containers in the deployed position. Id. at 5.
Appellants contest the Examiner's construction of "the plane." Reply
Br. 2. Appellants contend that the claim limitation "along the plane" should
properly be read in conjunction with the limitation "collapsed completely
within." Id. at 3. Appellants contend that, as recited in claim 1, when the
first and second leg elements are collapsed completely within the first and
second base members, the leg elements do not protrude from the base
members along the plane so that the food containers can overlie each other.
Id. Appellants disagree that "the plane can include a plane well below the
plane of the base member," as determined by the Examiner. Id.
Claim 1 recites the first limitation "the pair of food containers being
situated adjacent one another in a plane during the deployed position" and
the second limitation "the first and second leg elements are collapsed
completely within the first and second base members such that the first and
second leg elements do not protrude from the first and second base members
along the plane." Appeal Br. 12 (Claims App. ( emphasis added)). The first
limitation does not specify whether the "plane" is a plane of the base
members or a plane of the food containers. However, the second limitation
requires that, in the retracted position, the first and second leg elements "are
collapsed completely within the first and second base members" and "do not
protrude from the first and second base members along the plane."
Consistent with both the first and second limitations, we construe "the
plane" as a plane of the first and second base members.
Appellants indicate that the recited "plane" corresponds to plane 18
disclosed in the Specification. See Appeal Br. 5---6 ( citing Spec. ,r 18).
8
Appeal2017-009162
Application 14/045,043
Paragraph 18 describes, "[r]eferring to Figure 3, the food containers 4, 6 are
situated adjacent one another (shown in phantom lines) and are disposed in a
first plane 18 when the base members 10, 12 are in the deployed position."
As shown in Figure 3, first plane 18 is disposed within base members 10, 12.
Figure 2 of Appellants' application shows leg elements 14, 16 in a retracted
position in dashed lines. See Spec. ,r 20, Fig. 2. As shown in Figure 2, leg
elements 14, 16 are completely within, and do not protrude from, base
members 10, 12. Accordingly, our construction of "the plane" as a plane of
the first and second base members also appears to be consistent with the
Specification.
However, even applying our construction of "the plane," and
furthermore, assuming Wagner's legs 22, 24 are not completely collapsible
within sections 20 and 40 such that legs 22 and 24 do not protrude from the
first and second base members along the plane of sections 20 and 40 (Appeal
Br. 10), we are not persuaded that the Examiner erred in determining that the
applied combination teaches or suggests the "collapsed completely within"
limitation. This is because the Examiner's rejection relies on Noble, not
Wagner, to teach this limitation, and Appellants do not apprise us of error in
this reliance on Noble. Final Act. 10 (citing Noble, Figs. 2, 3); Ans. 8.
In the Reply Brief, Appellants address the Examiner's combination of
Shamoon and Wagner by providing two annotated figures that purportedly
represent the resulting combination. Reply Br. 5. According to Appellants,
"[a]t best, based on the Examiner's combination of ... Shamoon and
Wagner, the modified pet feeder below would be the pet feeder resulting
from a combination of their teachings." Id. We note Appellants' annotated
figures are based on Figures 3 and 4 of Wagner. Id. As depicted, the
9
Appeal2017-009162
Application 14/045,043
modified pet feeder includes Wagner's first section 20, second section 40,
and legs 124, 144, and Shamoon's food containers. Id. However, the
depicted modified pet feeder does not accurately represent the Examiner's
proposed combination of Shamoon and Wagner. As discussed above, the
Examiner proposes to modify Shamoon's base to comprise first and second
base members, as taught by Wagner. See Final Act. 9. It is our
understanding that the Examiner's rejection does not further modify
Shamoon to bodily incorporate Wagner's first section 20, second section 40,
and legs 124, 144, as Appellants appear to understand. As Appellants'
argument does not accurately address the Examiner's stated rejection,
Appellants have not shown persuasively that the Examiner's proposed
combination of the teachings of Shamoon and Wagner "still fail[ s] to teach,
disclose or render obvious first and second leg members that are collapsed
completely within the first and second base members to enable the food
containers to overlie one another." Reply Br. 6.
Regarding the Examiner's reliance on Noble, Appellants contend that
"[t]he Office Action indicates one skilled in the art would have further
modified the legs 22, 24, 26, and 28 of Shamoon (which supposedly have
already been modified in view of the legs 22 and 42 of Wagner) to not
protrude from the plane to provide for a 'more flat collapsed position that
would improve its stackability while in storage."' Appeal Br. 10 ( emphasis
added). However, it is our understanding that the Examiner does not
propose to modify Shamoon's legs in view of Wagner's legs. Further, the
Examiner's reasoning that the combination would provide a more flat
structure is consistent with structural features sought by Shamoon' s pet
feeder. See, e.g., Shamoon ,r,r 3 ("folding legs that ... collapse to allow for
10
Appeal2017-009162
Application 14/045,043
a thin-profile storage configuration"), 4 ("[t]he pivoting legs ... may be
manually rotated upward so that they become parallel with the support
frame. These features allow a set of fully-sized pet bowls to fit in an
unusually small storage space.") Accordingly, we disagree with Appellants'
contention that the Examiner has not articulated adequate reasoning with
some rational underpinning to support the proposed combination of
teachings. See Appeal Br. 10-11.
For the foregoing reasons, we sustain the rejection of claim 1 as
unpatentable over Shamoon, Wagner, and Noble. Claims 2-20 fall with
claim 1.
DECISION
We AFFIRM the rejection of claims 1-20.
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