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Patent Trials and Appeals Board

Dec 3, 2019

14757122 - (D) (P.T.A.B. Dec. 3, 2019)

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.
14/757,122 11/20/2015 Stephane Brochu 2634-38A 7246
7590 12/03/2019
Eric Fincham
871 Shefford Street, Suite 304
Bromont, QUEBEC J2L 1CA
CANADA
EXAMINER
BARLOW, ADAM G
ART UNIT PAPER NUMBER
3633
MAIL DATE DELIVERY MODE
12/03/2019 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 STEPHANE BROCHU
____________________

Appeal 2019-003380
Application 14/757,122
Technology Center 3600
____________________

Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
SEAN P. O’HANLON, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–11. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Alu-Rex, Inc.
Appeal Br. 2.
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THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A gutter guard for an eavestrough comprising:
a guard central portion having a plurality of apertures
formed therein, said guard central portion having first and
second sides;
a guard front wall extending upwardly from said first side
of said guard central portion to thereby form a longitudinally
extending front wall corner;
a guard rear wall extending upwardly from said second
side of said guard central portion to thereby form a
longitudinally extending rear wall corner; and
a plurality of embossments formed in at least one of said
front wall corner and said rear wall corner, each of said
embossments being formed in said guard central portion and a
contiguous wall.
EVIDENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Singer US 3,436,878 Apr. 8, 1969
Lin US 8,250,827 B2 Aug. 28, 2012
Vilasineekul US 8,555,580 B2 Oct. 15, 2013
Daudet US 8,555,592 B2 Oct. 15, 2013
REJECTIONS
I. Claims 1–11 stand rejected under 35 U.S.C. § 103 as
unpatentable over Singer and Lin.
II. Claims 1–11 stand rejected under 35 U.S.C. § 103 as
unpatentable over Singer and Vilasineekul.
III. Claims 1–11 stand rejected under 35 U.S.C. § 103 as
unpatentable over Singer and Daudet.
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OPINION
Rejections I–III —Singer in view of Lin, Vilasineekul, or Daudet
In contesting the rejections, Appellant argues independent claims 1
and 11 together, and does not separately argue dependent claims 2–10. See
Appeal Br. 9–12. Appellant relies on the same arguments for each rejection.
See id. For convenience, we discuss the rejections together.
The Examiner finds that Singer teaches a gutter guard having most of
the limitations of claims 1 and 11, including, in relevant part, “a plurality of
embossments (21) that extend through the guard central position and are in
close proximity to both the front wall corner and said rear wall corner.”
Final Act. 2. The Examiner finds that “Singer does not teach that the
embossments/stiffening ribs (21) extend to the front and rear wall corners,
each of said embossments being formed in said guard central portion and a
contiguous wall.” Id. at 3. However, the Examiner finds that each of Lin,
Vilasineekul, and Daudet teaches “that embossments at angular junctions of
sheet metal members are well known.” Id. (citing Lin, Fig. 1; Vilasineekul,
Fig. 1; Daudet, Fig. 1B). The Examiner explains that “[t]hese angular
junction/gusset embossments are formed on a central portion of one plate
and on a contiguous wall of another to provide a measure of structural
reinforcement.” Id. The Examiner determines that “[m]odifying Singer in
accordance with the angular reinforcements disclosed in Lin . . .,
Vilasineekul, or Daudet would have been an obvious way of further
structurally stiffening the gutter cover.” Id.
Appellant does not contest the Examiner’s finding that Lin teaches
embossments. See Appeal Br. 10 (stating that Appellant “does not dispute
this fact”). However, Appellant argues that Daudet’s gussets are
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“substantially different from what [Appellant] has defined in [c]laim 1,” and
Vilasineekul’s gussets are “clearly different from the embossments defined
by [Appellant].” Id. We are not persuaded by these assertions.
Daudet teaches that “first connector 4 has one or more gusset darts 26
in the inner angular juncture 19 that reinforce the inner angular juncture 19.”
Daudet, 4:32–34 (boldface omitted). Vilasineekul teaches “first juncture 25
greater than 90 degrees between the upper surface 21 of the seat member 18
and said inner surface 13 of the first side member 11. The first juncture 25
is reinforced with a first gusset 33.” Vilasineekul, 3:25–29 (boldface
omitted). In this regard, Appellant does not proffer any evidence or
persuasive technical explanation to establish that the embossments recited in
claims 1 and 11 are structurally distinct from the gussets of Daudet or
Vilasineekul. Moreover, Appellants’ Specification does not provide a
special definition to compel a different, or narrower, construction of
“embossment,” as recited in the claims. Notably, although the Specification
describes that “[e]ach embossment 56 consists of an arcuate dome 58 which
is formed in both of the central portion 32 and rear wall 34 and front wall
36” (Spec. 6, ll. 10–11), claims 1 and 11 do not recite this dome structure.
See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (Although the
claims are interpreted in light of the Specification, limitations from the
Specification are not read into the claims.).
Appellant argues that “to merely show that an element of the claim is
known cannot suffice to support a rejection [based] on obviousness.”
Appeal Br. 10. Appellant asserts that “[t]here is nothing in the cited art to
suggest what [Appellant] did. In fact, these references do not even contain
any suggestion that they could be combined in the manner proposed by the
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Examiner.” Id. According to Appellant, “to support a valid combination
rejection the art must also suggest that the combination would accomplish
[Appellant’s] results.” Id. at 11. We are not persuaded by Appellant’s
arguments, which appear to insist on an explicit teaching, suggestion, or
motivation in the prior art to establish obviousness, because such an
argument has been foreclosed by the Supreme Court. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 415, 419 (2007) (stating that a rigid insistence
on teaching, suggestion, or motivation is incompatible with its precedent
concerning obviousness). The Court noted that an obviousness analysis
“need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for [an examiner] can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ.”
Id. at 418. Instead, the relevant inquiry is whether the Examiner has set
forth “some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006), cited with approval in KSR, 550 U.S. at 418.
Here, as discussed above, the Examiner articulates adequate reasoning
based on rational underpinnings as to why it would have been obvious to one
of ordinary skill in the art to modify the gutter guard of Singer, based on the
teachings of Lin, Vilasineekul, or Daudet, to include angular gusset
embossments formed in the corner of the central portion and a contiguous
wall. See Final Act. 3 (explaining that such a modification would “provide a
measure of structural reinforcement” and “further structurally stiffen[] the
gutter cover”). In this regard, Appellant does not specifically address the
Examiner’s articulated reasoning or explain why the reasoning is in error.
Moreover, Appellant has not provided any factual evidence or persuasive
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technical reasoning to show that combining the teachings of Lin,
Vilasineekul, or Daudet with Singer, as proposed by the Examiner, would
yield anything other than a predictable result, or that doing so would be
somehow beyond the level of ordinary skill in the art. See KSR, 550 U.S. at
421 (“A person of ordinary skill is also a person of ordinary creativity, not
an automaton.”).
For the above reasons, Appellant does not apprise us of error in the
Examiner’s determinations that the subject matter of claims 1 and 11 would
have been obvious over Singer in combination with Lin, Vilasineekul, or
Daudet. Accordingly, we sustain the rejections of claims 1 and 11, and
dependent claims 2–10, which Appellant does not separately argue (see
Appeal Br. 9–12), under 35 U.S.C. § 103 as unpatentable over: Singer and
Lin (Rejection I); Singer and Vilasineekul (Rejection II); and Singer and
Daudet (Rejection III).
CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–11 103 Singer, Lin 1–11
1–11 103 Singer, Vilasineekul 1–11
1–11 103 Singer, Daudet 1–11
Overall
Outcome 1–11
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).
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AFFIRMED