Ex Parte Arciszewski

Patent Trial and Appeal Board

Oct 13, 2017

14499223 (P.T.A.B. Oct. 13, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/499,223 09/28/2014 Tomasz Arciszewski 1046-2U 8724
23975 7590 10/17/2017
DAVID GROSSMAN
EXAMINER
PatentServices.com LAMBE, PATRICK F
518 WOODLAND CT. NW
VIENNA, VA 22180 ART UNIT PAPER NUMBER
3678
NOTIFICATION DATE DELIVERY MODE
10/17/2017 ELECTRONIC
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex Parte TOMASZ ARCISZEWSKI
Appeal 2017-000049
Application 14/499,223
Technology Center 3600
Before ALLEN R. MacDONALD, BETH Z. SHAW, and
MICHAEL J. ENGLE, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 1—18, 20, and 21, which are all the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
INVENTION
Appellant’s invention is directed to a vehicle barrier. Spec. 121.
1 Throughout this Decision we have considered the Appeal Brief filed
August 12, 2015 (“Br.”), the Examiner’s Answer mailed January 25, 2016
(“Ans.”) and the Final Rejection mailed April 10, 2015 (“Final Act.”).
Appeal 2017-000049
Application 14/499,223
Claim 1 is illustrative and reproduced below:
1. A shaped barrier comprising:
a. a substantially horizontal portion;
b. a ramp portion positioned to receive a rolling vehicle onto
the horizontal portion receiving side of the shaped barrier,
the ramp portion being a substantially rigid portion;
c. a stabilization enhancer positioned to enhance the stabilizing
force between the shaped barrier and the ground in an
effective amount to prevent substantial movement of the
shaped barrier by distributing at least a portion of a
groundward force of the rolling vehicle on the receiving side
of the shaped barrier;
d. a substantially vertical portion positioned to impede the
movement of the rolling vehicle from the receiving side of
the shaped barrier to a safe zone side of the shaped barrier;
and
e. at least one connector portion positioned to connect the
shaped barrier with at least one other shaped barrier.
REJECTION
The Examiner rejected claim 16 under 35U.S.C. § 112, second
paragraph, as being indefinite. Final Act. 2.
The Examiner rejected claims 1—18, 20, and 21 under 35 U.S.C.
§ 102(b) as anticipated by Rorheim (US 7,121,764 B2). Final Act. 2-4.
ANALYSIS
We have reviewed Appellant’s arguments in the Brief, the Examiner’s
rejections, and the Examiner’s response to Appellant’s arguments.
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Application 14/499,223
Appellant does not argue the rejection of claim 16 under 35 U.S.C. § 112 is
in error. We therefore sustain the rejection of claim 16 under 35 U.S.C. §
112. For the reasons discussed below, we do not sustain the § 102 rejection
of claim 1, based on this record.
Our reviewing court has held that unless a reference discloses “within
the four comers of the document” not only all of the limitations claimed but
also all of the limitations arranged or combined in the same way as recited in
the claim, it cannot anticipate under 35 U.S.C. § 102. Net Money IN, Inc. v.
VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008).
Claim 1 recites, in part, “a ramp portion positioned to receive a rolling
vehicle onto the horizontal portion receiving side of the shaped barrier, the
ramp portion being a substantially rigid portion.” Appellant argues that
Rorheim fails to disclose a ramp portion positioned to receive a rolling
vehicle. Br. 4.
First, the Examiner concludes that “receiving of the vehicle” is merely
“functional language” or “intended use language.” Ans. 2. We do not agree
that the stmcture of a “ramp portion positioned to receive a vehicle,” recited
in claim 1 is merely intended use language, (emphasis added). A functional
limitation must be evaluated and considered, just like any other limitation of
the claim, for what it fairly conveys to a person of ordinary skill in the
pertinent art in the context in which it is used. See MPEP § 2173.05
(discussing permissible examples of function language such as “positioned”
in the claims addressed in In re Venezia, 530 F.2d 956 (CCPA 1976)).
The Examiner also concludes that a rolling vehicle such as a
wheelbarrow can, in any case, meet the “positioned” limitation of claim 1.
Ans. 3. We do not agree, however, that the cited portions of Rorheim
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Application 14/499,223
disclose “a ramp portion positioned to receive a rolling vehicle onto the
horizontal portion receiving side of the shaped barrier, the ramp portion
being a substantially rigid portion,” as recited in claim 1. Figure 1 of
Rorheim is reproduced below.
Figure 1 of Rorheim illustrates a ramp (bracket 48) identified by the
Examiner. Bracket 48 is described and shown as being covered by a ballast
sandbag 14. Bracket 48 is also configured with a tie 8 attaching bracket 48
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Application 14/499,223
to the wall 5 via attachment 49. See Rorheim, Fig. 1, 3:13—15, 3:35—37. We
agree with Appellant that this does not disclose a ramp positioned to receive
a rolling vehicle. Although we apply the broadest reasonable interpretation
during examination, “[a]bove all, the broadest reasonable interpretation must
be reasonable in light of the claims and specification.” PPC Broadband,
Inc. v. Corning Optical Commc’ns RF, LLC, 815 F.3d 747, 755 (Fed. Cir.
2016). Here, it is not reasonable to construe “a ramp portion positioned to
receive a rolling vehicle onto the horizontal portion receiving side” in such a
way that permits both a sandbag 14 and a tie 8 to block a rolling vehicle
from being received. Moreover, we note that bracket 48 is positioned on the
side of the wall 5 that is facing flood water 4 on the flooded side 10 of the
wall. Although we agree with the Examiner that “rolling vehicle” does not
appear to be defined explicitly by the Specification, under the Examiner’s
interpretation of Rorheim, the hypothetical wheelbarrow would be wheeling
through or under floodwater.
Accordingly, constrained as we are by the record before us, we do not
sustain the § 102 rejection of claim 1, or the remaining pending dependent
claims, which depend from claim 1.
DECISION
The decision of the Examiner to reject claim 16 under 35 U.S.C.
§ 112, second paragraph, is affirmed.
The decision of the Examiner to reject claims 1—18, 20, and 21 under
35 U.S.C. § 102 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)(1). See 37 C.F.R.
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Application 14/499,223
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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