Ex Parte VanderbergDownload PDFPatent Trials and Appeals BoardJun 18, 201915096230 - (D) (P.T.A.B. Jun. 18, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 15/096,230 04/11/2016 36790 7590 06/18/2019 TILLMAN WRIGHT, PLLC POBOX49309 CHARLOTTE, NC 28277-0076 FIRST NAMED INVENTOR Matthew Alexander Vanderberg 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. 1034.055 6218 EXAMINER SHAW, BENJAMIN R ART UNIT PAPER NUMBER 3754 MAIL DATE DELIVERY MODE 06/18/2019 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 MATTHEW ALEXANDER VANDERBERG 1 Appeal2018-007698 Application 15/096,230 Technology Center 3700 Before DANIEL S. SONG, RICHARD H. MARSCHALL, and ARTHUR M. PESLAK, Administrative Patent Judges. SONG, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's Final Office Action ("Final Act.") rejecting claims 1, 2, 7, 9, 10, 23, and 25- 37 in the present application. Br. 3. 2 We have jurisdiction under 35 U.S.C. §§ 6(b) and 134(a). We AFFIRM-IN-PART. 1 The Appellant is the Applicant, M & C INNOVATIONS, LLC, which is identified as the real party in interest. Appeal Brief ("Br.") 3. 2 The Appellant does not appeal the rejection of claims 29, 32, and 37. App. Br. 3. Appeal2018-007698 Application 15/096,230 The claimed invention is directed to a collapsible backpack cooler. Abstract. Representative independent claim 1 reads as follows: 1. A backpack cooler comprising: (a) a back; (b) a base connected proximate a proximal end thereof to a bottom of the back such that a distal end of the base is rotatable upwardly toward a top of the back, the base between the proximal end and the distal end defining a bottom of the backpack cooler; and ( c) a collapsible portion that extends from the distal end of the base to the back, and that at least partially surrounds an interior space of the backpack cooler, the collapsible portion being configured to collapse along its entire extent between the base and the back when the distal end of the base rotates upwardly toward the top of the back; ( d) wherein the backpack cooler is able to transition, by rotation of the distal end of the base upwardly toward the top of the back and collapsing of the collapsible portion, between an expanded configuration having an expanded volume and a collapsed configuration having a collapsed volume that is less than the expanded volume; and ( e) further comprising one or more straps attached to the back and configured for attaching the backpack cooler onto the back of a person when the collapsible portion of the backpack cooler is in the expanded configuration and in the collapsed configuration. Br. 20 (Claims App'x). 2 Appeal2018-007698 Application 15/096,230 REJECTIONS 3 1. The Examiner rejects claims 1, 23, 25-28, and 31 under 35 U.S.C. § I02(b) as anticipated by Blanking (US 6,179,186 Bl, iss. Jan. 30, 2001). Final Act. 5. The Examiner also rejects the remaining various claims under 35 U.S.C. § I03(a) as follows: 2. Claims 2, 33, and 36 as obvious over Blanking in view of Mann (US 5,913,448, iss. June 22, 1999) and Fung (US 2008/0099476 Al, pub. May 1, 2008). Final Act. 10, 15. 3. Claims 7 and 30 as obvious over Blanking in view of Wilfer (US 6,505,762 Bl, iss. Jan. 14, 2003). Final Act. 12. 4. Claims 9 and 10 as obvious over Blanking in view of Goulette (US 2006/0113307 Al, pub. June 1, 2006). Final Act. 13. 5. Claims 29 and 32 as obvious over Blanking in view of McLaughlin (US 6,536,637 Bl, iss. Mar. 25, 2003). Final Act. 14. 6. Claims 34 and 3 5 as obvious over Blanking, Mann, Fung, and Goulette. Final Act. 18. 7. Claim 37 as obvious over Blanking, Mann, Fung, and McLaughlin. Final Act. 19. ANALYSIS Rejections 5 and 7 Preliminarily, as noted, the Appellant does not appeal the rejection of claims 29, 32, and 37. App. Br. 3. These claims stand rejected under 3 In the Answer, the Examiner withdrew a rejection of claims 1-10, 23, and 25-37 under 35 U.S.C. § 112, second paragraph. Ans. 15. 3 Appeal2018-007698 Application 15/096,230 Rejections 5 and 7. Final Act. 14, 19. The Appeal Brief does not appear to contain any arguments directed to these claims. Accordingly, we summarily affirm Rejections 5 and 7. Rejection 1 The Examiner rejects independent claims 1 and 31 as anticipated by Blanking, finding that the backpack of Blanking discloses each and every limitation of these independent claims. Final Act. 5-7. The Examiner finds that Blanking discloses shell 50 corresponding to the claimed base, which "defin[ es] a bottom of the backpack cooler" as required by independent claim 1, and similarly, by independent claim 31. Final Act. 5---6. Referring to annotated Figures 3 and 4 of Blanking reproduced below, the Examiner explains the bottom provid[ es] an underside of the backpack cooler and a supporting surface for the contents thereof; additionally, if removed from the users back and placed with the base on a horizontal surface such as the ground (having no apparent ability to free stand), the bottom of the backpack cooler would be located at approximately reference number 50 as it appears in Figure 4, between the proximal and distal ends of the base. Final Act. 6. The Examiner's annotated Figures 3 and 4 of Blanking is reproduced below. 4 Appeal2018-007698 Application 15/096,230 Final Act. 7. \\ . .... , ............ -~-·- ·-~ .. /!., .... Figures reproduced above show annotated Figures 3 and 4 of Blanking with the Examiner's added lead lines and texts "Distal End of Base," "Proximal End of Base," and "Bottom." The Appellant argues that the rejection "fail[ s] to give due consideration to the word 'base' recited in the claim," and that the rejection "interpret[ s] each claim limitation in a vacuum outside of the context of other claim limitations and the Specification." Br. 15; see also id. at 16. In that regard, the Appellant asserts that a person of ordinary skill in the art "simply would not understand the largely vertical shell means 50 which comprises a rear wall portion and two opposite side-wall portions to be a base as this term is used in the present application, much less a 'base ... defining a bottom of [a] backpack cooler'," even when in the "most expanded configuration illustrated in FIG. 5." Br. 15. We agree with the Examiner that shell means 50 of Blanking defines a bottom because the curved/angled portion thereof supports the contents 5 Appeal2018-007698 Application 15/096,230 placed within the backpack. Moreover, as the Examiner notes, neither the Specification nor the claim "excludes the base from having side-wall and rear wall portions," and in that regard, the base of the disclosed invention also appears to include side walls. Ans. 16. Moreover, as the Examiner further explains, the base as claimed is not limited to an expanded configuration of the device as shown in Appellant's Figure 1, but includes the claimed collapsed configuration shown in Appellant's Figure 4 . . . As a result, the definitions used to interpret the meets and bounds of what is meant by a "base" and a "bottom" must be applicable to Appellant's base in both Figures 1 and 4 as they represent a singular claimed embodiment. Ans. 17. As such, we agree with the Examiner that both the base 12 of Appellant's invention and the base 50 of Blanking extend from the bottom of the back, provide support [for] the contents of the containers (i.e. provide a bottom), provide support for the collapsible portions thereof, and provide expanded and retracted volumes. Ans. 18. We nonetheless reverse this anticipation rejection because we disagree with the Examiner's finding that Blanking discloses that the "distal end of the base is rotatable upwardly toward a top of the back" as recited in limitation (b ), and referenced in limitations ( c) and ( d) of claim 1. Blanking, at best, discloses lateral, pivoting movement of its base laterally toward the back, not an upward rotation. Blanking, Figs. 3-5. To any extent that the Examiner may be finding that this limitation is satisfied if the backpack of Blanking is "placed with the base on a horizontal surface such as the ground" (Final Act. 6), we disagree with this finding. There is no reasonable 6 Appeal2018-007698 Application 15/096,230 basis to find that a person of ordinary skill in the art would have understood the Specification or interpreted the claims as encompassing such an unintended orientation of a backpack considering the disclosure of the Specification, and the general knowledge of how backpacks are used. Whereas there may be instances where a backpack is placed with its shoulder straps down on the ground in order to gain access to the compartment of the backpack and its contents, in such an orientation, the base of Blanking would be rotated downwardly in order to rotate it toward the top of the back instead of upwardly as required by limitation (a) of claim 1, and collapsing of the collapsible portion would occur when the base rotates downwardly instead of upwardly as required by limitation ( c) of claim 1. Therefore, we reverse the Examiner's anticipation rejection of claim 1, and claims 1, 23, and 25-28 that depend therefrom. Independent claim 31 includes substantively similar limitations as claim 1, and thus, the anticipation rejection of claim 31 is also reversed. Rejections 2--4 and 6 Each of these remaining obviousness rejections are premised on the Examiner's findings in Rejection 1 as to the backpack of Blanking. See Final Act. 10-19. The Examiner's application of various secondary references in these rejections does not remedy the above noted deficiency of Blanking. Thus, we reverse these rejections as well. 7 Appeal2018-007698 Application 15/096,230 DECISION 1. Rejections 5 and 7 are summarily AFFIRMED. 2. Rejections 1--4 and 6 are REVERSED. AFFIRMED-IN-PART 8 Copy with citationCopy as parenthetical citation