Ex Parte Buitendijk

Patent Trial and Appeal Board

Sep 15, 2015

12531846 (P.T.A.B. Sep. 15, 2015)

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