Ex Parte Roatis et al

Patent Trial and Appeal Board

Sep 17, 2012

10908445 (P.T.A.B. Sep. 17, 2012)

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.
10/908,445 05/12/2005 Calin Vasile Roatis TRI-041223 5445
22876 7590 09/17/2012
FACTOR INTELLECTUAL PROPERTY LAW GROUP, LTD.
1327 W. WASHINGTON BLVD.
SUITE 5G/H
CHICAGO, IL 60607
EXAMINER
BEAUCHAINE, MARK J
ART UNIT PAPER NUMBER
3653
MAIL DATE DELIVERY MODE
09/17/2012 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 CALIN VASILE ROATIS,
RICHARD PAETH, CATALIN CAPTARENCU,
and GARY L. MYERS
____________

Appeal 2010-006841
Application 10/908,445
Technology Center 3600
____________

Before STEFAN STAICOVICI, JAMES P. CALVE, and
SCOTT A. DANIELS, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of claims
1-56. App. Br. 4.1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 Refers to Appeal Brief filed June 30, 2009.
Appeal 2010-006841
Application 10/908,445

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CLAIMED SUBJECT MATTER
Claim 1 is representative of the claimed subject matter on appeal:
1. A vending machine having a cabinet for containing
product to be dispensed, and a door for closing the cabinet, the
door having a vertical column having two sides and a front face,
the front face having openings permitting customer interface
devices to be accessed by a customer, the vending machine
further comprising:
a continuous integral panel including a metal or metal
alloy, the panel secured to the vertical column and extending
across at least a majority of a width of the front face of the
vertical column and extending along at least a majority of a
horizontal width of a side of the vertical column.

REJECTIONS
Claims 23, 24, and 54-56 are rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
Claims 1-3, 6, 8, 10-12, 15-17, 20, 22, 34, and 40 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Diedrich (US 4,973,109; iss.
Nov. 27, 1990).
Claims 4, 18, and 19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Diedrich and Steeley (US 3,680,937; iss. Aug. 1, 1972).
Claim 5 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Diedrich, Steeley, and Grossi (US 5,096,088; iss. Mar. 17, 1992).
Claims 7, 9, 13, 14, 23, 24, 37, and 38 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Diedrich and Zahradnik (US 4,406,358;
iss. Sep. 27, 1983).
Claim 21 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Diedrich and Hoefling (US 3,867,801; iss. Feb. 25, 1975).

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Application 10/908,445

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Claims 25-29, 35, and 36, and 41-45 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Diedrich and Nichols (US 5,232,077;
iss. Aug. 3, 1993).
Claims 30 and 31 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Diedrich, Nichols, and Grossi.
Claims 32 and 33 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Diedrich, Nichols, and Douglass (US 6,962,285 B2; iss.
Nov. 8, 2005).
Claim 39 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Diedrich and Grossi.
Claims 46, 48-50, 52, and 53 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Diedrich and Rockola (US 4,923,090; iss. May 8, 1990).
Claims 47 and 51 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Diedrich, Rockola, and Nichols.
Claims 54 and 55 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Weger (US 5,076,078; iss. Dec. 31, 1991) and Diedrich.
Claim 56 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Weger, Diedrich, and Lai (US 6,742,366 B1; iss. Jun. 1, 2004).
ANALYSIS
Claims 23, 24, and 54-56 as indefinite
The Examiner found that the term “further secured” in the limitation
“the door can be further secured to the housing” in claim 23 lacks antecedent
basis because it implies a primary means of securing the door to the housing
which is not claimed. Ans. 4, 14-15. However, claim 23 depends indirectly
from independent claim 15, which recites “the panel secured to the door.” A
skilled artisan would understand that the door is secured to the panel, as
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Application 10/908,445

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recited in claim 15, and the door is further secured to the housing, as recited
in claim 23. Therefore, we find that the term “further secured” in claim 23 is
not indefinite for lack of an antecedent basis.
We agree with the Examiner that the term “a locking device” in claim
24 is indefinite because claim 23, from which claim 24 depends, recites “a
first member of a locking device.” Therefore, it is unclear whether “a
locking device” in claim 24 refers to the locking device of claim 23 or
another locking device. Ans. 4, 15; App. Br. 15.
The Examiner found that the term “a second rigid strap” (emphasis
added) in claim 54 is indefinite because claim 54 also recites “a first rigid
strip” (emphasis added) and thus it is unclear how “a second rigid strap”
relates to “a first rigid strip.” Ans. 15. We agree with Appellants that a
skilled artisan would understand what is claimed when claim 54 is read in
light of Appellants’ Specification, which discloses that the vending machine
may include a lock device having a metal member or strap 1562 with an
opening 1564 at a distal end and a second metal strap 1550 with an opening
1560 at a distal end where the openings 1564 and 1560 align with each
other. Spec., para. [0058]; figs. 15, 16.
As such, we sustain the rejection of claim 24 as indefinite, but we do
not sustain the rejection of claims 23 and 54-56 as indefinite.
Claims 1-3, 6, 8, 10-12, 15-17, 20, 22, 34, and 40 as unpatentable over
Diedrich
Claims 1-3, 6, 8, 10-12, 15-17, 20, 22, and 34
Independent claims 1, 10, and 15 call for “a continuous integral panel
including a metal or metal alloy” while independent claim 34 calls for “a
generally L-shaped panel including a metal or metal alloy.” The Examiner
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found that Diedrich discloses a vending machine with a continuous integral
panel 30 that is secured to a vertical column but not a metal or metal alloy
panel 30. Ans. 5-6. The Examiner found that the use of a metal or metal
alloy in structural vending machine components is an obvious material that
is well-known because of a desire for rigid structural elements in a vending
machine. Ans. 6. The Examiner concluded that it would have been obvious
to incorporate metal or metal alloy elements into the panel of Dietrich to
provide rigidity to the panel. Id.
The Examiner has not adequately explained why it would have been
obvious to make Diedrich’s protective cover 30 with a metal or metal alloy
when Diedrich discloses that the cover 30 is transparent plastic so that a user
can view indicia on the front panel 28 and products in the machine, and it is
soft and pliable so that a human finger can depress a plunger 36 through the
cover to activate a selection switch 34. App. Br. 15 (citing col. 2, ll. 56-61;
col. 3, ll. 3-16; fig. 3A). Replacing the transparent, plastic cover 30 with a
metal or metal alloy panel would prevent consumers from viewing indicia
and products and from depressing selection switches. App. Br. 15-16. The
Examiner’s finding that more apertures 32 could be added to a metal cover
to permit consumers to view indicia and products and operate an interface
(Ans. 15) does not explain why it would have been obvious to do so when
Diedrich specifically expresses a preference for minimizing the number of
cutouts. Col. 3, ll. 7-9; App. Br. 16. As a result, the Examiner’s reason for
incorporating metal into Dietrich’s cover to provide rigidity is not supported
by a rational underpinning because the pliable, transparent, protective cover
is not meant to be a rigid structural element of the vending machine. We
cannot sustain the rejection of claims 1-3, 6, 8, 10-12, 15-17, 20, 22, and 34.
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Independent Claim 40
Claim 40 recites a method of modifying a vending machine with a
center column by attaching a panel over at least a portion of the center
column. The Examiner concluded that reconfiguring the vertical column
24/25 of Diedrich at the center of the vending machine is an obvious design
choice. Ans. 15. We agree with Appellants that Diedrich does not disclose
a protective cover for a vending machine with a center column and that the
Examiner’s reason for modifying Diedrich is not supported by a rational
underpinning. See App. Br. 23; In re Ochiai, 71 F.3d 1565, 1571 (Fed. Cir.
1995) (obviousness inquiry requires a fact-intensive comparison of the
claimed process with the prior art rather than the mechanical application of
per se rules.); In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections
on obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.”). As such, we
cannot sustain the rejection of claim 40.
Dependent claims 4, 5, 7, 9, 13, 14, 18, 19, 21, 23, and 24
The Examiner relied on Steeley to disclose a vending machine with a
cabinet 2 and a panel 18 that overlaps part of a side of the cabinet as recited
in claims 4 and 18 (Ans. 7), Diedrich to disclose a channel with a panel
inserted therein as recited in claim 19 (Ans. 17), Grossi to disclose a panel
that extends into a channel as recited in claim 5 (Ans. 7, 18), Zahradnik to
disclose a locking device with first and second locking members as recited
in claims 7, 9, 13, 14, 23, and 24 (Ans. 8, 19), and Hoefling to disclose
structural components that are welded together as recited in claim 21 (Ans.
8). These findings do not remedy the deficiencies of Diedrich as to claims 1,
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10, and 15 from which claims 4, 5, 7, 9, 13, 14, 18, 19, 21, 23, and 24
depend. See App. Br. 24-34. As such, we cannot sustain the rejection of
claims 4, 5, 7, 9, 13, 14, 18, 19, 21, 23, and 24.
Claims 25-29 and 43-45 as unpatentable over Diedrich and Nichols
Independent claim 25 recites a vending machine with a paper currency
validator, vertical column, and shield mounted to the vending machine and
spaced sufficiently from the vertical column such that impact on the shield is
not transferred to the paper currency validator or vertical column by direct
contact with the shield. The Examiner found that Diedrich discloses all of
the claimed elements including a panel 30 that is spaced from the front door
28 (vertical column) of the vending machine via a spacing element (stamped
metal sheet 39) except a paper currency validator, which Nichols discloses.
Ans. 9-10, 20. See also, Diedrich, fig. 4.
The Examiner has not established that Diedrich discloses a shield that
is spaced sufficiently from a vertical column so that impact on the shield is
not transferred to the vertical column or paper currency validator. App. Br.
35. Diedrich discloses that trim and other protruding structures are removed
from the front panel 28 of the vending machine before placing the protective
cover 30 on the front panel 28 so that the protective cover 30 can lay as flat
as possible against the front panel 28 and consumers can depress the cover to
activate product selection buttons. Col. 2, ll. 53-56; col. 3, ll. 9-16; fig. 3A.
This disclosure indicates that the protective cover 30 is not spaced from the
vertical column 28. App. Br. 35-36. The Examiner has not explained how a
stamped metal sheet 39 that is sandwiched between the outer protective
cover 30 and vertical column 28 provides spacing to prevent an impact on
the cover 30 from being transferred to the vertical column. Col. 3, ll. 17-25.
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Independent claim 43 recites a method of modifying a vending
machine with a center column by attaching a panel over at least a portion of
the center column. As discussed supra, the Examiner’s reason to modify
Diedrich to have a center column is not supported by rational underpinning.
As such, we cannot sustain the rejection of claims 25-29 and 43-45.
Dependent claims 30-33, 35-39, 41, and 42
The Examiner relied on Grossi to disclose a panel that extends into a
channel as recited in claims 30 and 31 (Ans. 10, 20), Douglass to disclose an
adjustable opening recited in claims 32 and 33 (Ans. 10), Nichols to disclose
a paper currency validator as recited in claims 35, 36, 41, and 42 (Ans. 11),
Zahradnik to disclose a vending machine lock as recited in claims 37 and 38
(Ans. 11), and Grossi to disclose a strip as recited in claim 39 (Ans. 12, 22).
These findings do not remedy the deficiencies of Diedrich and Nichols as to
claims 25 and 43 from which claims 30-33, 35-39, 41, and 42 depend. We
cannot sustain the rejection of claims 30-33, 35-39, 41, and 42.
Claims 46, 48-50, 52, and 53 as unpatentable over Diedrich and Rockola
The Examiner relied on Diedrich to disclose a panel attachable to a
center column of a vending machine as recited in independent claims 46 and
50 and Rockola to disclose a panel stud. Ans. 12-13. As discussed supra,
the Examiner’s reason to modify Diedrich to provide a center column and
panel is not supported by rational underpinning. Rockola does not cure this
deficiency. We cannot sustain the rejection of claims 46, 48-50, 52, and 53.
Dependent claims 47 and 51
The Examiner relied on Nichols to disclose a paper currency validator
of claims 47 and 51 (Ans. 13) and not to cure the deficiencies of Diedrich or
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Rockola as to claims 46 and 50 from which claims 47 and 51 depend (App.
Br. 43-44). As such, we cannot sustain the rejection of claims 47 and 51.
Claims 54 and 55 as unpatentable over Weger and Diedrich
The Examiner found that Weger discloses first and second rigid strips
40, 130 with coaxially aligned distal end openings as recited in independent
claim 54.2 Ans. 13. The Examiner concluded that it would have been
obvious to incorporate the vending machine of Diedrich into the apparatus of
Weger to secure articles contained in the apparatus. Ans. 14. Appellants
argue that the “Examiner has failed to disclose how the Weger [device]
would be modified for use in a vending machine” and therefore “there is no
suggestion to combine Weger and Diedrich.” App. Br. 44. We agree. The
Examiner has not adequately explained why a skilled artisan would have
combined a vending machine into a tool box to secure articles in the vending
machine when Diedrich’s vending machine is designed to dispense articles.
Col. 2, ll. 25-30. We cannot sustain the rejection of claims 54 and 55.
Dependent claim 56
The Examiner relied on Lai to disclose a tethered lock as recited in
claim 56 (Ans. 14) and not to remedy the deficiencies of Diedrich or Weger
as to claim 54 from which claim 56 depends. See App. Br. 45. As such, we
cannot sustain the rejection of claim 56.
DECISION
We AFFIRM the rejection of claim 24 and REVERSE the rejection of
claims 23 and 54-56 as indefinite.

2 It appears that the term “apparatus” has been omitted from the preamble of
claim 54, which recites “[a]n comprising:”. Claim 55, which depends from
claim 54, recites “[t]he apparatus of claim 54 . . . .”
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We REVERSE the prior art rejections of claims 1-56.
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-IN-PART

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