Ex Parte Bean et alDownload PDFPatent Trial and Appeal BoardJun 26, 201310786158 (P.T.A.B. Jun. 26, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ANDREW JAY BEAN and JAMES LATIN SMITH ____________________ Appeal 2011-005987 Application 10/786,158 Technology Center 3600 ____________________ Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and ADAM V. FLOYD, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-005987 Application 10/786,158 2 STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134(a) from a rejection of claims 1-9, 11, and 12. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. CLAIMED SUBJECT MATTER The claimed subject matter relates to a lift vehicle and systems therefor for “defin[ing] multiple safe operating envelopes for the aerial work platform based on a reduced load supported by the platform . . . using less expensive sensors such as limit switches to thereby reduce vehicle manufacturing costs.” Spec. 2, para. [0007]. The independent claims on appeal are claims 1, 5, and 12. Claim 1, reproduced below, is illustrative of the appealed subject matter. 1. A multiple envelope control system for a lift vehicle, the lift vehicle including a platform mounted to a telescoping main boom, the main boom being configured for lift/lower function and telescope function, the multiple envelope control system comprising: a selector switch for selecting between a plurality of capacity modes including at least a low load mode and a high load mode; a plurality of sensors strategically positioned on the main boom, the sensors cooperatively defining position zones of the platform; and a control system communicating with the selector switch and the plurality of sensors, the control system receiving output from the plurality of sensors to determine in which position zone the platform is located, wherein the control system 1 Appellants identify the real party in interest as JLG Industries, Inc. App. Br. 3. Appeal 2011-005987 Application 10/786,158 3 controls a predefined envelope of the platform based on a position of the selector switch and controls operation of the main boom based on which position zone the platform is located in. REJECTIONS Appellants seek review of the following rejections: (1) the rejection of claims 1-3, 5-9, and 11 under 35 U.S.C. § 103(a) as unpatentable over Appellants’ Admitted Prior Art2 (hereinafter “AAPA”) and Miller (GB 941,833, pub. Nov. 13, 1963) (Ans. 4-5); (2) the rejection of claim 12 under 35 U.S.C. § 103(a) as unpatentable over AAPA, Miller, and Bodtke (US 2003/0173151 A1, pub. Sep. 18, 2003) (Ans. 5); and (3) the rejection of claim 4 under 35 U.S.C. § 103(a) as unpatentable over AAPA, Miller, and Finley (US 4,456,093, iss. Jun. 26, 1984) (Ans. 5); and (4) the rejection of claims 3 and 5-7 under 35 U.S.C. § 103(a) as unpatentable over AAPA, Miller, and Paine (US 2004/0200644A1, pub. Oct. 14, 2004) (Ans. 5-6). ANALYSIS Rejection (1) Claim 1 The Examiner found that AAPA teaches substantially all of the limitations of independent claim 1 except for being “silent on the location of such sensors, thus the claimed difference being the plurality of sensors 2 The Examiner lists JLG Inc’s 1350SJP dual capacity control system as described in the “Background of the Invention” section of the Specification as Appellants’ Admitted Prior Art. Ans. 3. See Spec. 2, para. [0006]. Appeal 2011-005987 Application 10/786,158 4 positioned on [the boom] which cooperatively define position zones of [the] platform.” Ans. 4. The Examiner found that Miller teaches “limit switches LS-1, LS-2, and extension and retraction control switches H1-H4, positioned on [the] boom for sending output to a control system and cooperatively defining position zones of his platform 41.” Id. The Examiner concluded that [it] would have been obvious to one of ordinary skill in the art at the time the invention was made to modify AAPA JLG to comprise sensors positioned on his boom, as taught by Pat. '883 [Miller], to enable his control system in determining which position zones his platform is located. Id. Appellants contend that AAPA and Miller “lack at least the claimed plurality of sensors strategically positioned on the main boom that cooperatively define position zones of the platform.” App. Br. 14. More particularly, Appellants contend that Miller’s limit switches “serve as mechanical operators that physically control a position of the boom sections based on a position of the boom sections relative to the vehicle base,” rather than define position zones of the platform, and as such, Miller’s quadrants A-D illustrated in Figure 10 “are not defined by sensors positioned on the main boom, but rather are defined by a complex arrangement of mechanically driven cams, chains, input switches, and limit switches to prevent movements of the boom structure into certain zones related to chassis position.” Id. at 14-15; see also Reply Br. 1-2. The Examiner responds that Miller has sensors (limit switches LS-1, LS-2 and switches H1-H4) that are positioned on the main boom. Ans. 6. The Examiner further responds that Appellants have acknowledged that Miller’s zones are defined by a complex arrangement of cams, input Appeal 2011-005987 Application 10/786,158 5 switches, and limit switches, and since the Examiner-identified sensors (including limit switches LS-1, LS-2) are part of that complex arrangement, the sensors define the quadrants (position zones). Id. at 6-7. Accordingly, Appellants’ contention is unpersuasive. Appellants further contend that Miller lacks a “control system [that] controls a predefined envelope of the platform based on a position of the selector switch and controls operation of the main boom based on which position zone the platform is located in.” App. Br. 16. Appellants additionally contend that Miller “is not suited for a system including a selector switch that changes an envelope of the platform since the cams, limit switches and the like are positionally fixed relative to the boom structure, and different envelopes of the platform could not be achieved.” Id. The Examiner responds that AAPA teaches a controller system in communication with a selector switch and sensors in determining the positioning of the platform. Ans. 7. Accordingly, Appellants’ contention regarding Miller’s lack of a control system is not persuasive because it does not address the rejection as articulated by the Examiner in which AAPA is relied on for its teachings regarding a control system. Appellants’ second contention also is not persuasive, as the Examiner relies on Miller only for its general teaching to position the sensors to be used by the control system on the boom (Ans. 4) and does not propose bodily incorporating Miller’s exact switch arrangement into AAPA’s lift. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). A Appeal 2011-005987 Application 10/786,158 6 person of ordinary skill in the art following the teachings of the AAPA would position the sensors on the boom as necessary to achieve the control scheme of the AAPA. For the foregoing reasons, the Examiner did not err in concluding that the subject matter of independent claim 1 would have been obvious from the combination of AAPA and Miller; and we sustain the rejection of independent claim 1 under 35 U.S.C. § 103(a) as unpatentable over AAPA and Miller. Claims 2 and 3 Appellants present separate arguments regarding the patentability of claim 2. App. Br. 17-18. Claim 2 recites that “the control system is configured such that when the selector switch is in the high load mode, the control system selectively prevents at least one of the lift/lower function and the telescope function based on which position zone the platform is located in.” App. Br., Claims App’x. Appellants contend that neither AAPA nor Miller utilize “a control system that selectively prevents certain boom functions based on the detected [position] zone.” App. Br. 17-18. In rejecting claims under 35 U.S.C. § 103(a), the Examiner bears the initial burden of establishing a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); see also In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984). Only if this initial burden is met does the burden of coming forward with evidence or argument shift to Appellants. See Oetiker, 977 F.2d at 1445; see also Piasecki, 745 F.2d at 1472. Here, the Examiner has not met the burden of establishing a prima facie case of obviousness in the absence of articulating any clear findings regarding how the combination of AAPA and Miller effect prevention of lift/lower or Appeal 2011-005987 Application 10/786,158 7 telescope functions based on which position zone the platform is located in when in a high load mode. See Ans. 4-5, 6-9. For the foregoing reasons, the Examiner erred in concluding that the subject matter of claim 2 would have been obvious from the combination of AAPA and Miller; and we do not sustain the rejection of claim 2, and claim 3 which depends therefrom, under 35 U.S.C. § 103(a) as unpatentable over AAPA and Miller. Claim 5-7 Appellants present separate arguments regarding the patentability of claim 5. App. Br. 16-17. Claim 5 recites that “the position zones . . . comprise a plurality of angle regions corresponding to an angle of the main boom relative to gravity and a plurality of length regions corresponding to a telescoped length of the main boom.” App. Br., Claims App’x. Appellants contend that AAPA and Miller lack such zones since Miller’s zones “primarily relate to rotation or swing angle to take advantage of the stability over the end versus over the side of the truck as well as avoiding hitting the cab of the truck with the boom.” App. Br. 17. Appellants further contend that the claimed plurality of angle and length regions is not taught by AAPA and Miller. Reply Br. 2. The Examiner responds that “the safe zones of operations are dependent on the angles of his boom with respect to the horizontal (gravity) and the extended or retracted length of his boom.” Ans. 7. Appellants do not provide persuasive evidence or technical reasoning that safe zones of operation of AAPA as modified by Miller are not dependent on angles of the boom relative to gravity or the lengths of the main boom such that some position zones comprise regions corresponding to Appeal 2011-005987 Application 10/786,158 8 angles of the main boom and some position zones comprise regions corresponding to lengths of the main boom. For the foregoing reasons, the Examiner did not err in concluding that the subject matter of claim 5 would have been obvious from the combination of AAPA and Miller; and we sustain the rejection of claim 5 under 35 U.S.C. § 103(a) as unpatentable over AAPA and Miller. Appellants do not provide separate arguments for claims 6 and 7 which are dependent on claim 5. App. Br. 17. Therefore, we also sustain the rejection of claims 6 and 7 under 35 U.S.C. § 103(a) as unpatentable over AAPA and Miller. Claims 8 and 9 Appellants present separate arguments regarding the patentability of claim 8. App. Br. 18. Claim 8 recites that “the plurality of sensors comprise limit switches.” App. Br., Claims App’x. Appellants contend that limit switches are not disclosed in AAPA or Miller. App. Br. 18. The Examiner responds that Miller states that sensors LS-1 and LS-2 are limit switches. Ans. 7; see Miller 3, ll. 24-38. Appellants do not provide persuasive evidence or technical reasoning that Miller’s switches LS-1 and LS-2 are not limit switches. For the foregoing reasons, the Examiner did not err in concluding that the subject matter of claim 8 would have been obvious from the combination of AAPA and Miller; and we sustain the rejection of claim 8 under 35 U.S.C. § 103(a) as unpatentable over AAPA and Miller. Appellants do not provide separate arguments for claim 9 which is dependent on claim 8. App. Br. 17. Therefore, we also sustain the rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over AAPA and Miller. Appeal 2011-005987 Application 10/786,158 9 Claim 11 Appellants present separate arguments regarding the patentability of claim 11. App. Br. 18. Claim 11 recites that “the control system controls a position of the selector switch according to a sensed load on the platform.” App. Br., Claims App’x. The Examiner found that “the dual ‘capacity’ control system of AAPA JGL in which the envelope was automatically limited would be according to a sensed load on the platform.” Ans. 8. The Examiner also “assume[d] that [the claimed dual capacity control system] is the same dual ‘capacity’ control system disclosed by Appellants as prior art and owned by the same assignee and also with the use of known load sensing sensors.” Id. Appellants persuasively contend that the Examiner’s finding “is overreaching and is without basis” since “[n]othing in the JLG 1350SJP brochure even remotely suggests that the load selection is determined via sensing a load on the platform.” Reply Br. 2. For the foregoing reasons, the Examiner erred in concluding that the subject matter of claim 11 would have been obvious from the combination of AAPA and Miller; and we do not sustain the rejection of claim 11 under 35 U.S.C. § 103(a) as unpatentable over AAPA and Miller. Rejections (2)-(3) Independent claim 12 recites language substantially similar to independent claim 1, and claim 4 depends from claim 1. Appellants’ arguments in support of the patentability of claims 4 and 12 solely relate to the perceived deficiencies in the combination of AAPA and Miller. App. Br. 17-19. Since we have found no such deficiencies as described supra, we sustain the rejections, under 35 U.S.C. § 103(a): of claim 12 as unpatentable Appeal 2011-005987 Application 10/786,158 10 over AAPA, Miller, and Bodtke and of claim 4 as unpatentable over AAPA, Miller, and Finley. Rejection (4) Claim 3 The application of Paine (Ans. 5-6) does not remedy the deficiency of AAPA and Miller as described supra upon which the Examiner’s conclusion of obviousness is based. Therefore, for the foregoing reasons, we likewise do not sustain the rejection under 35 U.S.C. § 103(a) of claim 3 as unpatentable over AAPA, Miller, and Paine. Claims 5-7 Appellants present separate arguments regarding the patentability of claim 5. App. Br. 19-20. Appellants contend that Paine does not “allow the operator to select a capacity region to work within or have a control system that attempts to control the boom within these [different] positions [of the boom].” App. Br. 19. Appellants further contend that Paine lacks sensors strategically positioned on the main boom and cooperatively defining position zones of the platform and the claimed control system. Id. at 20. Appellants’ arguments relating to Paine do not provide persuasive evidence or technical reasoning that safe zones of operation of AAPA as modified by Miller are not dependent on angles of the boom relative to gravity or the lengths of the main boom such that some position zones comprise regions corresponding to angles of the main boom and some position zones comprise regions corresponding to lengths of the main boom, which is the basis for the Examiner’s articulated rejection.. Appeal 2011-005987 Application 10/786,158 11 For the foregoing reasons, the Examiner did not err in concluding that the subject matter of claim 5 would have been obvious from the combination of AAPA, Miller, and Paine; and we sustain the rejection of claim 5 under 35 U.S.C. § 103(a) as unpatentable over AAPA, Miller, and Paine. Appellants do not provide separate arguments for claims 6 and 7 which are dependent on claim 5. App. Br. 19. Therefore, we also sustain the rejection of claims 6 and 7 under 35 U.S.C. § 103(a) as unpatentable over AAPA, Miller, and Paine. DECISION The Examiner’s rejection of claims 1 and 5-9 under 35 U.S.C. § 103(a) as unpatentable over AAPA and Miller is AFFIRMED. The Examiner’s rejection of claims 2, 3, and 11 under 35 U.S.C. § 103(a) as unpatentable over AAPA and Miller is REVERSED. The Examiner’s rejection of claim 12 under 35 U.S.C. § 103(a) as unpatentable over AAPA, Miller, and Bodtke is AFFIRMED. The Examiner’s rejection of claim 4 under 35 U.S.C. § 103(a) as unpatentable over AAPA, Miller, and Finley is AFFIRMED. The Examiner’s rejection of claim 3 under 35 U.S.C. § 103(a) as unpatentable over AAPA, Miller, and Paine is REVERSED. The Examiner’s rejection of claims 5-7 under 35 U.S.C. § 103(a) as unpatentable over AAPA, Miller, and Paine is AFFIRMED. 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)(iv). 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