Ex Parte Blanc

Board of Patent Appeals and Interferences

Sep 15, 2010

11140245 (B.P.A.I. Sep. 15, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte PHILIPPE BLANC
____________________

Appeal 2009-007750
Application 11/140,245
Technology Center 3600
____________________

Before: WILLIAM F. PATE III, STEVEN D.A. MCCARTHY, and
MICHAEL W. O’NEILL, Administrative Patent Judges.

PATE III, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-007750
Application 11/140,245
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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims
12-22. App. Br 1. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

The claims are directed to a machine for palletizing objects such as
packing cases. Claim 12, reproduced below, is illustrative of the claimed
subject matter:
12. A machine for palletizing substantially
parallelepipedic objects, comprising:
- at least one conveyor for feeding objects successively
one by one,
- a station for orienting each object in a horizontal plane
with respect to a fixed horizontal direction,
- a grouping station for forming objects into a group able
to form a layer of a palletized load comprising a stack of layers
of objects, the grouping station being adapted to place each
object supplied by the feed conveyor in a position that it is to
occupy in the forming of a layer;
- a layer-stacking unit adapted to grasp and transport in a
single block each layer previously formed at the grouping
station on to a palletized load in the course of being formed by
a stacking of layers,
wherein the grouping station comprises:
- a reference stop, firmly mounted to a fixed structure and
adapted to stop an object in a horizontal transverse abutment
direction,
- an abutment conveyor for placing an object to be
positioned in abutment against the reference stop,
- a layer-forming surface extending laterally opposite the
reference stop, said layer-forming surface being movable in
horizontal translation along an axis orthogonal to the direction
of the reference stop under the effect of a driving device,
- a motorized thruster adapted to displace the object
located against the reference stop onto a predetermined zone of
Appeal 2009-007750
Application 11/140,245
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the layer-forming surface corresponding to the position the
object is to occupy in the layer in the course of formation,
- an automatic control system adapted to control said
driving device so as to position laterally opposite the reference
stop a zone of the layer-forming surface which is to receive the
object located against the reference stop, and to control the
thruster so that said object is displaced to said zone of the layer-
forming surface.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Hayden
Roberts
Contini
US 4,927,318
US 5,540,545
FR 2 696 711
May 22, 1990
Jul. 30, 1996
Apr. 15, 1994

REJECTIONS
Claims 12, 13, 15-20 and 22 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Roberts. Ans. 3.
Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Roberts and Contini. Ans. 6.
Claim 21 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Roberts and Hayden. Ans. 6.

OPINION
The sole issue we must consider in this appeal is whether the
Examiner erred by reading Roberts’ carriage tracks 31 as the claimed
“reference stop.” App. Br. 4-8. Since the Examiner alleges that Roberts’
vertical side wall 26 could also serve as the claimed “reference stop” for the
first time in the Answer, Appellant has not had a fair opportunity to respond
Appeal 2009-007750
Application 11/140,245
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to this position and we will not consider it. Compare Final Rej. 2, 8 and
Ans. 4 with Ans. 8.
The Examiner asserts figures 5, 7, 10 and 13 of Roberts “clearly
disclose stop 31 below box A1, directly in a path of travel.” Ans. 9. Roberts
makes no mention of carriage tracks 31 having the capability to function as a
stop. Thus, the Examiner is improperly relying upon proportions and
dimensions discerned solely from the figures when Roberts makes no
indication that they are drawn to scale. When the reference does not disclose
that the drawings are to scale and is silent as to dimensions, arguments based
on measurement of the drawing features are of little value. See Hockerson-
Halberstadt, Inc. v. Avia Group Int’l, 222 F.3d 951, 956 (Fed. Cir. 2000)
(The disclosure gave no indication that the drawings were drawn to scale.
“[I]t is well established that patent drawings do not define the precise
proportions of the elements and may not be relied on to show particular sizes
if the specification is completely silent on the issue.”). The fact that Roberts’
articles A1-3 are stopped at or near the carriage track 31 in the embodiment
wherein the conveyor 27 comprises a plurality of conveyor segments 45-47,
does not support the Examiner’s position since the conveyor segments
themselves are used to stop the articles A1-3 and not necessarily the carriage
track 31. Ans. 9; Roberts col. 8, ll. 8-57.
The Examiner has failed to provide sufficient evidence or scientific
reasoning to establish the reasonableness of the Examiner’s belief that
Roberts’ carriage tracks 31 are, or could be, used as the claimed “reference
stop.” The secondary references, as applied by the Examiner, do not cure
this deficiency. We are therefore constrained to reverse the Examiner
rejections of claims 12-22.
Appeal 2009-007750
Application 11/140,245
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DECISION
For the above reasons, the Examiner’s rejections of claims 12-22 are
reversed.

REVERSED

nlk

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