Ex parte Apps

• Decision Date: 28 September 2006
• Docket Number: Application 09/848,628,Appeal 2005-0801
• Parties: Ex parte WILLIAM P. APPS and GABRIEL A. GURRA Technology Center 3600
• Court: Patent Trial and Appeal Board

Ex parte WILLIAM P. APPS and GABRIEL A. GURRA Technology Center 3600

Appeal 2005-0801

Application 09/848, 628 ^[1]

United States Patent and Trademark Office, Patent Trial and Appeal Board

September 28, 2006

This Opinion is Not binding Precedent of the Board.

ON BRIEF

Before: GARRIS, McQUADE, JERRY SMITH, FRANKLIN, and MacDONALD Administrative Patent Judges.

DECISION ON APPEAL

PER CURIAM

AFFIRMED

A. INTRODUCTION

1. Appellants appeal from a final rejection entered April 17, 2002.

2. The reissue application on appeal seeks to reissue U.S. Patent 5, 899, 468, issued May 4, 1999, based on application 08/887, 238, filed July 2, 1997.

3. The reissue application contains claims 1-13.

4. Claims 8-13 have been rejected under 35 U.S.C. § 251 on the grounds that these claims seek to recapture subject matter surrendered when the patent sought to be reissued was granted.

5. Claims 8-13 have also been rejected under 35 U.S.C. § 103 on the grounds that these claims are unpatentable over U.S. Patent 5, 031, 796, to Schafer et al. (Schafer) in view of U.S. Patent 3, 342, 368, to Matry.

6. Claims 1-7, the remaining claims, have been indicated as being allowable.

7. Appellants filed an Appeal Brief (the Brief) on November 12, 2002, a Reply Brief (the Reply) on January 29, 2003, and a Supplemental Reply Brief (the Supplemental Reply) on May 3, 2004.

8. The first issue before the Board is whether Appellants have established that the Examiner erred in rejecting claims 8-13 based on recapture.

9. The second issue before the Board is whether Appellants have established that the Examiner erred in rejecting claims 8-13 under 35 U.S.C. § 103.

B. FINDINGS OF FACT

The following findings of fact are believed to be supported by a preponderance of the evidence.

THE INVENTION

1. The invention relates to a wheeled waste cart, which allows air circulation in through lower vents, up through a hinged perforated false bottom, and out the top of the cart through a hooded vent in a hinged lid (U.S. Patent 5, 899, 468, at Col. 1, ll. 37-42).

2. The invention can be understood by reference to Figures 1 through 6 of the drawings of U.S. Patent 5, 899, 468, which are reproduced in Appendix 1 of this opinion.

3. Fig. 1 is a perspective view of the waste cart 20 including a hollow body 22, an upper end 32, a lid 40, vents 50 near a base 24, vents 52 in the upper end 32, and hooded lid vent 54 in the lid 40, according to the present invention (Col. 2, ll. 26-46). ^[2]

4. Fig. 2^[3] is a partial cross sectional view showing the interior details of the cart 20 of FIG. 1 (Col. 2, ll. 13-14).

5. Fig. 2 shows a false bottom or drying plate 56 having perforations 58 (Col. 2, ll. 47-48). The false bottom 56 includes hinged pins 62 which engage suitable inner receptacles 63 so that the false bottom 56 can rotate upwardly (Col. 2, ll. 52-56). The false bottom 56 is supported from a bottom 59 by a plurality of plastic hollow cylinders 66 (Col. 2, ll. 59-60).

6. Fig. 3^[4] is a side cross sectional view through the cart 20 of Figs. 1 and 2 (Col. 2, ll. 15-16).

7. Fig. 3 shows a hooded lid vent 54 fitting into a vent hole 72 (Col. 3, ll. 7-8). The hooded lid vent 54 has an upper hood portion 76 defining a sideward facing opening 77 [mislabeled in Fig. 3 as upper item 72] and covering a perforated vent plate 78 positioned at about 45 degrees to normal horizontal in the opening 77 so that rain cannot pass through the perforated vent plate 78 (Col. 3, ll. 9-15).

8. Fig. 4^[5] is an exploded perspective view of the major components of the cart 20 of Figs. 1, 2, and 3 (Col. 2, ll. 17-18).

9. Fig. 4 shows hollow body 22, lid 40, vents 50 near the base 24, vents 52 in the upper end 32 [not labeled in Fig. 4], vent hole 72, hooded lid vent 54, perforated vent plate 78, false bottom or drying plate 56, a plurality of plastic hollow cylinders 66, and pins 62.

10. Fig. 4 also shows a reinforcing groove 85 in hooded lid vent 54 at a right angle to perforated vent plate 78.

11. Fig. 5 is a front view of the detachable vent 54 of Figs. 1 through 4 (Col. 2, ll. 19-20). 12. Fig. 5 shows the reinforcing groove 85 in hooded lid vent 54 (Col. 3, ll. 29-31). 13. Fig. 6 is a side view of the vent structure of Fig. 5 (Col. 2, ll. 21).

14. Fig. 6 shows the hooded lid vent 54 having a plurality of "L" shaped retainer members 79, a plurality of arrowhead shaped catch members 80, all of which face outwardly to engage the lid 40. The hooded lid vent 54 further includes an abutment surface 75 in contact with the surface while the "L" shaped retainer members 79 retain the vent 54 to the lid 40 and the catch members 80 allow the vent 54 to be snapped into place covering the vent hole 72 (Col. 3, ll. 18-25).

15. U.S. Patent 5, 464, 733, states three objects of the invention (emphasis added):

[It is] therefore [an] object of the invention to provide an improved organic waste cart, which can promote drying of organic waste therein even in a relatively moist environment (Col. 1, ll. 61-65)

Another object is to optimize the drying airflow from bottom to top in an organic waste cart. (Col. 1, ll. 66-67)

Another object is to provide a hooded vent on the lid of a waste cart amenable to automated pickup, which prevents rain from entering the cart through the lid. (Col 2, ll. 1-3)

16. The objects of the invention in U.S. Patent 5, 464, 733, do not include any specific reference to a pivotable, perforated false bottom (such as item 56) or a support member (such as item 66) for the false bottom.

PROSECUTION HISTORY OF THE ORIGINAL APPLICATION

17. As noted earlier, the patent sought to be reissued was based on application 08/887, 238, filed July 2, 1997 ("original application").

18. As filed, the original application contained claims 1-20. Claims 1, 11, and 17 are independent claims (claims 1 and 11 are reproduced below with reference numbers added). Claims 2-10, 12-16, and 18-20 depend therefrom respectively (claims 2, 3, 4, 6, and 7, are reproduced below with reference numbers added).

19. Claim 1 as originally filed reads as follows:

Claim 1 (as filed). A waste cart [20] that enables the drying of moist waste therein including:

a hollow body [22] having

a lower portion [which is not labeled]

an upper portion [32] defining:

an opening for loading and unloading waste from said hollow body [22]; and

at least one vent hole [50] in the lower portion; and a lid [40] for closing said opening for loading and unloading waste from said hollow body [22], said lid [40] including: at least one lid vent [54 & 72] there through, whereby air can convect through said at least one vent hole [50] in said lower portion [32], through any waste contained in said lower portion [32], and out said lid vent [54 & 72] carrying moisture therewith.

20. Claim 2 as originally filed reads as follows:

Claim 2 (as filed). The waste cart [20] as defined in claim 1 wherein said at least one lid vent [54 & 72] includes:

a vent hole [72] in said lid [40]; and

a hood [54] covering said lid vent hole [72].

21. Claim 3 as originally filed reads as follows:

Claim 3 (as filed). The waste cart [20] as defined in claim 2 wherein said hood [54] covering said lid vent hole [72] includes:

an abutment surface [75] for contacting said lid [40] about said lid vent hole [72];

at least one L shaped retainer member [79] to hold said hood [54] to said abutment surface [75]; and

at least [one] catch member [80] opposite said at least one L shaped retainer member [79] to releasably retain said hood [54] to said lid [40].

22. Claim 4 as originally filed reads as follows:

Claim 4 (as filed). The waste cart [20] as defined in claim 2 wherein said hood [54] covering said lid vent hole [72] includes:

a generally horizontal hood portion [76];

a sidewardly facing opening [77] in said hood [54] with respect to falling rain by said hood portion; and

a perforated plate [78] covering said sidewardly facing opening [77].

23. Claim 6 as originally filed reads as follows:

Claim 6 (as filed). The waste cart [20] as defined in claim 4 wherein said hood portion [76] includes:

a reinforcing groove [85] centrally located in said hood portion [76] at a right angle to said perforated plate [78].

24. Claim 7 as originally filed reads as follows:^[6]

Claim 7 (as filed). The waste cart [20] as defined in claim 1 further including: a perforated false bottom [56] positioned in said hollow body [22] above said at least one vent hole [50] in said lower portion [32] to allow air circulation under waste retained above said false bottom [56], wherein said at least one lid vent [54 & 72] includes:

a vent hole [72] in said lid [40]; and

a hood [54] covering said lid vent hole [72], said vent hole [72] includeing: an abutment surface [75] for contacting said lid [40] about said lid vent hole [72];

at least one L shaped retainer member [79] to hold said hood [54] to said abutment surface [75]; and

at least [one] catch member [80] opposite said at least one L shaped retainer member [79] to releasably retain said hood [54] to said lid [40], said lid vent hole [72] including: a generally horizontal hood portion [76];

a sidewardly facing opening [77] in said hood [54] with respect to falling rain by said hood portion; and

a perforated plate [78] covering said sidewardly facing opening [77].

25. Claim 11 as originally filed reads as follows:

Claim 11 (as filed). A waste cart [20] that dries moist waste therein including:

a hollow body [22] having;

a lower portion [which is not labeled];

an upper portion [32] defining:

an opening for loading and unloading waste from said hollow body;

at least one vent hole [50] in the lower portion; and

at least one vent hole [52] in the upper

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