Ex Parte Williams

Patent Trial and Appeal BoardDec 6, 2012

12041710 (P.T.A.B. Dec. 6, 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. 12/041,710 03/04/2008 Forrest D. Williams 02550004PA 1975 30743 7590 12/06/2012 WHITHAM, CURTIS & CHRISTOFFERSON & COOK, P.C. 11491 SUNSET HILLS ROAD SUITE 340 RESTON, VA 20190 EXAMINER WILLIAMS, MONICA L ART UNIT PAPER NUMBER 3644 MAIL DATE DELIVERY MODE 12/06/2012 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 FORREST D. WILLIAMS ____________________ Appeal 2010-010676 Application 12/041,710 Technology Center 3600 ____________________ Before: WILLIAM V. SAINDON, LYNNE H. BROWNE, and BARRY L. GROSSMAN, Administrative Patent Judges. GROSSMAN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-010676 Application 12/041,710 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1- 4 and 6-21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The Claimed Subject Matter Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A kit for training plants for plant growth, comprising: a plurality of shaft segments which are separable from each other and connectable end to end to form a shaft of variable lengths; a plurality of protrusions or grooves formed in or on an outer periphery of each of said shaft segments; a base which is connectable at one end to at least one of said plurality of shaft segments, said base including a pointed end; and a plurality of arms, each of said plurality of arms being connectable to one or more of said plurality of protrusions or grooves formed in or on said outer periphery of each of said shaft segments, wherein said plurality of protrusions or grooves formed in or on said outer periphery of each of said shaft segments include protrusions or grooves formed at more than one angle relative to a top and a bottom of each shaft segment. Appeal 2010-010676 Application 12/041,710 3 References The Examiner relies upon the following prior art references: Gould US 2,435,539 Feb. 3, 1948 Delbuguet US 3,345,774 Oct. 10, 1967 Mann US D436,505 Jan. 23, 2001 Lucchesi US 5,502,910 Apr. 2, 1996 Thomas US 6,892,493 May 17, 2005 Ness US 4,649,666 Mar. 17, 1987 Lazar US 6,122,859 Sept. 26, 2000 Pierce US 6,973,751 Dec. 13, 2005 Rejections Appellant seeks review of the following rejections made in the Office Action, a Final Rejection, mailed May 12, 2009. App. Br. 20. 1. Claims 1, 2, 4, 6, 10, 11, 16, and 18 rejected under 35 U.S.C. § 103(a) as unpatentable over Gould in view of Delbuguet and Mann. 2. Claims 3 and 12 rejected under 35 U.S.C. § 103(a) as unpatentable over Gould in view of Delbuguet, Mann, and Lucchesi. 3. Claim 20 rejected under 35 U.S.C. § 103(a) as unpatentable over Gould in view of Delbuguet, Mann, and Thomas. 4. Claims 7 and 8 rejected under 35 U.S.C. § 103(a) as unpatentable over Gould in view of Delbuguet, Mann, and Ness. 5. Claim 9 rejected under 35 U.S.C. § 103(a) as unpatentable over Gould in view of Delbuguet, Mann, and Lazar. 6. Claim 17 rejected under 35 U.S.C. § 103(a) as unpatentable over Gould in view of Delbuguet, Mann, and Pierce. 7. Claims 1, 13-15, 19 and 21 under 35 U.S.C. § 103(a) as unpatentable over Thomas in view of Delbuguet, and Mann. Appeal 2010-010676 Application 12/041,710 4 ANALYSIS Rejection 1 – Claims 1, 2, 4, 6, 10, 11, 16, and 18 We review here only the rejection of claim 1. For all the claims in this group except for claim 1, Appellant has stated the elements of the claim, stated the Examiner’s position, and then stated Appellant’s conclusion that the Examiner erred. Appellant’s statements and conclusions fail to meet the requirements of 37 C.F.R. § 41.37(c) which requires more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements are not found in the prior art. See In re Lovin, 652 F.3d 1349, 1356-1357 (Fed. Cir. 2011). Accordingly, we proceed to an analysis of the issues raised by Appellant concerning claim 1. Claims 2, 4, 6, 10, 11, 16, and 18 stand or fall with claim 1. Appellant argues that that there is “no … suggestion” in Gould of separable shaft segments. App. Br. 26. The Examiner found that “Gould specifically teaches in col.2 lines 52- 54 that ‘the stakes may be made of separate pieces of material in order to form the chamber 7 therein and the pieces united in any manner.’” Ans. 12. We agree with the Examiner. Gould not only “suggests” separable shafts, but specifically and unambiguously discloses that the stakes 5 may be made of separate pieces and then united together. Appellant has not pointed to any evidence or expressed any persuasive reasoning tending to establish that the Examiner erred in his findings of what the reference discloses. Appellant also argues that Mann discloses “notches” rather than “grooves” as claimed, and that there is “no indication of any angles of these notches.” App. Br. 26. Appellant also characterizes the admitted “notches” Appeal 2010-010676 Application 12/041,710 5 in Mann as “slotted regions.” App. Br. 33. Appellant admits that the “notches” are “designed to receive and support trellis wires” (App. Br. 27, emphasis added), but also argues that that the notches or slots “[do] not support anything” (App. Br. 33). The Examiner found that Mann discloses a plant support with a plurality of grooves in the outer periphery including grooves formed at more than one angle relative to a top and bottom of the support, wherein one groove is at an angle between 10 degrees and 80 degrees and another groove is at an angle between 100 degrees and 170 degrees. Ans. 4-5, 12. The Examiner explained that the advantage of this arrangement is that it provides a means for supporting a vine at multiple places. Id. at 5. While Appellant states that there is no indication of any angles of these notches (App. Br. 26), Appellant has not pointed to any evidence or expressed any persuasive reasoning tending to establish that the Examiner erred in his findings of what the reference discloses. The pending claims must be given their broadest reasonable interpretation consistent with the specification as it would be interpreted by a person of ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Appellant has not pointed to anything in the Specification or elsewhere that provides any guidance or specific meaning of the term “groove” as used in the claims or any basis to establish that the claimed “groove” has any specific meaning different from the admitted disclosure in Mann of a “notch” or a “slot” (App. Br. 26, 33). Accordingly, we sustain the rejection of claims 1, 2, 4, 6, 10, 11, 16, and 18. Rejection 2 – Claims 3 and 12 Appeal 2010-010676 Application 12/041,710 6 Appellant argues that “[t]here is no equivalency” between the pounder assembly 62 of Lucchesi and the insertion tool of the claimed invention. App. Br. 28. Appellant also argues that there is no reason for combining a pounder for a real estate sign with a garden stake. Id. at 28-29. Claim 3 calls for an insertion tool used in the context of the kit called for in claims 1 and 2 from which claim 3 depends. The insertion tool is connectable to and disconnectable from the base element during insertion or removal of the base from the ground. App. Br. 37. The Examiner found that Lucchesi discloses an insertion tool connectable to and disconnectable from one end of the base during insertion or removal of the base from the ground. Ans. 6. The Examiner particularly noted column 5, lines 12-31 and column 6, lines 10-17 of the Lucchesi disclosure which provide extensive detail of the Lucchesi structure used to install or remove the base element relative to the ground. Appellant’s argument that Lucchesi is “not equivalent” to the claimed structure is not persuasive in light of the findings by the Examiner. Appellant has not pointed to any evidence or expressed any persuasive reasoning tending to establish that the Examiner erred in his findings of what the reference discloses. The Examiner provided a rationale for combining the applied references. Ans. 7. The Examiner concluded that it would have been obvious to one having ordinary skill in the art at the time the invention was made to have modified the base of Gould, as modified by Delbuguet and Mann, to include an insertion tool and removing tool as taught by Lucchesi in order to install and remove the base without great difficulty. Ans. 7. Appellant’s conclusory statement that there is no reason to combine the Appeal 2010-010676 Application 12/041,710 7 references (App. Br. 28-29) is contrary to the rationale provided by the Examiner and does not point out any error in the Examiner’s findings or conclusion. Accordingly, we sustain the Examiner’s rejection of claim 3. Claim 12 is dependent on claim 3 and adds a base removing tool. The Examiner found that Lucchesi discloses a removing tool (70) that engages with the insertion tool (64) for removing the base from the ground when the insertion tool is connected to one end of the base. The Examiner cited to specific portions of the Lucchesi disclosure to support his finding. Ans. 6. Appellant states his view that the claimed invention “is not made obvious” by the applied references (App. B. 29) but has not pointed to any evidence or expressed any persuasive reasoning tending to establish that the Examiner erred in his findings of what the reference discloses. Accordingly, we sustain the Examiner’s rejection of claim 12. Rejection 3 – Claim 20 Appellant argues that the planting conduit 8 in the Thomas reference is not a basin and does not serve the purpose of the claimed basin (App. Br. 29), but provides no specific substantive argument as to why the structure 8 in Thomas is not a basin or how it fails to meet the claim limitations. A reference need not teach a limitation in haec verba. In re Bode, 550 F.2d 656, 660 (CCPA 1977). Thus, we are not apprised of error in the Examiner’s rejection of claim 20. Accordingly, we sustain the Examiner’s rejection of claim 20. Appeal 2010-010676 Application 12/041,710 8 Rejection 4 – Claims 7 and 8 Regarding claims 7 and 8, Appellant argues that the Ness assemblies do not correspond to arms with first and second hooked ends as specifically recited in claims 7 and 8 (App. Br. 30). Ness’s arm assemblies quite clearly have first and second hooked ends, as the Examiner found. Ans. 8. Accordingly, we are not apprised of error in the Examiner’s rejection of claims 7 and 8 and thus .sustain the Examiner’s rejection of claims 7 and 8. Rejection 5 – Claim 9 Appellant states that there is no correspondence between the knitted loop of Lazar and the circular loop called for in claim 9 (App. Br. 30), but provides no specific substantive argument as required by Rule 41.37(c)(1)(vii) to support his conclusion. Thus, we consider any arguments against the rejection of claim 9 waived. See In re Lovin, 652 F.3d at 1356- 1357. Accordingly, we sustain the rejection of claim 9. Rejection 6 – Claim 17 Appellant argues that the rejection of claim 17 “strains credibility,” (App. Br. 31), but provides no specific substantive argument. The Examiner is correct in that the arms 10 of Pierce protrude and can be removed. Ans. 9; Pierce, figs. 1 and 2. Thus, we are not apprised of error in the Examiner’s rejection of claim 17. Accordingly, we sustain the Examiner’s rejection of claim 17. Rejection 7 – Claims 1, 13-15, 19 and 21 Appellant states generally that that the applied references “do not show or suggest” the claimed elements (App. Br. 31), but provides no evidence or persuasive reasoning to apprise us of why the Examiner’s interpretation and Appeal 2010-010676 Application 12/041,710 9 application of the references against claim 1 is in error. Accordingly, we sustain the Examiner’s rejection of claim 1. Appellant argues that claims 13-15 require a base member that includes an “an above ground basin.” App. Br. 31. As to claims 13-15, the Examiner found that Thomas discloses a base portion (8) comprising a basin, wherein the basin has a greater circumference than the shaft, and wherein the basin is above ground. Ans. 10. Thus, the Examiner specifically found that Thomas discloses an above ground basin, as claimed. Appellant has not pointed to any evidence or expressed any persuasive reasoning tending to apprise us of error in the Examiner’s findings of what the reference discloses or in his conclusion that the claimed inventions would have been obvious. As to claim 14, Appellant argues that the Examiner has not supported the Official Notice that connecting arm members of different lengths are well-known. App. Br. 32. The Appellants offer only a bald challenge to the Examiner’s findings without presenting any information or argument that creates, on its face, a reasonable doubt regarding the validity of the Examiner's findings. App. Br. 32. See In re Boon, 439 F.2d 724, 728 (CCPA 1971) (requiring “a challenge to judicial notice … contain adequate information or argument so that on its face it creates a reasonable doubt regarding the circumstances justifying the judicial notice”). To adequately traverse Official Notice, the Appellants must specifically point out the supposed errors in the Examiner's assertions, which includes stating why the noticed fact is not considered to be common knowledge or well-known in the art. Compare, In re Knapp-Monarch Co., 296 F.2d 230, 232 (CCPA Appeal 2010-010676 Application 12/041,710 10 1961) (considering challenge to taking of judicial notice by Trademark Trial and Appeal Board), see also 37 C.F.R. § 1.111(b), MPEP § 2144.03(C). Notwithstanding Appellant’s failure to properly traverse the Examiner’s reliance on Official Notice, we note that in taking Official Notice that having connecting arm members of different lengths is well known in the art, the Examiner pointed to Gould and Lazar as references that specifically disclose this well-known concept. Ans. 14-15. Appellant has not pointed to any evidence or expressed any persuasive reasoning tending to establish that the Examiner erred in his finding of Official Notice. Regarding claims 19 and 21, Appellant argues that conduit 8 in Thomas is “not equivalent” to the claimed base having a basin (App. Br. 31) and that conduit 8 of Thomas “is not a basin” (App. Br. 34). Regarding claims 19 and 21, Appellant provides no evidence or persuasive reasoning to support his argument that the conduit 8 in Thomas is “not equivalent” to the claimed base having a basin. Moreover, the Examiner did not find these structures to be “equivalent.” The Examiner found that Thomas disclosed a “a base portion (8) comprising a basin, wherein the basin has a greater circumference than the shaft.” Ans. 10. The Examiner then concluded that based on the applied references, the claimed invention would have been obvious to a person having ordinary skill in the relevant technology. Ans. 11. The Examiner also found that the structure in Thomas meets the broad limitation of the claims and that there is no claim language to prevent one from considering the planting conduit of Thomas to be a basin. Ans. 13-14. The pending claims must be given their broadest reasonable interpretation consistent with the specification as it would be interpreted by a Appeal 2010-010676 Application 12/041,710 11 person of ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d at 1364. A reference need not teach a limitation in haec verba. In re Bode, 550 F.2d 656, 660 (CCPA 1977). Appellant’s bald assertion that Thomas’ base portion 8 is not a basin, therefore, does not apprise us of error in the Examiner’s rejection of claims 19 and 21. DECISION We affirm the Examiner’s decision to reject claims 1-4 and 6-21 under 35 U.S.C. § 103(a). 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 mls