Ex parte Bass

Board of Patent Appeals and Interferences

Sep 28, 2001

09075943 (B.P.A.I. Sep. 28, 2001)

Minor amendments were made to claims 2 and 17 subsequent1
to the final rejection in a paper filed February 22, 2000
(Paper No. 9).
1
The opinion in support of the decision being entered today was not written for
publication and is not binding precedent of the Board.
Paper No. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JAMES S. BASS
_____________
Appeal No. 2000-2108
Application No. 09/075,943
______________
ON BRIEF
_______________
Before FRANKFORT, MCQUADE, and BAHR, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 2 and 4 through 18, all of the claims
remaining in this application. Claims 1 and 3 have been1
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Application No. 09/075,943
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canceled.
Appellant's invention relates to a vehicle hitch
positioning apparatus and method for positioning and dropping
a vehicle hitch onto a trailer ball attached to a vehicle.
Independent claims 2, 17 and 18 are representative of the
subject matter on appeal.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Schier 3,559,827 Feb. 2,
1971
Pitcher 4,432,563 Feb. 21,
1984
Carroll 4,657,275 Apr. 14,
1987
Lazar 5,080,386 Jan. 14,
1992

Claims 2, 4 through 6, 8 through 14, 17 and 18 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over
Carroll in view Lazar.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Carroll in view Lazar as applied to claim 2
Appeal No. 2000-2108
Application No. 09/075,943
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above, and further in view of Schier.
Claims 15 and 16 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Carroll in view Lazar as applied to
claim 2 above, and further in view of Pitcher.
Rather than reiterate the examiner's full statement of
the above-noted rejections and the conflicting viewpoints
advanced by the examiner and appellant regarding those
rejections, we make reference to the final rejection (Paper
No. 5, mailed April 21, 1999) and the examiner's answer (Paper
No. 13, mailed May 9, 2000) for the reasoning in support of
the rejections, and to appellant's brief (Paper No. 12, filed
April 21, 2000) for the arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellant's specification and claims,
to the applied prior art references, and to the respective
positions articulated by appellant and the examiner. As a
Appeal No. 2000-2108
Application No. 09/075,943
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consequence of our review, we have made the determinations
which follow.
Looking first to the examiner's rejection of claims 2, 4
through 6, 8 through 14, 17 and 18 under 35 U.S.C. § 103(a) as
being unpatentable over Carroll in view Lazar, we note that
independent claim 2 on appeal sets forth a vehicle hitch
positioning apparatus which comprises a base plate (2) having
a first hole (3) through which a trailer ball is inserted, the
base plate being connected to the vehicle by said trailer ball
(Fig. 2); a guide plate (5) having a lower ramped portion (5b)
and an upper slanted portion (5a), with the upper slanted
portion having a lower angle of inclination with respect to a
horizontal plane than the lower ramped portion, said upper
slanted portion (5a) having lateral sides being formed into
winged guide portions (5c, 5d), the lower ramped portion (5b)
being connected to the base plate for covering the base plate
(Fig. 3), said upper slanted portion (5a) having a second hole
(7) through which said trailer ball may be inserted, said
guide plate guiding and supporting said trailer hitch into
position over the second hole; and a movable catch (8) for
Appeal No. 2000-2108
Application No. 09/075,943
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holding the guide plate in an apart position from said base
plate (Fig. 2).
According to the examiner (final rejection, pages 3-4),
the vehicle hitch positioning apparatus of Carroll includes
all of the structure set forth in appellant's claim 2, except
that Carroll fails to show a guide plate with upper and lower
ramps. To account for this difference, the examiner relies on
Lazar and its showing of a vehicle hitch positioning apparatus
having a guide plate (44, 54) with an upper slanted portion
(54) and a lower ramped portion (44). In the examiner's view,
it would have been obvious to one of ordinary skill in the art
at the time of appellant's invention to provide Carroll with a
guide plate with upper and lower ramps as in Lazar, because
the upper and lower ramps aid in the engagement of the vehicle
tow hitch onto the trailer ball by allowing the tow hitch to
drop on the ball in a substantially vertical direction.
Appellant does not contest the examiner's combination of
Carroll and Lazar, but argues that, even if combined in the
manner proposed by the examiner, the resultant apparatus would
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Application No. 09/075,943
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not be appellant's claimed subject matter. More specifically,
appellant urges (brief, page 4) that neither of the applied
references discloses a guide plate having an upper slanted
portion with a second hole. Rather, appellant observes that
they both rely upon a notch in the upper portion of their
respective guide plates (see 52 of Lazar and 30 of Carroll),
which notches appellant perceives would operate in a different
manner than appellant's second hole. We do not find this
argument persuasive. Like the examiner (answer, page 5), we
consider that the term "hole," when given its broadest
reasonable construction, would have been understood by one of
ordinary skill in the art to encompass an opening or notch
like that seen in both Carroll and Lazar. Moreover, while
appellant has asserted that such a notch would operate in a
different manner than appellant's second hole, we see no
reason why this would be so, and appellant has provided none.
Appellant's second line argument is that in neither of
the applied references does the guide plate include an upper
slanted portion "having lateral sides being formed into winged
guide portions," as required in the claims on appeal. The
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Application No. 09/075,943
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examiner points to the sidewalls (32) of Carroll as being
responsive to the claimed structure. In our opinion,
appellant is correct in concluding that the combination of
Carroll and Lazar urged by the examiner would not result in a
guide plate with an upper slanted portion having lateral sides
being formed into winged guide portions. From our perspective
a combination of the upper and lower ramp portions of the
guide plate in Lazar with the guide plate in Carroll would
have resulted in the lower ramped portion extending to the
upper edge of the sidewalls (32) in Carroll and the upper
slanted portion of lesser angle extending from the upper edge
of the sidewalls (32) to the rearward edge (28) of the guide
plate, thereby allowing the planar upper portion of the guide
plate of Carroll to fit into the catches or notches (42) of
support leg (24) without interference. Thus, we conclude that
the combination of Carroll and Lazar posited by the examiner
would not have rendered obvious the vehicle hitch positioning
apparatus as set forth in appellant's claim 2 on appeal, and
for that reason we will not sustain the examiner's rejection
of claim 2 under 35 U.S.C. § 103.
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Application No. 09/075,943
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It follows that the examiner's rejection of claims 4
through 6 and 8 through 14, which are dependent upon claim 2,
under
35 U.S.C. § 103(a) as being unpatentable over Carroll in view
Lazar will also not be sustained. As for the rejection of
claims 7, 15 and 16, also dependent from claim 2 and rejected
under
35 U.S.C. § 103(a), we have reviewed the additional patents to
Schier and Pitcher applied by the examiner, but find nothing
therein which provides for or renders obvious that which we
have indicated above to be lacking in the basic combination of
Carroll and Lazar. Accordingly, the examiner's rejections of
claims 7, 15 and 16 under 35 U.S.C. § 103(a) will also not be
sustained.
Regarding appellant's independent claims 17 and 18, we
observe that neither of these claims includes the limitation
regarding an upper slanted portion "having lateral sides being
formed into winged guide portions," as required in independent
claim 2 on appeal and as argued by appellant above.
Accordingly, that line of argument on appellant's part is not
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Application No. 09/075,943
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persuasive with respect to independent claims 17 and 18 on
appeal, and we will thus affirm the examiner's rejection of
those claims under
35 U.S.C. § 103(a) based on the combined teachings of Carroll
and Lazar. In reaching this conclusion, we remain of the view
that the "centered hole" of claim 17 and the "second hole" of
claim 18 are readable on the opening or notch (30) in the
guide plate of Carroll as modified by Lazar.
In Summary:
The decision of the examiner rejecting claims 2, 4
through 6, 8 through 14, 17 and 18 on appeal under 35 U.S.C. §
103(a) is affirmed as to claims 17 and 18, but is reversed as
to claims 2, 4 through 6 and 8 through 14.
The decision of the examiner rejecting claims 7, 15 and
16 on appeal under 35 U.S.C. § 103(a) is reversed.
Thus, the decision of the examiner is affirmed-in-part.
Appeal No. 2000-2108
Application No. 09/075,943
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
)
JOHN P. MCQUADE ) APPEALS AND
Administrative Patent Judge )
) INTERFERENCES
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
CEF:lbg
SUGHRUE, MION, ZINN, MACPEAK & SEAS
2100 PENNSYLVANIA AVE NW
Appeal No. 2000-2108
Application No. 09/075,943
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WASHINGTON, DC 20037-3202