Joseph Egerhazy

Patent Trials and Appeals BoardMar 1, 2021

2019005946 (P.T.A.B. Mar. 1, 2021)

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. 15/680,926 08/18/2017 Joseph B. Egerhazy 2070 149581 7590 03/01/2021 Joseph B. Egerhazy 137 Summit Road Florham Park, NJ 07932 EXAMINER WILKENS, JANET MARIE ART UNIT PAPER NUMBER 3637 MAIL DATE DELIVERY MODE 03/01/2021 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 JOSEPH B. EGERHAZY Appeal 2019-005946 Application 15/680,926 Technology Center 3600 ____________ Before BENJAMIN D. M. WOOD, MICHAEL J. FITZPATRICK, and SCOTT A. DANIELS, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Appellant, Joseph B. Egerhazy,1 appeals under 35 U.S.C. § 134(a) from the Examiner’s non-final decision rejecting claims 2–5. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42. Appellant identifies himself as the sole real party in interest. Appeal Br. 3. Appeal 2019-005946 Application 15/680,926 2 STATEMENT OF THE CASE The Specification The Specification “relates to modern lines of furniture made to be easily assembled from interchangeable components in various configurations.” Spec. ¶1. “More particularly, the invention relates to pedestals for displaying artwork or merchandise and supporting tabletops.” Id. The Claims Claims 2–5 are rejected. Non-Final Act. 1. Claim 1 is cancelled. No other claims are pending. Id. The rejected claims are reproduced below. 2. A pedestal assembly suitable to display artwork, merchandize or used as a work stand, comprising: A. base plate, B. top plate, C. minimum three pairs of crossed legs, and D. required hardware. 3. The pedestal assembly in claim 2 has its support legs arranged in various configurations to provide maximum load bearing capacity and lateral stability in all directions relative to the amount of material used. 4. The pedestal assembly in claims 2 is configured to facilitate manufacturing, transportation, assembly by laymen and to be pleasing to the eye. 5. With the addition of table tops of different configurations, the assembly becomes a pedestal table. Appeal Br. 13. Appeal 2019-005946 Application 15/680,926 3 The Examiner’s Rejections The following rejections are before us: 1. claims 3–5 under 35 U.S.C. § 112(b) as being indefinite (Non- Final Act. 3). 2. claims 2 and 4 under 35 U.S.C. §102(a)(1) as anticipated by Schlueter2 (id.); and 3. claims 2 and 4 under 35 U.S.C. §102(a)(1) as anticipated by Cochrane3 (id. at 4); and 4. claim 3 under 35 U.S.C. § 103 as unpatentable over Schlueter and Martin4 (id.); 5. claim 5 under 35 U.S.C. § 103 as unpatentable over Schlueter (id. at 5); 6. claims 2–4 under 35 U.S.C. § 103 as unpatentable over Lachaume5 and Coker6 (id.); and 7. claims 2 and 4 under 35 U.S.C. § 103 as unpatentable over Bentwood table7 and Coker (id. at 6). 2 US 2012/0318946 A1, published Dec. 20, 2012 (“Schlueter”). 3 US 6,029,584, issued Feb. 29, 2000 (“Cochrane”). 4 FR 1,127,764, published Dec. 24, 1956 (“Martin”). Citations to Martin’s text (as opposed to its figures) refer to a machine translation. 5 FR 2,746,277, published Sept. 26, 1997 (“Lachaume”). Citations to Lachaume’s text (as opposed to its figures) refer to a machine translation. 6 GB 2490474, issued Feb. 02, 2011 (“Coker”). 7 The Bentwood table appears to be a used table that was for sale on www.ebay.com and which the Examiner dates to 1900. See Oct. 4, 2018, Notice of References Cited. Because the printout of the specific ebay webpage in the file history is not legible, we cannot verify that the webpage dates the Bentwood table to the year 1900. However, Appellant does not dispute that the Bentwood table is prior art to its claims, and this rejection does not turn on that issue. Appeal 2019-005946 Application 15/680,926 4 DISCUSSION Rejection 1—Claims 3–5 as Indefiniteness Appellant does not present any arguments with respect to the Examiner’s indefiniteness rejection of claims 3–5. The Appeal Brief does acknowledge the rejection with a section titled “The Examiner bases the rejection upon the premise that Claims 3-5 are indefinite under 35 U.S.C. 112(b) for failing to particularly point out and distinctly claim the subject matter which the inventor regards as the invention.” Appeal Br. 3. However, the Appeal Brief does not thereafter present any actual arguments regarding the rejection. Id. at 3–4. Because Appellant does not present any arguments against the rejection of claims 3–5 under 35 U.S.C. § 112(b), we summarily affirm. Rejection 2—Claims 2 and 4 as Anticipated by Schlueter The Examiner found that Schlueter discloses all of the elements of claims 2 and 4. Non-Final Act. 3–4. Appellant presents two arguments against the rejection, neither of which apprises us of Examiner error. First, Appellant seeks to distinguish Schlueter due to the presence of a center post in its table. Appeal Br. 4. However, and as the Examiner points out, claims 3–5 recite the open-ended transitional phrase “comprising” and, accordingly, they do not preclude the presence of a center post. Ans. 4; see also CIAS, Inc. v. Alliance Gaming Corp., 504 F.3d 1356, 1360 (Fed. Cir. 2007 (“In the patent claim context, the term ‘comprising’ is well understood to mean ‘including but not limited to’.”); Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997) (“‘Comprising’ is a term of art used in claim language which means that the named elements are essential, but other Appeal 2019-005946 Application 15/680,926 5 elements may be added and still form a construct within the scope of the claim.”). Second, Appellant points out that the table embodiment of Figure 1 of Schlueter includes pairs of crossed “suspension cables,” not legs. Appeal Br. 4. The Examiner responds that Schlueter alternatively teaches that rigid components can be used in lieu of cables, and finds that such rigid components constitute legs within the meaning of the claims. Ans. 4 (citing Schlueter ¶24). Indeed, Schlueter states: In the embodiment shown, the third member 16 is a flexible cable that can be made from braided steel cable, rope, stretch cord, wire, chain or any similar flexible component. It is further appreciated that the third member 16 can be a generally rigid component that is capable of carrying a tensile load, such as a thin rod, for example. Schlueter ¶24. Appellant did not file a reply brief. Because Appellant does not apprise us of error in the Examiner’s rejection of claims 2 and 4 as anticipated by Schlueter, we affirm. Rejection 3—Claims 2 and 4 as Anticipated by Cochrane The Examiner found that Cochrane disclose all of the elements of claims 2 and 4. Non-Final Act. 4. Appellant argues that Cochrane’s table “is a different concept altogether from the subject invention.” Appeal Br. 5. In particular, Appellant argues that Cochrane’s “legs are in bending, which makes its structural integrity for vertical loads questionable, not to mention the drastically different appearance and difficult constructability.” Id. As the Examiner responds, however, none of these arguments (even accepting them as true) rebuts the Examiner’s finding that Cochrane discloses all the limitations of claims 2 and 4. See Ans. 5 (“Appellant’s statements that Appeal 2019-005946 Application 15/680,926 6 Cochrane teaches a different concept because of its bending legs, different appearance and difficult constructability (appellant’s opinion), does not overcome the fact that all the features claimed are met by this reference.”). To be clear, the claims do not require non-bending or straight legs. Because Appellant does not apprise us of error in the Examiner’s rejection of claims 2 and 4 as anticipated by Cochrane, we affirm. Rejection 4—Obviousness of Claim 3 in View of Schlueter and Martin Claim 3 recites: “The pedestal assembly in claim 2 has its support legs arranged in various configurations to provide maximum load bearing capacity and lateral stability in all directions relative to the amount of material used.” Appeal Br. 13. As discussed above, the Examiner found that Schlueter teaches the subject matter of, and anticipates, claim 2. As relevant to additional recitation of claim 3, the Examiner found that “Martin teaches support legs . . . that are arranged in various configurations to provide maximum load bearing capacity and lateral stability in all directions relative to the amount of material used.” Non-Final Act. 4–5 (citing Martin Figs. 5–6). The Examiner concluded: It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the legs of Schlueter being making them and center post (48) adjustable, such as is taught by Martin, to provide the desired/required load support on the pedestal and for aesthetic reasons. Id. at 5. Appellant argues against the rejection solely on the basis that the tables of Schlueter and Martin have center posts. Although that is factually Appeal 2019-005946 Application 15/680,926 7 accurate, it does not patentably distinguish claim 3 over the prior art, as claim 3 does not preclude the presence of a center post. Because Appellant does not apprise us of error in the Examiner’s rejection of claim 3 as unpatentable over Schlueter and Martin, we affirm. Rejection 5—Obviousness of Claim 5 in View of Schlueter Claim 5 recites: “With the addition of table tops of different configurations, the assembly becomes a pedestal table.” Appeal Br. 13. Despite claim 5 being indefinite as written, the Examiner presumed, for purposes of examination, that it was intended to depend from claim 2. Non- Final Act. 5. As discussed above, the Examiner found that Schlueter teaches the subject matter of, and anticipates, claim 2. As relevant to the additional recitation of claim 5, the Examiner found that, although Schlueter fails to teach plural table tops within a single embodiment, Schlueter does disclose alternate table tops. Id. (citing Schlueter Fig. 13). 14)). The Examiner concluded: It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the assembly or Schlueter by providing multiple table tops therewith, for aesthetic reasons and to provide different sized table spaces with the assembly. Id. at 5. Appellant’s entire argument with respect to this rejection is the following: “The purpose Claim 5 is to establish the primary function of the pedestal with crossed legs as a support for tables in different configurations. While pedestals can stand alone, table tops are interchangeable. It is the pedestal that is the real invention here.” Appeal Br. 7. This argument is not Appeal 2019-005946 Application 15/680,926 8 responsive to the Examiner’s rejection, and therefore does not apprise us of Examiner error. Because Appellant does not apprise us of error in the Examiner’s rejection of claim 5 as unpatentable over Schlueter, we affirm. Rejection 6—Obviousness of Claims 2– 4 in View of Lachaume and Coker The Examiner found that Lachaume teaches the subject matter of claims 2–4 except for the “base plate” recited in claim 2 and incorporated by reference into claim 4. Non-Final Act. 5–6. The Examiner found that “Coker teaches a pedestal assembly with a top plate (B1), legs (2a-d) and a base (82).” Id. at 6. The Examiner concluded: “It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the assembly of Lachaume by adding a base, such as is taught by Coker, thereon, to provide a more stable assembly.” Id. Appellant argues that Coker is not analogous art, albeit using different words. See Appeal Br. 8 (“Fig. 2 shows Coker’s Display System that was invented to display posters. One would have difficulty to relate it to Lachaume’s concept, since its intended use is entirely different.”). “Two criteria have evolved for determining whether prior art is analogous: (1) whether the art is from the same field of endeavor, regardless of the problem addressed, and (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.” In re Clay, 966 F.2d 656, 658–59 (Fed. Cir. 1992). Coker clearly does not meet the first criterion because it is “concerns a poster support and display system” (Coker 1:3), whereas Applicant’s claimed invention “relates to modern lines of furniture Appeal 2019-005946 Application 15/680,926 9 [and,] “[m]ore particularly, the invention relates to pedestals for displaying artwork or merchandise and supporting tabletops.” Spec. ¶1. And the record before us does support that Coker meets the second criterion, as the Examiner has not made a prima facie finding in that regard, even in the Answer. The Examiner acknowledges “appellant’s argument that Coker is nonanalogous art” and the proper standard for determining whether a reference is analogous but does not apply the standard to Coker. Ans. 5–6. Instead, the Examiner merely provides reasons for why a person of ordinary skill in the art would “add the base of Coker to the crossed legs of Lachaume.” Id. at 6. However, those reasons presume that Coker is analogous art in the first instance. The Examiner has not explained or supported a finding that Coker is analogous art. Because Appellant apprises us of error in the Examiner’s rejection of claims 2–4 as unpatentable over Lachaume and Coker, we reverse. Rejection 7—Obviousness of Claims 2 and 4 in View of Bentwood table and Coker Because the Examiner has not supported a finding that Coker is analogous art, we reverse this rejection as well. Appeal 2019-005946 Application 15/680,926 10 SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirme d Reversed 3–5 112(b) Indefiniteness 3–5 2, 4 102(a)(1) Schlueter 2, 4 2, 4 102(a)(1) Cochrane 2, 4 3 103 Schlueter, Martin 3 5 103 Schlueter 5 2–4 103 Lachaume, Coker 2–4 2, 4 103 Bentwood table, Coker 2, 4 Overall Outcome 2–5 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