Moore, David E.Download PDFPatent Trials and Appeals BoardSep 27, 201914732164 - (D) (P.T.A.B. Sep. 27, 2019) Copy Citation 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. 14/732,164 06/05/2015 David E. Moore BRSAV.001C2 7604 20995 7590 09/27/2019 KNOBBE MARTENS OLSON & BEAR LLP 2040 MAIN STREET FOURTEENTH FLOOR IRVINE, CA 92614 EXAMINER LUGO, CARLOS ART UNIT PAPER NUMBER 3675 NOTIFICATION DATE DELIVERY MODE 09/27/2019 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): efiling@knobbe.com jayna.cartee@knobbe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DAVID E. MOORE Appeal 2019-001668 Application 14/732,164 Technology Center 3600 ____________ Before MICHAEL J. FITZPATRICK, ANNETTE R. REIMERS, and BRANDON J. WARNER, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Appellant, Compumeric Engineering, Inc.,1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1–8, 10, 12–20, 22, and 24. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Compumeric Engineering, Inc. is the applicant and sole real party in interest. See 37 C.F.R. § 1.42(b); Appeal Br. 3. Appeal 2019-001668 Application 14/732,164 2 STATEMENT OF THE CASE The Specification The disclosure “relates to latching systems and, in particular, concerns a latching system for use with a container to inhibit access to the interior of the container by animals.” Spec. ¶2. Figures 1A and 1B are reproduced below. Figures 1A and 1B, reproduced above, “illustrate perspective views of a container equipped with one embodiment of an animal resistant latching system in the opened and closed position.” Id. ¶12. The container includes a door, i.e., access panel 104, having a rectangular-shaped opening 124. Id. ¶¶18, 20. On interior “first side” 122a of the access panel are latching members 112, cam assembly 114, and related components. Id. ¶25. On exterior “second side” 122b of the access panel are a cover 116, covering the opening in the access panel, and bracket 120. Id. ¶23. Figure 4 is reproduced below with our annotation. Appeal 2019-001668 Application 14/732,164 3 Figure 4, reproduced above, shows “a side view of the animal resistant latching system of Figure 1, illustrating one embodiment of the predetermined dimensions of the latching system which inhibit access of the lever by bears.” Id. ¶15. The cover is open on its underside, providing cover opening 154 through which a hand may extend. Id. ¶23. Bracket 120 is positioned below the cover opening but spaced apart by bracket offset 260. Id. ¶42; see also id. ¶8 (“[T]he bracket is spaced from the cover opening a distance that is selected to permit human access to the cover opening but inhibit access by animals.”). Our annotation shows the path through which a hand traverses to access lever 182 of the cam assembly to Appeal 2019-001668 Application 14/732,164 4 unlock the access panel. Id. ¶¶30, 35, 42. More specifically, the hand passes, left to right, between the cover and bracket, then upward through the cover opening, and finally rightward again through the opening in the access panel. The Rejected Claims Claims 1–8, 10, 12–20, 22, and 24 are rejected; no other claims are pending.2 Claim 1 is illustrative and reproduced below. 1. An animal resistant latching system for use with a container to inhibit access to the interior of the container by animals, the latching system comprising: an access panel having a first and a second side and an opening formed between the first and second sides wherein the access panel is adapted to be moved between an open and a closed position with respect to the container; at least one latching member that is movable between a latched position and an unlatched position wherein the at least one latching member is coupled to the access panel at a location wherein the at least one latching member inhibits movement of the access panel to thereby inhibit access to the container in the latched position and wherein the at least one latching member permits movement of the access panel to thereby allow access to the container in the unlatched position; a cam assembly having a lever wherein the cam assembly is mounted to a first side of the access panel and wherein the cam assembly is coupled to the at least one latching member such that movement of the cam assembly results in movement 2 Both the Final Action and Appeal Brief include typographical errors regarding which claims are pending and rejected. The Final Action lists claims 11 and 23 as pending and rejected (Final Act. 1, 3), but those claims are cancelled. See Appeal Br. 10, 19, and 21. The Appeal Brief misstates that “appeal of Claims 1–10, 12–22 and 24 is now being sought” (Appeal Br. 10) but elsewhere correctly acknowledges that claims 9 and 21 are also cancelled. Id. at 19, 21. Appeal 2019-001668 Application 14/732,164 5 of the at least one latching member between the latched and unlatched positions and wherein the lever is positioned adjacent the opening in the access panel and is accessible so as to allow a person to move the cam assembly so as to urge the at least one latching member from the latched position to an unlatched position; a cover that is mounted on the second side of the access panel so as to cover the opening in the access panel wherein the cover has side walls that extends outward from the plane of the second side of the access panel and an outer surface that interconnects the side walls so as to define a space positioned above the opening in the access panel wherein the cover defines a cover opening that permits access into the space defined by the cover and also to the lever of the cam assembly wherein the cover opening is dimensioned to allow access to the lever via the opening in the access panel to manipulate the at least one latching member from the latched position to the unlatched position; and a bracket positioned on the second side of the access panel adjacent the cover opening wherein the bracket extends outward from the second surface of the panel and wherein the bracket is spaced from the cover opening. Appeal Br. 18–19. Appeal 2019-001668 Application 14/732,164 6 The Examiner’s Rejections The following rejections, all under 35 U.S.C. § 103(a),3 are before us for review: 1. claims 1, 2, 10, 12–14, 22, and 24 as being unpatentable over Kennedy,4 Bishop,5 and Smith6 (Final Act. 3); 2. claims 3–6 and 15–18 as being unpatentable over Kennedy, Bishop, Smith, and Rand7 (id. at 6); 3. claims 7 and 19 as being unpatentable over Kennedy, Bishop, Smith, and Hess8 (id.); and 4. claims 8 and 20 as being unpatentable over Kennedy, Bishop, Smith, and Hambleton9 (id. at 7). DISCUSSION Rejection 1 The Examiner rejected claim 1, among others, upon determining that a person of ordinary skill in the art would have modified Kennedy’s latch and lock for trailer doors by incorporating Bishop’s “cover member (A),” which is actually a “metallic lift” for a window sash (see Bishop 1), and also incorporating Smith’s laterally projecting portion 29 as a “bracket.” Final Act. 3–6. 3 The Final Action includes a rejection of claims 11 and 23 under 35 U.S.C. § 112 ¶2 (see Final Act. 2) but, again, those claims are cancelled. 4 US 5,509,700, issued Apr. 23, 1996 (“Kennedy”). 5 US 135,396, issued Feb. 4, 1873 (“Bishop”). 6 US 3,999,792, issued Dec. 28, 1976 (“Smith”). 7 US 140,307, issued June 24, 1873 (“Rand”). 8 US 1,044,047, issued Nov. 12, 1912 (“Hess”). 9 US 5,341,752, issued Aug. 30, 1994 (“Hambleton”). Appeal 2019-001668 Application 14/732,164 7 One of Appellant’s arguments against this rejection is that “the cited art does not teach the combination of a cover and bracket that is spaced away from the opening.” Appeal Br. 14 (all caps and bolding removed); see also Reply 4–5. The actual claim limitation being disputed states as follows: “a bracket positioned on the second side of the access panel adjacent the cover opening wherein the bracket extends outward from the second surface of the panel and wherein the bracket is spaced from the cover opening.” Appeal Br. 19 (emphasis added); To meet this limitation, the Examiner relied exclusively on Smith. Final Act. 5. Figure 6 of Smith, as annotated by the Examiner, is reproduced below. Figure 6 of Smith, reproduced above, shows what the Examiner asserts as a bracket and cover opening. Final Act. 5. The Examiner explained as follows: Smith teaches that it is well known in the art to provide a system having an operator (21) positioned within a cover member (26) Appeal 2019-001668 Application 14/732,164 8 having an opening (20) and a bracket member (29) located at a certain distance from the opening of the cover to inhibit undesirable access to the operator. Id. The Examiner’s findings regarding Smith are in error. Smith does not include a cover within the meaning of claim 1. Indeed, elsewhere in the Final Action, the Examiner relies on Bishop to teach the cover limitation. See Final Act. 4. Further, in Smith, the asserted bracket (i.e., “laterally projecting portion 29”) is not located at any distance from the asserted cover opening (i.e., 20). Rather, as seen above, the bottom surface of the asserted cover opening and the upper surface of the asserted bracket are flush with one another. For these reasons, we reverse the rejection of claim 1 and claim 13, which also recites that “the bracket is spaced from the cover opening.” Appeal Br. 21. For similar reasons, we also reverse the rejection of claims 2, 10, 12, 14, 22, and 24, all of which ultimately depend from claim 1 or claim 13. See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988) (“Dependent claims are nonobvious under section 103 if the independent claims from which they depend are nonobvious.”). Rejections 2–4 In Rejections 2–4, the Examiner relies on additional references to meet limitations recited by dependent claims 3–8 and 15–20. In doing so, the Examiner does not rely on the additional references in any way that would cure the deficiency of the underlying rejection of independent claims 1 and 13 identified above. Accordingly, we reverse the rejections claims 3– 8 and 15–20, all of which ultimately depend from either claim 1 or claim 13. Appeal 2019-001668 Application 14/732,164 9 SUMMARY Claims Rejected Basis Affirmed Reversed 1, 2, 10, 12–14, 22, and 24 § 103(a); Kennedy, Bishop, and Smith 1, 2, 10, 12– 14, 22, and 24 3–6 and 15–18 § 103(a); Kennedy, Bishop, Smith, and Rand 3–6 and 15–18 7 and 19 § 103(a); Kennedy, Bishop, Smith, and Hess 7 and 19 8 and 20 § 103(a); Kennedy, Bishop, Smith, and Hambleton 8 and 20 Overall Outcome 1–8, 10, 12– 20, 22, and 24 REVERSED Copy with citationCopy as parenthetical citation