LIBERTY HARDWARE MFG. CORP.

Patent Trials and Appeals Board

Aug 3, 2021

2021001197 (P.T.A.B. Aug. 3, 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.
15/595,435 05/15/2017 Christine LEMNIOS MASLH 0132 PUS2 2546
101011 7590 08/03/2021
Brooks Kushman P.C. / Masco Corporation
1000 Town Center, 22nd Floor
Southfield, MI 48075
EXAMINER
IMPINK, MOLLIE LLEWELLYN
ART UNIT PAPER NUMBER
3799
NOTIFICATION DATE DELIVERY MODE
08/03/2021 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTINE LEMNIOS, YINGHONG ZHANG,
JEANIE MATHERLY, MATHEW KLEIN, PATRICK BOEHNEN,
LAURA HAWKINS, JAMES ALLEN AUSTIN III,
EARL DAVID FORREST, NATHANIEL FALTIN DUTTON SCHULTZ,
and JUSTIN TERRELL TORRENCE
Appeal 2021-001197
Application 15/595,435
Technology Center 3700
Before JENNIFER D. BAHR, LISA M. GUIJT, and
MICHAEL L. WOODS, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 13–15. We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as LIBERTY
HARDWARE MFG. CORP. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
Appellant’s invention is directed to “packaging assemblies for shower
door glass panes.” Spec. ¶ 2. The Examiner indicates that claims 1, 2, 4,
6–8, 11, 12, 17, and 21 contain allowable subject matter. Final Act. 7.
Claims 18–20 were canceled subsequent to the Final Action. Advisory
Act. 2; Ans. 3. Thus, this appeal involves only claims 13–15. Claim 13,
reproduced below, is illustrative of the claimed subject matter.
13. A packaging assembly comprising:
a box sized to receive at least one shower door glass
pane; and
at least one shower door glass pane received within the
box;
wherein an opening is formed in opposed surfaces of the
box to expose a portion of the at least one shower door glass
pane to permit a customer to view the portion of the at least one
shower door glass pane through the opening; and
wherein the opening is formed through a peripheral side
of the box.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Midouhas US 2,501,609 Mar. 21, 1950
Bucko US 3,403,777 Oct. 1, 1968
Jaeschke US 4,315,569 Feb. 16, 1982
Liang US 5,547,053 Aug. 20, 1996
Eichhorn US 6,461,705 B2 Oct. 8, 2002
Lo Duca US 2004/0262195 A1 Dec. 30, 2004
REJECTIONS
Claims 13 and 14 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Eichhorn, Midouhas, Lo Duca, and Jaeschke.
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Claim 15 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Eichhorn, Midouhas, Lo Duca, Jaeschke, Liang, and Bucko.
OPINION
Claims 13 and 14
The Examiner concludes that the combined teachings of Eichhorn,
Midouhas, Lo Duca, and Jaeschke render obvious the subject matter of claim
13. See Final Act. 2–3. The Examiner relies on Midouhas for a cardboard
container for flat fragile articles that comprises spacer elements formed by
tongues 23 to protect the article carried therein against compressive forces
and blows to the edges of the container, on Eichhorn for a shower door glass
pane as an example of a flat fragile article suitable for packaging in
Midouhas’s container, and on Lo Duca and Jaeschke for their teachings of
openings extending around three sides of a package for viewing a product.
Final Act. 2–3.
Appellant points out that Midouhas teaches providing tongues to
effectively space the flat fragile elements (i.e., the contents) inwardly from
the edges of the container and retain the contents in this spaced position, so
that any blows delivered to the edges of the container are absorbed by the
container itself and do not damage the contents. Appeal Br. 4. Thus,
Appellant contends that Midouhas teaches away from the proposed
modification to provide openings in the peripheral sides because, according
to Appellant, this “would remove the protection at the edges of the container
for the contained fragile item.” Appeal Br. 5. Further, Appellant argues that
“[t]he proposed modification to Midouhas would not absorb blows to the
container and would permit damage to the contents,” thereby “improperly
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chang[ing] the principle of operation of Midouhas” and “render[ing]
Midouhas unsatisfactory for its intended purpose.” Appeal Br. 5.
Appellant’s arguments are not persuasive. The Examiner explains
that the opening proposed in the rejection, in view of Jaeschke and Lo Duca,
would be provided at a position along the peripheral side between tongues
23, which would still space the article from the edges of the package and
provide shock protection for the edges as taught by Midouhas. Ans. 3; see
Midouhas, col. 1, ll. 29–37; col. 2, ll. 30–48 (teaching that tongues 23 retain
the flat article in spaced relation to the sidewalls to protect the contents
against blows which may be delivered to the edges of the container during
transit and to act as spacers when the filled containers are stacked); Fig. 3
(showing two spaced tongues 23 on each of side wall sections 15, 16, and
top wall sections 17, 18). According to the Examiner, “[t]he edge protection
formed by spacing of the tongues 23 still provides edge protection,” and,
thus, “[t]he operation of Midouhas is not changed, since the packing
continues to provide shock protection for the edges of the articles being
packaged.” Ans. 3.
Providing an opening as proposed in the rejection at a location
between the tongues would not interfere with the spacing function of the
tongues; tongues 23 would still space the article inwardly from the edges of
the closed container so that any blows that may be delivered to the edges of
the container are absorbed by the container. Adding an opening, therefore,
would not change the principle of operation of Midouhas’s container or
render it unsatisfactory for its intended purpose. Further, Appellant does not
point to any disclosure in Midouhas that criticizes, discredits, or otherwise
discourages providing an opening in the peripheral side of the container,
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and, thus, fails to support the assertion that Midouhas teaches away. See In
re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009) (stating that a reference
teaches away from a claimed invention if “a person of ordinary skill, upon
reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that
was taken by the applicant” (citing In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994))).
Moreover, in addition to teaching openings for permitting the contents
of the package to be viewed, Lo Duca and Jaeschke, like Midouhas, are
concerned with protecting the contents of their containers from impacts. See
Lo Duca ¶¶ 2, 5, 19, 26; Jaeschke, col. 1, ll. 34–52; col. 2, ll. 42–47; col. 4,
ll. 9–16. Thus, in the packaging field, the provision of openings for viewing
the contents of containers is not inconsistent with the objective of impact
protection.
For the above reasons, Appellant does not apprise us of error in the
rejection of claim 13. Accordingly, we sustain the rejection of claim 13, and
of claim 14, for which Appellant relies solely on the arguments presented for
claim 13 (Appeal Br. 5), as unpatentable over Eichhorn, Midouhas, Lo
Duca, and Jaeschke.
Claim 15
The Examiner finds that Bucko teaches providing a handle mounted to
a peripheral side of the base of a container for fragile glass for
pulling/sliding the container and that “Liang teaches providing a low
mounted handle to avoid unintentionally tipping or overturning a package
(luggage) when it is pulled.” Final Act. 4. The Examiner determines it
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would have been obvious to modify the container of the
Eichhorn/Midouhas/Lo Duca/Jaeschke combination
to include a handle mounted to a periphery of the base for
sliding the package as taught by Bucko and further to mount the
handle in a low position (below the center of gravity of the
packaging, Fig. 2A) as taught by Liang in order to help avoid
unintentionally tipping or overturning the package when it is
being pulled.
Final Act. 4.
Appellant argues that adding a handle to Midouhas’s container “seems
unnecessary” because Midouhas’s container “can be lifted manually.”
Appeal Br. 6. Further, Appellant submits that neither Midouhas nor Bucko
addresses “the problem of consumers sliding retailing packages and
inadvertently damaging the corners,” which is discussed in Appellant’s
Specification and is solved “by adding a handle below the center of gravity,”
as recited in claim 15. Appeal Br. 6 (citing Spec. ¶ 26). Appellant asserts
that, because the combination of references applied in the rejection fails to
appreciate the problem addressed by Appellant, the rejection is predicated on
improper hindsight gleaned from Appellant’s application. Appeal Br. 6.
Appellant’s arguments are not persuasive. Even if Midouhas’s
container “can be lifted manually,” as Appellant asserts (Appeal Br. 6), a
person having ordinary skill in the art would still appreciate that adding a
handle would make the container easier and more convenient to carry and
manipulate. As the Examiner points out, “[m]any packages and bags can be
lifted manually[,] but it is still helpful to add a handle to make a package
easier to carry.” Ans. 4.
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Paragraph 26 of Appellant’s Specification identifies the problem that,
“[w]hen the customer attempts to slide the packaging assembly 20 with [a
grasp at a height approximate the customer’s elbow], the packaging
assembly 20 is often tipped onto a corner, thereby distributing a load of the
packaging assembly to a focalized region, which may damage the corner.”
Liang appreciates the tipping problem that can be presented by a high
mounted handle (see Liang, col. 1, ll. 43–46) and addresses this problem by
providing a low mounted handle that is conveniently graspable by the user.
See Liang, col. 1, ll. 43–46; col. 1, l. 58–col. 2, l. 44; Fig. 2A.
Appellant does not identify any flaw in the Examiner’s reasoning or
point to any knowledge relied on by the Examiner that was gleaned only
from Appellant’s disclosure and that was not otherwise within the level of
ordinary skill in the art at the time of the invention, and thus fails to support
the hindsight assertion. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
1971) (“Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it takes into
account only knowledge which was within the level of ordinary skill at the
time the claimed invention was made and does not include knowledge
gleaned only from applicant’s disclosure, such a reconstruction is proper.”).
As pointed out above, the Examiner relies on teachings in Liang and Bucko,
and not on Appellant’s disclosure, in articulating the reasons for modifying
Midouhas’s container to provide a low mounted handle. See Bucko, col. 5,
ll. 30–35; Fig. 1; Liang, col. 1, l. 35–col. 2, l. 44; Fig. 2A.
For the above reasons, Appellant fails to apprise us of error in the
rejection of claim 15. Accordingly, we sustain the rejection of claim 15 as
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being unpatentable over Eichhorn, Midouhas, Lo Duca, Jaeschke, Liang, and
Bucko.
CONCLUSION
The Examiner’s rejections of claims 13–15 under 35 U.S.C. § 103 are
AFFIRMED.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
13, 14 103 Eichhorn,
Midouhas,
Lo Duca, Jaeschke
13, 14
15 103 Eichhorn,
Midouhas,
Lo Duca, Jaeschke,
Liang, Bucko
15
Overall
Outcome
13–15

TIME PERIOD FOR RESPONSE
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