Ex parte Bucher

Board of Patent Appeals and Interferences

May 28, 1999

08399434 (B.P.A.I. May. 28, 1999)

Application for patent filed March 7, 1995.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 27
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte PETER BUCHER
__________
Appeal No. 98-0952
Application 08/399,4341
__________
HEARD: May 5, 1999
__________
Before CALVERT, Administrative Patent Judge, McCANDLISH,
Senior Administrative Patent Judge, and ABRAMS, Administrative
Patent Judge.
McCANDLISH, Senior Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s final
rejection of claims 17 through 35. No other claims are
pending in the application.
Appeal No. 98-0952
Application No. 08/399,434
2
Appellant’s invention relates to a handle for a trolley
or a container of the type having a plurality of wheels. In
all of the appealed claims, the handle is recited to comprise
a bow (20) connected or secured to and extending between a
pair of head elements (11).
Independent claim 17 is directed to the combination of
the handle and the wheeled container. Independent claim 33 is
directed to the combination of the handle and the trolley.
Claim 21, the only other independent claim on appeal, is
directed to the handle per se.
A copy of the appealed claims is appended to
appellant’s brief.
The following references are relied upon by the
examiner in support of his rejections under 35 U.S.C. § 102(b)
and 35 U.S.C. § 103:
Wyatt et al. 5,189,281 Feb. 23, 1993
(Wyatt)
Wang 5,452,778 Sep. 26, 1995
(filed Jan. 11, 1994)
U.K. Patent 683,658 Dec. 3, 1952

The grounds of rejection are as follows:
Appeal No. 98-0952
Application No. 08/399,434
3
1. Claims 17, 19, 21, 33 and 35 stand rejected under 35
U.S.C. § 102(b) as being anticipated by the ‘658 U.K. patent.
2. Claims 23 through 27 and 30 through 32 stand rejected
under 35 U.S.C. § 103 as being unpatentable over the ‘658 U.K.
patent.
3. Claims 18, 22, 28 and 29 stand rejected under 35
U.S.C.
§ 103 as being unpatentable over the ‘658 U.K. patent in view
of Wang.
4. Claims 20 and 34 stand rejected under 35 U.S.C. § 103
as being unpatentable over the ‘658 U.K. patent view of Wyatt.
Reference is made to the examiner’s answer for details of
these rejections.
In support of his § 102(b) rejection, the examiner reads
appellant’s claimed handle on the handle structure (42) in the
U.K. patent. As noted on page 7 of the main brief, the
examiner marked up a copy of the sheet of drawings containing
Figures 3 and 4 in the U.K. patent at an interview to express
his understanding of the structure encompassed by the handle
(42) in the U.K. patent. A photocopy of this marked-up copy
is attached to appellant’s main brief as Exhibit A.
Appeal No. 98-0952
Application No. 08/399,434
4
According to Exhibit A, the U.K. handle (42) includes the
two arm or leg portions extending from unmarked attachment
bolts and a cross piece extending between the arm portions.
According to the examiner’s notations on Exhibit A, the arm
portions taken together with the cross piece define a “bow”
terminating at opposite ends in head elements in the region of
the unmarked attachment bolts. In his answer (see page 8),
the examiner states that the “bow” in the U.K. patent has a
curvilinear shape in a vertical plane to meet the limitation
pertaining to the handle in claim 17.
We cannot accept the examiner’s interpretation of the
U.K. patent as outlined supra. A bow, according to its
applicable, common meaning in Webster’s Third New
International Dictionary (G. & C. Merriam Company, 1971), is
“something bent into a simple curve.” In contrast, the cross
piece of the U.K. handle is straight in the region extending
between the arm portions, while the arm portions, which are
parallel to each other, are substantially straight in the
regions extending to the ends at the attachment bolts. Such a
configuration does not form a “bow” within the dictionary
meaning of the term. In short, the handle in the U.K. patent
Appeal No. 98-0952
Application No. 08/399,434
5
does not have a bow extending between two head elements as
defined in the independent claims on appeal.
Since the limitation pertaining to the bow is not
expressly or inherently met by the U.K. patent, we cannot
agree that this patent constitutes a proper anticipatory
reference for the subject matter of independent claims 17, 21
and 33 and, hence, for the subject matter of dependent claims
19 and 35. See Kloster Speedsteel AB v. Crucible, Inc., 793
F.2d 1565, 1571, 230 USPQ 81, 84 (Fed. Cir. 1986) (the absence
from the reference of any element of the claim negates
anticipation of that claim by the reference). Furthermore,
with particular regard to claim 17, the U.K. patent does not
expressly or inherently disclose a handle construction in
which an intermediate handle portion extends from a “central
area of a respective head element . . .”
For the foregoing reasons, we must reverse the examiner’s
§ 102(b) rejection of claims 17, 19, 21, 33 and 35. We also
must reverse the examiner’s § 103 rejections of claims 18, 20,
22 through 32 and 34 inasmuch as neither the Wang patent nor
the Wyatt patent rectifies the foregoing shortcoming of the
U.K. patent.
Appeal No. 98-0952
Application No. 08/399,434
6
Appeal No. 98-0952
Application No. 08/399,434
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The examiner’s decision rejecting the appealed claims is
reversed.
REVERSED
Ian A. Calvert )
Administrative Patent Judge )
)
)
)
Harrison E. McCandlish, Senior ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Neal E. Abrams )
Administrative Patent Judge )
tdc
Appeal No. 98-0952
Application No. 08/399,434
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Francis C. Hand
McAulay, Fisher, Nissen,
Goldberg & Kiel
261 Madison Avenue
New York, NY 10016