DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Specification
The disclosure is objected to because of the following informalities: Reference number 34 is used for both interior walls 34 (at least [0042]) and stabilizing projection 34 (at least [0045]).
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 1-15 and 17-20 are rejected under 35 U.S.C. 112(a), as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, at the time the application was filed, had possession of the claimed invention.
With respect to claims 1 and 10: The originally-filed specification, at least at [0042] and [0054], describes the elevation portion 24 extending along the proximal end 16 between the attachment element 22 and the ramp arm 20. The elevation portion 24 elevates the ramp arm 20 at the proximal end 16. The elevation portion 24 defines an area or extent along the proximal end 16 that includes a length between the ramp arm 20 and attachment element 22.
The ramp arm 20 extends between the proximal end 16 and the distal end 18. The support flange 28 extends between the proximal end 16 and the distal end 18. Ergo, the elevation portion 24 is at the proximal end 16 – in the same area that the ramp arm 20 and support flange 28 are at the proximal end 16.
The claim limitation to the elevation portion “inset from the proximal end forming a horizontal surface between the proximal end and the elevation portion” raises the issue of new matter, and thereby necessitates rejection under 35 U.S.C. § 112(a).
The specification never states that the top of tab 36a is horizontal. The drawings are not specific and/or detailed enough to conclude that the top of tab 36a is exactly horizontal. The specification does not state that elevation portion 24 is orthogonal to the top of tab 36a, and the drawings are not detailed enough to make this conclusion.
The claim limitations “forming a horizontal surface” and “the elevation portion orthogonal to the horizontal surface” raise the issue of new matter, and thereby necessitate rejection under 35 U.S.C. § 112(a).
With respect to claims 2-9, 11-15, and 17-20: The claims are rejected under 35 U.S.C. § 112(a) via dependency.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1-15 and 17-20 are rejected under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
With respect to claims 1 and 10: See Applicant’s Fig. 1. The ramp arm 20 extends between the proximal end 16 and the distal end 18 as claimed. The support flange 28 extends between the proximal end 16 and the distal end 18 as claimed.
It is unclear how the claim limitation “the elevation portion inset from the proximal end” can exist when the ramp arm 20 and support flange 28 extend to the proximal end 16. As claimed, the proximal end is both at and not at the end of the ramp arm opposite the distal end. It is unclear how this can happen.
With respect to claims 2-9, 11-15, and 17-20: The claims are rejected under 35 U.S.C. § 112(b) via dependency.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-8, 10-14, and 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 9,635,958 B2 (Neelagantan) in view of US 2017/0099961 A1 (Church).
With respect to claim 1: Neelagantan discloses a shelving apparatus (shelf assembly 100) for a refrigerated display case (refrigerated display case 10), comprising: a bracket element (shelf bracket 120) extending along a longitudinal axis (front-rear axis), wherein the bracket element comprises a substantially planar body (skirt portion 130) having a proximal end (rear end), a distal end (front end), and a ramp arm (curved transitional area connecting skirt portion 130 and lip portion 140) extending between the proximal end and the distal end (at least Fig. 4B), the proximal end comprising an attachment element (one or more of the anchoring tabs 160) configured to couple to a refrigerated display case (anchoring tabs 160 couple to a shelf standard 40 of a refrigerated display case 10), the attachment element comprising at least one tab (one or more of the anchoring tabs 160) protruding from the proximal end (at least Figs. 4B and 7), wherein the substantially planar body comprises an elevation portion (see the annotated image below) vertically disposed between the ramp arm and the attachment element, the elevation portion inset from the proximal end (see the annotated image below) forming a horizontal surface (see the annotated image below; also see Fig. 4B for that surface being horizontal) between the proximal end and the elevation portion, the at least one tab protruding outwardly from the proximal end such that the elevation portion and the at least one tab are vertically offset with respect to the proximal end (the anchoring tabs 160 are vertically offset lower than the “elevation portion”), the elevation portion closer to the distal end than the at least one tab (the “elevation portion” is closer to the front end of bracket 120 than the anchoring tabs 160), the elevation portion orthogonal to the horizontal surface (see the annotated image below and Fig. 4B); and a support flange (lip portion 140) extending substantially perpendicularly from the ramp arm between the proximal end and the distal end (at least Fig. 4B), wherein the support flange is configured to support a horizontal shelf (shelf 50).
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The annotated image above identifies a “horizontal surface”, which is relied upon as being orthogonal to the “elevation portion” as claimed. If the identified “horizontal surface” is held to not be horizontal and/or not orthogonal to the “elevation portion”, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the shelf bracket 120 such that the identified “horizontal surface” is horizontal and orthogonal to the “elevation portion” as a minor variation of what is shown in the figures. This does not affect the operation of the bracket 120 in any way.
Neelagantan does not disclose the shelf assembly 100 is “gravity feed” as claimed. Neelagantan does not disclose the elevation portion (see the annotated image above) “forming an acute ramp angle in which the ramp arm slopes downwardly from the proximal end to the distal end” as claimed.
Church [0002] states that shelving assemblies being angled downwards from rear to front enhances product visibility and provides ready access to the displayed products. See at least Church Figs. 1-5 for a bracket 18 that is analogous to Neelagantan’s shelf bracket 120, and forms an acute ramp angle from the proximal end to the distal end thereof. The “ramp arm” of Church’s bracket 18 (the curved transitional area connecting side wall 58 and bracket support member 34) slopes downwardly from the proximal end (rear end 30) to the distal end (front end 26).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Neelagantan’s shelf bracket 120 to form an acute ramp angle at the “elevation portion”, and thereby have the “ramp arm” slope downwardly from the proximal end to the distal end, in order to enhance product visibility and provide ready access to products displayed on Neelagantan’s shelf 50 similarly to Church’s invention. Neelagantan col. 1 discloses the display case 10 is used in a supermarket, so this aids in selling refrigerated groceries.
With respect to claim 2: Church does not disclose “wherein the acute ramp angle is about eight degrees” as claimed.
Church’s shelf is angled downwardly to enhance product visibility and provide ready access to the displayed products (Church [0002]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Neelagantan’s bracket 120 to have the “acute ramp angle” about 8 degrees, as one of the obvious and finite possibilities for angling the shelf 50 downwardly to enhance product visibility and provide ready access.
With respect to claim 3: Neelagantan discloses wherein the attachment element comprises at least one tab (multiple anchoring tabs 160) extending along the longitudinal axis from the proximal end.
With respect to claim 4: Neelagantan discloses wherein the at least one tab and the substantially planar body are coplanar (Figs. 4B and 7).
With respect to claim 5: Neelagantan discloses wherein the at least one tab comprises a single positioning notch (Fig. 7: one of the notches in one of the upper two anchoring tabs 160 or the single notch in the central tab 160) configured to retain the bracket element in a fixed position with respect to the refrigerated display case (by mounting to shelf standard 40).
The claim uses the phrase “comprises”, which is open to additional and unrecited claim elements. Any additional notches in an anchoring tab 160 is/are additional and unrecited claim element(s).
With respect to claim 6: Neelagantan discloses wherein the single positioning notch is disposed adjacent to the proximal end and extends in a substantially vertical direction from a base of the at least one tab (Fig. 7).
With respect to claim 7: Neelagantan discloses wherein the at least one tab comprises a plurality of tabs (multiple anchoring tabs 160) disposed one on top of another in a vertically stacked arrangement (Fig. 7).
With respect to claim 8: Neelagantan does not disclose “wherein a height of the vertically stacked arrangement comprises 3.5 inches or less” as claimed, in that Neelagantan remains silent as to the measure of that dimension.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have the height defined by the anchoring tabs 160 be 3.5 inches or less, in that it is obvious to vary the size of Neelagantan’s shelf assembly 100. One would have bigger or smaller assemblies 100 (and components thereof), based on what will be displayed on the shelves 50, the available space in the supermarket, etc.
With respect to claim 10: The same combination of Neelagantan and Church used to reject the claims above meets a gravity feed shelving system (shelf assembly 100, as modified) for a refrigerated display case (refrigerated display case 10), comprising: a support structure (shelf standard 40) coupled to an interior wall of a refrigerated display case (directly or indirectly coupled to aft wall 30, top wall, and/or bottom wall in Neelagantan Fig. 1); a pair of bracket elements (brackets 120, as modified) coupled to the support structure, wherein each of the pair of bracket elements comprises a substantially planar body (skirt portion 130) having a proximal end (rear end), a distal end (front end), and a ramp arm (curved transitional area connecting skirt portion 130 and lip portion 140) extending along a longitudinal axis (front-rear axis) between the proximal end and the distal end (at least Fig. 4B), each of the pair of bracket elements further comprising: an attachment element (one or more of the anchoring tabs 160) extending along the longitudinal axis from the proximal end, wherein the attachment element is coplanar with the substantially planar body (Fig. 7) and engaged with the support structure (col. 3); an elevation portion (see the annotated image in the rejection of claim 1) disposed between the ramp arm and the attachment element, wherein the elevation portion creates an obtuse angle between the ramp arm and the support structure (the angle between the shelf standard 40 above the shelf 50 and the shelf 50 is obtuse); and a support flange (lip portion 140) extending perpendicularly from the ramp arm between the proximal end and the distal end; and a horizontal shelf (shelf 50) disposed between the pair of bracket elements, the horizontal shelf comprising a first end and a second end (left and right ends), wherein the first end is coupled to a first bracket element of the pair of bracket elements and the second end is coupled to a second bracket element of the pair of bracket elements (Fig. 2).
Neelagantan does disclose “and an anchor element extending along at least a portion of a front edge of the horizontal shelf, wherein the anchor element and the horizontal shelf are coplanar” as claimed.
Church’s shelf 22 has the wall 118 that provides a surface for displaying product information and advertising related to the products on the shelf 22, such as brand names and pricing ([0024] and Figs. 1-2). The wall 118 may be a separate component attached to the shelf front end 106 ([0024]).
Applicant’s Fig. 9B and [0078]-[0085] disclose an anchor element 88 extending along the front edge of horizontal shelf 60.
See Applicant’s Figs. 9A and [0078]-[0085] regarding a prior art shelving system 98, which comprises a prior art shelf 102. The prior art shelf 102 includes a front edge 108 that receives a prior art label rail 112, which holds a product label 94. This is Applicant-Admitted Prior Art (AAPA).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Neelagantan’s shelf 50 by adding thereto the front edge 108, label rail 112, and product label 94 of the prior art shelf 102, in order to display product information of the products on the shelf 50.
Such a modification meets “and an anchor element extending along at least a portion of a front edge of the horizontal shelf” as claimed.
In Applicant’s Fig. 9A, where the top of prior art shelf 102 and front edge 108 join is coplanar. This meets “wherein the anchor element and the horizontal shelf are coplanar” as claimed.
With respect to claim 11: Neelagantan, as modified, meets wherein the support structure comprises a plurality of apertures (“the apertures of the shelf standard 40” @ Neelagantan col. 3, lines 51-55) disposed vertically therein (so as to correspond to the vertically-arranged anchoring tabs 160, similarly to the apertures in Church Fig. 1), wherein the attachment element is configured to engage at least one of the plurality of apertures (Neelagantan col. 3 and Fig. 2).
With respect to claim 12: Neelagantan, as modified, meets wherein the attachment element comprises a plurality of tabs (plurality of anchoring tabs 160) extending from the proximal end along the longitudinal axis, wherein the substantially planar body and the plurality of tabs are coplanar (Fig. 7).
With respect to claim 13: Neelagantan discloses wherein the at least one tab comprises a single positioning notch (Fig. 7: one of the notches in one of the upper two anchoring tabs 160 or the single notch in the central tab 160) configured to retain the bracket element in a fixed position with respect to the refrigerated display case (by mounting to shelf standard 40).
The claim uses the phrase “comprises”, which is open to additional and unrecited claim elements. Any additional notches in an anchoring tab 160 is/are additional and unrecited claim element(s).
With respect to claim 14: Neelagantan, as modified, meets wherein each of the plurality of tabs is disposed one on top of another in a vertically stacked arrangement (Fig. 7).
Neelagantan does not disclose “wherein a height of the vertically stacked arrangement comprises 3.5 inches or less” as claimed. Neelagantan col. 3, lines 1-7 disclose varying the size and shape of shelf assemblies 45.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have the height defined by the anchoring tabs 160 be 3.5 inches or less, in that it is obvious to vary the size of Neelagantan’s shelf assembly 100. One would have bigger or smaller assemblies 100 (and components thereof), based on what will be displayed on the shelves 50, the available space in the supermarket, etc.
With respect to claim 17: Neelagantan, as modified, meets further comprising a rail element (prior art label rail 112) configured to engage the anchor element, wherein the rail element extends along a length of the front edge of the horizontal shelf.
With respect to claim 18: Neelagantan, as modified, meets wherein the rail element comprises a securing feature (one or more of the structures identified in the annotated image below) disposed in a lower portion thereof.
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With respect to claim 19: Neelagantan, as modified, meets wherein the rail element comprises an elongate product barrier (at least ledge 103 of prior art shelf 102) extending from the front edge of the horizontal shelf along a vertical axis.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 9,635,958 B2 (Neelagantan) in view of US 2017/0099961 A1 (Church) as applied to claim 8 above, and further in view of US 7,258,317 B1 (Nagel), US 3,561,713 (Berkowitz), and US 5,921,412 (Merl).
With respect to claim 9: Neelagantan meets wherein the substantially planar body (skirt portion 130) comprises a bottom edge (Figs. 3 and 4B).
Neelagantan does not meet “having a stabilizing projection extending in a transverse direction with respect thereto, wherein the stabilizing projection is configured to stabilize the bracket element against the refrigerated display case” as claimed.
See Nagel Figs. 1-5 and col. 5, lines 5-29. Nagel’s support brackets 15 and 16 have stabilizing tabs 44 thereon, in order to minimize lateral deflection thereof when the shelf structure 23 is not attached thereto. This precludes the need for cross-bracing or the like that extends between and connects the brackets 15 and 16.
See Berkowitz Figs. 1-4 and col. 2, lines 19-28. Berkowitz’s tabs 35 and 36 are shaped (bent) from the metal of bracket 10.
Merl Figs. 1A and 6-7 show a tab 67 extending at the bottom edge of a shelf bracket 14.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add a tab (“a stabilizing projection” as claimed) to the bottom edge of Neelagantan’s skirt portion 130, in order to stabilize the bracket 120 when the shelf 50 is not attached.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 9,635,958 B2 (Neelagantan) in view of US 2017/0099961 A1 (Church) as applied to claim 10 above, and further in view of US 2021/0059434 A1 (Ciesick).
With respect to claim 15: Neelagantan does not meet “further comprising a gravity roller platform disposed on top of the horizontal shelf, the roller platform comprising a plurality of rollers configured to passively move a product towards a front edge of the horizontal shelf” as claimed.
Ciesick discloses a roller track assembly 12 (“a gravity roller platform” as claimed) with a plurality of rollers 14 (“a plurality of rollers” as claimed) that convey products towards the front of the rack assembly 10. Assembly 12 is mounted to a support tray 16 that is like a shelf.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Neelagantan’s shelf assembly 100 by adding Ciesick’s roller track assembly 12 thereto, in order to convey products towards the front of the shelf 50 similarly to Ciesick’s invention.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 9,635,958 B2 (Neelagantan) in view of US 2017/0099961 A1 (Church) as applied to claim 19 above, and further in view of 2014/0305894 A1 (Thompson).
With respect to claim 20: Neelagantan, as modified, does not meet “wherein the rail element comprises a lowermost edge, and wherein the lowermost edge is substantially aligned with a bottom surface of the horizontal shelf” as claimed.
See Applicant’s Fig. 9A. The lowermost edge of prior art label rail 112 is not substantially aligned with a bottom surface of the shelf 102.
This contrasts with Applicant’s Fig. 9B and [0079], in which Applicant’s lower edge 83 is substantially aligned with bottom surface 65 of shelf 60. The edge 83 is somewhat offset with and angled relative the bottom surface 65; they are not perfectly level or coplanar. Based on Applicant’s Fig. 9B, the claimed “substantially aligned” encompasses structures which are somewhat offset and/or angled.
Thompson Figs. 1 and 7 show a front frame 240 attached to the front portion of a shelf frame 38. Front frame 240 holds a relatively tall retaining wall 284. There is very little of front frame 240 that extends beneath the shelf frame 38. Thompson’s front frame 240 serves the same purpose as the prior art label rail 112 and Church’s wall 118.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Neelagantan’s shelf assembly 100 to have Thompson’s front frame 240 connected thereto, as an obvious alternative to the means for displaying product information of the products on the shelf 22.
Based on Applicant’s Fig. 9B, the offset in Thompson Fig. 7 between the lowermost edge of Thompson’s front frame 240 and the bottom surface of shelf 38 reads over “substantially aligned” as claimed.
Claim(s) 1-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2017/0099961 A1 (Church) in view of US 2015/0223601 A1 (Zang).
With respect to claim 1: Church discloses a gravity feed shelving apparatus, comprising: a bracket element (bracket 18) extending along a longitudinal axis (front-and-rear axis), wherein the bracket element comprises a substantially planar body (side wall 58) having a proximal end (rear end 30), a distal end (front end 26), and a ramp arm (the curved transitional area between side wall 58 and support member 34) extending between the proximal end and the distal end (Figs. 3 and 5), the proximal end comprising an attachment element (at least one of the coupling members 70) configured to couple to a refrigerated display case (in the same or similar way as members 70 couple to support structure 14), the attachment element comprising at least one tab (at least one of the coupling members 70) protruding from the proximal end (Figs. 3 and 5), wherein the substantially planar body comprises an elevation portion (see the annotated image below) vertically disposed between the ramp arm and the attachment element, the elevation portion forming a horizontal surface (top of the uppermost coupling member 70), the at least one tab protruding outwardly from the proximal end such that the elevation portion and the at least one tab are vertically offset with respect to the proximal end (at least one of the coupling members 70 is vertically lower than the elevation portion with respect to the rear end 30), the elevation portion closer to the distal end than the at least one tab (the elevation portion is closer to front end 26 than at least one of the coupling members 70), the elevation portion orthogonal to the horizontal surface (Fig. 5 and the annotated image below) and forming an acute ramp angle in which the ramp arm slopes downwardly to the distal end (the curved area between side wall 58 and support member 34 forms an acute angle with the horizontal and slopes downwardly to front end 26); and a support flange (support member 34) extending substantially perpendicularly from the ramp arm between the proximal end and the distal end (all of support member 34 is between ends 26 and 30), wherein the support flange is configured to support a horizontal shelf (shelf 22).
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The preamble of the claim recites “for a refrigerated display case”. Due to the use of “for”, the recitation denotes an intended use of the claimed shelving apparatus.
See MPEP 707.07(f). A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Church’s shelving assembly is capable of being used in a refrigerated display case, and therefore meets “for a refrigerated display case” as claimed.
Church does not disclose the elevation portion “inset from the proximal end” as claimed, such that the horizontal surface (top of the uppermost coupling member 70) meets “between the proximal end and the elevation portion” as claimed.
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See the annotated image above. Zang Fig. 10 shows an elevation portion vertically disposed between a ramp arm (curved area bracket portion 18 and article-supporting portion 16) and an attachment element (tabs 22), the elevation portion inset from the proximal end forming a horizontal surface between the proximal end and the elevation portion, the at least one tab (at least one of the tabs 22) protruding outwardly from the proximal end such that the elevation portion and the at least one tab are vertically offset with respect to the proximal end (the elevation portion is vertically higher than at least one of the tabs 22 with respect to the proximal end), the elevation portion closer to the distal end than the at least one tab (the elevation portion is closer to the front of the structure than at least one of the tabs 22), the elevation portion substantially orthogonal to the horizontal surface.
See Church Fig. 5 and the annotated image below. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Church’s bracket 18 to be shaped/configured like Zang’s bracket by omitting the identified portion of bracket 18, as an obvious variation of what is shown in Church’s figures.
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In the annotated image above, the vertical line is at the claimed “elevation portion”, and the horizontal line is at the claimed “horizontal surface”.
See Church Figs. 3-5. Such a modification does not remove Church’s projection 74 because the projection 74 is inset with respect to the material removed from the bracket 18.
With respect to claim 2: Church does not disclose “wherein the acute ramp angle is about eight degrees” as claimed.
Church’s shelf is angled downwardly to enhance product visibility and provide ready access to the displayed products (Church [0002]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Church’s shelf 22 and bracket 18 to have the “acute ramp angle” about 8 degrees, as one of the obvious and finite possibilities for angling the shelf downwardly to enhance product visibility and provide ready access.
With respect to claim 3: Church discloses wherein the attachment element comprises at least one tab (two coupling members 70) extending along the longitudinal axis from the proximal end.
With respect to claim 4: Church discloses wherein the at least one tab and the substantially planar body are coplanar (Figs. 1-9 and [0021]).
With respect to claim 5: Church discloses wherein the at least one tab comprises a single positioning notch (see the annotated image below) configured to retain the bracket element in a fixed position with respect to the refrigerated display case (in the same or similar way as when coupling members 70 attach to the support structure 14).
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With respect to claim 6: Church discloses wherein the single positioning notch is disposed adjacent to the proximal end and extends in a substantially vertical direction from a base of the at least one tab (Fig. 5 and the annotated image above).
With respect to claim 7: Church discloses wherein the at least one tab comprises a plurality of tabs (two coupling members 70) disposed one on top of another in a vertically stacked arrangement (Figs. 1-9, [0021], and the annotated image above).
With respect to claim 8: Church does not disclose “wherein a height of the vertically stacked arrangement comprises 3.5 inches or less” as claimed, in that Church remains silent as to the measure of that dimension.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have the height defined by the coupling members 70 be 3.5 inches or less, in that it is obvious to vary the size of Church’s shelving assembly. One would have bigger or smaller assemblies (and components thereof), based on what will be displayed on the shelves.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2017/0099961 A1 (Church) in view of US 2015/0223601 A1 (Zang) as applied to claim 8 above, and further in view of US 7,258,317 B1 (Nagel), US 3,561,713 (Berkowitz), and US 5,921,412 (Merl).
With respect to claim 9: Church meets wherein the substantially planar body (comprised in side wall 58) comprises a bottom edge (Figs. 1-9).
Church does not meet “having a stabilizing projection extending in a transverse direction with respect thereto, wherein the stabilizing projection is configured to stabilize the bracket element against the refrigerated display case” as claimed.
See Nagel Figs. 1-5 and col. 5, lines 5-29. Nagel’s support brackets 15 and 16 have stabilizing tabs 44 thereon, in order to minimize lateral deflection thereof when the shelf structure 23 is not attached thereto. This precludes the need for cross-bracing or the like that extends between and connects the brackets 15 and 16.
See Berkowitz Figs. 1-4 and col. 2, lines 19-28. Berkowitz’s tabs 35 and 36 are shaped (bent) from the metal of bracket 10.
Merl Figs. 1A and 6-7 show a tab 67 extending at the bottom edge of a shelf bracket 14.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add a tab (“a stabilizing projection” as claimed) to the bottom edge of Church’s side wall 58, in order to stabilize the brackets 18 when the shelf 22 is not attached.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2017/0099961 A1 (Church) in view of US 2015/0223601 A1 (Zang) and US 9,635,958 B2 (Neelagantan).
With respect to claim 10: The same combination of Church and Zang used to reject claim 1 meets a gravity feed shelving system, comprising: a support structure (Church’s support structure 14); a pair of bracket elements (Church’s modified brackets 18) coupled to the support structure, wherein each of the pair of bracket elements comprises a substantially planar body (side wall 58) having a proximal end (rear end 30), a distal end (front end 26), and a ramp arm (the curved transitional area between side wall 58 and support member 34) extending along a longitudinal axis between the proximal end and the distal end, each of the pair of bracket elements further comprising: an attachment element (at least one of the coupling members 70) extending along the longitudinal axis from the proximal end, the attachment element comprising at least one tab (at least one of the coupling members 70) protruding from the proximal end, wherein the attachment element is coplanar with the substantially planar body (Figs. 1-9 and [0021]) and engaged with the support structure (Fig. 1 and [0021]); an elevation portion (vertical line in the annotated image at the end of the rejection of claim 1) disposed between the ramp arm and the attachment element, the elevation portion inset from the proximal end (see the annotated image) forming a horizontal surface (horizontal line in the annotated image at the end of the rejection of claim 1) between the proximal end and the elevation portion (see the annotated image), the at least one tab protruding outwardly from the proximal end such that the elevation portion and the at least one tab are vertically offset with respect to the proximal end (elevation portion is vertically higher than the coupling members 70), the elevation portion closer to the distal end than the at least one tab (closer to the front end), the elevation portion orthogonal to the horizontal surface (see the annotated image), wherein the elevation portion creates an obtuse angle between the ramp arm and the support structure (the angle between the support structure 14 above the shelf 22 and the shelf 22 is obtuse); a support flange (support member 34) extending perpendicularly from the ramp arm between the proximal end and the distal end; and a horizontal shelf (shelf 22) disposed between the pair of bracket elements, the horizontal shelf comprising a first end and a second end (left and right ends), wherein the first end is coupled to a first bracket element of the pair of bracket elements and the second end is coupled to a second bracket element of the pair of bracket elements (Church Fig. 1).
The preamble of the claim recites “for a refrigerated display case”. Due to the use of “for”, the recitation denotes an intended use of the claimed shelving apparatus.
See MPEP 707.07(f). A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Church’s shelving assembly is capable of being used in a refrigerated display case, and therefore meets “for a refrigerated display case” as claimed.
The combination of Church and Zang used in the rejections above does not meet Church’s support structure 14 “coupled to an interior wall of a refrigerated display case” as claimed.
Church [0017] is open to having the shelving assembly 10 in other environments than displaying items in a store. Neelagantan’s shelf assemblies 45 are attached to shelf standards 40 positioned on the aft wall 30 of a refrigerated display case 10. This is for a supermarket (col. 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Church’s shelving assembly 10 by mounting it on the after wall 30 of a refrigerated display case 10, in order to adapt Church’s invention for displaying refrigerated goods in a supermarket. Such a modification also meets the preamble recitation “for a refrigerated display case”.
Church does disclose “and an anchor element extending along at least a portion of a front edge of the horizontal shelf, wherein the anchor element and the horizontal shelf are coplanar” as claimed.
Church’s shelf 22 has the wall 118 that provides a surface for displaying product information and advertising related to the products on the shelf 22, such as brand names and pricing ([0024] and Figs. 1-2). The wall 118 may be a separate component attached to the shelf front end 106 ([0024]).
Applicant’s Fig. 9B and [0078]-[0085] disclose an anchor element 88 extending along the front edge of horizontal shelf 60.
See Applicant’s Figs. 9A and [0078]-[0085] regarding prior art shelving system 98, which comprises a prior art shelf 102. The prior art shelf 102 includes a front edge 108 that receives a prior art label rail 112, which holds s product label 94. This is Applicant-Admitted Prior Art (AAPA).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Church’s shelf 22 by replacing Church’s wall 118 with the front edge 108 of the prior art shelf 102, as an obvious alternative to the means for displaying product information of the products on the shelf 22.
Such a front edge 108 on Church’s shelf 22 meets “and an anchor element extending along at least a portion of a front edge of the horizontal shelf” as claimed.
In Applicant’s Fig. 9A, where the top of prior art shelf 102 and front edge 108 join is coplanar. This meets “wherein the anchor element and the horizontal shelf are coplanar” as claimed.
With respect to claim 11: Church, as modified, meets wherein the support structure comprises a plurality of apertures (“supports 14 are typically provided with a series of spaced-apart apertures or projections along their height to releasably receive projections 70, as is known in the art” @ Church [0021]) disposed vertically therein (similarly to the not-numbered vertically-disposed apertures engaged by coupling members 70 in Church Fig. 1), wherein the attachment element is configured to engage at least one of the plurality of apertures (Church [0021]).
With respect to claim 12: Church, as modified, meets wherein the attachment element comprises a plurality of tabs (plurality of coupling members 70) extending from the proximal end along the longitudinal axis, wherein the substantially planar body and the plurality of tabs are coplanar (Church Figs. 1-9 and [0021]).
With respect to claim 13: Church, as modified, meets wherein each of the plurality of tabs comprises a single positioning notch (see the annotated image in the rejection of claim 5) configured to retain the bracket element in a fixed position with respect to the support structure (as in Church Fig. 1).
With respect to claim 14: Church, as modified, meets wherein each of the plurality of tabs is disposed one on top of another in a vertically stacked arrangement (Church Fig. 5).
Church does not disclose “wherein a height of the vertically stacked arrangement comprises 3.5 inches or less” as claimed. Neelagantan col. 3, lines 1-7 disclose varying the size and shape of shelf assemblies 45.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have the height defined by the coupling members 70 be 3.5 inches or less, in that it is obvious to vary the size of Church’s shelving assembly. One would have bigger or smaller assemblies (and components thereof), based on what will be displayed on the shelves.
With respect to claim 17: Church, as modified, meets further comprising a rail element (prior art label rail 112) configured to engage the anchor element, wherein the rail element extends along a length of the front edge of the horizontal shelf.
With respect to claim 18: Church, as modified, meets wherein the rail element comprises a securing feature (one or more of the structures identified in the annotated image below) disposed in a lower portion thereof.
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With respect to claim 19: Church, as modified, meets wherein the rail element comprises an elongate product barrier (at least ledge 103 of prior art shelf 102) extending from the front edge of the horizontal shelf along a vertical axis.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2017/0099961 A1 (Church) in view of US 2015/0223601 A1 (Zang) and US 9,635,958 B2 (Neelagantan) as applied to claim 10 above, and further in view of US 2021/0059434 A1 (Ciesick).
With respect to claim 15: Church does not meet “further comprising a gravity roller platform disposed on top of the horizontal shelf, the roller platform comprising a plurality of rollers configured to passively move a product towards a front edge of the horizontal shelf” as claimed.
Ciesick discloses a roller track assembly 12 (“a gravity roller platform” as claimed) with a plurality of rollers 14 (“a plurality of rollers” as claimed) that convey products towards the front of the rack assembly 10. Assembly 12 is mounted to a support tray 16 that is like a shelf.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to put Ciesick’s roller track assembly 12 on Church’s shelf 22, in order to convey products towards the front of the shelf 22.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2017/0099961 A1 (Church) in view of US 2015/0223601 A1 (Zang) and US 9,635,958 B2 (Neelagantan) as applied to claim 19 above, and further in view of 2014/0305894 A1 (Thompson).
With respect to claim 20: Church, as modified, does not meet “wherein the rail element comprises a lowermost edge, and wherein the lowermost edge is substantially aligned with a bottom surface of the horizontal shelf” as claimed.
See Applicant’s Fig. 9A. The lowermost edge of prior art label rail 112 is not substantially aligned with a bottom surface of the shelf 102.
This contrasts with Applicant’s Fig. 9B and [0079], in which Applicant’s lower edge 83 is substantially aligned with bottom surface 65 of shelf 60. The edge 83 is somewhat offset with and angled relative the bottom surface 65; they are not perfectly level or coplanar. Based on Applicant’s Fig. 9B, the claimed “substantially aligned” encompasses structures which are somewhat offset and/or angled.
Thompson Figs. 1 and 7 show a front frame 240 attached to the front portion of a shelf frame 38. Front frame 240 holds a relatively tall retaining wall 284. There is very little of front frame 240 that extends beneath the shelf frame 38. Thompson’s front frame 240 serves the same purpose as the prior art label rail 112 and Church’s wall 118.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Church to have Thompson’s front frame 240 connected thereto, as an obvious alternative to the means for displaying product information of the products on the shelf 22.
Based on Applicant’s Fig. 9B, the offset in Thompson Fig. 7 between the lowermost edge of Thompson’s front frame 240 and the bottom surface of shelf 38 reads over “substantially aligned” as claimed.
Response to Arguments
The Applicant’s remarks related to the rejections in the previous Office action under 35 U.S.C. § 102 using Church are rendered moot, as those rejections are not maintained in this Office action. The latest claim amendments necessitate the new prior art rejections under 35 U.S.C. § 103 made in this Office action.
The Applicant’s remarks about Church’s projection 74 are not persuasive. In the rejection under 35 U.S.C. § 103 that modifies Church, the projection 74 is not removed or modified in any way. See the annotated image below. Removal of material at the location of the modification does not affect the projection 74.
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The Applicant’s assertion that the curved structure of Church, which is removed in the modification of Church, is intended to hold the shelf 22 in place - is admitted as a presumption (remarks page 12). This is not something disclosed or stated by Church. Church does not specifically mention the curved structure in question. The Applicant’s assertion that this is a principal operation of Church is not supported by Church’s disclosure, because Church does not mention this structure or any function/operation thereof.
Even with the curved structure in question removed, the shelf 22 is retained on a pair of brackets 18 via hook-shaped projections 134 engaging apertures 82 (Church Figs. 7-8) and projections 74 engaging apertures 130 (Church Fig. 9). At least the projections 134 and apertures 82 restrict/prevent side-to-side movement of the shelf 22. The projection 74 and aperture 130, when engaged, prevent the shelf 22 from being pushed backwards (Church [0028]). A pair of these projections 74 – one per bracket 18 - provides some non-zero amount of restriction of side-to-side movement of shelf 22. In the modification, the shelf 22 is still held on the brackets 18 securely.
The Applicant’s assertion that it is not obvious to modify Church’s structure to be used in a refrigerated display case are unsupported by the prior art. The Applicant states that Church was not designed to be in such a display case, but Church never states that the invention is not to be used in a refrigerated display case.
The Applicant construes Church’s removal process as lengthy and mechanically constrained, and not suited for a refrigerated display case. There is nothing in Church that suggests the invention should not be used in a refrigerated display case. The Applicant’s assertions about it being difficult to uninstall a shelf 22 are purely the opinion of the Applicant. To one of ordinary skill in the art, deflecting a projection 74 so that the shelf 22 can be pushed backwards and then lifted off the bracket 18 is easy.
The Applicant attempts to contrast Neelagantan with Church, stating the former is quick, simple, and tool-less. Church’s invention is also quick, simple, and tool-less. The projection 74 “fits” or “snaps” into the aperture 130 similarly to what Neelagantan describes. The connections in Church are not welds or permanent fasteners, mirroring Neelagantan’s disclosure.
Neelagantan states that not having welds is what makes a shelving system easy to install and remove in refrigerated display cases (as admitted by the Applicant). Church’s invention does not have welds, and is easy to install and remove in refrigerated display cases according to Neelagantan’s disclosure.
The Applicant admits that Church discloses the invention may be used in a store, and Neelagantan’s invention is used in a supermarket. The supermarket in Neelagantan meets the store in Church.
The Applicant’s argument B does not correctly contemplate what teaching away is. A reference teaches away from a claimed invention or a proposed modification if “a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” In re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009) (citing In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). Prior art does not teach away from claimed subject matter merely by disclosing a different solution to a similar problem unless the prior art also criticizes, discredits, or otherwise discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Applicant has not cited, nor does the examiner’s review reveal, any discouragement in the cited references from using, or criticism of, modifying Church with prior art label rail 112.
The fact that Church has one design is not a teaching away from all other designs or modifications of Church. The Applicant is essentially arguing that because Church does not explicitly disclose modifying wall 118, it isn’t obvious to do so and Church teaches away from it. This is not supported by the MPEP and/or the prior art.
The fact that Church states wall 118 is integral is not a teaching away from not having wall 118 integral. The Applicant misconstrues “This is one way to do it” with “This is the only way to do it, and it shouldn’t be done any other way”.
Similar reasoning applies with the prior art label rail 112. Just because Church has one solution for the front of a shelf does not make it unobvious have another, known solution for the front of the shelf.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Acc