Ex Parte Andersen

Board of Patent Appeals and Interferences

May 27, 2008

10653122 (B.P.A.I. May. 27, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte STEPHEN M. ANDERSEN
____________

Appeal 2008-1443
Application 10/653,122
Technology Center 3600
____________

Decided: May 27, 2008
____________

Before TERRY J. OWENS, HUBERT C. LORIN, and JOHN C. KERINS,
Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Stephen M. Anderson (Appellant) seeks our review under 35 U.S.C.
§ 134 of the final rejection of Claims 1-14, the only claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b) (2002).
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SUMMARY OF DECISION
We AFFIRM-IN-PART.
THE INVENTION
Appellant’s invention is a portable cart/trailer for storing and
transporting landscaping material and for discharging the same into a
wheelbarrow, and a corresponding method. The cart/trailer has a bin with
slanted sidewalls, an opening in one of the sidewalls to discharge material, a
trailer, a support assembly on the trailer to support the bin so that a
wheelbarrow can be positioned beneath the opening, a gate member for
restricting flow out of the opening in the sidewall, and a lever for moving the
gate between a closed position and an open position, the lever being of
sufficient length that an operator need not reach over a wheelbarrow
positioned under the opening in order to operate the lever.
Claims 1 and 10, reproduced below, are representative of the subject
matter on appeal:
1. A portable cart/trailer for loading, hauling,
storing, and dispensing into a wheelbarrow
landscaping material comprising, in combination:

(a) a bin with an open top and a plurality of
slanted, converging, sidewalls for holding said
landscaping material;

(b) an opening in at least one of the sidewalls of
the bin housing at a height that permits loaded
material to be dispensed into a wheelbarrow
positioned adjacent said opening;
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(c) a trailer assembly;

(d) a hopper support assembly cooperating with
said trailer assembly to support said bin so that a
wheelbarrow can be positioned beneath the
opening in the sidewall so that said loaded material
may be dispensed directly into said wheelbarrow;

(e) a gate member for restricting flow out of the
opening in the sidewall; and

(f) a lever for moving the gate between an open
position, in which said landscaping material can
flow out of the bin through said opening into said
wheelbarrow, and a closed position preventing said
landscaping material from flowing out of said
opening wherein said lever is rotationally engaged
to one of the side walls of the bin and is further
coupled to said gate member through the use of a
pin and a hole, and is of a sufficient length so that
one need not reach over a wheelbarrow positioned
adjacent said opening to actuate said lever.

10. A method for delivering sizeable quantities of
landscaping material from a distribution site to
remotely located job sites using a trailer having a
bin for storing and transporting such landscaping
material such bin having a discharge opening and a
gate for controlling the passage of landscaping
material from the bin through the opening, the
method comprising the steps of:

(a) with the gate in a closed position, loading the
bin of the trailer with landscaping material at a
distribution site;
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(b) transporting the trailer to a job site remotely
located from the distribution site using a vehicle to
pull the trailer;

(c) positioning the trailer at the job site so that it is
generally level;

(d) placing a wheelbarrow underneath the
discharge opening in the bin of the trailer;

(e) moving the gate to an open position using a
lever to pivotally coupled to the bin and coupled to
the gate through the use of a pin and hole to permit
the passage of a desired quantity of landscaping
material out of the opening and directly into the
wheelbarrow, said lever extending a sufficient
length so that one need not reach over said
wheelbarrow positioned underneath said opening
to actuate said lever;

(f) moving the gate back to said closed position
using said lever to obstruct the passage of material
out of the bin;

(g) using the wheelbarrow to distribute the
landscaping material at the desired location at the
job site;

(h) repeating steps (d)-(g) until all the landscaping
material needed for the job is distributed or the bin
is empty; and

(i) transporting the trailer back to the distribution
site.
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THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Parker US 3,997,215 Dec. 14, 1976
Palladino US 5,108,038 Apr. 28, 1992
Plotkin US 5,655,872 Aug.12, 1997
Schuff US 5,785,420 Jul. 28, 1998
Hagemeyer US 5,823,734 Oct. 20, 1998
Bondarenko US 5,921,200 Jul. 13, 1999
Routledge US 5,934,731 Aug. 10, 1999
Collins US 5,997,099 Dec. 7, 1999
Weiss US 6,474,926 B2 Nov. 5, 2002

The following rejections are before us for review:
1. Claims 1-3 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the Parker patent, in view of the Plotkin patent
(“Parker/Plotkin”).
2. Claim 4 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Parker/Plotkin, and further in view of Bondarenko.
3. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Parker/Plotkin, and further in view of Collins.
4. Claims 6 and 8 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Parker/Plotkin, and further in view of Hagemeyer.
5. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Parker/Plotkin, and further in view of Palladino.
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6. Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Parker/Plotkin, and further in view of Weiss.
7. Claims 10-12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schuff in view of Plotkin.
8. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schuff and Plotkin, and further in view of Hagemeyer.
9. Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schuff and Plotkin, and further in view of Routledge.

ISSUES
A first issue before us is whether Appellant has shown that the
Examiner erred in concluding that the subject matter of Claims 1-9 is
obvious, and therefore unpatentable, over the Parker and Plotkin patents, and
the tertiary patents cited, where applicable. A second issue before us is
whether Appellant has shown that the Examiner erred in concluding that the
subject matter of Claims 10-14 is obvious, and therefore unpatentable, over
the Schuff and Plotkin patents, and the tertiary patents cited, where
applicable.
FINDINGS OF FACT
The following enumerated findings are supported by at least a
preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office).
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FF 1. The drawings in the Parker patent illustrate that the lower
extent of opening 90 in bin 12 is positioned at a height above axle 52. Axle
52 is itself spaced at a height about the ground. (Parker, Fig. 2).
FF 2. The Parker patent also illustrates that axle 52 is positioned at a
distance inwardly of the opening 90 in the bin 12, and that the opening 90
has unobstructed space below it. (Parker, Fig. 3).
FF 3. The Plotkin patent discloses a discharge opening 84 that is
capable of discharging grain or other flowable material when discharge door
74 is opened. The discharge door is operated (opened and closed) via a lever
80, allowing an operator to stand to the side of the door and the opening, and
to not have to reach into a potentially obstructed area. (Plotkin, Figs. 6, 7;
Col. 5, ll. 4-28).
FF 4. The Parker, Plotkin, and Bondarenko patents all involve
structures for opening and closing a gate or gates such that particulate matter
can be discharged from an opening. (Parker, Col. 3, ll. 34-47; Plotkin, Figs.
6, 7, Col. 5, ll. 4-28; Bondarenko, Col. 2, ll. 16-25).
FF 5. The Hagemeyer patent discloses a locking pin adapted to retain
a gate in a desired position relative to a discharge opening. The locking pin
is described as being secured in position by a spring mechanism, and is
biased in a locking position by a spring. (Hagemeyer, Fig. 3; Col. 8, ll. 31-
40).
FF 6. The Palladino patent discloses a hopper or bin with angled
sidewalls, and having an opening closed off by a door operated by a lever.
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(Palladino, Fig. 1). The lever is engaged by a U-shpaed bar in the vicinity of
the free end of the lever. (Id.). The lever and door are disposed on an
angled sidewall of the hopper or bin. (Id.). The free end of the lever and the
U-shaped bar are positioned such that the surfaces of the U-shaped bar will
physically interfere with the lever, restricting movement thereof, when the
lever is moved or attempts to move either in a plane parallel to the angled
sidewall or in a direction away from the angled sidewall. (Id.).
FF 7. The Weiss patent discloses a concrete batch plant that is trailer-
bsed, and is capable of being transported via roadway. (Weiss, Col. 1, ll. 4-
7). This trailer employs outriggers to laterally stabilize the structure once
the trailer is at its destination. (Weiss, Col. 6, ll. 23-44).
FF 8. The Parker patent discloses the use of an outrigger to stabilize
or level the trailer upon reaching a desired destination. (Parker, Figs. 3-5;
Col. 3. ll. 19-30).
FF 9. The Schuff patent discloses a vehicle having mixable materials
stored in separate bins, to be mixed in small loads at a job site, with the
mixed product being discharged, in one disclosed embodiment, from a mixer
into a wheelbarrow. (Schuff, Figs. 19, 21; Col. 12, l. 65-Col. 14, l. 60).

PRINCIPLES OF LAW
Claims on appeal are not to be confined to specific embodiments
described in the specification. Phillips v. AWH Corp., 415 F.3d 1303, 1323
(Fed. Cir. 2005) (en banc). During ex parte prosecution, claims must be
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interpreted as broadly as their terms reasonably allow, since Applicants have
the power during the administrative process to amend the claims to avoid the
prior art. In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989). The broadest
reasonable meaning of claim terms will be in accord with their ordinary
usage as they would be understood by one of ordinary skill in the art, taking
into account whatever enlightenment by way of definitions or otherwise that
may be afforded by the written description. In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
Section 103 forbids issuance of a patent when the differences between
the subject matter sought to be patented and the prior art are such that the
subject matter as a whole would have been obvious at the time the invention
was made to a person having ordinary skill in the art. KSR Int'l Co. v.
Teleflex Inc., 127 S.Ct. 1727, 1734 (2007). The question of obviousness is
resolved on the basis of underlying factual determinations including (1) the
scope and content of the prior art, (2) any differences between the claimed
subject matter and the prior art, (3) the level of skill in the art, and (4) where
in evidence, so-called secondary considerations. Graham v. John Deere Co.,
383 U.S. 1, 17-18 (1966). See also KSR, 127 S.Ct. at 1734 (Graham factors
continue to define the inquiry that controls).
In KSR, the Supreme Court emphasized “the need for caution in
granting a patent based on the combination of elements found in the prior
art,” id. at 1739, and discussed circumstances in which a patent might be
determined to be obvious. In particular, the Supreme Court emphasized that
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“the principles laid down in Graham reaffirmed the ‘functional approach’ of
Hotchkiss, 11 How. 248.” KSR, 127 S.Ct. at 1739 (citing Graham, 383 U.S.
at 12), and reaffirmed principles based on its precedent that, “[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id.

ANALYSIS
Obviousness rejection of Claims 1-3
Appellant argues dependent claims 2 and 3 separately from
independent claim 1.
The Examiner’s position with respect to claim 1 is that the Parker
patent discloses all elements of the claim, with the exception of providing a
lever to open and close the gate which is provided to restrict the flow of
material out of an opening in a bin. The Examiner, noting that the Plotkin
patent discloses such use of a lever to open and close a gate to permit or
restrict material flow, concludes that it would have been obvious to provide
the Parker apparatus with a lever actuator in order to allow an operator to
open the gate from a remote position, and in order to gain a measure of
mechanical advantage. (Answer 4).
Appellant devotes considerable time and attention attempting to
identify deficiencies in the references individually (relative to the claimed
invention), but does not argue that the combination is improper. Appellant
argues only that the Parker apparatus as modified by the teachings of Plotkin
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does not teach or suggest the invention of claim 1. Accordingly, we will
review for error the Examiner’s position regarding the modified Parker
apparatus.
Appellant first contends that the Parker apparatus is a gravity bed
trailer for hauling grain, and not a trailer/cart for landscaping use. (Appeal
Br. 9). The contention itself highlights the reason that this argument is
unpersuasive—the claim language reciting that the cart/trailer is, “for
loading, hauling, storing and dispensing … landscaping material”, is nothing
more than a statement of intended use, and is thus only indicative that the
cart/trailer is capable of performing those functions. The Parker apparatus,
which has essentially the same structural elements as does Appellant’s
claimed invention, would clearly be so capable.
The modified Parker apparatus is alleged to not meet the element in
claim 1 requiring that the bin be supported, “so that a wheelbarrow can be
positioned beneath the opening in the sidewall”. Similarly, claim 1 requires
that an opening be provided in the sidewall of the bin, “at a height that
permits loaded material to be dispensed into a wheelbarrow adjacent [the]
opening”. (Appeal Br., Claims Appendix). Appellant urges that, due to the
height and location of the opening in Parker, “it is impossible for a
wheelbarrow to be positioned beneath the opening” (emphasis added), and
that, “Parker teaches against positioning of a wheelbarrow adjacent opening
90. The bottom of bed 80, axle 52, and the wheel 100 all obstruct such
adjacent positioning.” (Appeal Br. 9).
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We are not persuaded that these arguments establish error on the
Examiner’s part. Appellant attempts to structurally define his invention, and
distinguish it from the cited prior art, by relying on some nebulous size of a
piece of equipment (wheelbarrow) which is not positively recited in the
claim. Figure 2 of the Parker patent illustrates that the lower extent of the
opening in the bin is positioned some distance above axle 52, which is itself
spaced some distance off of the ground. (FF 1). Figure 5 illustrates that axle
52 is positioned a considerable distance inwardly of the bin, such that
opening 90 is disposed rearwardly of the axle and has unobstructed space
below it. (FF 2). A wheelbarrow of some size would clearly be able to be
positioned under the opening, contrary to Appellant’s assertion that it would
be impossible to do so.
Later in the Appeal Brief, Appellant hedges his argument directed to
the “impossibility” of positioning a wheelbarrow beneath the opening in the
Parker trailer. There, Appellant argues that, “the bottom of the trailer
appears to be so low to the ground that a wheelbarrow would not fit”, and
that, “even if a wheelbarrow would fit, the position of the axle 52 with
respect to the opening 90 would make it impossible to center the
wheelbarrow adjacent the opening.” (Appeal Br. 10)(emphasis added).
Appellant’s equivocation with respect to the alleged “impossibility” of
positioning a wheelbarrow under the opening in the Parker apparatus
underscores the reasonableness of the Examiner’s position with respect to
applying the Parker patent to the claims. In attempting to distinguish claim
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1, assuming that a wheelbarrow would fit under the opening in the bin,
Appellant digresses from the claim language and limitations. Appellant
argues that, if a wheelbarrow could be positioned under the opening, it
would be impossible to “center” the wheelbarrow adjacent the opening.
This term or limitation is found nowhere in claim 1, therefore the argument
is unavailing.
In what appears to be a further argument that the modified Parker
apparatus does not disclose or suggest every element of the claimed
invention, Appellant urges that the Plotkin patent does not provide a
desirable lever for wheelbarrow loading. (Appeal Br. 13). Appellant
characterizes the lever disclosed in Plotkin as a “short door handle”, which is
not of sufficient length that one can avoid reaching over a wheelbarrow to
activate it. (Id.). We again find ourselves unpersuaded by an argument
focused on undefined dimensions and related to a structure (wheelbarrow)
that is not recited in the claim. The lever in the Plotkin patent is provided to
allow opening and closing of the gate from a position to the side of the gate
and without an operator having to reach into a potentially obstructed area.
(FF 3). Since this lever allows an operator to stand to the side of the door to
open and close the door, were this lever to be substituted for the wheel on
the Parker apparatus, an operator would not have to reach over a
wheelbarrow positioned under the opening to operate the lever and gate.
Finally, Appellant attempts to distinguish his invention over the
Parker and Plotkin patents by noting, at several places in the Appeal Brief
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and Reply Brief, that the lever and gate arrangement in Plotkin is not
disclosed as being used for dispensing and metering of material, but rather,
Plotkin uses an auger to offload grain. (See, e.g., Appeal Br. 13, Reply Br.
3). Appellant does, however, acknowledge that grain can be discharged
through the opening. (Appeal Br. 11-12). Further, a limitation directed to
“metering” of material being discharged is nowhere found in claim 1, and
thus Appellant’s argument in this respect is not germane to the propriety of
the rejection.
The rejection of claim 1 under 35 U.S.C. § 103(a) over Parker in view
of Plotkin will be affirmed.
Obviousness Rejection of Claims 2 and 3
With reference to claim 2, Appellant contends that the Parker
apparatus “is only partially angled on its surface with an opening.” (Appeal
Br. 14). The claim, however, reads that, “the sidewall containing the
opening is positioned at an angle … “. (Appeal Br., Claims Appendix).
Giving the claim its broadest reasonable interpretation, and applying the
teachings of Parker thereto, the sidewall of Parker that contains the opening
is clearly positioned at an angle. (See Parker, Figs. 1-4). The claim does not
require that the recited “sidewall” must extend the entire height (vertical
extent) of the bin.
Claim 3 requires that the lever controlling the gate member be
rotationally engaged to one of the side walls by a triangular panel attached to
the sidewall. Appellant contends that such feature is not disclosed in either
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the Parker or Plotkin patents. The Examiner, however, points to the
triangular panel or brace 82, in Figures 6 and 7 of Plotkin as disclosing this
element. (Answer 11). Appellant does not address this finding, and instead
resurrects the inapposite argument that the Plotkin lever and gate do not
operate to meter the discharge of material. As noted above, this is not a
limitation present in the claims.
The rejections of claims 2 and 3 will be affirmed.
Obviousness rejection of Claim 4
The Examiner relies on the addition of the teachings of the
Bondarenko patent, in combination with the Parker and Plotkin patents, in
concluding that it would have been obvious, in view of Bondarenko, to
provide the modified Parker apparatus with a slotted hole for the “pin and
hole” lever coupling arrangement disclosed by Plotkin. Appellant
principally objects to this rejection on the basis that Bondarenko is
nonanalogous art. (Appeal Br. 14).
Appellant’s arguments here focus too intently on the specific intended
use of his apparatus, and on the specific end uses of the prior art devices. A
reference is reasonably pertinent, even though it may come from a different
field from that to which the invention pertains, if, because of the matter with
which it deals, it logically would have commended itself to the attention of a
person of ordinary skill in the inventor’s art. In re Icon Health & Fitness,
Inc., 496 F.3d 1374, 1379-80 (Fed. Cir. 2007). Such is the case here, as
established by the Examiner. The Bondarenko, Parker and Plotkin patents
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all involve devices for opening and closing gates such that a particulate
material can be discharged from the gate. (FF 4). Thus, we are not
persuaded that the Examiner erred in relying on the teaching of Bondarenko
in rejecting claim 4.
Appellant makes an unsupported and conclusory statement that the
Bondarenko patent would not teach a person of ordinary skill in the art to
use a slotted hole as claimed, and further asserts that the Examiner distorts
the teachings of Bondarenko in combining those teachings with Parker and
Plotkin. (Appeal Br. 14-15). Appellant, however, fails to explain why the
patent would not teach what the Examiner posits, and how the teachings as
applied have been distorted. We thus are unpersuaded that the Examiner
erred in rejecting this claim.
The rejection of claim 4 will be affirmed.
Obviousness rejection of Claim 5
Claim 5 depends from claim 1, and further requires the trailer
assembly to have a hitch receiver adapted to fit onto a standard ball hitch.
The Examiner cites to the Collins patent as teaching such a hitch receiver as
used with a trailer-type hopper, and concludes that it would have been
obvious to modify the Parker trailer to employ such a hitch in place of the
hitch disclosed in Parker. (Answer 11). The Examiner notes that this
substitution would allow the Parker trailer to be connected to a number of
different vehicles without requiring a special hitch connection on each of the
vehicles. (Answer 5). Appellant counters, without so much as a single
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sentence of explanation, that there is no suggestion to use or combine the
teaching of the hitch in Collins with the teaching of the Parker patent.
(Appeal Br. 15).
The Examiner has articulated his reasoning, which is supported by
rational underpinnings, as to why this combination or modification would
have been obvious. This modification further appears to be nothing more
than a substitution of one known element for another, yielding predictable
results. KSR Int’l, 127 S.Ct. at 1739. We are far from persuaded that error
exists in the rejection of Claim 5, and the rejection will be affirmed.
Obviousness rejection of Claims 6 and 8
Claim 6 depends from claim 1, and claim 8 depends from claim 6.
Claim 6 adds to claim 1 the additional element of a locking pin and receiver
slot which cooperate to secure the gate in an open position. Claim 8 requires
that the locking pin be spring-loaded. The Examiner concludes that it would
have been obvious to include a spring-loaded locking pin cooperating with a
receiver slot of the type disclosed in the Hagemeyer patent, on the modified
Parker apparatus, so as to provide the ability to lock the lever and gate at
different positions in order to adjust the size of the opening in the hopper for
discharging material. (Answer 6-7, 12).
Appellant contends that the rejection is in error in that, even though
Hagemeyer discloses the use of pins and holes for locking a feedgate in
position, Hagemeyer does not disclose, “a locking pin and receiver slot as
set forth in [Appellant’s] disclosure”. (Appeal Br. 15). Appellant further
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argues that there is a difference between the Hagemeyer disclosure and his
disclosure, and that the locking pin of Hagemeyer is not a spring loaded
locking pin or its equivalent. (Reply Br. 4).
That the Hagemeyer patent does not disclose exactly the same
construction as is described in Appellant’s disclosure does not establish that
the rejection is in error. The relevant inquiry is whether the Hagemeyer
reference discloses or suggests the elements appearing in the claims.
Specific embodiments presented in the specification may not be read into the
claims. Phillips, 415 F.3d at 1323. Appellant’s assertion that the locking
pin in Hagemeyer is not a spring loaded locking pin is refuted by the
Hagemeyer disclosure, in which the locking pin is described as being
secured in position by a spring mechanism and is biased in a forward
(locking) position by a spring. (FF 5).
We are not persuaded that error exists in the rejection of claims 6 and
8. The rejection will be sustained.
Obviousness rejection of Claim 7
Claim 7 depends from claim 3, and indirectly from claim 1. The
claim calls for the provision of a U-shaped bar fixedly attached to one of the
sidewalls of the bin, the bar restricting movement of the lever that opens and
closes the gate. The rejection of claim 7 is based on the conclusion that it
would have been obvious to provide the modified Parker trailer with the U-
shaped lever guide disclosed in the Palladino patent, and that the movement
of the lever would be restricted by this lever guide. (Answer 5, 12).
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Appellant points out that the written disclosure in Palladino does not
indicate whether the range of motion of the lever is restricted by the U-
shaped bar. (Appeal Br. 15). Appellant also contends that, in viewing
Figure 1 of the Palladino patent, the impact of the bar is ambiguous.
Appellant urges that, due to the lack of written disclosure and due to the
alleged ambiguity of the function of the U-shaped bar, no teaching can be
inferred from the Palladino patent. (Reply Br. 5).
Appellant’s arguments are not commensurate with the scope of claim
7. Claim 7 does not contain a limitation that the U-shaped bar restricts the
range of motion (e.g., at a “fully open” or a “fully closed” position) of the
lever as it is operated to open and close the gate, rather the claim calls for the
U-shaped bar to restrict “movement” of the lever. (Appeal Br., Claims
Appendix). The U-shaped bar in Palladino undoubtedly restricts movement
of the lever in some direction. While it is likely that the U-shaped bar acts
as a stop for the lever at either the fully open or fully closed gate position,
even if it does neither, the U-shaped bar clearly restricts the lever from
moving in a direction away from the angled sidewall of the hopper 12. (FF
6). As such, the U-shaped bar restricts movement of the lever, which is what
the claim requires.
We will affirm the rejection of Claim 7.
Obviousness rejection of Claim 9
Claim 9 depends from claim 1, and further recites that the cart/trailer
is to include a pair of adjustable outriggers attached thereto, which
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outriggers are movable between a raised position and a lowered position.
The Weiss patent is relied on in the rejection as teaching that it was well
known to use outriggers of the type claimed for stabilizing a trailer during
loading and unloading thereof. (Answer 12). The Examiner concludes that
it would have been obvious in view of Weiss to have provided a pair of
outriggers on the modified Parker apparatus to improve stability of the
apparatus during loading or unloading.
Appellant contends that there exists no suggestion as to why a person
of ordinary skill in the art would think to employ two of the tongue jacks
disclosed in Weiss and use two of them as outriggers in the trailer/cart of the
present invention. (Appeal Br. 15-16; Reply Br. 5). Appellant further
argues that Weiss does not disclose or discuss using the outriggers from the
Weiss concrete batch plant in any way other than by the specific manner in
which they are disclosed for use, nor is any mention made as to how to adapt
these outriggers for use with a trailer or cart. Finally, Appellant notes that
Weiss does not disclose why such outriggers might be used on a trailer or
cart. (Id.).
The Weiss patent discloses a concrete batch plant that is trailer-based,
so that it is transportable by roadway. (FF 7). Outriggers are deployed to
laterally stabilize the structure once the trailer reaches its destination. (Id.).
Parker itself discloses the provision of an outrigger to support the trailer and
hopper in a level position when the trailer is disconnected from a truck. (FF
8). As such, the alleged failure of Weiss to disclose why and how outriggers
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might by use on a trailer or cart is not determinative of the obviousness issue
here. The disclosure in Weiss of using a plurality of outriggers for laterally
supporting a trailer, particularly in view of the disclosure in Parker that an
outrigger may be used to stabilize the trailer, would suggest to a person of
ordinary skill in the trailer art that such outriggers can be used in a situation
in which additional lateral support is desired. This is nothing more than a
predictable use of prior art elements according to their established functions,
something which is a strong indicator of obviousness. KSR Int’l., 127 S.Ct.
at 1740.
We will affirm the rejection of Claim 9.
Obviousness rejection of Claims 10-12
Independent claim 10, and claims 11 and 12 depending therefrom,
stand rejected under 35 U.S.C. § 103(a) as being obvious over the Schuff
patent, in view of Plotkin. These claims are directed to a method for
delivering large quantities of landscaping material from a distribution site to
a job site, which involves loading the bin of the trailer with landscaping
material, and, at the job site, opening the bin to discharge a desired quantity
of the material directly into a wheelbarrow, and using the wheelbarrow to
distribute the material.
The rejection of the claims attempts to establish that the Schuff patent
discloses all steps of the claimed method, with the exception of teaching the
use of a lever to open and close a discharge gate to discharge the
landscaping material. (Answer 7-8). The Examiner concludes that it would
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22
have been obvious to modify the Schuff method in accordance with the
teachings of Plotkin, such that a method would be provided which would,
“deliver a set amount of material to a remote site without having to rely on
secondary structures to support the bin while still allowing a wheelbarrow to
be easily loaded for final distribution of the exact amount of material
needed”. (Answer 8). The Examiner further notes that, “the general concept
of providing a hopper which can be emptied with small loads into a
wheelbarrow is taught by Schuff. The method of unloading a bulk trailer by
opening a sliding door is taught by Plotkin.” (Answer 12).
Appellant points out that, while the Schuff patent does disclose
discharging material from a hopper in small loads, the hopper discharges the
material (generally, more than one precursor material, e.g., aggregate and
cement), into screw or auger conveyors, where the material is conveyed to a
mixer assembly to mix the material into a final, dischargeable product.
(Reply Br. 5). Appellant also notes that Schuff does not disclose the
discharging of landscaping material through an opening in the bin/hopper
directly into a wheelbarrow. (Appeal Br. 17).
We are persuaded that the Examiner erred in concluding that Schuff
teaches the general concept of emptying small loads of material through a
discharge opening in a bin or hopper into a wheelbarrow. In essence, the
proposal by the Examiner to combine the teachings of Schuff and Plotkin
would result in the elimination in the Schuff apparatus of the screw
conveyors used to transport raw materials to a mixer, and elimination of the
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23
mixer itself, in order to meet the claim limitations involving the passage of
small loads of material from the bin/hopper through a discharge opening
directly into a wheelbarrow.
Such a modification of the Schuff apparatus to perform the claimed
method would appear to render the Schuff apparatus unsatisfactory for its
intended purpose. In re Gordon, 733 F.2d 900 (Fed. Cir. 1984). Schuff
specifically keeps separate two precursor materials, and separately delivers
small loads of the materials to a mixer, so that a desired small load of the
final product can be discharged from the mixer into wheelbarrows. (FF 9).
The final product in Schuff, concrete, cures and hardens over time, thus the
use of incremental, periodic delivery of the precursor materials to a mixer,
on an “as needed” basis, is seen as being an important aspect of the design of
the apparatus.
Were the Schuff apparatus modified so as to discharge directly from a
bin/hopper to a wheelbarrow, as proposed by the Examiner, the concrete
would have to be mixed in the hopper, and there would be a reasonably high
probability that some amount of the concrete would cure and harden at some
point prior to completely discharging the concrete. In any event, the desired
mixing of batches on an “as needed” basis would no longer exist in the
modified apparatus. As such, the proposed modification would not have
been obvious to those of ordinary skill in the art.
The rejection of Claims 10-12 will be reversed.

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24
Obviousness rejection of Claim 13
Claim 13 depends from claim 10. In addition to relying on the
combination of Schuff and Plotkin, as above, the Examiner cites the
Hagemeyer patent as disclosing the limitation set forth in claim 13. The
teachings of the Hagemeyer patent do not, however, overcome the
deficiencies noted in the preceding section with respect to the lack of
obviousness of these claims.
The rejection of claim 13 will be reversed.
Obviousness rejection of Claim 14
Claim 14 depends from claim 11. In addition to relying on the
combination of Schuff and Plotkin, as above, the Examiner cites the
Routledge patent as disclosing the limitation set forth in claim 14. The
teachings of the Routledge patent do not, however, overcome the
deficiencies noted in the preceding section with respect to the lack of
obviousness of these claims.
The rejection of claim 14 will be reversed.

CONCLUSIONS OF LAW
We conclude that Appellants have not established that reversible error
exists in the rejection of claims 1-9 under 35 U.S.C. §103(a).
We conclude that Appellants have established that reversible error
exists in the rejection of claims 10-14 under 35 U.S.C. §103(a).
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25
DECISION
The decision of the Examiner to reject claims 1-9 is AFFIRMED.
The decision of the Examiner to reject claims 10-14 is REVERSED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED-IN-PART

vsh

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