Ex Parte Vanderberg

Patent Trials and Appeals Board

Jun 18, 2019

15096230 - (D) (P.T.A.B. Jun. 18, 2019)

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.
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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.
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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
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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
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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.
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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
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