Ex Parte BuitendijkDownload PDFPatent Trial and Appeal BoardSep 15, 201512531846 (P.T.A.B. Sep. 15, 2015) Copy Citation 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. 12/531,846 02/01/2010 Dick Buitendijk 0585-32UA 3166 21704 7590 09/15/2015 Law Offices of Eric Karich Eric Karich 20 Crestview Aliso Viejo, CA 92656 EXAMINER CHAVCHAVADZE, COLLEEN MARGARET ART UNIT PAPER NUMBER 3634 MAIL DATE DELIVERY MODE 09/15/2015 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DICK BUITENDIJK Appeal 2013–008266 Application 12/531,8461 Technology Center 3600 ____________ Before CHARLES N. GREENHUT, THOMAS F. SMEGAL, and JAMES J. MAYBERRY, Administrative Patent Judges. SMEGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Dick Buitendijk (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s final rejection of claims 1–9. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellant, the real party in interest is Forrester and Grandville Trading S.A. Br. 1. Appeal 2013–008266 Application 12/531,846 2 CLAIMED SUBJECT MATTER The claimed subject matter involves scaffolding. Claims 1, 11, and 19 are independent. Claim 1, as reproduced below, illustrates the claimed subject matter, with disputed limitations emphasized. 1. Scaffold for use with a building, the scaffold comprising: several spaced apart systems of construction frames present on top of each other, as well as handrail frames that extend between the construction frames and connect them together, which construction frames comprise at least a front post and a rear post that are connected together by a crossbar, the front and rear post and the crossbar being fixed to each and constitute one part, in which a rear of the scaffold is placed against a the building and the handrail frames are at a front, characterised in that each of the handrail frames comprises two post sections, as well as a handrail that extends between the post sections and connects the post sections together, and wherein the front post of each construction frame is shorter than the rear. REJECTIONS ON APPEAL The following Examiner’s rejections are before us for review. 1. Claims 1, 2, 4, 5, and 9 are rejected under 35 U.S.C. §102(b) as anticipated by Borgman (US 2,833,596, iss. May 6, 1958). 2. Claim 3 is rejected under 35 U.S.C. §103(a) as unpatentable over Borgman and Halferty (US 2,316,952, iss. Apr. 20, 1943). 3. Claims 6–8 are rejected under 35 U.S.C. §103(a) as unpatentable over Borgman and Preston (US 5,127,492, iss. July 7, 1992). Appeal 2013–008266 Application 12/531,846 3 ANALYSIS Anticipation of Claims 1, 2, 4, 5, and 9 by Borgman We are persuaded by Appellants’ arguments that the Examiner failed to establish a prima facie showing of anticipation in rejecting claims 1, 2, 4, 5, and 9 over Borgman. The Examiner finds that Borgman discloses, inter alia, a scaffold having “several spaced apart systems of construction frames [] present on top of each other (figure 1), as well as handrail frames that extend between the construction frames and connect them together (figure 1), wherein each of the construction frames [] comprise at least a front post and a rear post [] that are connected together by a crossbar.” See Final Act. 2. Appellant argues that the “Examiner has attempted to create a frame construction from Borgman that meets the requirements of claim 1 by incorporating components of two adjoining frames.” Br. 5. We agree, noting that the Examiner’s rejection, as illustrated at page 4 of the Final Rejection, would require that portions of two adjoining sections 15a and 15b of Borgman be reconfigured to form a construction frame, while the remaining portion of the adjoining sections be reconfigured to form a hand rail frame, as recited by claim 1. We find this determination by the Examiner to be an arbitrary (and therefore unreasonable) interpretation of Borgman. [U]nless a reference discloses within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim, it cannot be said to prove prior invention of the thing claimed and, thus, cannot anticipate under 35 U.S.C. § 102. Appeal 2013–008266 Application 12/531,846 4 Net MoneyIN, Inc., v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008). For the foregoing reasons, we will not sustain the Examiner’s rejection of claims 1, 2, 4, 5, and 9 as anticipated by Borgman. Obviousness of Claim 3 over Borgman and Halferty; and of Claims 6–8 over Borgman and Preston The Examiner’s rejections of claim 3 over Borgman and Halferty and of claims 6–8 over Borgman and Preston, are based on the same erroneous findings discussed above with respect to the disclosure of Borgman. Final Act. 7–8. The addition of either Halferty or Preston does not remedy the deficiencies of Borgman, as discussed supra. Accordingly, for similar reasons as discussed above for claim 1, we do not sustain the Examiner’s rejection of claim 3 over Borgman and Halferty and of claims 6–8 over Borgman and Preston. DECISION We reverse the Examiner’s rejections. REVERSED rvb Copy with citationCopy as parenthetical citation