Ex Parte WroblewskiDownload PDFPatent Trial and Appeal BoardSep 18, 201412640197 (P.T.A.B. Sep. 18, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte DOUGLAS R. WROBLEWSKI ____________________ Appeal 2012-008155 Application 12/640,197 Technology Center 3600 ____________________ Before JOHN C. KERINS, ANNETTE R. REIMERS, and MICHAEL L. WOODS, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Douglas R. Wroblewski (Appellant) appeals under 35 U.S.C. § 134 from a final rejection of claims 1–5, 12, 13, and 15–24. Claims 6–11 and 14 have been withdrawn from consideration. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal 2012-008155 Application 12/640,197 2 THE INVENTION Appellant’s invention is directed to a drain. Claim 1, reproduced below, is illustrative: 1. A drain comprising: a drain body defining a drain cavity; a frame having a securable end received by said drain body and an exposed end, said frame being rotatable relative to said drain body for adjusting the position of said frame exposed end, wherein said frame is a unitary member and the securable end and the exposed end are non-adjustable with respect to each other; a clamp for fixing said securable end of said frame to said drain body; and a grate received by said exposed end of said frame, wherein said drain body comprises a ledge having a sloped surface, said frame securable end slidably engaging said sloped surface of said ledge when said frame is rotated relative to said drain body. Independent claims 12 and 15 are generally similar in scope, but do not include the limitation calling for a ledge on a drain body having a sloped surface. THE REJECTIONS The Examiner has rejected: (i) claims 1–5, 12, 13, and 15–24 under 35 U.S.C. § 102(b) as being anticipated by Sondrup (US 6,269,495 B1, issued Aug. 7, 2001); and (ii) claims 15, 16, 19, and 21 under 35 U.S.C. § 102(b) as being anticipated by Donalson (US 3,674,149, issued July 4, 1972). Appeal 2012-008155 Application 12/640,197 3 ANALYSIS Claims 1–5, 12, 13, and 15–24--§ 102(b)--Sondrup The Examiner finds, inter alia, that funnel member 14 and ring 26 of Sondrup together meet the limitation in claim 1 calling for a frame having a securable end and an exposed end. Ans. 5. Claim 1 further requires the frame to be “a unitary member [with] the securable end and the exposed end [being] non-adjustable with respect to each other.” Appeal Br., Claims App. The Examiner takes the position that “unitary member” is broadly recited and is met by the funnel member and ring of Sondrup, in that they form a single unit performing a single function. Ans. 6. The Examiner finds that the securable end and exposed end are non-adjustable, in view of a potential condition in which the frictional engagement of the threads of the two elements is greater than the frictional forces holding ring 26 in place between plates 18 and 24. Id. Appellant argues that the Examiner errs in finding the claimed non- adjustable ends to be met by a particular circumstance in which funnel member 14 and ring 26 may not be capable of being threaded together or apart (thus keeping the ends in fixed relation), where there is no structural element preventing such threading or unthreading. Appeal Br. 10. Appellant’s position is supported, and the Examiner’s undercut, by the disclosure in Sondrup that one of the main purposes for the drain construction is to “easily and quickly allow for vertical and angular horizontal adjustment,” to allow a plumbing installer to “quickly and easily install a drain that is level with the surrounding surfaces.” Sondrup, col. 1, l. 65–col. 2, l. 2. That vertical adjustment and ability to level the drain with the surrounding surfaces is directly as a result of funnel member 14 and ring Appeal 2012-008155 Application 12/640,197 4 26 being capable of having the securable end and the exposed end (as designated by the Examiner) adjustable relative to one another. See Sondrup, Fig. 1. Accordingly, we do not sustain the Examiner’s rejection based on this finding. The Examiner appears to take an alternative approach to finding that funnel 14 and ring 26 have ends that are non-adjustable relative to each other. In the Response to Argument section of the Answer, the Examiner states that “the ends of Sondrup are non-adjustable with respect to each other . . . because Sondrup teaches that 14 and 26 can be adhered together after being adjusted (col. 4, lines 20-22).” Ans. 14. That section of Sondrup actually discloses that “adhesives or glues also could be used, while still allowing for vertical and pitch adjustment of the drain.” Sondrup, col. 4, ll. 20–22. Sondrup is not entirely clear as to how adhesives or glues could be used while “still allowing for vertical . . . adjustment,” and the Examiner’s position is thus speculative. In addition, the passage quoted from Sondrup highlights that the Examiner’s interpretation of the two elements 14 and 26 as being responsive to claim limitations calling for the frame to be a unitary member having its two ends be non-adjustable with respect to one another is unreasonably broad. Independent claims 12 and 15 include the same limitations directed to the frame element of the drain, and thus the Examiner’s findings with respect to Sondrup are deficient for those claims as well. The rejection of claims 1–5, 12, 13, and 15–24 as being anticipated by Sondrup is not sustained. Appeal 2012-008155 Application 12/640,197 5 Claim 15, 16, 19, and 21--§ 102(b)--Donalson One of Appellant’s arguments is directed to the failure of Donalson to disclose a drain body having a ledge which has a sloped surface. Appeal Br. 12. The Examiner agreed that Donalson lacked this claim element and withdrew the rejection as to claims 1, 2, and 5. Ans. 15. The Examiner noted that this limitation is not present in claims 15, 16, 19, and 21, and maintained the anticipation rejection over Donalson as to these claims. Id. Appellant’s argument that is pertinent to the currently rejected claims is that Donalson fails to teach a frame that is “rotatable relative to said drain body for adjusting the position of said frame exposed end.” Appeal Br. 11, quoting claim 15. Appellant maintains that “Donalson specifically teach[es] locking of the frame (44) to the drain body and locking fingers (50) having outwardly extending apexes (52)” which, according to Appellant, would prevent any type of adjustment of the exposed end of the frame with respect to the drain body. Id. The Examiner responds that Donalson refers to locking the frame vertically with respect to the drain body, but not locking it rotationally. Ans. 14. The Examiner takes the position that “[t]he structure of the Donalson spring members, 46, relative to the groove, 22, is such that relative rotation between frame and body is not prevented, as the groove provides relief for the spring members.” Id. at 14–15. Appellant counters that Donalson does not teach rotational positioning of the frame, and that the locking fingers 50 will lodge inside groove 22 when the frame is installed on the drain body. Reply Br. 4, citing Donalson, Appeal 2012-008155 Application 12/640,197 6 col. 2, ll. 43–46. Appellant proffers definitions1 of “lock” (device for temporarily stopping motion) and “lodge” (including, caught in a place, come to rest) in arguing that the plain meaning of the Donalson disclosure would be understood as not allowing for rotational adjustment of the frame with respect to the drain body. Id. Figures 4 and 5 of Donalson illustrate that there is some amount of clearance between the upper portion 48 of locking finger 50 and the inner peripheral wall 20 of drainpipe 10. The apex portion 52 of these locking fingers, at best, incidentally engages the inner peripheral wall along a line of intersection. It is instructive to note that, when Donalson wishes that the frame 40 positively engage the wall 42 of the groove 22, an alternative embodiment employing a set screw is proposed for use. Donalson, col. 2, ll. 61–72. As such, the Examiner’s position that frame 40 is rotatable within the drain body, in the embodiment represented in Figures 4 and 5 of Donalson, is reasonable and supported by a preponderance of the evidence. The rejection of claim 15 as being anticipated by Donalson is sustained. Appellant presents no arguments for dependent claims 16, 19, and 21 that do not in some way depend upon the argument presented for claim 15. The rejection of those claims is likewise sustained. DECISION The rejection of claims 1–5, 12, 13, and 15–24 under 35 U.S.C. § 102(b) as being anticipated by Sondrup is REVERSED. 1 No citations for the definitions are provided. Earlier in the Reply Brief, Appellant makes reference to Dictionary.com, so these apparently were found there as well. Appeal 2012-008155 Application 12/640,197 7 The rejection of claims 15, 16, 19, and 21 under 35 U.S.C. § 102(b) as being anticipated by Donalson is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED-IN-PART hh Copy with citationCopy as parenthetical citation