Mark LIGGETT

Patent Trials and Appeals BoardOct 28, 2020

15901831 - (D) (P.T.A.B. Oct. 28, 2020)

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. 15/901,831 02/21/2018 Mark E. LIGGETT 36240562 2908 34283 7590 10/28/2020 QUINTERO LAW OFFICE, PC 615 Hampton Dr, Suite A202 Venice, CA 90291 EXAMINER WILKENS, JANET MARIE ART UNIT PAPER NUMBER 3637 NOTIFICATION DATE DELIVERY MODE 10/28/2020 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): mailroom@QUINTEROLAW.COM naquintero@quinterolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARK E. LIGGETT Appeal 2020-001742 Application 15/901,831 Technology Center 3600 Before JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK, Administrative Patent Judges. PESLAK, 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 1–6 and 10–23. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Mark E. Liggett, the named inventor. Appeal Br. 3. Appeal 2020-001742 Application 15/901,831 2 THE CLAIMED SUBJECT MATTER Appellant’s invention relates to a wedge structure kit, a cabinet having a wedge structure, and method for retrofitting an existing cabinet to have a wedge structure. Claims 1, 14, and 19 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A kit for retrofitting an existing cabinet to form a wedge structure, the cabinet comprising a front frame comprising an opening and a drawer received in the opening, the drawer comprising a storage compartment and operable to slide between an open position and a closed position, the kit comprising: a first wedge section comprising a first slanted surface and a first side surface, wherein the first slanted surface and the first side surface form an acute angle; a first two-sided adhesive strip for fixing the first side surface at a position inside the front frame, above the drawer and at the opening such that the first slanted surface faces the storage compartment of the drawer when the drawer is in the closed position; wherein the first wedge section consists of a wood, rigid plastic, or metal body that is solid and in the shape of a triangular prism, hollow and in the shape of a triangular prism, or has a v- shaped structure. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Hancock US 2006/0172114 A1 Aug. 3, 2006 Widner US 2013/0230202 A1 Sept. 5, 2013 Appellant’s Admitted Prior Art, Figure 1 (hereinafter “AAPA”) Appeal 2020-001742 Application 15/901,831 3 REJECTIONS2 1. Claims 11–13 are rejected under 35 U.S.C. § 112(b) as being indefinite. 2. Claims 1–6, 10, and 23 are rejected under 35 U.S.C. § 103 as unpatentable over Widner and Hancock. 3. Claims 11–13 are rejected under 35 U.S.C. § 103 as unpatentable over Widner, Hancock, and AAPA. ANALYSIS Rejection 1; Indefiniteness The Examiner determined that because claim 1 is directed to a kit and claim 11 positively recites a cabinet and its features with the kit, it is unclear whether the cabinet is intended to be part of the kit. Final Act. 2. Appellant does not address this rejection and consequently waived any argument of error. See generally Appeal Br.; see also Reply Br. 1. Therefore, we summarily sustain the rejection. See In re Berger, 279 F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the Board did not err in sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the applicant failed to contest the rejection on appeal). Rejection 2; Obviousness (Claims 1–6, 10, and 23) The Examiner finds that Widner discloses each of the limitations of the kit of claim 1 except that Widner discloses that magnets, not two-sided adhesive, attach the kit to another structure. Final Act. 3; see also Ans. 4–5. 2 A rejection of claims 14–22 under 35 U.S.C. § 103 as unpatentable over AAPA, Widner, and Hancock is withdrawn in the Answer. Ans. 3–4. Appeal 2020-001742 Application 15/901,831 4 The Examiner finds that Hancock discloses two-sided tape for attaching one element to another. Id. The Examiner concludes that it would have been obvious to use two-sided tape in Widner as an alternative attachment means to allow the kit to be attached to a non-metallic structure. Id. Appellant argues that the claimed first wedge section “consists of a wood, rigid plastic, or metal body that is solid and in the shape of a triangular prism, hollow and in the shape of a triangular prism, or has a v-shaped structure.” Appeal Br. 22. Appellant asserts that the Examiner’s reliance on Widner’s element 110 for the claimed wedge section is improper for several reasons. Id. at 23. First, Appellant asserts that Widner’s element 110 is a speaker, which includes electronic components and a mesh cover, and does not consist of a wood, rigid plastic, or metal body that is solid and in the shape of a triangular prism, hollow and in the shape of a triangular prism, or has a v-shaped structure. Id. Second, Appellant asserts that speaker 110 is part of a speaker bar 100 that would not be separated therefrom and included as part of a kit. Id. Third, Appellant asserts that the speaker would not be modified to meet the claim, because that would render it unsatisfactory for its intended use as a speaker. Id. at 24. For the following reasons, we do not sustain the rejection of claim 1. When the phrase “consists of” appears in a clause of the body of a claim, rather than immediately following the preamble, there is an “exceptionally strong presumption that a claim term set off with ‘consisting of’ is closed to unrecited elements.” Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp., 831 F.3d 1350, 1358 (Fed. Cir. 2016) (a layer “selected from the group consisting of” specific resins is closed to resins other than those listed). In this case, the Examiner does not address Appeal 2020-001742 Application 15/901,831 5 Appellant’s “consisting of” argument. See generally Ans. Rather, the Examiner responds, “The kit including having first and second wedge sections that are hollow (to be able to hold interior components) and in the shape of a triangular prism and a v-shaped structure. The sections are also made of metal (paragraph 0025).” Ans. 4. However, Appellant’s argument is that the phrase “consisting of” excludes interior components. The Examiner does not explain why having interior components is consistent with the limiting claim language. In addition, Widner discloses that speaker housing 190 of speaker bar 100, not speaker 110 “is preferably formed of a solid but lightweight material such as extruded aluminum” to protect speaker 110 and speaker 120 when they are retracted. Widner ¶¶ 19, 25. The Examiner has not established adequately that Widner’s speaker 110 has a “wood, rigid plastic, or metal body,” as required by claim 1. Even if the Examiner inadvertently referred to element 110 instead of element 190, we agree with Appellant that modifying Widner’s speaker housing 190 to contain no speaker components (consistent with “consisting of”), would render Widner’s device unsatisfactory for its intended purpose as a speaker. Accordingly, a preponderance of the evidence does not support the Examiner’s finding that Widner’s “first wedge section consists of a wood, rigid plastic, or metal body that is solid and in the shape of a triangular prism, hollow and in the shape of a triangular prism, or has a v-shaped structure,” as required by claim 1. Therefore, we do not sustain the rejection of claim 1, and of claims 2–6, 10, and 23 depending therefrom as unpatentable over Widner and Hancock. Appeal 2020-001742 Application 15/901,831 6 Rejection 3; Obviousness (Claims 11–13) In the Reply Brief, Appellant contends that it “did not assert any arguments traversing the rejections of claims 11–13 under . . . 35 USC 103 in the Appeal Brief filed on August 8, 2019 and amended on September 30, 2019, and does not present any such arguments in this paper.” Reply Br. 1. Therefore, we summarily sustain the rejection of claims 11–13 under 35 U.S.C. § 103. CONCLUSION The Examiner’s rejection is affirmed in part. More specifically, DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 11–13 112(b) Indefiniteness 11–13 1–6, 10, 23 103 Widner, Hancock 1–6, 10, 23 11–13 103 Widner, Hancock, AAPA 11–13 Overall Outcome 11–13 1–6, 10, 23 Appeal 2020-001742 Application 15/901,831 7 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 IN PART