Ex Parte Ritchel

Patent Trial and Appeal Board

Feb 9, 2016

13315042 (P.T.A.B. Feb. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/315,042 12/08/2011 Roland D. Ritchel
30954 7590 02/11/2016
LATHROP & GAGE LLP
2345 GRAND Boulevard
SUITE 2400
KANSAS CITY, MO 64108
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.
523136 1007
EXAMINER
LOEPPKE, JANIE MEREDITH
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
02/11/2016 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):
patent@lathropgage.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROLAND D. RITCHEL
Appeal 2014-001435 1,2
Application 13/315,042
Technology Center 3700
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
TARA L. HUTCHINGS, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the rejection of
claims 16-33. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
According to Appellant, the invention relates to sinks. Spec. i-f 2.
Claims 16 and 20 are the only independent claims under appeal. We
reproduce below claim 16 as representative of the appealed claims.
1 Our decision references Appellant's Specification ("Spec.," filed Dec. 8,
2011) and Appeal Brief ("Br.," filed July 17, 2013), as well as the
Examiner's Answer ("Answer," mailed Aug. 16, 2013).
2 "Roland D. Ritchel ... is the real party in interest." Br. 2.
Appeal2014-001435
Application 13/315,042
1 f ... • 1 io. A s1nK, compnsmg:
a basin; and
a motorcycle gas tank altered to receive the basin therein;
wherein the basin is received in the motorcycle gas tank.
Br. 13 (Claims App.).
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
claims 16-19 under 35 U.S.C. § 103(a) as unpatentable over Meldahl
(US 1,891,680, iss. Dec. 20, 1932); and
claims 20-33 under 35 U.S.C. § 103(a) as unpatentable over Weiss
(US 2,767,407, iss. Oct. 23, 1956).
See Answer 2--4.
ANALYSIS
Obviousness rejection of claims 16-19
Independent claim 16, from which claims 1 7-19 depend, recites a sink
comprising a basin received in a motorcycle gas tank. Br. 13 (Claims App.).
We are unpersuaded by Appellant's argument that the Examiner's rejection
of claims 16-19 as unpatentable over Meldahl is erroneous. See id. at 5-9.
Instead, we adopt as our own the findings, conclusions, and reasoning
regarding this rejection set forth by the Examiner in the Examiner's Answer
(see Answer 2, 4--5). Thus, we affirm the Examiner's obviousness rejection
of claims 16-19. We discuss Appellant's argument below only for
emphasis.
Appellant argues that the Examiner's reliance on In re Seid, 161
F.2d 229 (CCPA 1947), is misplaced. See Br. 7-8. We disagree with
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Appeal2014-001435
Application 13/315,042
Appellant. Here, as in Seid, "the shape of the [claim limitation under
discussion] is a mere matter of choice in omamentality and produces no new
mechanical effect or advantage considered to constitute invention." Id.
at 231(CCPA1947)(intemal quotation marks removed). Thus, as in Seid,
we determine that the shape of the claimed basin receiver, which produces
no new mechanical effect or advantages as compared to Meldahl' s basin
receiver but rather is simply different in appearance, cannot patentable
distinguish the claims.
Obviousness rejection of claims 20-33
Independent claim 20, from which claims 21-33 depend, recites a sink
comprising a basin supported by a motorcycle gas tank. Br. 13 (Claims
App.). We are unpersuaded by Appellant's argument that the Examiner's
rejection of claims 20-33 as unpatentable over Weiss is erroneous. See id. at
9-11. Instead, we adopt as our own the findings, conclusions, and reasoning
regarding this rejection set forth by the Examiner in the Examiner's Answer.
See Answer 2---6. Thus, we affirm the Examiner's obviousness rejection of
claims 20-33.
With respect to claim 22, Appellant does not establish, such as by
reference to any evidence or with a persuasive line of reasoning, that
"Weiss['s] ... plate 12 [that] is behind[] and separated from the sink by[] a
wall" (Br. 10) fails to disclose the claimed "a plate at the truncated back end
[of the motorcycle gas tank]" Br. 13 (Claims App.). We agree with the
Examiner that
[ t ]he claim language does not preclude the location of the plate
being behind the wall. The Appellant argues that the plate does
not extend from any part of the sink. Again, this is not
commensurate in scope with the claim language. However, the
plate (12) is still connected at the truncated portion of the
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Appeal2014-001435
Application 13/315,042
sidewalls (note [F]ig. 5 of Weiss) and thus extends from the
truncated back end, regardless of the location of the wall.
Answer 5---6.
With respect to claims 26 and 28, Appellant further argues that the
rejection is erroneous because "even assuming, arguendo, that the elements
31, 32 of Weiss ('407) could be likened to the claimed support arm(s), how
would one of skill in the art incorporate the elements 31, 3 2 into a
motorcycle gas tank?" Appeal Br. 11. We agree with the Examiner,
however, that "[t]his argument is not found persuasive since the general
shape of [the] sink of Weiss mimics that of a motorcycle gas tank," and,
thus, we determine that it is within the level of ordinary skill in the art to
retain the elements 31, 32 within Weiss's sink, despite a change in the sink's
design. Answer 6.
DECISION
We AFFIIUvf the Examiner's rejections under 35 U.S.C. § 103(a) of
claims 16-33.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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