Ex Parte Boisture et al

Board of Patent Appeals and Interferences

Nov 29, 2011

10194812 (B.P.A.I. Nov. 29, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte THOMAS B. BOISTURE and HOWARD LEFLER
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Appeal 2010-000464
Application 10/194,812
Technology Center 3600
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Before STEVEN D.A. McCARTHY, ROBERT A. CLARKE and
CHARLES N. GREENHUT, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s 1
final decision rejecting claims 1-25. The Examiner rejects claims 1-4, 8, 9, 2
13 and 16-19 under 35 U.S.C. § 102(b) as being anticipated by Ramsey (US 3
4,783,096, issued Nov. 8, 1988); claims 1-4, 8, 9, 13-19 and 23-25 under 35 4
U.S.C. § 103(a) as being unpatentable over Young (US 5,458,355, issued 5
Oct. 17, 1995) and Ramsey; and claims 5-7, 10-12 and 20-22 under § 103(a) 6
as being unpatentable over Young, Ramsey and Strifler (US 4,449,726,7
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issued May 22, 1984). We have jurisdiction under 35 U.S.C. § 6(b). 1
We REVERSE. 2
Claims 1, 8 and 16 are independent. Claim 1 recites: 3
1. A load-transferring assembly 4
connectable to a vehicle having a front vehicle 5
axle, a rear vehicle axle, a vehicle abutment 6
member and an engagement member, said 7
engagement member disposed proximate a rear 8
portion of the vehicle, the load-transferring 9
assembly comprising: 10
an elongate abutment member comprising an 11
abutment end and a free end, the abutment 12
end configured to contact the vehicle 13
abutment member; 14
an auxiliary wheel axle; 15
an actuator assembly disposed between the free 16
end of the abutment member and the 17
auxiliary wheel axle; 18
at least one arm having first and second ends, said 19
arm being attached to the auxiliary wheel 20
axle at said first end; and 21
a pivot connection assembly connected to the 22
elongate abutment member, and pivotally 23
connected to said arm proximate said second 24
end, and detachably engageable to the 25
engagement member of the vehicle; 26
wherein when the pivot connection assembly is 27
connected to the engagement member of the 28
vehicle, the elongate member is pivotally 29
moveable such that the abutment end is 30
moveable from a non-abutting relation to an 31
abutting relation with the vehicle abutment 32
member, and when the abutment end is in 33
said abutting relation with the vehicle 34
abutment member, transverse movement of 35
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the load-transferring assembly relative to the 1
vehicle is substantially restricted, and 2
when the actuator assembly is actuated such that a 3
lifting force is applied to the free end of the 4
elongate abutment member, a portion of a 5
load on the rear vehicle axle is transferred to 6
the auxiliary wheel axle. 7
Claim 8 recites a load-transferring trailing assembly including a 8
pivotable elongate member and a pivot connection assembly. The trailer 9
assembly of claim 8 includes a pivotable elongate member and a pivot 10
connection assembly. The elongate member of claim 8 extends between a 11
static connection end and a free end, the static connection end configured to 12
form a static connection with the vehicle abutment member. 13
Claim 16 recites a combination including a load-bearing vehicle and a 14
load-transferring trailing assembly. The trailer assembly recited in claim 16 15
also includes a pivotable elongate member and a pivot connection assembly. 16
The elongate member of claim 16 extends between a static connection end 17
and a free end, the static connection end configured to form a static 18
connection with the load-bearing vehicle. 19
Both the elongate member of claim 8 and the elongate member of 20
claim 16 have a support member. The pivot connection assembly of each 21
claim connects to the support member. The elongate member is pivotally 22
moveable such that the static connection end is moveable from a non-static 23
position to said static connection. 24
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The Rejection of Claims 1-4, 8, 9, 13 and 16-19 under § 102(b) as Being 1
Anticipated by Ramsey 2
Ramsey describes a lift axle suspension system connecting wheels 7 3
to the longitudinal frame member 9 of a truck 1. (Ramsey, col. 4, ll. 16-19). 4
The lift axle suspension system 11 includes a C-shaped lower beam structure 5
13. (Ramsey, col. 4, ll. 26-29). Ramsey describes the lower beam structure 6
13 as comprising “a pair of longitudinal beams 15 pivotally connected at one 7
end to frame 9 of the vehicle.” (Ramsey, col. 4, ll. 29-31). 8
Ramsey’s lift axle suspension system 11 additionally includes an L-9
shaped upper beam structure 57. Stacked upper and lower airbags 27, 29 10
connected between the upper beam structure 57 and the lower beam 11
structure 13 serve to lower the wheels 7 into contact with the road surface 12
and to transfer a portion of the load of the truck 1 onto the wheels 7. 13
(Ramsey, col. 6, ll. 13-21 and 37-47). Longitudinal beams 31 intermediate 14
the upper and lower beam structures 13, 57 stabilize the stacked airbags 27, 15
29. (Ramsey, col. 5, ll. 20-27). Ramsey describes the longitudinal beams 31 16
as “pivotally connected (usually by way of a resilient bushing) to frame 17
member 9 of the vehicle by way of pivotal connection 33.” (Ramsey, col. 5, 18
ll. 23-27). 19
Claim 1 recites that “the elongate member is pivotally moveable such 20
that the abutment end is moveable from a non-abutting relation to an 21
abutting relation with the vehicle abutment member.” Claims 8 and 16 22
recite that “the elongate member is pivotally moveable such that the static 23
connection end is moveable from a non-static position to said static 24
connection.” The Examiner finds that the upper beam structure 57 25
constitutes an elongate abutment member as recited in claims 1, 8 and 16. 26
The Examiner also finds that the portion of the frame member 9 to which the 27
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upper beam structure 57 connects constitutes a vehicle abutment member as 1
recited in claim 1. The Examiner additionally finds that “Ramsey shows the 2
abutment member [57] configured to contact the vehicle abutment member 3
at an abutment end such [as] at pivotal connection 33. The beam member 57 4
of Ramsey can be considered to be pivotal since the beam can move around 5
pivotal connection 33 as pressure goes up and down in the air bags 27, 29.” 6
(Ans. 3;1 Final Office Action mailed Apr. 22, 2005, at 2-3). The Examiner 7
has not provided sufficient evidence and technical reasoning to support the 8
finding that the Ramsey’s upper beam structure 57 is pivotally moveable 9
relative to the frame member 9, however. 10
As the Appellants point out (see Reply Br.2 5), Ramsey expressly 11
describes the connections between the longitudinal beams 15 and the frame 12
member 9; and between the longitudinal beams 31 and the frame member 9, 13
as pivotal. On the other hand, Ramsey describes the upper beam structure 14
57 merely as “connected at one of its ends to frame member 9 and at the 15
other end to the top of upper airbag 29.” (Ramsey, col. 6, ll. 13-18). The 16
difference in the manner in which Ramsey describes these connections 17
indicates that the connection between the upper beam structure 57 and the 18
frame member 9 is not pivotable. Since the Examiner provides no 19
persuasive reasoning to explain why the connection between the upper 20
beams structure 57 and the frame member 9 must be pivotable in the context 21
of Ramsey’s disclosure, sufficient support for the finding is lacking. 22

1 The abbreviation “Ans.” as used in this opinion refers to the
Supplemental Examiner’s Answer mailed October 27, 2008.

2 The Abbreviation “Reply Br.” as used in this opinion refers to the
“Response to Non-Compliant Examiner’s Answer” dated January 16, 2007.
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Therefore, we do not sustain the rejection of claims 1-4, 8, 9, 13 and 16-19 1
under § 102(b) as being anticipated by Ramsey. 2
3
The Rejection of Claims 1-4, 8, 9, 13-19 and 23-25 under § 103(a) as Being 4
Unpatentable over Young and Ramsey 5
Young describes a retractable double trailing axle attachment 10 for a 6
truck. Young discloses that the retractable double trailing axle attachment 7
10 “includes frame means 15 defined by a pair of generally parallel spaced 8
side-by-side C-beams 16, 17 which are welded, bolted or otherwise fastened 9
to” the frame F of the truck. (Young, col. 3, ll. 57-61). The Examiner 10
identifies the structures 16, 17 disclosed by Young as being connected to the 11
frame assembly 66 by way of arms 36-37 and having a free end and an 12
abutment end. (Ans. 4). Thus, we understand the Examiner to have found 13
that structures 16, and 17 of Young correspond to the elongate members 14
recited in claims 1, 8 and 16. The Examiner further identifies the “arms or 15
C-beams . . . mounted by bolts or welded or otherwise fastened to the truck 16
frame in column 3, lines 57-61” as corresponding to the arms recited in 17
claims 1, 8 and 16. (Ans. 5). Both are, of course, the same structure in 18
Young’s attachment 10. 19
The Examiner concludes that it would have been obvious to provide 20
Young’s attachment 10 with a pivot connection assembly (as shown by 21
Ramsey between the elongate members or arms or C-beams 16, 17 and the 22
truck frame “since merely one connection member is being substituted for 23
another and the function is the same.” (Ans. 5). The Appellants correctly 24
point out that Ramsey fails to disclose a pivotable connection where the 25
Examiner finds one, namely, between the upper beam structure 57 and the 26
frame member 9. Setting aside the Examiner’s identification of the same 27
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structure as corresponding to two separate, relatively-pivotable elements of 1
the claimed subject matter, see In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 2
1999), the Examiner has not identified either a pivotally moveable elongate 3
member in Young or a pivotable connection in Ramsey suitable for 4
substitution into Young’s attachment 10. (Compare App. Br. 11 with Ans. 5
5). Since Young fails to disclose an element of each of independent claims 6
1, 8 and 16; and since the Examiner fails to articulate reasoning with some 7
rational underpinning to explain why one of ordinary skill in the art might 8
have had reason to modify Young’s attachment 10 in the fashion claimed, 9
we do not sustain the rejection of claims 1-4, 8, 9, 13-19 and 23-25 under 10
§ 103(a) as being unpatentable over Young and Ramsey. 11
12
The Rejection of Claims 5-7, 10-12 and 20-22 under § 103(a) as Being 13
Unpatentable over Young, Ramsey and Strifler 14
The Examiner cites Strifler as teaching a self-steering axle. (Ans. 6). 15
The teachings of Strifler do not remedy the deficiencies of the combined 16
teachings of Young and Ramsey pointed out in connection with the 17
rejections of independent claims 1, 8 and 16. We do not sustain the rejection 18
of claims 5-7, 10-12 and 20-22 under § 103(a) as being unpatentable over 19
Young, Ramsey and Strifler. 20
21
DECISION 22
We REVERSE the Examiner’s decision rejecting claims 1-25. 23
24
REVERSED 25
Klh 26