Susan McKnight, Inc.

Patent Trials and Appeals Board

Oct 23, 2020

2020001860 (P.T.A.B. Oct. 23, 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.
14/757,266 12/10/2015 Susan McKnight 7906-0037 6977
35301 7590 10/23/2020
McCormick, Paulding & Huber, PLLC
CityPlace II
185 Asylum Street
Hartford, CT 06103
EXAMINER
ARK, DARREN W
ART UNIT PAPER NUMBER
3647
NOTIFICATION DATE DELIVERY MODE
10/23/2020 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):
cunningham@ip-lawyers.com
patentdocket@ip-lawyers.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SUSAN McKNIGHT and CHANGLU WANG
____________

Appeal 2020-001860
Application 14/757,2661
Technology Center 3600
____________

Before PHILIP J. HOFFMANN, CYNTHIA L. MURPHY, and
BRUCE T. WIEDER, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 2–5, 7, 9–12, 20, 21, 31, and 32. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

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 Susan
McKnight, Inc. (Appeal Br. 2.)
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Application 14/757,266

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CLAIMED SUBJECT MATTER
Appellant’s invention relates to “a crawling arthropod intercepting
device that can be placed under or adjacent furniture (bed, sofa, chair, etc.)
and other objects to intercept crawling arthropods including crawling insects
and other crawling pests.” (Spec ¶ 2.)
Claim 31 is the sole independent claim on appeal. It recites
(paragraphing and bracketed matter added):
31. A bed bug intercepting device for placement under a
support leg of furniture or other object, comprising
[(1)] an upstanding, exterior climbable surface that slopes
upwardly at an angle to vertical and that bed bugs can climb,
[(2)] an inner support-leg receiving receptacle for
receiving said support leg to provide a path for bed bugs to enter
the device from the support leg
[(3)] wherein the inner receptacle is bounded by an
upstanding peripheral surface and includes a bottom surface
region on which said support leg is received, and
[(4)] an outer receptacle forming an outer pitfall trap
wherein the outer receptacle is disposed between the inner
receptacle and the exterior climbable surface,
[(5)] wherein the outer receptacle includes an upstanding
inner peripheral surface and an upstanding outer peripheral
surface,
[(6)] said inner peripheral surface and said outer peripheral
surface of the outer receptacle having a surface roughness that is
slippery to prevent bed bugs that enter the outer receptacle from
climbing out, whereby bed bugs are trapped in the outer
receptacle.

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REJECTION2
Claims 2–5, 7, 9–12, 20, 21, 31, and 32 are rejected under 35 U.S.C.
§ 103(a) as unpatentable in view of Jennerich (US 2,167,978, iss.
Aug. 1, 1939), Lyng (US 2005/0138858 A1, pub. June 30, 2005) or Jennings
(US 400,460, iss. Apr. 2, 1889), and Cook (US 1,944,784, iss.
Jan. 23, 1934).

ANALYSIS
Obviousness is a legal conclusion involving a determination of
underlying facts.
Under § 103, the scope and content of the prior art are to be
determined; differences between the prior art and the claims at
issue are to be ascertained; and the level of ordinary skill in the
pertinent art resolved. Against this background, the obviousness
or nonobviousness of the subject matter is determined. Such
secondary considerations as commercial success, long felt but
unsolved needs, failure of others, etc., might be utilized to give
light to the circumstances surrounding the origin of the subject
matter sought to be patented.

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting Graham v.
John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966)).

2 The rejection of claims 2, 3, 7, 9, 11, 31, and 32 under 35 U.S.C. § 103(a)
over Anderson (US 5,996,531, iss. Dec. 7, 1999), Dempster (US 1,024,767,
iss. Apr. 30, 1912), and Cook was withdrawn. (See Answer 3.) The
rejection of claims 4 and 5 under 35 U.S.C. § 103(a) over Anderson,
Dempster, Cook, and Jennerich or Jennings was withdrawn. (See id. at 4.)
The rejection of claims 10, 12, and 21 under 35 U.S.C. § 103(a) over
Anderson, Dempster, Cook, and Lyng was withdrawn. (See id.) The
rejection of claim 20 under 35 U.S.C. § 103(a) over Anderson, Dempster,
Cook, and Wunsche (US 3,851,417, iss. Dec. 3, 1974) was withdrawn. (See
id.)
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With regard to the scope and content of the prior art, the Examiner
finds that Jennerich discloses “an outer receptacle (trough defined between b
and a′) is disposed between the inner receptacle (k) and the exterior climable
[sic] surface (a).” (Final Action 6.) Additionally,
the Examiner contends that the trough formed between the
smoothly inclined surface a′ and rounded glazed portion b of
Jennerich has been broadly yet reasonably interpreted as
representing the claimed “outer receptacle” of appellants’
claim 31 and is capable of trapping bed bugs and other insects
therein due to the presence of the paralyzing powder h which
render the legs of the bed bugs as being ineffective for use in
walking upon the surface of the trough to thereby trap them
therein.

(Answer 7.)
Appellant argues:
The Examiner’s interpretation of Jennerich’s trough as
being a capture space for bed bugs is not just inconsistent with
Jennerich’s categorical statements of operation and without
evidentiary support, but amounts to an improper redesign of the
Jennerich trap. The Examiner’s interpretation not only assigns a
function to Jennerich’s trough which Jennerich expressly
repudiates, but simultaneously renders his catching space k
redundant, or worse yet, useless.

(Appeal Br. 11.) Appellant adds that “Jennerich’s written description is
categorical and unqualified that all insects which reach the trough cannot
help but glide down to the catching space k. (See Jennerich, page 1, col. 2,
ll. 37–41). The Examiner has not cited any evidence to the contrary.” (Id.)
Jennerich discloses an insect trap. Figure 1 of Jennerich is reproduced
below.
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Figure 1 “is a cross-sectional view of an insect trap provided with a spittoon
dish.” (Jennerich, pg. 1, col. 2, ll. 6–7.) Jennerich explains:
The trap shown in Figs. 1 and 2 consists of a basin made
for instance of earthenware with slanting and, if desired,
roughened outer walls a, from which a smoothly inclined surface
a′ and a rounded glazed portion b leads into a catching space k.
The inclined surface a′ and the upper part of the rounded portion
b which together form a nearly horizontal trough and the catching
space k are strewn over with my paralyzing powder h. Insects
reaching the portion a′ get their legs into the powder and, even if
they should want to turn back and flee, cannot help gliding down
into the catching space k, which they are unable to leave.

(Id. at pg. 1, col. 2, ll. 28–41.)
Paragraph (4) of claim 31 recites “an outer receptacle forming an
outer pitfall trap where the outer receptacle is disposed between the inner
receptacle and the exterior climbable surface.” The Specification discloses:
The pitfall trap is an adaptation of hunting techniques that
dates back to primitive man. The basic insect pitfall trap
outdoors comprises a container (a jar, can, or other container)
buried in the soil so that the top edge of the container is at the
same level of soil surface or just below the soil surface. Crawling
insects and spiders fall into the trap and are unable to escape
because they cannot climb up the smooth interior surface.

(Spec. ¶ 9.) In short, a pitfall trap is a trap from which the crawling insects
and spiders are unable to escape. Claim 1 recites “[a] bed bug intercepting
device.” Applying a broadest reasonable interpretation, paragraph (4) of
claim 1 includes an outer receptacle forming a trap from which bed bugs are
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unable to escape “where the outer receptacle is disposed between the inner
receptacle and the exterior climbable surface.” This interpretation is in
accord with paragraph (6) of claim 31 which recites “said inner peripheral
surface and said outer peripheral surface of the outer receptacle having a
surface roughness that is slippery to prevent bed bugs that enter the outer
receptacle from climbing out, whereby bed bugs are trapped in the outer
receptacle.”
Although the Examiner finds the trough formed between Jennerich’s
surface a′ and portion b to be “reasonably interpreted as representing the
claimed ‘outer receptacle,’” we disagree. Properly construed, the outer
receptacle of claim 31 forms a pitfall trap for bed bugs. Jennerich discloses
that insects reaching the portion a′ “cannot help gliding down into the
catching space k.” (Jennerich, pg. 1, col. 2, ll. 39–40.) In other words,
Jennerich teaches that insects do not remain in the trough, but instead
“glid[e] down into the catching space k.” (Id.)3 At best, the trough serves as
an entranceway to the pitfall trap/catching space k. The Examiner
determines that “[i]t would have been obvious . . . to modify the inner and
outer peripheral surfaces of the outer receptacle such that they have a surface
roughness that is slippery to prevent bugs that enter the outer receptacle

3 The Examiner determines that “[i]nsects of varying dimensions and
crawling ability will either be successful in escaping the trough and falling
into catching space k or unsuccessful and failing to exit the trough and
remain trapped within the trough of Jennerich.” (Answer 8.) But the
Examiner provides no citations to support this determination, and it appears
to be in contradiction to the disclosure in Jennerich that “[i]nsects reaching
the portion a′ get their legs into the powder and, even if they should want to
turn back and flee, cannot help gliding down into the catching space k.”
(Jennerich, pg. 1, col. 2, ll. 37–40.)
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from climbing out, whereby bugs are trapped in the outer receptacle.” (Final
Action 7.) But providing such surface roughness is what is contemplated by
Jennerich, i.e., insects “glid[e] down into the catching space k.” (Jennerich,
pg. 1, col. 2, ll. 39–40.) Indeed, absent the slippery surface, insects would
likely not glide into Jennerich’s catching space k.
In sum, we are not directed to any disclosure in Jennerich that the
trough itself serves as a pitfall trap. Nor does the Examiner sufficiently
explain why it would have been obvious to modify Jennerich’s trough to
form a pitfall trap. The Examiner does not rely on any of the other cited art
to remedy this deficiency.

CONCLUSION
The Examiner’s rejection of claims 2–5, 7, 9–12, 20, 21, 31, and 32
under 35 U.S.C. § 103(a) is reversed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
2–5, 7,
9–12, 20,
21, 31,
32
103 Jennerich, Lyng or
Jennings, Cook
2–5, 7, 9–
12, 20,
21, 31, 32

REVERSED