Ex Parte Bruns et alDownload PDFPatent Trial and Appeal BoardDec 5, 201412754752 (P.T.A.B. Dec. 5, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte EUGENE G. BRUNS and ADAM M. RUPPERT ____________ Appeal 2012-004777 Application 12/754,7521 Technology Center 3600 ____________ Before MICHAEL C. ASTORINO, MICHAEL L. HOELTER, and BART A. GERSTENBLITH, Administrative Patent Judges. GERSTENBLITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Eugene G. Bruns and Adam M. Ruppert (“Appellants”) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–15. We have jurisdiction under 35 U.S.C. § 6(b). 1 Appellants identify Crown Equipment Corporation as the real party in interest. Appeal Br. 4. Appeal 2012-004777 Application 12/754,752 2 Claimed Subject Matter Claims 1, 8, and 12 are the independent claims on appeal. Claim 1 is illustrative of the claimed subject matter and is reproduced below. 1. An adjustable armrest mechanism coupled to a frame of a materials handling vehicle and spaced from a control handle also coupled to the vehicle frame comprising: a base fixed to the vehicle frame and located a distance from the control handle; armrest apparatus movably coupled to said base such that said armrest apparatus moves relative to the control handle and pivots about a virtual pivot point in front of the control handle; and a locking device for releasably locking said armrest apparatus to said base in one of at least two positions. Appeal Br. 18, Claims App. References The Examiner relies upon the following prior art references: Knight US 2,215,758 Sept. 24, 1940 Neale US 3,322,463 May 30, 1967 Whisler US 4,702,520 Oct. 27, 1987 Wagner US 4,869,337 Sept. 26, 1989 Wanner US 4,982,923 Jan. 8, 1991 Lee US 2004/0183355 A1 Sept. 23, 2004 Amamiya US 7,014,255 B2 Mar. 21, 2006 Kojima2 JP 6-245843 Sept. 6, 1994 2 The Examiner relies upon an English translation of JP 6245843, which we refer to as “Kojima.” Appeal 2012-004777 Application 12/754,752 3 Rejections Appellants seek review of the following rejections, each under 35 U.S.C. § 103(a):3 I. Claims 1 and 5–8 are rejected as unpatentable over Whisler and Amamiya; II. Claims 1, 6, 7, 12, and 13 are rejected as unpatentable over Wagner and Neale; III. Claims 2, 9, 14, and 15 are rejected as unpatentable over Whisler, Amamiya, and Kojima; IV. Claims 2, 9, 14, and 15 are rejected as unpatentable over Whisler, Amamiya, and Wanner; V. Claims 3, 4, 10, and 11 are rejected as unpatentable over Whisler, Amamiya, and Lee; and VI. Claims 3, 4, 10, and 11 are rejected as unpatentable over Whisler, Amamiya, and Knight. SUMMARY OF DECISION We AFFIRM-IN-PART. OPINION Rejection I The Examiner concludes that the combination of Whisler and Amamiya would have rendered obvious the subject matter of claims 1 and 5–8 to one of ordinary skill in the art at the time of the invention. Ans. 5–6, 3 The Examiner withdrew a rejection of claim 8 under 35 U.S.C. § 103(a) as unpatentable over Wagner and Neale. Ans. 4. Appeal 2012-004777 Application 12/754,752 4 11–12. The Examiner finds that Whisler discloses the adjustable armrest mechanism of claims 1 and 5–8, but does not disclose the vehicle being a materials handling vehicle. Id. at 5, 11. In particular, the Examiner annotates Whisler’s Figure 2, reproduced below, to show that Whisler discloses the armrest apparatus pivoting about a virtual pivot point in front of the control handle. See id. at 6, 12. The Examiner finds that Amamiya discloses a materials handling vehicle. Id. at 6, 12. The Examiner concludes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the mechanism of Whisler to be coupled to a frame of a materials handling vehicle to “provide[] the advantages and features of [Whisler] in a materials handling environment.” Id. at 6, 12. Appellants argue that Whisler does not disclose an armrest apparatus that pivots about a virtual pivot point in front of a control handle.4 Appeal Br. 11–12; Reply Br. 4–7. Appellants contend that the uppermost position of arm cushion 25 illustrated in phantom in Whisler’s Figure 2 is inaccurate 4 Appellants argue claims 1 and 5–8 as a group. See Appeal Br. 11–14. We select claim 1 as representative, and claims 5–8 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2011). Appeal 2012-004777 Application 12/754,752 5 in view of the mechanical configuration of the armrest disclosed therein. Id. at 12. Appellants point to an annotated version of Whisler’s Figure 2, included as Exhibit A to the Appeal Brief, which they contend shows the maximum upward position of arm cushion 25, as constrained by slot 69 and bolt 77. Id. at 12, 21 (Exhibit A).5 While patent drawings not designated as being drawn to scale cannot be relied upon to define precise proportions of elements if the Specification is completely silent on the issue, Hockerson-Halberstadt, Inc. v. Avia Group Int’l, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000), that does not mean, “that things patent drawings show clearly are to be disregarded.” In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972). A drawing teaches all that it reasonably discloses and suggests to a person of ordinary skill in the art. In re Aslanian, 590 F.2d 911, 914 (CCPA 1979). Whisler’s Figure 2 shows arm cushion 25 in a raised and tilted position. As the Examiner explains, the tilting of the cushion results in pivoting the cushion. See Ans. 19–20 (finding that the tilting of the cushion defines a curve and hence a virtual pivot point). The Examiner’s annotations, extending the planes of the upper surface of the cushion in the lowered and raised positions, reinforce that Figure 2 reasonably discloses to one of ordinary skill in the art that the arm cushion pivots, and that the virtual pivot point is in front of the control handle. Importantly, the tilted position of the arm cushion shown in Whisler’s Figure 2 is consistent with the description of the figure. Whisler explains: 5 Appellants also submitted an annotated version of Whisler’s Figure 2 as Exhibit B. Appeal Br. 22, Ex. B. Appeal 2012-004777 Application 12/754,752 6 It is observed that the arm cushion 25 can be raised and tilted for adjusting the height and angle of incline of arm cushion 25 to be complimentary to the control section 17. Tilting of the arm cushion 25 is accomplished by allowing bolt 77 to be slidably displaced in slot 73. Whisler, col. 3, ll. 23–28. In light of Whisler’s Figure 2 and the description thereof, we are persuaded that the Examiner has shown by a preponderance of the evidence that Whisler discloses an “armrest . . . [that] pivots about a virtual pivot point in front of the control handle” as recited in claim 1. Accordingly, we sustain Rejection I. Rejection II The Examiner concludes that the combination of Wagner and Neale would have rendered obvious the subject matter of claims 1, 6, 7, 12, and 13 to one of ordinary skill in the art at the time of invention. Ans. 6–7, 16–18. The Examiner finds that Wagner discloses a base fixed to a materials handling vehicle frame and located a distance from a control handle, but does not disclose any of the other elements of the adjustable armrest mechanism of the claims. Id. at 7, 16–17. The Examiner finds that Neale discloses the elements of the claimed adjustable armrest mechanism that are missing from Wagner. Id. at 7, 17. The Examiner concludes that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the materials handling vehicle frame of Wagner to include the adjustable armrest mechanism elements of Neale to “enhance[] selective user comfort by providing a means in which to rest an arm.” Id. at 7, 18. Appeal 2012-004777 Application 12/754,752 7 Appellants contend that Neale’s armrest “is mounted to an arc-shaped post 36 such that the armrest 34 moves up and down along an arc, wherein a radius of the arc is transverse or perpendicular to the length of the armrest 34,” and if Neale’s armrest were combined with Wagner’s teachings, the armrest “would pivot about a virtual pivot point located laterally of the throttle 59 and lever 64, and not ‘in front of the control handle,’” as recited in claim 1 (and as substantially recited in claim 12). Appeal Br. 14–15. Appellants consider “in front of the control handle” in the context of Wagner’s vehicle to mean “to the left of throttle 59 in Fig. 2” or “to the right of lever 64 in Fig. [3].” Id. at 15. In response to Appellants’ argument, the Examiner acknowledges that the virtual pivot point of the proposed combination of Wagner and Neale would be located “laterally inward of the side of the seat bottom,” but the Examiner contends that this location is necessarily “forward of control handle 59 when the seat is oriented as shown in Figure 3, and . . . forward of the control handle 64 when the seat is oriented as shown in Figure 2.” Ans. 25. As noted above, claim 1 recites that the armrest apparatus moves relative to the control handle and pivots in front of the control handle. While the claim doesn’t recite distances, it does set forth a relative relationship between the armrest apparatus, control handle, and virtual pivot point. In particular, it is clear that there is an armrest, a control handle, and wherever they are located, the armrest apparatus pivots about a pivot point in front of the control handle. The phrase in front of in this context is that the pivot point is located in a position away from the armrest. In other words, if viewed in sequence, one of ordinary skill in the art would understand the App App claim poin as co comp of th eal 2012-0 lication 12 to recite t. Wagner mpared to Wagner Wagner artment s e vehicle a 04777 /754,752 an armrest ’s Figures the orient ’s Figures ’s Figure 2 howing th nd Figure apparatus 2 and 3 illu ation of th 2 and 3 are depicts a e creep lev 3 depicts 8 , a control strate the e seat. reproduc view of th er, and the a view of t handle, an position o ed below. e interior o operator he interior d a virtua f the contr f the oper seat facing of the op l pivot ol handle ator the front erator Appeal 2012-004777 Application 12/754,752 9 compartment showing the creep lever, and the operator seat facing the rear of the vehicle. Wagner, col. 2, ll. 6065. The Examiner’s findings imply an interpretation of the phrase “in front of” that requires us to find that a location generally near the center of the seat (“laterally inward of the side of the seat bottom” (Ans. 25)) is in front of throttle 59 in Figure 3 and is in front of backhoe creep lever 64 in Figure 2. Thus, whether relying on either control handle, the Examiner’s interpretation results in a sequence of armrest apparatus, virtual pivot point, and control handle. In other words, the virtual pivot point is not in a position away from the armrest.6 Accordingly, the Examiner has not established by a preponderance of the evidence that the proposed combination of Wagner and Neale discloses an armrest apparatus movably coupled to a base such that the armrest apparatus pivots about a virtual pivot point in front of the control handle as recited in claim 1, and as substantially recited in claim 12. Thus, we do not sustain Rejection II. Rejections III and IV Appellants assert that these rejections are erroneous for the same reason asserted with respect to Rejection I and because the references “lack a teaching of an armrest apparatus comprising a mount structure including a portion provided with at least one arc-shaped slot and an upper portion provided with a pad.” Appeal Br. 16. 6 Our discussion is based on the Examiner’s proposed combination, which includes the armrest apparatus of Neale. Appeal 2012-004777 Application 12/754,752 10 Appellants’ contention, although included under a separate heading, does not raise a separate argument for patentability. Appellants’ position amounts to no more than mere recitation of the claim language and a naked assertion that the elements are not disclosed by the references relied upon by the Examiner. 37 C.F.R. § 41.37(c)(1)(vii); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art”). Thus, Appellants do not raise a separate argument as to the patentability of claims 2, 9, 14, and 15. Accordingly, we sustain Rejections III and IV. Rejections V and VI Appellants assert that these rejections are erroneous because the references lack a teaching of an armrest apparatus that pivots about a virtual pivot point in front of a control handle. Appeal Br. 16. Because we agreed with the Examiner’s finding that Whisler discloses this element of the claims as discussed in the context of Rejection I, Appellants’ argument is not persuasive. Accordingly, we sustain Rejections V and VI. DECISION We AFFIRM the Examiner’s decision rejecting claims 1–11, 14, and 15 as reflected in Rejections I, III, IV, V, and VI. We REVERSE the Examiner’s decision rejecting claims 1, 6, 7, 12, and 13 as reflected in Rejection II. Appeal 2012-004777 Application 12/754,752 11 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART llw Copy with citationCopy as parenthetical citation