Ex Parte Whitcomb

Patent Trial and Appeal BoardAug 30, 2017

13561975 (P.T.A.B. Aug. 30, 2017)

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. 13/561,975 07/30/2012 Myron Whitcomb WTCM001AE 7196 71700 7590 09/01/2017 John Anderton 1725 SE 72nd Ave. PORTLAND, OR 97215 EXAMINER CHAVCHAVADZE, COLLEEN MARGARET ART UNIT PAPER NUMBER 3634 NOTIFICATION DATE DELIVERY MODE 09/01/2017 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): PATENTFORGE@GMAIL.COM anderton @ patentforge. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MYRON WHITCOMB Appeal 2016-001785 Application 13/561,975 Technology Center 3600 Before CARLA M. KRIVAK, DAVID J. CUTITTAII, and PHILLIP A. BENNETT, Administrative Patent Judges. CUTITTA, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1—7, which are all the claims under consideration on appeal.1 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 Claims 8—18 are withdrawn from consideration. See Final Act. 1. Appeal 2016-001785 Application 13/561,975 STATEMENT OF THE CASE According to Appellant, the claimed invention relates to a ladder including a grip. See Spec. 17.2 Claim 1 is independent and is reproduced below with disputed limitations in italics: 1. A ladder lift system comprising: a ladder including a rail with a web and flanges; and a grip with a top surface, a gripping surface and a longitudinal axis through the center of the grip, the top surface and gripping surface extending along the longitudinal axis and the gripping surface abuts opposite sides of the top surface; a slot opening to the top surface, and extending toward the longitudinal axis within the gripping surface; where the slot is configured to accept and contact opposite faces of a flange of the ladder rail along the slot to frictionally retain the grip to the flange. Appeal Br. 7. REFERENCE AND REJECTION Claims 1—7 stand rejected under 35 U.S.C. § 102(b) as anticipated by Thompson et al. (US 6,021,865; Feb. 8, 2000) (“Thompson”). Final Act. 2— 4. Our review in this appeal is limited only to the above rejection and issues raised by Appellant. Arguments not made are waived. See MPEP § 1205.02; 37 C.F.R. §§ 41.37(c)(l)(iv) and 41.39(a)(1). 2 This Decision refers to: (1) Appellant’s Specification, filed July 30, 2012 (“Spec.”); (2) the Final Office Action (“Final Act.”), mailed July 7, 2014; (3) the Appeal Brief (“Appeal Br.”), filed August 27, 2014; and (4) the Examiner’s Answer (“Ans.”), mailed September 9, 2014. 2 Appeal 2016-001785 Application 13/561,975 ISSUES 1. Does the Examiner err in finding Thompson discloses “a grip,” as recited in claim 1 ? 2. Does the Examiner err in finding Thompson discloses “a slot” as recited in claim 1 ? CONTENTIONS AND ANALYSIS We disagree with Appellant’s contentions with respect to independent claim 1, and we adopt as our own (1) the Examiner’s findings and reasoning set forth in the Office Action from which this appeal is taken (Final Act. 2— 4) and (2) the Examiner’s reasoning set forth in the Examiner’s Answer (Ans. 3—6). We highlight the following points for emphasis. As an initial matter, Appellant argues the Examiner’s objection to the Specification. See Final Act. 2. Objections, however, are not reviewable by appeal to the Board. An objection is a petitionable matter and not an appealable matter and is not within the jurisdiction of the Board. See In re Mindick, 371 F.2d 892, 894 (CCPA 1967). Appellant argues that the Examiner improperly made the rejection final and requests the “Office Action be made non-fmal.” Appeal Br. 4. That decision is not properly before us. See MPEP 2272 (“In the event that the patent owner is of the opinion that (A) a final rejection is improper or premature, or (B) that an amendment submitted after final rejection complies with 37 CFR 1.116, but the examiner improperly refused entry of such an amendment, the patent owner may file a petition under 37 CFR 1.181.”). 3 Appeal 2016-001785 Application 13/561,975 Issue 1 The Examiner finds Thompson’s load-dispersing device 55 discloses “a grip,” as recited in claim 1. Final Act. 2 (citing Thompson Figs. 1 and 2, item 55). Appellant argues the device of Thompson is directed to a load dispersing device and is not a grip. Appeal Br. 5. We find Appellant’s argument unpersuasive. We agree with the Examiner’s finding that Thompson’s load-dispersing device 55 discloses “a grip,” as recited in claim 1. Appellant, in essence, argues the Examiner’s interpretation of the term “grip” as recited in claim 1 is unreasonably broad. Appellant, however, fails to establish the Examiner’s interpretation is not the broadest reasonable interpretation consistent with Appellant’s Specification. See In re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under a broadest reasonable interpretation, the words of the claim must be given their plain meaning unless the plain meaning is inconsistent with the specification. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). The plain meaning of a term means the ordinary and customary meaning given to the term by those of ordinary skill in the art at the time of the invention. In re Suitco Surface, Inc., 603 F.3d 1255, 1259-60 (Fed. Cir. 2010). The presumption that a term is given its ordinary and customary meaning may be rebutted by Appellant clearly setting forth a different definition of the term in the specification. In re Morris, 111 F.3d 1048, 1054 (Fed. Cir. 1997). Here, Appellant fails to demonstrate that “grip” has been explicitly defined in Appellant’s Specification in a way that is inconsistent with the Examiner’s interpretation. The Examiner, in turn, finds the “ordinary [and customary] meaning of the word ‘grip’ (noun) includes ‘a part or device for 4 Appeal 2016-001785 Application 13/561,975 gripping.’” Ans. 4 (citing the Merriam-Webster dictionary online, http://www.merriamwebster.com/dictionary/grip (last visited September 3, 2014)). We additionally note the verb “grip” is further defined as to “hold firmly.” See https://www.merriam-webster.com/dictionary/grip (last visited August 15, 2017)). “Absent an express definition in their specification, [even if] appellants can point to definitions or usages that conform to their interpretation [this] does not make the PTO’s definition unreasonable when the PTO can point to other sources that support its interpretation.” Morris, 111 F.3d at 1056. Accordingly, we determine the Examiner’s interpretation to be reasonable and consistent with Appellant’s Specification. In light of this interpretation, we agree with the Examiner’s finding that the claimed “grip” is anticipated by Thompson’s load-dispersing device 55. Ans. 4—7. Specifically, the Examiner finds “the device of Thompson is certainly one form of such a grip as it is a device for gripping the flanges on the side rail of a ladder.” Ans. 4. Also, we note Thompson discloses load-dispersing device 55 is designed to grip the surface of the structure receiving the ladder, such as a gutter or wall, to minimize slippage of the ladder. Thompson 1:9— 24. Appellant further argues “Thompson also does not have a gripping surface for a hand as recited in claim 1.” Appeal Br. 6. We find this argument unpersuasive. We agree with the Examiner’s determination that the argument is not commensurate with the scope of the claim because “currently there is not any claim language directed to a gripping surface for a hand. “ Ans. 6. “The invention disclosed . . . may be outstanding in its field, but the name of the game is the claim.” In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998). 5 Appeal 2016-001785 Application 13/561,975 Accordingly, we agree with the Examiner’s finding that Thompson discloses “a grip,” as recited in claim 1. Issue 2 The Examiner finds Thompson’s slit 119 discloses “a slot,” as recited in claim 1. Final Act. 3 (citing Thompson Figs. 1 and 2, and item 119). Appellant argues, Thompson teaches away from gripping only the flange of the ladder as not adequately maintaining the device in position on the ladder. The slot extending from the surface is not configured to grip the flange as recited in claim 1. The slot extending from the surface grips the web of the ladder. Appeal Br. 5—6. We find Appellant’s argument unpersuasive. We agree with the Examiner that Appellant’s argument is inconsistent with the scope of claim 1 because “there’s no claim language that limits the grip to gripping only a flange and not both the flange and the web of the ladder side rail.” Ans. 5. Furthermore, we agree with the Examiner’s finding that Thompson discloses load-dispersing device’s slot 119 gripping flange 59. Final Act. 3; Ans. 5—6. As an additional example, Thompson discloses “the load dispersing device 55 encloses the flange 59 and part of the web 60.” Thompson 8:39-42. Thompson further discloses “[t]he locking area 10 comprises the portion of the body 63 which is configured to open and wrap around the flange 59.” Thompson 8:63—65. Because we agree with the Examiner’s finding that Thompson discloses the claimed slot (Final Act. 3), we find Appellant’s teaching away argument unpersuasive (Appeal Br. 5—6). “If the rejection under § 102 is proper,. . . appellant cannot overcome it by showing such unexpected results 6 Appeal 2016-001785 Application 13/561,975 or teaching away in the art, which are relevant only to an obviousness rejection.” In re Malagari, 499 F.2d 1297, 1302 (CCPA 1974). Appellant also argues “Thompson does not have a slot that extends from the top surface towards the longitudinal axis.” Appeal Br. 6. We find Appellant’s argument unpersuasive because we agree with the Examiner’s finding that Thompson’s slot 119 extends from the top surface towards a longitudinal axis of load dispersing device 55. Final Act. 3 (citing Thompson Fig. 2; Ans. 6). We, therefore, sustain the 35 U.S.C. § 102(b) rejection of claim 1, as well as dependent claims 2—7, which are not argued separately. See generally Appeal Br. 2—6; See also 37 C.F.R. § 41.37(c)(l)(iv). DECISION We affirm the Examiner’s decision rejecting claims 1—7. 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 7