PATENT AGENT EXAMINATION INSTRUCTIONS TO CANDIDATES

Transcription

1 Page 1 of 44 PATENT AGENT EXAMINATION INSTRUCTIONS TO CANDIDATES 1. The only aids permitted are the copies of the Patent Act and Patent Rules provided by CIPO and an unmarked English, French or bilingual (English/French) dictionary. 2. Cell phones, smart phones, and any device that allows for wireless communication or the retrieval of information from memory may not be used during the examination. 3. You must place your assigned number on each examination paper, answer book and envelope. No other identification is permitted on any material submitted. 4. You have four (4) hours to complete the examination. At the conclusion of the examination period, place the examination paper and answer book(s) in the envelope and give the sealed envelope to the invigilator. 5. Failure to respect instructions 1, 2, 3 or 4 may result in a candidate being given a mark of zero (0). 6. You must provide your own pen with which to write the paper. 7. For each question, marks will be provided for an answer (or a part of an answer) that: clearly identifies the question being answered, BY NUMBER; is written LEGIBLY, IN INK, double-spaced in THE ANSWER BOOK; and is provided on the right-hand pages of the book ONLY. Marks will NOT be given for: anything written on a left-hand page of the answer book or on the examination itself; and anything that cannot be deciphered with a reasonable degree of certainty. 8. Salutations, signatures and other formalities of correspondence are not required in your answers; substance is important. Read each question carefully and ensure that your answer responds to the question posed. Answers given in point form are acceptable except where the question specifically asks you to draft or write your answer. 9. The marks referred to throughout the paper have been provided to show the relative weight attributed to each question. Marks are awarded for analytical and problem solving skills, communication skills, drafting skills, prioritizing and judgment skills in addition to knowledge demonstrated in your answers. 10. There are 100 marks available in this paper. The pass mark is 50.

2 Page 2 of 44 PATENT AGENT EXAMINATION PAPER D PATENT INFRINGEMENT Friday, May 1, 2015, 9:00 am to 1:00 pm This examination comprises Part A (opinion) and Part B (short questions). Part A comprises Questions A1 to A5 and also includes documents D1, D2, and D3. Part B comprises Questions B1 to B8. Instructions Provide the best answer to the following questions. Unless expressly indicated otherwise, every answer must include a discussion and/or reasoning appropriate to the mark allocation. Do not provide irrelevant or extraneous commentary. Answer only what is asked and do not assume any facts that are not expressly stated. Do not import your own knowledge of the technology into your answer. Citations to legal authority (case law, statutory provisions, and/or regulatory provisions) are only required when explicitly requested and should be clear and precise. Your infringement analyses must address all elements of the claims on their own merits. Do not simply conclude that a claim is uninfringed by virtue of its dependency on an uninfringed claim. However, when a claim refers to a previous claim by number, you may incorporate your earlier analysis of the previous claim by reference rather than repeat your analysis. Any incorporation must be specific and relevant to the question at hand, and the location of the incorporated matter in the answer booklet(s) must be clearly and unambiguously identified.

3 Page 3 of 44 PART A TOTAL 80 MARKS Documents The following three documents are included in this examination: D1: Canadian Patent No. 2,XXX,737 issued to MegaHome Devices Inc. (the 737 Patent) D2: Description and drawings labelled Product Description: Easy Home Adjust-a- Rack D3: Description and drawings labelled Product Description: Easy Home Tilting Rack Two duplicate sets of 737 Patent claims are provided at the end of this paper for your use in presenting your answers in the answer booklet. Use of these duplicate claim sets is optional. Background You represent Easy Home Inc. ( Easy Home ), a small Canadian importer and retailer of various household items. This morning, Easy Home calls your office seeking your urgent advice regarding a letter it has received from MegaHome Devices Inc. ( Mega ), a major U.S. manufacturer of household items. Mega s letter suggests that it thinks two devices sold in Canada by Easy Home, the Easy Home Adjust-a-Rack and the Easy Home Tilting Rack infringe Mega s Canadian patent No. 2,xxx,737 (the 737 Patent ). Both the Adjust-a-Rack and Tilting Rack products are manufactured by Easy Home Products China Co. Ltd., a Chinese manufacturer, and are imported into Canada for resale by Easy Home. Mega is demanding compensation for past infringement,

4 Page 4 of 44 and has demanded that Easy Home immediately cease all distribution of the Adjust-a-Rack and Tilting Rack products. To assist your analysis, Easy Home has provided you with a copy of the 737 Patent (D1), and has provided drawings and a brief description of its Adjust-a-Rack (D2) and Tilting Rack (D3) products. Easy Home also provides the following background information regarding stemware, in case you are not familiar with the term: Stemware is drinkware that stands on a stem above a base. A typical example is shown below in Figure A, with a base 1, a stem 2, and a main body 3, the main body 3 being the portion of the drinkware that holds a beverage to be consumed. Stemware is frequently stored in an inverted position, with the stem being passed between a pair of parallel rails that support the base, because stemware is easily toppled due to its high centre of gravity. FIGURE A Easy Home also provides you with some basic details as to how its business operates. The Adjust-a-Rack and the Tilting Rack are fully assembled in China by Easy Home Products China Co. Ltd., and are then imported into Canada by Easy Home for resale. The Tilting Rack and the Adjust-a-Rack units that are imported by Easy Home are purchased by Easy Home in Beijing, China (i.e. F.O.B. (free on board) Beijing, China), and are shipped by Easy Home from there to its various distribution warehouses across Canada.

5 Page 5 of 44 While Mega s products are extremely popular top sellers in the United States, Mega has yet to crack the Canadian marketplace. According to a press release located by your client, Mega entered into a distribution arrangement with major retailer Canadian Wheels approximately six months ago, granting Canadian Wheels a non-exclusive license under all of Mega s Canadian patents. Easy Home believes that Canadian Wheels has started to see some sales in Canada of Mega s reconfigurable dish drying racks, but Easy Home has not noticed any impact to its own Canadian sales. Easy Home considers that Mega is being overly aggressive in trying to assert the 737 Patent against it, but wants your thoughts on the matter. Easy Home tells you that it will be difficult for them to stop selling the Adjust-a-Rack and Tilting Rack products, as these have been top selling products ever since Easy Home started selling them in Canada in January of Easy Home has 10,000 Adjust-a-Rack units and 4,000 Tilting Rack units in its current inventory. Of these, 10% of the current inventory, or 1,000 Adjust-a-Rack units and 400 Tilting Rack units, have been in storage in a low cost warehouse in Thompson, Manitoba since February 15, Since Easy Home has you on the phone, its representatives also let you know about another problem that they want you to think about for later discussion. Easy Home has learned that 3D Print Co. started offering free downloadable plans in December These plans allow consumers with 3D printers to print out the components of the Adjust-a-Rack sold by Easy Home. The plans include detailed instructions for assembling the printed Adjust-a-Rack components. Easy Home fears that it will start to see its sales slip as 3D printing becomes more mainstream.

6 Page 6 of 44 Question A1 (33.0 Marks Total) (a) List four propositions of purposive claim construction as articulated by the Canadian courts. Cite legal authority. [2.0 marks] (b) What exclusive right is granted to a patentee by the Patent Act? Cite legal authority. [2.0 marks] (c) Construe the following terms as they are used in the claims of the 737 Patent. [Total 29.0 marks] Your construction must include identification and analysis of purpose or function, as well as any essential features represented by these terms, supported by appropriate reasoning and citations to the 737 Patent. Marks are awarded for appropriately mapping claim terms to components in the 737 Patent, adequately identifying the purpose or function of the element represented by the term, identifying any essential features of each claim term, and adequately supporting your construction with appropriate reasoning and citations to the 737 Patent. The extent of analysis expected to construe each claim term is commensurate with the marks allocated for that claim term. A mere mapping of terms to components in the 737 Patent is not sufficient and will receive no marks if you conduct no further analysis. You may consider additional claim wording to provide a complete construction of a given term or phrase. If you do so, you must identify the specific additional claim wording and explain how it formed part of the analysis. Identical terms and their plurals are expected to have the same meaning in each claim in which they are explicitly recited. You are expected to construe each of the terms listed below only once in your answer, even where that term occurs in more than one claim. (i) (ii) (iii) plurality of feet in claim 1 [2.0 marks] adjustable loft accessory in claims 1, 2, 3, and 4 [5.0 marks] inwardly from the peripheral edge in claim 1 [3.0 marks]

7 Page 7 of 44 (iv) extends generally vertically in the same plane as one of the side walls in claim 3 [3.0 marks] (v) (vi) (vii) a footprint of the dish drainer assembly when the adjustable loft accessory is in the first position is less than a footprint of the dish drainer assembly when the adjustable loft accessory is in the second position in claim 4 [3.0 marks] dish drainer basket in claims 5 and 9 [4.0 marks] supplemental drying element in claims 5 and 6 [2.5 marks] (viii) fingers in claims 4, 6, 7, 8, and 10 [2.0 marks] (ix) (x) upper surfaces of the fingers define a platform in claim 7 [2.5 marks] distal ends of the fingers are curved in claim 10 [2.0 marks] Question A2 (7.0 Marks Total) Assuming that the manufacture or sale of Easy Home s Adjust-a-Rack product as described in D2 infringes claim 1 of the 737 Patent, explain whether (a) Easy Home Products China Co. Ltd., (b) Easy Home, or (c) 3D Print Co. may be liable for patent infringement, citing legal authority. Question A3 (11.0 Marks Total) Determine whether claim 1 [6.5 marks], claim 3 [2.0 marks], or claim 4 [2.5 marks] is infringed by the manufacture or sale of the Easy Home Adjust-a-Rack in Canada, regardless of who carries out the infringing act. No further exposition on claim construction needs to be provided, although your analysis must clearly show how each element is or is not present. For full marks, your analysis must address each element of the claim.

8 Page 8 of 44 Question A4 (17.0 Marks Total) Determine whether claims 1 [6.5 marks], 5 [4.5 marks], 7 [3.0 marks] or 8 [3.0 marks] are infringed by the manufacture or sale in Canada of the Easy Home Tilting Rack, regardless of who carries out the infringing act. No further exposition on claim construction needs to be provided, although your analysis must clearly show how each element is or is not present. For full marks, your analysis must address each element of the claim. Question A5 (12.0 Marks Total) Assuming that the manufacture or sale of both the Adjust-a-Rack and Tilting Rack products infringes at least one claim of the 737 Patent: (a) Identify who has standing to assert a claim against Easy Home for patent infringement and how, citing legal authority [3 marks]. (b) Identify one type of statutory compensation likely available to Mega, assuming it is successful in a claim for patent infringement, and indicate the date range for which such damages could be claimed against each of Easy Home and 3D Print Co. Cite statutory authority [2.5 marks]. (c) In the case of Easy Home, how is your statutory compensation identified in (b) likely to be measured or quantified by a court? Briefly explain your answer, citing legal authority [1.5 marks]. (d) Can Mega obtain an accounting of profits from Easy Home in addition to your statutory compensation identified in (b)? Cite legal authority. Identify one fact from the fact pattern weighing in favour of Mega electing an accounting of profits [2 marks]. (e) In unrelated litigation in the United States, a court determined Mega was not entitled to its priority claim although its patent was still valid. Assuming that the same result would apply in Canada, advise Easy Home if there is any difference in its potential liability for damages for the 10% of its current inventory in its Thompson, Manitoba warehouse as compared with its potential liability for the remaining 90% of its inventory, citing legal

9 Page 9 of 44 authority [2 marks]. Advise whether your answer would change if your client s 10% of its current inventory was stored in a warehouse in Thompson, Wisconsin, USA, citing legal authority [1 mark]. END OF QUESTIONS IN PART A

10 Page 10 of 44 PART B TOTAL 20 MARKS The following facts apply to Questions B1 through B3. The popular online retailer, Xingu.com, recently started shipping products within the United States using drones (small unmanned aircraft). All the drones use an on-board optical navigation system and method that is patented in Canada. Unfortunately, Xingu.com has been having difficulty successfully shipping its packages to the Midwest. Due to an addressing error, some drones carrying packages destined for Thompson, Wisconsin, have been misdirected to Thompson, Manitoba. Xingu.com had no intention of sending its drones across the border into Canada. One drone crashed in the backyard of one of your Manitoba clients. The long flight burned out the optics in the navigation system of the drone that crashed. Xingu.com tells your client to keep the packages the drone was carrying as a gift, and sells the damaged drone to your client as is. Title to the packages and the drone passes in Canada. Question B1 (2.0 Marks) Assume that nobody, including the manufacturer of the drones, has permission from the patentee of the navigation system and method to use this technology in Canada. Advise your client as to Xingu.com s liability for patent infringement in respect of all the drones that entered Canada, briefly explaining why or why not Xingu.com is liable. Question B2 (2.0 Marks) Now assume that Xingu.com purchased the drones from the Canadian patentee of the navigation system and method.

11 Page 11 of 44 Your client, having purchased the drone from Xingu.com, wants to replace the optics with some parts already in her possession. It is common knowledge that the optics in this particular drone model are prone to burn out during regular use and often need replacement. The patentee sells a kit of replacement optics for this drone. While the documentation provided with the purchased drone does not mention the patent or any licence, the patentee does caution that using third-party parts to repair the drone will void the warranty. Can your client repair the drone with her own parts without obtaining permission from the patentee? Briefly explain why or why not, citing legal authority. Question B3 (2.0 Marks) One of the packages your client receives for free contains seeds for genetically modified plants containing a gene patented in Canada. An advantage of the patented gene is that the plants grow quickly and produce large quantities of biomass well suited to being processed into ethanol for fuel. The plants also happen to produce beautiful large true blue flowers, a rare trait. Your client wants to grow the plants in her garden for their beautiful colour. Is your client at risk of infringing the patent covering the gene, either before or after growing the plants? Briefly explain why or why not, citing legal authority. Question B4 (3.0 Marks Total) Innovator Co. filed Canadian Patent Application No. '777 on June 1, 2002 directed to its invention relating to a protective spray for leather shoes. The application issues to a patent on June 1, On June 1, 2014, Innovator Co. assigns the '777 Patent to Upmarket Co., which subsequently grants a non-exclusive license to Downmarket Co. to sell the protective spray across Canada. Between December 1, 2006 and December 1, 2013, Bad Weather Co. manufactures and sells a protective spray which infringes the '777 Patent, unbeknownst to Innovator Co. On June 30,

12 Page 12 of , Downmarket Co. becomes aware of the infringement by Bad Weather Co., and informs Upmarket Co. and Innovator Co. (a) Which of Innovator Co. and Upmarket Co. could obtain a monetary award in an infringement action under the Patent Act against Bad Weather Co.? Provide brief explanations for your conclusions [1.5 marks]. (b) Assuming an action is started today (May 1, 2015), list the start and end dates of the period of time that Bad Weather Co. would be liable for infringing the '777 Patent, regardless of who brings an infringement action. Cite statutory authority [1.5 marks]. Question B5 (2.0 Marks Total) Altruistic Co. is the owner of the '656 Patent in Canada. The '656 Patent includes independent claims 1 and 10, and various dependent claims associated with each of these independent claims. Independent claim 1 is directed to a brake mechanism for a three-wheeled vehicle. Independent claim 10 is directed to a stroller incorporating the brake mechanism. Altruistic Co. wants to dedicate to the public independent claim 10 and its dependent claims, but is only willing to do so if its rights in independent claim 1 would be unaffected. (a) Is Altruistic Co. permitted to dedicate claim 10 and its dependent claims to the public without impacting the rights in the remaining claims? Provide reasoning or citation to support your answer [1 mark]. (b) Would such a dedication amount to a license to any party which practices the claims that had been dedicated to the public? Provide an explanation as to why or why not. No citation is required [1 mark].

13 Page 13 of 44 Question B6 (3.0 Marks) Identify and briefly explain two differences between the claim construction applied by the Patent Office during examination of a patent application, and the claim construction applied by the courts in an infringement or impeachment action. Cite one case law authority for each difference. Question B7 (2.0 Marks) Slippery Co. is the owner of Canadian Patent No. '888 and has granted non-exclusive licenses to several companies, including ABC Inc. ABC Inc. becomes aware that XYZ Inc. is infringing the '888 Patent and informs Slippery Co. Since ABC Inc. is a relatively new company without much cash reserves, it asks Slippery Co. to seek an injunction against XYZ Inc. Slippery Co. refuses. ABC Inc. seeks your advice on proceeding to seek an injunction against XYZ Inc. on its own. Is ABC Inc. able to bring a patent infringement suit seeking an injunction on its own? If so, under what conditions and if not, why not? Cite statutory and case law authority. Question B8 (4.0 Marks Total) Indicate whether the statements below are true or false, and provide a brief reason and citation to a legal authority in support of your answer. No marks are awarded to true/false answers without any supporting reason. (a) (b) When a defendant is sued for patent infringement in Canada, an allegation that the patent is void in view of prior art cannot be pleaded as a defence to infringement; rather, the allegation must be made in a counterclaim or separate action [1 mark]. When a defendant is sued for patent infringement in Canada, an allegation that the patent is void in view of an unremedied deemed abandonment under s. 73(1)(c) of the Patent Act will never succeed as a defence to infringement [1 mark].

14 Page 14 of 44 (c) (d) An infringing use of an invention is a use that deprives the patentee of the commercial benefits flowing from the invention without permission [1 mark]. Proof that an adjudged infringer could have used a non-infringing alternative during the period of infringement will reduce the quantum of damages potentially payable to the patentee [1 mark]. END OF QUESTIONS IN PART B

15 D1: 737 Patent Page 15 of 44 CA 2XXX737 C 2013/07/15 (11)(21) 2 XXX 737 (12) BREVET CANADIEN CANADIAN PATENT (13) C (22) Date de dépôt/filing Date: 2009/12/10 (41) Mise à la disp. pub./open to Public Insp.: 2010/06/22 (45) Date de deliverance/issue Date: 2013/07/15 (30) Priorité/Priority: 2008/12/18 (US60/XXX,987) (72) Inventeurs/Inventors: SMITH, Steven, US JONES, Jane, US (73) Propriétaires/Owners: MEGAHOME DEVICES INC., US [REMAINDER OF COVER PAGE AND ABSTRACT, AND SUMMARY OMITTED] 1 DISH DRAINER Technical Field [0001] The present disclosure relates to dish drainers, and more particularly to a dish drainer assembly that can be reconfigured in several ways to accommodate different dish drying needs Description of Related Art [0002] Dish drainers are known in the art for supporting items that have been washed (e.g. dishes such as plates, bowls, cups, mugs, and the like, and utensils, pots, pans, cutting boards, and so on) to facilitate drying of those items. Conventional dish drainers provide a generally square or rectangular basket that is open at the top and configured to permit water to drain from items placed on the dish drainer to a drainage tray or the like placed below the dish drainer, for example by being made of a wire frame construction or by having holes in the bottom of the dish drainer to permit water to pass therethrough. [0003] Many conventional dish drainers have ribs or feet to support the bottom of the dish drainer above the drainage tray, to permit water to drip off of the bottom of the dish drainer and away from the drying dishes. Many conventional dish drainers have features to support specific items for drying, for example, a utensil holder is often clipped on to the dish drainer to support

16 D1: 737 Patent Page 16 of cutlery or other utensils in a vertical orientation for drying, and many conventional dish drainers have ridges or slots for supporting shallow dishes such as plates in a vertical orientation for drying in a space-efficient manner. [0004] Dish drainers are known in the art that address specific dish drying problems. For example, some dish drainers are configured to have at least one portion to specifically accommodate inverted drinking vessels for drying glasses, cups, and the like. Cup holders are typically arranged to dry the cups on the interior of the dish drainer or basket. Other dish drainers are configured to permit cups to be dried on the perimeter or even outside the main body or basket of the dish drainer by being provided with generally vertically extending projections or fingers, onto which inverted drinking vessels can be placed for drying. However, such vertically extending projections do not work well for drying stemware such as wine glasses, champagne flutes and the like, because the weight of the large base of the stemware provides a high centre of gravity when the stemware is inverted. This makes the stemware vulnerable to toppling off the generally vertically extending projections, creating a risk of breaking the stemware. [0005] There are also drying systems known in the art that provide a horizontal platform or loft that is elevated for drying delicate or sharp objects away from other objects. This area in such a device is positioned so that a user can readily place additional items on the dryer for drying, and access these items before reaching for other items in the device to avoid injuring themselves on sharp objects and/or to avoid bumping the delicate items while being removed from the device. This can preserve the delicate items and avoid injury to the user. Such a horizontal platform or loft is typically provided as a fixed or non-removable feature, which can make storing such drying systems difficult if the overall structure is bulky. [0006] There are also drying systems known in the art that provide a series of generally horizontally extending fingers defining channels therebetween. Fragile items such as stemware can be placed on such fingers for drying by inverting the item of stemware and inserting the stem of the stemware into the channel, with the base of the stemware being supported on top of the fingers. Again, such structures are typically provided as a fixed or non-removable feature, which can make storing such drying systems difficult.

17 D1: 737 Patent Page 17 of Brief Description of the Drawings [0007] In drawings which illustrate by way of example only embodiments of the present invention, in which like reference numerals describe similar but not necessarily identical items throughout the various figures, [0008] FIG. 1 is an exploded perspective view of one example of a dish drainer assembly constructed in accordance with the present invention, showing the dish drainer assembly in the unassembled configuration. [0009] FIG. 2 is a perspective view of the dish drainer assembly shown in FIG. 1 and assembled in a first assembled dish drying configuration. [0010] FIG. 3 is a top view of the dish drainer assembly shown in FIG. 2. [0011] FIG. 4 is a side view of the dish drainer assembly shown in FIG. 1, but assembled in a second assembled, vertical, dish drying configuration. [0012] FIG. 5 is a top view of the dish drainer assembly shown in FIG. 4. [0013] It should be noted that in the accompanying drawings, not every similar or identical component within a single drawing is labelled with a reference number where the inclusion of repetitive reference numbers would obscure the drawing Detailed Description of the Invention [0014] The dish drainer assembly disclosed and described herein solves or improves upon one or more of the above-noted and other problems and disadvantages with prior known dish drainers and racks. [0015] The disclosed dish drainer assembly includes a loft accessory or supplemental drying element that can be positioned in at least two, and in some embodiments three, different orientations on the drainer basket to perform alternate drying functions that increase the number of articles that can be dried using the dish drainer.

18 D1: 737 Patent Page 18 of [0016] The disclosed dish drainer assembly includes a dish drying basket in combination with the drying element. In some embodiments, including the illustrated embodiment, the drying element is a loft that can be used in some configurations to provide a horizontal platform to increase the available surface area for placing articles to be dried on the dish drainer assembly. In some configurations, the loft can be used to provide a horizontal platform to increase the available surface area for placing articles to be dried on the dish drainer assembly without increasing the overall surface area covered by the dish drainer assembly. [0017] In a first disclosed assembled configuration, the disclosed dish drainer assembly is suitable for drying delicate and/or sharp objects on an elevated horizontal platform or loft of the drying accessory positioned above the bottom of the basket. In a second disclosed assembled configuration, the dish drainer assembly is suitable for drying a plurality of cups, drinking vessels, or other objects suspended on fingers of the drying element that extend vertically, and/or for retaining items to be dried inside the basket. In yet a third assembled configuration, the disclosed dish drainer assembly is suitable for drying objects on an elevated horizontal platform or loft provided by the drying element positioned outboard of the basket such that the surface of the loft does not interfere with the interior drying space of the basket. In the first and third assembled configurations, the disclosed dish drainer assembly is also suitable for drying stemware while minimizing the risk of breakage of the stemware by allowing the stem of stemware to be slid in channels between fingers of the drying element. [0018] Turning now to the drawings, FIG. 1 is an exploded view of a dish drainer assembly 20 constructed in accordance with the teachings of the present invention. In this example, the dish drainer assembly 20 generally includes a dish drying rack or basket 22, a conventional utensil holder or receptacle 24, and a drying element 26. [0019] In the disclosed example, the basket or rack 22 is a wire form structure including metal wires that can either be exposed or coated with a layer of a softer, durable material to both prevent corrosion to the wires and damage to dishes placed in the basket, as is known in the art. The wires can be welded together to form the basket 22 in this example. A plastic, rubber, or latex coating is optionally applied by dip coating or another suitable method. In another example,

19 D1: 737 Patent Page 19 of the basket 22 can be manufactured from materials not subject to corrosion, such as injection molded plastic. [0020] In this example, the basket 22 has a bottom 30 formed of a plurality of transverse and generally parallel wires 32 (FIG. 2). The transverse wires are supported by several longitudinal wires 34 positioned underneath and perpendicular to the transverse wires. As will be evident to those having ordinary skill in the art, the particular arrangement, configuration, orientation, and number of wires or other dish support elements can vary and yet fall within the scope of the present invention. [0021] Each of the transverse wires 32 in this example is bent creating an upstanding curved portion 36 centrally within the bottom 30. The curved portions 36 are aligned longitudinally with one another as is known in the art to create dish plate slots between the curved portions. Plates or other disc-like dishes, pots, lids, and the like can be positioned between any pair of the upstanding portions 36 for drying the dishes in a generally vertical orientation. [0022] The basket 22 in this example also includes four side walls extending upward from a perimeter of the bottom 30. The side wall has a pair of opposed sides 40 and a pair of opposed ends 42, each also formed of a plurality of horizontal wire segments 44 and 46, respectively. One or more of the transverse wires 32 has a vertical wire section 48 that extends beyond the side of the bottom 30 and that is bent upward to support the wire segments 44 of the sides 40. As shown in this example, the outermost two of the longitudinal wires 34, closest to the sides 40, have sections 49 that are bent upward at the corners of the basket 22. [0023] In the disclosed example, the basket 22 has a cut out 50 on a portion of one of the sides 40. The cut out 50 has a width that consumes a substantial portion of the length of the side wall and has a height that extends down a substantial portion of the height of the side wall. An upper edge wire 52 defines the lower boundary of the cut out 50. The ends of the edge wire 52 bend upward to create side wires 53 that form the opposite sides of the cut out 50. The side wires 53 continue upward and are bent horizontally in opposite directions to form a top most wire 54. The wire 54 circumscribes the remainder of the basket 22 and defines the top edge of the side wall.

20 D1: 737 Patent Page 20 of [0024] There are many possible alternate configurations for the various wires of the basket 22. In the disclosed example, the cut out 50 forms one aspect of the disclosed invention in conjunction with the drying element 26. The remaining parts of the basket 22 described above can vary considerably in alternative embodiments of the present invention. In other embodiments of the invention, the cut out 50 can be omitted and basket 22 can be generally similar to a conventional dish drying basket. [0025] As shown in FIG. 1, the wires 49 in this example are bent near their bottom ends to create four flat feet 56 near the corners of the basket 22, one at each basket corner, on the bottom 30 of the basket. The feet 56 support the basket above a drainage area (not shown), so that water dripping off items to be dried passes through the bottom 30 of the basket and onto the drainage area. In order to provide stability to the basket and support the basket at a consistent height above the drainage area, one foot 56 must be provided at each corner on the bottom 30 of the basket. Rubber pads 58 or the like are adhered, clipped, snapped on, or otherwise attached to the flat portion of the feet 56. [0026] The disclosed dish drainer assembly 20, in a disassembled configuration represented by FIG. 1, can employ only the basket 22 for drying. Both the drying element 26 and the utensil holder 24 can be detached from the basket and not be used in this configuration. Thus, in this configuration, the dish drainer assembly 20 can be utilized with the cut out 50 left open and drying element 26 detached. Large items, such as pots with long handles and platters, can rest in the basket 22 with a portion extending through the cut out 50. The utensil holder 24 in the disclosed example can be any conventional receptacle, and further details of its construction are not described herein. The utensil holder 24 shown and described herein is known in the art and can be optionally employed to further customize the assembly 20 for drying. [0027] The drying element 26 in the disclosed example is configured to be used with the basket 22 in more than one position and orientation to increase the number of articles that can be dried using the basket 22. Referring to FIGS. 2 and 3, the drainer assembly 20 is shown in a first assembled configuration in which the drying element 26 is attached to the basket 22 in a first position. In some examples, when in this first position the drying element 26 is mounted in a horizontal orientation and thus provides a loft or elevated horizontal drying surface that increases

21 D1: 737 Patent Page 21 of the available surface area for placing items to be dried on basket 22. The loft can be used for placing sharp objects, delicate items, and the like that are preferably segregated from larger plates and other items in the basket 22 itself. [0028] Preferably, in embodiments in which the drying element 26 is used as a loft, the drying element 26 defines a pervious floor. When wet items are placed on the drying element 26, the pervious floor permits water to drip downwards onto the drainage area below and/or permits air to circulate around the underside of the wet items, so as to facilitate their drying. For example, the drying element 26 can be a welded wire assembled in the manner of the disclosed basket 22. In another alternative example, the drying element can be formed of a piece of rigid mesh that is strong enough to support articles thereon for drying when used as a loft. Apertures defined in the wire configuration or the rigid mesh can provide a sufficiently pervious floor. [0029] In the particular example of FIG. 2, the drying element 26 is formed of molded plastic and includes an elongate tie or support 70. A plurality of spaced apart elongate fingers 72 project perpendicularly from an edge of the support 70 and are tied to one another by the support. These elongate fingers 72 are arranged generally parallel to each other, and define channels 73 between each pair of adjacent fingers 72. In this example, the fingers 72 are integrally molded with the base 70. [0030] The fingers 72 each include a distal end 80 that is upturned, angled, or bent in a direction opposite to the back or bottom face of the support 70. The upward-facing surfaces of the fingers 72 (as described with reference to the generally horizontally extending configuration of drying element 26 shown in FIG. 2) are generally flat in the disclosed example and define support surfaces 88 on the fingers that lie generally in the same plane as one another. The distal ends 80 of the fingers 72 are upturned in a direction relative to these support surfaces 88. The upturned distal ends 80 of the fingers 72 can assist in keeping objects from sliding off the ends of the fingers during use, although in some embodiments the upturned feature of the distal ends 80 can be omitted. [0031] As best shown in FIGS. 4 and 5, the basket 22 in this example includes a support wire 90 spaced outward of a portion of the top wire 54 on one end 42 of the basket. In this example, the support wire 90 and top wire 54 lie generally in the same plane so that drying element 26 will

22 D1: 737 Patent Page 22 of provide a generally horizontal platform when secured thereon as described below. It can be seen that in the first position, the support surfaces 88 of the drying element 26 lie in substantially the same plane and thus combine to provide the loft. [0032] It is to be noted that drying element 26 projects inwardly from top wire 54 over a portion of the surface area of the bottom 30, and therefore limits the maximum size of articles that can be placed on the bottom 30 beneath drying element 26. Positioning drying element 26 so that it projects inwardly from top wire 54 as in this first assembled configuration, i.e. so that drying element 26 extends substantially fully inside basket 22, does not significantly increase the overall footprint (e.g. amount of counter space) occupied by drainer assembly 20, because drying element 26 does not project outwardly from the perimeter of basket 22 to any significant extent. Thus, in this first assembled configuration, the footprint occupied by drainer assembly 20 is the same as the footprint occupied by drainer assembly 20 in the unassembled configuration, i.e. the footprint of drainer assembly 20 is defined by the perimeter of basket 22. [0033] When a drying element 26 such as the illustrated example drying element 26 is used in the first position, the stem of a piece of stemware such as a wine glass or champagne flute can be slidably inserted into a channel 73 defined between fingers 72 to suspend the stemware upsidedown for drying, thereby minimizing the risk of breakage of the stemware. Water will tend to drip or evaporate off the inverted stemware without needing to pass through the floor provided by the drying element 26; thus, in this example of the drying element 26, a pervious floor is not required. In some embodiments, the drying element 26 is used for drying stemware only, and does not necessarily need to provide a loft or elevated platform to increase the available surface area for placing items to be dried on drainer assembly 20. In other examples, the drying element 26 can provide a loft when used in either of the horizontal assembled configurations, but cannot perform other functions performed by fingers 72, such as receiving additional items to be dried when in the vertical configuration, or slidably receiving stemware between fingers of the drying element. [0034] Drying element 26 can be coupled to top wire 54 and support wire 90 in any suitable manner, including for example suitable snap-fit fastening feet provided on drying element 26 that can be clipped onto top wire 54 and support wire 90, or by a suitable hook (not shown in the

23 D1: 737 Patent Page 23 of drawings) formed on drying element 26 that can be engaged with top wire 54 or support wire 90. In alternative embodiments, different engagement mechanisms such as snap-on connectors could be devised by one skilled in the art to couple drying element 26 to a conventional dish drainer basket. [0035] As shown in FIGS. 4 and 5, the drying element 26 can be attached to the basket 22 in a second position, resulting in a second assembled configuration of the assembly 20 that increases the number of articles that can be dried using basket 22. In this second position, the drying element 26 is placed within the cut out 50 between the side wires 53, so that the drying element 26 extends generally vertically in the same plane as the wire segments 44 that extend from the side wires 53. As shown in FIG. 2, a pair of upstanding tabs 100 extends upward above the top or upper edge wire 52 within the cut out 50. In the disclosed example, these two tabs 100 are formed as a wire loop interconnecting the ends of two adjacent ones of the transverse wires 32. When used in this second configuration, drying element 26 does not provide a loft that increases the available surface area for placing articles to be dried on basket 22, but still increases the number of articles that can be dried using basket 22 by supporting additional articles to be dried. [0036] To attach the drying element 26 to the basket 22 in this second position, the drying element is simply positioned over the tabs 100, with suitable slots on drying element 26 (not shown in the drawings) being inserted over tabs 100. As will be evident to those having ordinary skill in the art, the attachment mechanisms for holding and supporting the drying element 26 in each of the first and second positions can each vary and yet fall within the scope of the present invention. [0037] In the second position, the fingers 72 are oriented such that they lie generally extending upward when the drying element 26 is attached to the basket. In this configuration, one or more fingers 72 can be received within the body of an inverted drinking vessel such as a cup or mug, and thus support the drinking vessel while it dries. In this example, the fingers are generally aligned with a plane of the side wall and extend generally vertically when the drying element 26 is in the second assembled position shown in FIGS. 4 and 5. Thus, in the illustrated example, the fingers also function to retain items placed in basket 22 within the basket by providing a substantially contiguous sidewall that does not permit articles to fall out of basket 22.

24 D1: 737 Patent Page 24 of [0038] In some embodiments, in the second position the fingers 72 of the drying element are not aligned with the side wall; rather, the drying element 26 is mounted at an angle to the side wall and projects further outward than the side wall, while still permitting inverted drinking vessels to be supported by one or more fingers 72. This leaves more space available to receive dishes and other items within the basket 22. Thus the fingers need not lie generally in the same plane as the side wall. However, in embodiments in which the fingers do not lie generally in the same plane as the side wall, there is a greater risk that items placed within basket 22 or leaned against fingers 72 in the vertical configuration may fall out of basket 22. The configuration, shape, length, and the like of the fingers can also vary from that shown herein, as can that of the wire 90, the tabs 100, and the support 70. [0039] In the example shown in FIGS. 2-3, the drying element 26 is oriented and attached to the basket 22 such that the fingers 72 lie generally parallel to the bottom 30 of the basket and extend inwardly from upper edge wire 52 toward the interior and centre of the basket. Thus, in this orientation, the fingers 72 overlie the bottom 30. In an alternative example, though not shown in the drawings, the drying element 26 can be reversed and attached to the basket with the fingers extending outside of the basket's side wall. Thus, the drying element 26 could be attached to the basket in two different and alternate orientations on top wire 54 and support wire 90. In the alternate (not shown) orientation, the drying element 26 can still provide a horizontal drying platform or loft, or allow for stemware to be slidably inserted within channels 73, to increase the number of articles that can be dried using dish drainer assembly 20, but without interfering with the basket interior drying space. This reverse loft orientation creates a third position for mounting the drying accessory or loft 26 disclosed herein to provide a third assembled configuration for the dish drainer assembly 20. [0040] In this third assembled configuration, the footprint of dish drainer assembly 20 is increased, and the amount of surface area (i.e. counter space) required to use drainer assembly 20 will be larger than the amount of surface area that would be required to use basket 22 alone, because drying element 26 projects outwardly from basket 22 and therefore will cover additional surface area of the counter, drainage tray, or other structure on which basket 22 is placed. In this third assembled configuration, the footprint of dish drainer assembly 20 will be the sum of the surface area covered by basket 22 plus the surface area covered by drying element 26, because

25 D1: 737 Patent Page 25 of drying element 26 projects away from the periphery of basket 22. Thus, the surface area covered by the dish drainer assembly 20 is larger in the third assembled configuration than in the first assembled configuration. [0041] Although certain dish drainer features and components have been described herein in accordance with the teachings of the present disclosure, variations can be made without departing from the principles described herein. For example, while in the disclosed embodiment, drying element 26 is detachable from the basket 22 in order to allow it to be moved between the various configurations described herein, alternative methods of securing drying element 26 to basket 22 could be used. For example, drying element 26 could be slidably mounted on top most wire 54 and support wire 90 of basket 22 to allow it to be slid back and forth between the first and third positions described herein. In such an embodiment, the drying element 26 could not be detached from basket 22 for use in the second (vertical) position described herein. [0042] Accordingly, the scope of coverage of this patent is not limited to the preferred embodiments described herein, and the claims are to be given an interpretation consistent with the broadest interpretation of the specification as a whole.

26 D1: 737 Patent Page 26 of Claims 1. A dish drainer assembly comprising: a basket having a bottom and four side walls extending upwardly from the bottom, upper edges of the side walls defining a peripheral edge of the basket; a plurality of feet for supporting the bottom of the basket above a drainage area; and an adjustable loft accessory mounted on the basket and moveable between a first position in which the adjustable loft accessory projects inwardly from the peripheral edge and a second position in which the adjustable loft accessory projects outwardly away from the peripheral edge, the adjustable loft accessory increasing the surface area available for resting articles to be dried on the basket while in either the first position or the second position A dish drainer assembly as defined in claim 1, wherein the adjustable loft accessory is removable from the basket A dish drainer assembly as defined in claim 1, wherein the adjustable loft accessory is further movable to a third position in which the adjustable loft accessory extends generally vertically in the same plane as one of the side walls A dish drainer assembly as defined in claim 1, wherein the adjustable loft accessory comprises fingers, and wherein a footprint of the dish drainer assembly when the adjustable loft accessory is in the first position is less than a footprint of the dish drainer assembly when the adjustable loft accessory is in the second position A dish drainer assembly comprising:

27 D1: 737 Patent Page 27 of a dish drainer basket adapted for drying plates above a drainage area; and a supplemental drying element for increasing the number of articles that can be dried using the dish drainer basket, the supplemental drying element being mounted on the basket and movable between a first position in which the supplemental drying element projects towards a centre of the basket and a second position in which the supplemental drying element extends away from the centre of the dish drainer basket A dish drainer assembly as defined in claim 5, wherein the supplemental drying element comprises fingers A dish drainer assembly as defined in claim 6, wherein upper surfaces of the fingers define a platform for resting additional articles to be dried when the supplemental drying element is in the second position A dish drainer assembly as defined in either one of claims 6 or 7, wherein each pair of adjacent fingers defines a groove therebetween for slidably receiving stemware A dish drainer assembly as defined in claim 5, wherein the dish drainer basket comprises a plurality of transverse wires, each one of the transverse wires having an upstanding curved portion, the upstanding curved portions being longitudinally aligned to provide a plurality of dish plate slots A dish drainer assembly as defined in claim 8, wherein the fingers extend from a support, and distal ends of the fingers are curved. 27

28 D1: 737 Patent Page 28 of 44 FIG. 1 FIG. 2

29 D1: 737 Patent Page 29 of 44 FIG. 3 FIG. 4

30 D1: 737 Patent Page 30 of 44 FIG. 5

31 D2: Easy Home Adjust-a-Rack Page 31 of PRODUCT DESCRIPTION: EASY HOME ADJUST-A-RACK The Easy Home Adjust-a-Rack dish drainer is illustrated generally as (A) in FIGS. 1, 2 and 3 of D2. The Adjust-a-Rack has a bottom rack portion (a) having a bottom (b) and four sides (c) extending upwardly from outer edges of the bottom (b). Four feet (d) are provided, one at each corner of bottom (b), to support the drainer (A) above a drying area. A pivoting rack portion (e) is pivotably mounted on one side of a top wire (f) that extends around the outer periphery of bottom rack portion (a) using two selectively lockable pivoting mechanisms (g). Pivoting rack portion (e) has an enclosed space that is defined by a plurality of base wires (h) and four sides (i). The pivoting mechanisms (g) are configured to allow dish drainer (A) to be selectively deployed and locked in any one of three positions: a compact position (shown in FIG. 1 of D2), a support position (shown in FIG. 2 of D2), and an expanded position (shown in FIG. 3 of D2). In the compact position, the pivoting rack portion (e) is seated above part of the surface area of bottom rack portion (a). Four legs (j) space pivoting rack portion (e) above top wire (f) in this configuration. This configuration is intended for use in kitchens where counter surface area is scarce, by providing an additional shelf for holding cups, plates, or the like, while smaller items such as cups and bowls can be placed on bottom rack portion (a) below pivoting rack portion (e). This allows a larger number of items to be placed on dish drainer (A) than would be the case if pivoting rack portion (e) were not present. From the compact position, pivoting rack portion (e) can be pivoted upwardly and outwardly to the support position shown in FIG. 2 of D2, where pivoting rack portion (e) is seated on top wire (f) in an orientation that is approximately perpendicular to bottom rack portion (a). As can be seen from FIG. 2 of D2, in the support position, the base wires (h) of pivoting rack portion (e) extend generally vertically, and are positioned outwardly of the side (c) on which pivoting rack portion (e) is mounted. Base wires (h) are spaced apart from the side (c) on which pivoting rack portion (e) is mounted by legs (j). Pivoting mechanisms (g) allow pivoting rack portion (e) to be secured in this support position on top wire (f). The support position is useful for supporting certain types of larger items, for example a cutting board or the handle of a pot, to facilitate drying these larger items. In use, for example one end of the cutting board or the body of a pot

32 D2: Easy Home Adjust-a-Rack Page 32 of can be placed inside bottom rack portion (a), and the opposite end of the cutting board or the handle of a pot can be leaned against vertically extending pivoting rack portion (e). From the support position, pivoting rack portion (e) can be pivoted downwardly and further outwardly to an expanded position. In this orientation, pivoting rack portion (e) is positioned side-by-side with bottom rack portion (a) (although still vertically above bottom rack portion (a)), adjacent the wall (c) on which pivoting rack portion (e) is mounted. In this configuration, items to be dried (for example, cups or glasses) can be placed on the underside of base wires (h) (which are oriented on the top of pivoting rack portion (e) in this expanded position), while a user can have unencumbered access to bottom rack portion (a). Thus, in the expanded position, dish drainer (A) also provides additional surface area for holding more items to be dried than could be contained within bottom rack portion (a) alone. Users may prefer to use the expanded configuration over the compact position if there are many items to be dried, or in larger kitchens where scarcity of counter space is not a problem. Although the expanded position and the compact position both provide approximately the same storage surface area for placing items on for drying, the compact position is somewhat more restricted because only low-profile items can be placed on that portion of bottom rack portion (a) that is below pivoting rack portion (e). The Adjust-a-Rack has a wire frame construction, and the wire frame is coated with plastic in a conventional manner.

33 D2: Easy Home Adjust-a-Rack Page 33 of 44 FIG. 1 (D2)

34 D2: Easy Home Adjust-a-Rack Page 34 of 44 FIG. 2 (D2) FIG. 3 (D2)

35 D3: Easy Home Tilting Rack Page 35 of PRODUCT DESCRIPTION: EASY HOME TILTING RACK The Easy Home Tilting Rack is a different model of a dish drying rack having an adjustable portion. The provided views are as follows: FIG. 1 of D3 shows a perspective view of the device with the swinging arm described below in the locked and lowered position. FIG. 2 of D3 shows an enlarged partial perspective view of the device with the swinging arm in the raised and unlocked position. FIG. 3 of D3 shows an enlarged partial perspective view of the device with the swinging arm in the lowered and unlocked position. FIG. 4 of D3 shows a front plan view of the device with the swinging arm in the raised and unlocked position. FIG. 5 of D3 shows a front plan view of the swinging arm in the raised and locked position. With reference to FIG. 1 of D3, the Tilting Rack provides a dish drying basket (M) which has a bottom (n), four walls extending generally upwardly from the outside edges of the bottom (n), the upper edges of the four walls being defined by upper horizontal end wires (o) and upper sidewires (p) provided along a top peripheral edge of the basket. Four legs (q), one at each corner of bottom (n), support the dish drying basket (M) above a drying area. An additional pair of sidewires (r) is provided at a lower height on legs (q) than upper sidewires (p) to further define two opposed sides of the basket. The remaining two opposed sides of the basket are defined by generally vertical extensions of the wires that form bottom (n), the wires being curved upwardly to form the remaining two opposed sides of the basket. A plurality of divider walls (s) formed from the wires that provide bottom (n) are provided for supporting flat or slightly curved items to be dried, such as dishes and plates, as is conventional in the art. Longitudinally aligned divider walls (s) are formed by upwardly bent portions of the wires that form bottom (n) of dish drying basket (M), and define slots therebetween into which flat or slightly curved items can be inserted for drying.

36 D3: Easy Home Tilting Rack Page 36 of A swinging arm (t) is pivotably coupled to the horizontal end wire (o) at a first end of the basket. As best illustrated in FIG. 2 of D3, the swinging arm (t) has a U-shaped configuration with a longitudinal wire portion (u) that connects two parallel side wire portions (v). A sleeve (w) is provided at the end of each of side wire portions (v) to receive end wire (o) therein, to provide a pivoting and sliding connection between swinging arm (t) and end wire (o). A plurality of U-shaped holders (x) extend from longitudinal wire portion (u), with a space (y) defined between each adjacent pair of U-shaped holders (x). When swinging arm (t) is in its raised and locked position, a wine glass or other item of stemware can be slid into each separate space (y), so that adjacent U-shaped holders (x) can support or hold the wine glass or other item of stemware. In such a configuration, as best seen in FIG. 2, the arc of U-shaped holders (x) is curved downwardly, so that a user can readily slide an item of stemware past the tip (x ) of U- shaped holder (x) and into space (y), while the base portion (x ) of U-shaped holders (x) are angled towards longitudinal wire portion (u), so that gravity will hold the stem of the item of stemware securely against longitudinal wire portion (u). In this configuration, U-shaped holders (x) cannot be used for supporting articles other than stemware, because any articles placed on top of U-shaped holders (x) would tend to slide off swinging arm (t). As best seen in FIG. 3 of D3, a first locking bulb (z) is connected adjacent one of the sleeves (w) via a first shaft (mm), and a second locking bulb (nn) is connected along the corresponding side wire portion (v) via a second shaft (oo). Both locking bulbs (z) and (nn) extend outwardly away from the interior of the swinging arm (t). FIG. 1 of D3 illustrates the swinging arm (t) in its locked lower position. In this configuration, the plurality of U-shaped holders (x) define an elongated convex holding space, which is particularly useful for holding large or long utensils, such as knives, chopsticks, or the like. When swinging arm (t) is in its locked lower position, locking bulbs (z) and (nn) engage the adjacent leg (q ) to prevent swinging arm (t) from experiencing any outward pivoting motion. In this configuration, the locking bulbs (z) and (nn) are positioned behind the adjacent leg (q ) and extend outwardly on the outer side of leg (q) away from the center of the basket. The leg (q ) thus blocks shafts (mm) and (oo) from moving outwardly, and the locking bulbs (z) and (nn) act

37 D3: Easy Home Tilting Rack Page 37 of as an engagement mechanism to secure the locking bulbs (z) and (nn) on the outward side of the adjacent leg (q ), to hold swinging arm (t) in the locked lower position. FIG. 2 of D3 illustrates the swinging arm (t) in its raised, unlocked position. When a user wishes to raise the swinging arm (t) to the raised position, the user first pivots swinging arm (t) slightly inwardly, and then slides swinging arm (t) away from the leg (q ) supporting the locking bulbs, and towards the opposite leg (q ). Locking bulbs (z) and (nn) thus move towards the center of the basket, inside the adjacent leg (q ). A user then pivots swinging arm (t) upwardly until swinging arm (t) reaches the position illustrated in FIG. 2 of D3. The user then slides the swinging arm (t) towards the leg (q ) until locking bulbs (z) and (nn) are positioned outside of the leg (q ), as best shown in FIG. 5 of D3. In this secured raised position, the shaft (oo) abuts the leg (q ) to prevent swinging arm (t) from pivoting downwardly. To return the swinging arm (t) back to the lower locked position, a user slides swinging arm (t) away from leg (q ) and towards the opposite leg (q ), then pivots the swinging arm (t) downwardly. Once swinging arm (t) is back in the lower position, a user pivots swinging arm (t) slightly inwardly so that the locking bulbs (z) and (nn) are once again passed behind leg (q ) and extend outwardly on the outer side of leg (q ), away from the center of the basket. The Tilting Rack is made with a plastic-coated wire-frame construction, as is common for such devices.

38 D3: Easy Home Tilting Rack Page 38 of 44 FIG. 1 (D3) FIG. 2 (D3)