Ex Parte Brandt et al

Patent Trial and Appeal Board

Jan 11, 2017

12962107 (P.T.A.B. Jan. 11, 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
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/962,107 12/07/2010 KEN BRANDT 0113913 1329
38505 7590 01/13/2017
MICHAEL W. TAYLOR
P.O. BOX 3791
ORLANDO, EL 32802-3791
EXAMINER
WILKENS, JANET MARIE
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
01/13/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
creganoa@addmg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEN BRANDT and DAN LANTZ
Appeal 2015-000449
Application 12/962,107
Technology Center 3600
Before MICHAEL L. HOELTER, GORDON D. KINDER, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants, Ken Brandt et al.,1 appeal under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 31—41 and 44—49.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify CHEP Technology Pty Limited as the real party in
interest. Br. 1.
2 Claims 1—30 are cancelled. Br. 2.
Appeal 2015-000449
Application 12/962,107
THE CLAIMED SUBJECT MATTER
The claims are directed to “a wooden pallet having an improved
resilience to impacts from material handling equipment, and to related
methods for making the same.” Spec. 12. Claims 31 and 44 are the
independent claims. Claim 31, reproduced below, is illustrative of the
claimed subject matter:
31. A wooden pallet comprising:
a cargo layer;
a base layer comprising a pair of spaced apart connector
boards, and a pair of spaced apart end deck boards orthogonal to
said pair of connector boards, with respective ends of said pair
of end deck boards adjacent to and non-overlapping respective
ends of said pair of connector boards;
a plurality of spaced apart support blocks between said
cargo layer and said base layer and forming a gap therebetween
for receiving a lifting member, each support block having
parallel upper and lower surfaces, with the upper and lower
surfaces being aligned with one another; and
a respective nail plate between each end of said pair of
connector boards and a support block, while being devoid of a
respective nail plate between each end of said pair of end deck
boards and said support block so that each end of said pair of end
deck boards is in direct contact with a respective support block,
with each respective nail plate comprising
a first surface comprising a plurality of projections
extending outwards therefrom and embedded into the end
of one of said connector boards, and
a second surface opposite the first surface and
devoid of any projections, and contacting said support
block.
2
Appeal 2015-000449
Application 12/962,107
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Upson US 1,373,036 Mar. 29, 1921
Moehlenpah US 3,322,018 May 30, 1967
Rogers US 6,584,915 July 1, 2003
Hedstrom US 2008/0028998 A1 Feb. 7, 2008
REJECTIONS
The Examiner made the following rejections:3
1. Claims 31, 33, 34, 36, 37, 44, and 46-49 stand rejected under 35
U.S.C. § 102(b) as being anticipated by Hedstrom.
2. Claims 32 and 45 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hedstrom and Moehlenpah.
3. Claim 35 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hedstrom and Rogers.
4. Claims 31, 33—39, 44, and 46-49 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Rogers.
5. Claims 32 and 45 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rogers and Moehlenpah.
6. Claims 40 and 41 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rogers and Upson.
Appellants seek our review of these rejections.
3 In the Final Action, claims 42 and 43 were rejected under 35 U.S.C.
§112, first paragraph. In the Advisory Action, dated April 21, 2014, the
Examiner withdrew the § 112 rejections of claims 42 and 43. While claims
42 and 43 do not stand rejected, the Examiner apparently objects to them
because they depend from rejected claims. Ans. 2, 3.
3
Appeal 2015-000449
Application 12/962,107
ANALYSIS
The Rejections of Claims 31—37 and 44 49 Over Hedstrom and Other Art
With respect to Rejection 1, Appellants argue independent claims 31
and 44 as a group. Appeal Br. 7—8. We select claim 31 as the representative
claim, and claim 44 stands or falls with claim 31. 37 C.F.R.
§41.37(c)(l)(iv).
The Examiner correctly finds that Hedstrom discloses all of the
limitations of claim 31, including the limitation reciting “each support block
having parallel upper and lower surfaces, with the upper and lower surfaces
being aligned with one another.” Final Act. 3^4; Ans. 3^4. Figure 9 of
Hedstrom, as annotated by the Examiner, is presented below:
Final Act. 4. Referring to annotated Figure 9, the Examiner correctly finds
that
the support blocks (40") of Hedstrom have parallel upper and
lower surfaces aligned with one another (see arrows in [above]
annotated figure) and that the end deck boards (24') are in direct
contact with the respective support block (see Fig. 9). That the
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Appeal 2015-000449
Application 12/962,107
blocks have an upper step does not make the surfaces any less
parallel or aligned.
Ans. 3; Final Act. 3^4 (“the respective edges of the upper and lower surfaces
of the support blocks are coplanar. Furthermore, the upper surface is located
in one plane as is the lower surface.”).
Appellants dispute the Examiner’s findings by arguing that “[i]n the
claimed invention, the support blocks are not stepped as in Hedstrom.” Br.
7. Claim 31, however, is not limited to the specific embodiments described
in the Specification. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982)
(stating limitations not appearing in the claims cannot be relied upon for
patentability). Because claim 31 only recites that an upper and lower surface
are “parallel” and “aligned with one another,” Appellants’ argument is not
commensurate with the scope of claim 31. For this reason, the rejection of
claim 31 is sustained. Claim 44 falls with claim 31.
Appellants do not address the rejection of claims 33, 34, 36, 37, and
46-49, which depend from claims 31 and 44. Br. 7—8. Thus, the rejection
of claims 33, 34, 36, 37, and 46-49 is summarily sustained.
Appellants also do not address Rejections 2 and 3 which address
claims 32, 35, and 45, which depend from independent claims 31 and 44.
Thus, the rejections of dependent claims 32, 35, and 45 are summarily
affirmed.4
4 We also note that, because an Examiner’s rejection of the dependent
claims 32, 35, and 45 inherently includes a rejection of the independent
claims 31 and 44 from which they depend, the rejection of claims 31 and 44
must also be sustained. See Ormco Corp. v. Align Tech., 498 F.3d 1307,
1319 (Fed. Cir. 2007) (when a dependent claim is “found to have been
obvious, the broader claims . . . must also have been obvious”).
5
Appeal 2015-000449
Application 12/962,107
The Rejections of Claims 31—41 and 43 49 Over Rodgers and Other Art
With respect to Rejection 4, Appellants argue claims 31 and 44 as a
group. Appeal Br. 8—10. We select claim 31 as the representative claim,
and claim 44 stands or falls with claim 31. 37 C.F.R. § 41.37(c)(l)(iv).
In response to the Examiner’s rejection, Appellants argue that Rogers
does not disclose a device which is “devoid of a respective nail plate
between each end of the pair of end deck boards and the support block so
that each end of the pair of end deck boards is in direct contact with a
respective support block.” Br. 9.
In response to Appellants’ argument,
the examiner agrees that Rogers (Fig. 10 embodiment with the
projections of plate 122 embedded into the connector boards)
fails to teach that there are no nail plates (122a) between the deck
boards (54) and the support blocks. However, as stated in the art
rejection, it would have been obvious to one having ordinary skill
in the art at the time of the invention to modify the pallet of
Rogers by not using the smaller nail plates (122a), to simplify
pallet assembly while still having added support at the blocks. It
is well known to have boards directly attached to blocks of a
pallet. See the board (54) in the embodiment of Fig. 9. It is
secured to the block via conventional nails (see column 9, line
26—29 ‘with board 54 being secured to block 52 by conventional
nails’) and thus does not require the smaller nail plate (122a).
Ans. 3.5 Appellants do not address the Examiner’s finding that conventional
nails, not nail plates, may be used to attach deck boards and support blocks
together, and, thus, do not show Examiner error.
5 Rogers states that, as illustrated in “FIG. 9, the nail plate 122 has an
area and shape, and is positioned, so as to enable such attachment only for
board 116, with board 54 being secured to blocks 52 by conventional nails.”
Rogers 9:26—29.
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Appeal 2015-000449
Application 12/962,107
Thus, the rejection of claim 31 is sustained. Claim 44 falls with claim
31.
Appellants do not address the rejection of claims 33—39 and 46-49,
which depend from claims 31 and 44. Appeal Br. 7—8. Thus, the rejection
of claims 31, 33—39, 44, and 46-49 is summarily sustained.
Appellants do not address Rejections 5 and 6 that address claims 32,
40, 41, and 45, which depend from claims 31 and 44. Thus, the rejections of
dependent claims 32, 40, 41, and 45 are summarily affirmed.6
DECISION
For the above reasons, the Examiner’s rejections of claims 31—41 and
44-49 are AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv) (2015).
AFFIRMED
6 We note that, because an Examiner’s rejection of the dependent claims
32, 40, 41, and 45 inherently includes a rejection of the independent claims
31 and 44 from which they depend, the rejection of claims 31 and 44 must
also be sustained. See Ormco, 498 F.3d at 1319 (when a dependent claim is
“found to have been obvious, the broader claims . . . must also have been
obvious”).
7