Ex Parte Cencer et al

Board of Patent Appeals and Interferences

Aug 31, 2007

10338813 (B.P.A.I. Aug. 31, 2007)

The opinion in support of the decision being entered 1
today is not binding precedent of the Board. 2
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4
UNITED STATES PATENT AND TRADEMARK OFFICE 5
_____________ 6
7
BEFORE THE BOARD OF PATENT APPEALS 8
AND INTERFERENCES 9
_____________ 10
11
Ex parte ROBERT J. CENCER and MICHAEL J. RENCH 12
_____________ 13
14
Appeal No. 2007-0585 15
Application No. 10/338,813 16
Technology Center 3600 17
______________ 18
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Decided: August 31, 2007 20
_______________ 21
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Before TERRY J. OWENS, HUBERT C. LORIN, and JOSEPH A. FISCHETTI, 23
Administrative Patent Judges. 24
25
OWENS, Administrative Patent Judge. 26
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28
DECISION ON APPEAL 29
The Appellants appeal from a rejection of claims 1-11, which are all of the 30
pending claims. 31
THE INVENTION 32
The Appellants claim a tri-level railcar for carrying automotive vehicles. 33
Claim 1 is illustrative: 34
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Application 10/338,813

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1. A tri-level auto rack railcar comprising first, second, and third 1
decks capable of supporting automotive vehicles during loading, unloading 2
and transport of such vehicles in commercial rail service, wherein the second 3
deck has fixed end sections that extend across the entire width of the deck 4
and contribute strength and rigidity to the railcar structure. 5
6
THE REFERENCES 7
Fylling US 3,801,177 Apr. 2, 1974 8
Klag US 6,273,004 B1 Aug. 14, 2001 9
Lewin US 6,283,040 B1 Sep. 4, 2001 10
11
THE REJECTIONS 12
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1-7, 10 13
and 11 over Fylling in view of Lewin, and claims 8 and 9 over Fylling in view of 14
Lewin and Klag.1 15
OPINION 16
We affirm the aforementioned rejections. 17
Claims 1-7, 10 and 11 18
Fylling discloses “a frameless, relatively light railroad shipping container for 19
compactly supporting a tier of several heavy articles, such as motor vehicles, while 20
protecting the vehicles from vandalism and accidental damage” (Fylling, col. 1, ll. 21
6-10). Vehicles are positioned one above each other in three tiers in each 22
container, and preferably a railroad flatcar carries four containers (Fylling, col. 2, 23
ll. 44-55). The containers are formed as subassemblies that are welded together at 24

1 The Examiner omitted, apparently inadvertently, Lewin from the rejection of
claims 8 and 9 (Ans. 4). The Examiner relies upon Klag only for the subject
matter in claims 8 and 9 which depend from claim 3 to which Lewin is applied, see
id. Hence, we consider claims 8 and 9 to be rejected over the combined teachings
of Fylling, Lewin, and Klag.
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Application 10/338,813

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final assembly (col. 5, ll. 6-13). The upper tier decks are supported on V-shaped 1
box beams that are welded to the container’s side and end walls and cooperate with 2
other components to satisfy the container’s strength requirements (Fylling, col. 1, 3
ll. 32-41). 4
Lewin discloses “a railroad car with adjustable floor and roof sections that 5
allow a user to convert the car from a tri-level to a bi-level car or to a single level 6
car, and to reduce the overall height of the car, while lowering the car’s center of 7
gravity and alleviating the problem of route height restrictions” (Lewin, col. 1, ll. 8
42-47). Lewin discloses (Lewin, col. 2, ll. 54-64): 9
A typical loading procedure is accomplished by raising the entire 10
second floor, or part of it, and loading the bottom level first. Next, the 11
second floor is lowered to the minimum clearance, locked in place and then 12
loaded. After this, the third level is lowered, locked in place and then 13
loaded. Finally, the roof is lowered, locked in place and the access doors 14
closed. To unload the vehicles, the loading steps are simply performed in 15
reverse order. 16
In another embodiment of the invention, the second and third floors 17
may be hinged to allow the loading of smaller vehicles without the need to 18
raise or lower the entire floor. 19
20
The Appellants argue that Lewin’s disclosure that the described floor and 21
roof assemblies are an integral part of the car structure (Lewin, col. 3, ll. 30-31) 22
limits the combination of Lewin with Fylling to a railcar having adjustable floors 23
(Br. 5). The Appellants further argue that combining Lewin and Fylling requires 24
adding a frame to Fylling that Fylling omits to reduce the container’s weight 25
(Reply Br. 4). 26
In the Background of the Invention section of the Appellants’ Specification, 27
the Appellants acknowledge that hinged end sections have been used in the art on 28
the decks of the second level tiers of tri-level auto rack railcars to obtain increased 29
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Application 10/338,813

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clearance when the hinged end sections are raised, thereby permitting taller 1
automobiles to be moved past the end sections into the depressed central portion of 2
the railcar (Spec. 1:7-22). The Appellants point out that the hinged sections, when 3
lowered, can accommodate only relatively short cars, and that the hinged sections 4
require, for adequate strength and rigidity of the rack structure, braces that add 5
weight and expense to the railcar and locally reduce the railcar’s interior width 6
(Spec. 1: 23 – 2:4; 2: 12-27). Also, the Appellants point out, hinged end sections 7
increase the loading and unloading time and labor and require maintenance 8
including lubrication (Spec. 2:27 – 3:4). 9
The Appellants, instead of using hinged end sections, use bolted or welded 10
end sections that provide greater strength and rigidity than hinged end sections 11
(Spec. 3:13-15). The downside to the Appellants’ approach, of course, is that the 12
first tier of the Appellants’ railcar cannot accommodate automobiles that are as tall 13
as those that can be moved below a raised hinged end section into the central 14
depressed portion of the railcar. The maximum automobile height accommodated 15
by the Appellants’ first tier is about 63” (Spec. 3:21-25). 16
Eliminating a hinged end section’s known advantage of permitting taller 17
automobiles to be loaded into the central depressed portion of the railcar, in return 18
for eliminating a hinged end section’s known disadvantages of reduced rack 19
strength and rigidity, reduced local interior width and increased expense due to 20
required braces, and increased maintenance cost would have been an obvious 21
tradeoff for one of ordinary skill in the art. See In re Wilson, 377 F.2d 1014, 1017, 22
153 USPQ 740, 742 (CCPA 1967); In re Larson, 340 F.2d 965, 969, 144 USPQ 23
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347, 350 (CCPA 1965); In re Brown, 228 F.2d 247, 249, 108 USPQ 232, 234 1
(CCPA 1955).2 2
We therefore are not convinced of reversible error in the rejection of claims 3
1-7, 10 and 11. 4
Claims 8 and 9 5
Klag discloses a motor-vehicle-carrying tri-level railcar comprising tiers 6
having cambered decks that are welded to sidewalls (Klag, col. 3, ll. 56-58; fig. 4). 7
“To increase the clearance available for vehicles being loaded and unloaded from 8
the A deck, end portions of the B deck 14 are upwardly pivotable” (Klag, col. 5, 9
l. 66 – col. 6, l. 1). 10
The Appellants argue that Klag is concerned with industry regulated height 11
restrictions, and that eliminating Klag’s upwardly pivotable B deck end portions 12
would conflict with Klag’s desire to increase vertical clearances during loading and 13
unloading while complying with the industry height regulations (Br. 6-7). The 14
Appellants must also comply with the 20’2” railcar height regulation (Spec. 4:4-5). 15
The Appellants, in return for increased rack strength and rigidity, forego the 16
benefit of increased vertical clearances during loading and unloading provided by 17
Klag’s pivotable B deck. As discussed above, that tradeoff would have been 18
obvious to one of ordinary skill in the art. 19
The Appellants argue that there is a conflict in combining Fylling’s 20
frameless shipping container with Klag’s railcar having a frame for structural 21
support (Br. 7). As discussed above regarding the rejection of claims 1-7, 10 and 22
11, a tri-level auto rack railcar having fixed end sections would have been obvious 23

2 Fylling, although directed toward a tiered automobile container for a railcar rather
than a tiered railcar, illustrates the concept of fixed, welded end sections
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to one of ordinary skill in the art. Klag is relied upon by the Examiner for a 1
suggestion to use cambered decks and welds between decks and sidewalls (Ans. 4). 2
The Appellants do not explain, and it is not apparent, why it would not have been 3
obvious to one of ordinary skill in the art to use Klag’s cambered decks and welds 4
between decks and sidewalls in the above-discussed obvious tri-level auto rack 5
railcar having a second deck with fixed end sections that contribute strength and 6
rigidity to the railcar structure. 7
For the above reasons we are not convinced of reversible error in the 8
rejection of claims 8 and 9. 9
DECISION 10
The rejections under 35 U.S.C. § 103 of claims 1-7, 10 and 11 over Fylling 11
in view of Lewin, and claims 8 and 9 over Fylling in view of Lewin and Klag are 12
affirmed. 13
No time period for taking any subsequent action in connection with this 14
appeal may be extended under 37 C.F.R. § 1.136(a). 15
AFFIRMED 16
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FITCH EVEN TABIN AND FLANNERY 23
120 SOUTH LA SALLE STREET 24
SUITE 1600 25
CHICAGO, IL 60603-3406 26

(Fylling, col. 5, ll. 8-13).