Ex Parte Wroblewski

Patent Trial and Appeal Board

Sep 18, 2014

12640197 (P.T.A.B. Sep. 18, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DOUGLAS R. WROBLEWSKI
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Appeal 2012-008155
Application 12/640,197
Technology Center 3600
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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have been withdrawn from consideration.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.

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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).
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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
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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.

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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,
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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.
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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

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