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Patent Trials and Appeals Board

Jan 27, 2022

2021002430 (P.T.A.B. Jan. 27, 2022)

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. 14/799,567 07/14/2015 Munroe Chirnomas P5552465C3 9052 40401 7590 01/27/2022 Hershkovitz and Associates, PLLC 2845 Duke Street Alexandria, VA 22314 EXAMINER LOHARIKAR, ANAND R ART UNIT PAPER NUMBER 3684 NOTIFICATION DATE DELIVERY MODE 01/27/2022 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): USPTO@hershkovitz.net patent@hershkovitz.net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MUNROE CHIRNOMAS ____________ Appeal 2021-002430 Application 14/799,567 Technology Center 3600 ____________ Before MURRIEL E. CRAWFORD, BIBHU R. MOHANTY, and MICHAEL C. ASTORINO Administrative Patent Judges. CRAWFORD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claim 14. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. THE INVENTION Appellant claims an automated store for selling articles. (Spec. ¶ 1, Title). Claim 14 is representative of the subject matter on appeal. 14. A system for storing and selling a variety of articles which are stored in a plurality of movable storage containers, the system comprising: a) a housing for storing the plurality of movable storage containers having articles stored therein, b) a computer for controlling the system Appeal 2021-002430 Application 14/799,567 and apparatus within the housing or connected thereto c) a user interface which communicates customer order information to the computer enabling a customer to order articles which are being stored inside the housing d) a payment system for receiving a payment from a customer for the ordered articles e) at least one article retrieving apparatus for grasping and retrieving an article from a movable storage container stored in the housing in response to a customer order, f) conveyance apparatus for moving the retrieved article to a delivery container, and g) conveyance apparatus for conveying the delivery container containing the ordered article to a customer retrieval area. Appeal Br. 7 (Claims Appendix). THE REJECTIONS Claim 14 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of US Patent No. 8,494,672 B2 issued July 23, 2013; and Claim 14 is rejected under 35 U.S.C. § 102(a)(1) as being anticipated by Chirnomas (US 2009/0149985 A1, published June 11, 2009). ANALYSIS NON-STATUTORY DOUBLE PATENTING REJECTION The Examiner rejects claim 14 on the ground of non-statutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 8,494,672. The Examiner finds that although the claims at issue are not identical, they are not patentably distinct from each other because the claims currently under examination would be anticipated by the entirety of claim 1 of the patented application. Appellant traverses this rejection and also states that a Terminal Disclaimer is being filed concurrently herewith to render this rejection moot so as to obviate Appeal 2021-002430 Application 14/799,567 the need to pursue an appeal of this rejection. (Appeal Br. 5). The Appellant does not offer any arguments in support of the traversal. A Terminal Disclaimer was filed on November 25, 2020. On December 2, 2020, the Terminal Disclaimer was disapproved because it contained a sentence that is not allowed in a Terminal Disclaimer. Appellant was directed to resubmit the Terminal Disclaimer without the non-allowed sentence. Appellant did not filed another Terminal Disclaimer. As no valid Terminal Disclaimer has been filed and no argument is presented in support of the traversal, we will sustain this rejection. REJECTION UNDER 35 U.S.C. § 102 The Examiner rejects the claims as anticipated by Chirnomas (U.S. Pre- Grant Publication No. 2009/01149985). Appellant does not address the substance of this rejection. Rather Appellant argues that the present application would have an effective filing data of at least May 2, 2007 and as far back as May 2, 2006 for commonly disclosed subject matter with application 11/374,310 upon satisfactory completion of the petition process under the unintentional standards under 37 CFR 1.78 and Chirnomas would not be prior art. (Appeal Br. 5-6). Appellant filed a PETITION UNDER 37 CFR 1.55 OR 1.78 TO ACCEPT UNINTENTIONALLY DELAYED CLAIM FOR BENEFIT OF PRIORITY on January 12, 2020. This PETITION was dismissed on March 31, 2020. Appellant filed a RENEWED PETITION UNDER 37 CFR 1.55 OR 1.78 TO ACCEPT UNINTENTIONALLY DELAYED CLAIM FOR BENEFIT OF PRIORITY on April 14, 2020. This PETITION was dismissed on June 16, 2020. Appellant has not shown that Chirnomas is not prior art and has not made arguments in response to this rejection. Therefore, we will sustain this rejection. Appeal 2021-002430 Application 14/799,567 CONCLUSIONS OF LAW We conclude the Examiner did not err in rejecting claim 14 on the ground of nonstatutory double patenting as being unpatentable over claim 1 of US Patent No. 8,494,672. We also conclude the Examiner did not err in rejecting claim 14 under 35 U.S.C. § 102(a)(1) as being anticipated by Chirnomas ‘985. DECISION Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 14 Chirnomas ‘672 14 14 102(a) Chirnomas ‘985 14 Overall Outcome 14 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