UNITED STA (cid:9)I ES PA (cid:9)PENT 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. (cid:9)
`
`FILING DATE
`
`FIRST NAMED INVENTOR
`
`ATTORNEY DOCKET NO. (cid:9)
`
`CONFIRMATION NO.
`
`10/858,242
`
`06/01/2004
`
`Anthony N. Konstant
`
`3490
`
`4428
`
`49224 (cid:9)
`7590 (cid:9)
`08/20/2009
`NIRO, SCAVONE, HALLER & NIRO
`181 W. MADISON
`SUI (cid:9)IL 4600
`CHICAGO, IL 60602
`
`EXAMINER
`
`MAGUIRE, LINDSAY M
`
`ART UNIT
`
`PAPER NUMBER
`
`3692
`
`MAIL DATE
`
`DELIVERY MODE
`
`08/20/2009
`
`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)
`
`TPK 2004
`Wintek v. TPK Touch Solutions
`IPR2014-00541
`
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`
`
`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. (cid:9)
`
`FILING DATE
`
`FIRST NAMED INVENTOR
`
`ATTORNEY DOCKET NO. (cid:9)
`
`CONFIRMATION NO.
`
`10/858,242
`
`06/01/2004
`
`Anthony N. Konstant
`
`3490
`
`4428
`
`49224 (cid:9)
`7590 (cid:9)
`08/20/2009
`NIRO, SCAVONE, HALLER & NIRO
`181 W. MADISON
`SUI (cid:9)IL 4600
`CHICAGO, IL 60602
`
`EXAMINER
`
`MAGUIRE, LINDSAY M
`
`ART UNIT
`
`PAPER NUMBER
`
`3692
`
`MAIL DATE
`
`DELIVERY MODE
`
`08/20/2009
`
`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)
`
`TPK 2004
`Wintek v. TPK Touch Solutions
`IPR2014-00541
`
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`(cid:9)
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE BOARD OF PATENT APPEALS
`AND INTERFERENCES
`
`Ex parte ANTHONY N. KONSTANT
`
`Appeal 2009-001901
`Application 10/858,242
`Technology Center 3600
`
`Decided: August 20, 2009
`
`Before LINDA E. HORNER, JOHN C. KERINS, and
`MICHAEL W. O'NEILL, Administrative Patent Judges.
`
`HORNER, Administrative Patent Judge
`
`DECISION ON APPEAL
`
`STATEMENT OF THE CASE
`
`Anthony N. Konstant (Appellant) seeks our review under 35 U.S.C.
`
`§ 134 of the Examiner's decision finally rejecting claims 1, 4, 5, 10, 12-16,
`
`and 18-20. Claims 2, 3, 11, and 17 have been canceled, and claims 6-9 have
`
`been withdrawn from consideration. We have jurisdiction under 35 U.S.C.
`
`§ 6(b) (2002).
`
`
`
`Appeal 2009-001901
`Application 10/858,242
`
`SUMMARY OF DECISION
`
`We REVERSE.
`
`THE INVENTION
`
`The Appellants' claimed invention is a shelf-type storage rack system.
`
`Spec. 1:2-3. Claim 1, reproduced below, is representative of the subject
`
`matter on appeal.
`
`A shelf-type storage rack system having
`1. (cid:9)
`improved locking cross bars comprising:
`at least one pair of parallel spaced front
`columns;
`at least one pair of parallel spaced rear
`columns;
`at least one generally horizontal front deck
`beam interconnected between the at least one pair
`of spaced front columns, the front deck beam
`including an outer face, and an upper flange, the
`entire upper width of which defines an upper
`support width for at least one locking cross bar,
`and at least one aperture in said outer face;
`at least one generally horizontal rear deck
`beam interconnected between the at least two rear
`columns, the rear deck beam including an outer
`face and an upper flange, the entire upper width of
`which defines an upper support width for said at
`least one locking cross bar; and
`said at least one locking cross bar
`interconnecting said front and rear deck beams to
`form a support surface, said locking cross bar
`having a front end and adapted at a front end to
`
`2
`
`
`
`Appeal 2009-001901
`Application 10/858,242
`
`include a vertical overhanging portion having a
`locking tab to lockingly engage the at least one
`aperture on said outer face of the at least one front
`deck beam, be supported by said upper support
`width of said front deck beam, and, having a rear
`end being adapted at a rear end to include a
`vertical overhanging portion that overhangs and is
`supported by said upper support width of said rear
`deck beam.
`
`THE REJECTION
`
`The Appellant seeks review of the Examiner's rejection of claims 1, 4,
`
`5, 10, 12-16, and 18-20 under 35 U.S.C. § 102(b) as being anticipated by
`
`U.S. Patent No. 5,628,415 to Mulholland, issued May 13, 1997.
`
`ISSUES
`
`The Appellant contends the Examiner erred in finding that
`
`Mulholland anticipates independent claims 1, 10, and 18, because
`
`Mulholland does not disclose a cross bar with a locking tab that engages an
`
`aperture on an outer face of a deck beam. App. Br. 16-18. The Appellant
`
`further contends the Examiner erred in finding that Mulholland anticipates
`
`independent claims 1 and 18 because Mulholland does not disclose a cross
`
`bar with vertical overhanging portions that overhang the upper support
`
`widths of the deck beams. App. Br. 19-20.1
`
`1 The Appellant made other arguments as to how the structure disclosed in
`Mulholland differs from the claimed invention, but we do not need to reach
`3
`
`
`
`Appeal 2009-001901
`Application 10/858,242
`
`The issues presented by this appeal are:
`
`Has the Appellant shown the Examiner erred in finding that
`
`Mulholland discloses a cross bar with a locking tab that engages an aperture
`
`on an outer face of a deck beam as called for in claims 1, 10, and 18?
`
`Has the Appellant shown the Examiner erred in finding that
`
`Mulholland discloses a cross bar with vertical overhanging portions as called
`
`for in claims 1 and 18?
`
`FINDINGS OF FACT
`
`We find that the following enumerated findings are supported by at
`
`least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
`
`1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
`
`proceedings before the Office).
`
`1. Mulholland discloses an upright frame structure 12 including a
`
`number of pairs of generally parallel, laterally-spaced support
`
`beams 14, where the support beams 14 have steps on their upper
`
`facing surfaces defining upper support surfaces 16 and lower
`
`support surfaces 18. Mulholland, col. 3, 11. 9-16; Fig. 1.
`
`2. Mulholland discloses a row of slots 20 formed in lower support
`
`surfaces 18. Mulholland, col. 3, 11. 16-17; Fig. 1.
`
`3. Mulholland discloses a safety bar 130 configured as a channel
`
`member and having a plate 200 fastened to each end of the channel
`
`member. Each plate 200 extends beyond one of the sidewalls 134
`
`these additional arguments to dispose of this appeal.
`4
`
`
`
`Appeal 2009-001901
`Application 10/858,242
`
`of the channel member. The bottom of each plate 200 defines a
`
`hook 206. The safety bar 130 is secured to the support beams by
`
`inserting the hook 206 on each plate 200 into one of the slots 20 on
`
`lower support surfaces 18. Mulholland, col. 4, 11. 20-49; Fig. 7.
`
`4. (cid:9)
`
`As shown in Figures 7 and 8 of Mulholland, the portions of plate
`
`200 that extend upwardly of hook 206 reside above lower support
`
`surface 18 and do not extend beyond or hang over the edges of
`
`lower support surface 18.
`
`PRINCIPLES OF LAW
`
`"A claim is anticipated only if each and every element as set forth in
`
`the claim is found, either expressly or inherently described, in a single prior
`
`art reference." Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
`
`628, 631 (Fed. Cir. 1987). To establish anticipation, every element and
`
`limitation of the claimed invention must be found in a single prior art
`
`reference, arranged as in the claim. Karsten Mfg. Corp. v. Cleveland Golf
`
`Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001). In other words, there must be no
`
`difference between the claimed invention and the reference disclosure, as
`
`viewed by a person of ordinary skill in the field of the invention. Scripps
`
`Clinic & Research Found. v. Genentech Inc., 927 F.2d 1565, 1576 (Fed. Cir.
`
`1991).
`
`5
`
`
`
`Appeal 2009-001901
`Application 10/858,242
`
`ANALYSIS
`
`Independent claim 1 calls for a front deck beam including an outer
`
`face and an upper flange. Independent claim 10 calls for a front deck beam
`
`having an outer face and an upper support width. Independent claim 18 calls
`
`for a rear deck beam including an outer face and an upper support width.
`
`All three claims call for at least one aperture in the outer face. We read
`
`claims 1, 10, and 18 to recite the upper flange/upper support width and the
`
`outer face as being separate elements of the deck beams.
`
`The Examiner found that Mulholland's lower support surface 18
`
`satisfies the claimed upper flange/upper support width on which the locking
`
`cross bar rests. Ans. 3. The Examiner found that Mulholland's lower
`
`support surface 18 also satisfies the claimed outer face containing an
`
`aperture 20. Id.
`
`The Examiner erroneously read both the upper flange/upper support
`
`width and the outer face on the same structure in Mulholland. Consistent
`
`with the principle that all limitations in a claim must be considered to be
`
`meaningful, it is improper to rely on the same structure in the Mulholland
`
`reference as being responsive to two different elements (the upper
`
`flange/upper support width and the outer face) in claims 1, 10, and 18. See
`
`Lantech, Inc. v. Keip Machine Co., 32 F.3d 542 (Fed. Cir. 1994)(in
`
`infringement context, a single conveyor held to not meet claim element
`
`requiring at least two conveyors); In re Robertson, 169 F.3d 743 (Fed. Cir.
`
`1999)(claim requiring three separate means not anticipated by structure
`
`6
`
`
`
`Appeal 2009-001901
`Application 10/858,242
`
`containing two means where one of the two means was argued to meet two
`
`of the three claimed means).
`
`The Examiner further erred in finding that Mulholland discloses a
`
`locking cross bar having a vertical overhanging portion that overhangs and is
`
`supported by the upper support width of a deck beam, as called for in claims
`
`1 and 18. The Examiner found that Mulholland has a vertical overhang
`
`portion (200) that overhangs at least one deck beam. Ans. 4. The Examiner
`
`further explained that plate 200 "extends beyond something else" and thus
`
`meets the claimed vertical overhang portion. Ans. 6-7.
`
`We find that the portions of plate 200 that extend upwardly from hook
`
`206 reside above lower support surface 18 and do not extend beyond or hang
`
`over the edges of lower support surface 18 (Fact 4). The only portion of
`
`plate 200 that extends beyond lower support surface 18 is hook 206, which
`
`the Examiner found corresponds to the claimed locking tab (Ans. 4), and
`
`thus the hook 206 cannot also be relied upon as the vertical overhanging
`
`portion.
`
`For these reasons, we cannot sustain the rejection of claims 1, 10, and
`
`18 as being anticipated by the Mulholland patent. The rejection of
`
`dependent claims 4, 5, 12-16, 19, and 20 fails for the same reasons.
`
`CONCLUSIONS
`
`The Appellant has shown the Examiner erred in finding that
`
`Mulholland discloses a cross bar with a locking tab that engages an aperture
`
`on an outer face of a deck beam as called for in claims 1, 10, and 18.
`
`7
`
`
`
`Appeal 2009-001901
`Application 10/858,242
`
`The Appellant has shown the Examiner erred in finding that
`
`Mulholland discloses a cross bar with vertical overhanging portions as called
`
`for in claims 1 and 18.
`
`The decision of the Examiner to reject claims 1, 4, 5, 10, 12-16, and
`
`DECISION
`
`18-20 is reversed.
`
`REVERSED
`
`Vsh
`
`NIRO, SCAVONE, HALLER & NIRO
`181 W. MADISON
`SUITE 4600
`CHICAGO IL 60602
`
`8
`
`
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