Ex Parte Chumley

Board of Patent Appeals and Interferences

Sep 15, 2004

09887741 (B.P.A.I. Sep. 15, 2004)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 22
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte WILLIAM M. CHUMLEY
____________
Appeal No. 2004-1938
Application No. 09/887,741
____________
ON BRIEF
____________
Before COHEN, FRANKFORT, and BAHR, Administrative Patent Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 4, 5, 6 and 9, all of the claims
remaining in the application. Claims 7 and 8 have been canceled.
Appellant's invention relates to a trailer transported
behind a towing vehicle and, more specifically, to such a trailer
where entry through each end of the trailer is possible after a
linear actuator located between an elongated towing member and
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Application No. 09/887,741
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the front end of the trailer moves the trailer relative to the
elongate towing member in a horizontal plane to an angular
position out of alignment with the towing vehicle thereby freeing
the front end of the trailer from obstruction by the elongate
towing member and the towing vehicle. See, particularly, Figures
1-4 of the application. Claims 1 and 5 are representative of the
subject matter on appeal and a copy of those claims can be found
in the Appendix to appellant's brief.
The sole prior art reference of record relied upon by the
examiner in rejecting the appealed claims is:
Schurz 4,050,598 Sep. 27, 1977

Claim 9 stands rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite for failing to particularly point
out and distinctly claim the subject matter which appellant
regards as the invention.
Claims 1 through 4, 5, 6 and 9 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Schurz.
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Application No. 09/887,741
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Rather than attempt to reiterate the examiner's commentary
with respect to the above-noted rejections and the conflicting
viewpoints advanced by the examiner and appellant regarding the
rejections, we make reference to the examiner's answer (Paper No.
20, mailed April 20, 2004) for the reasoning in support of the
rejections, and to appellant's brief (Paper No. 17, filed January
23, 2004) for the arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellant's specification and claims, to
the applied prior art Schurz reference, to the declaration of Mr.
William M. Chumley, filed July 16, 2003 (Paper No. 11), and to
the respective positions articulated by appellant and the
examiner. As a consequence of our review, we have made the
determinations which follow.
Turning first to the examiner's rejection of claim 9 under
35 U.S.C. § 112, second paragraph, for the reasons aptly set
forth by the examiner on page 5 of the answer, we will sustain
this rejection. Like the examiner, we also observe that changing
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Application No. 09/887,741
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"at" to -- and -- in line 3 of claim 9 would appear to overcome
this rejection.
Regarding the examiner's rejection of claims 1 through 4, 5,
6 and 9 under 35 U.S.C. § 102(b) as being anticipated by Schurz,
we agree with appellant's position as set forth on pages 4-8 of
the brief that the hydraulic actuator (71) of Schurz pointed to
by the examiner does not and cannot perform the function set
forth in appellant's claims 1 and 5 of exerting a force between
the elongated towing/connecting member and the front end of the
trailer for pivotally moving the trailer in a horizontal plane to
an angular position out of alignment in respect to the towing
vehicle whereby access to the trailer is gained at each end
without obstruction by the elongate towing/connecting member and
the vehicle, while, as noted in claim 1, the elongated towing
member "remains substantially stationary" and the towing vehicle
remains connected to the bed of the trailer via the
towing/connecting member.
While the hydraulic actuator (71) of Schurz is located
between the elongated towing member or tongue (12) and the front
end of the trailer, Schurz notes that such actuator only moves
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Application No. 09/887,741
5
the tongue (12) of the towing member from the trailing position
seen in phantom lines in Figure 3 to the operative pivoted
position seen in solid lines in Figure 3. Thus, as set forth in
Schurz, the actuator (71) provides a swing-out feature for the
elongated towing member (12). There is nothing in Schurz to
indicate that the hydraulic actuator (71) is of such a size as to
have the capability of causing pivotal movement of the trailer
relative to the towing member (12) in the manner specified in
appellant's claims 1 and 5 on appeal. Any conclusion on the
examiner's part to the contrary is based entirely on unfounded
speculation and conjecture.
Since Schurz does not disclose or teach, either expressly or
inherently, each and every limitation of appellant's claims 1
through 4, 5, 6 and 9 on appeal, it follows that the examiner's
rejection of those claims under 35 U.S.C. § 102(b) will not be
sustained.
In summary, we note that the examiner's rejection of claim 9
under 35 U.S.C. § 112, second paragraph, has been sustained,
while the rejection of claims 1 through 4, 5, 6 and 9 under
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35 U.S.C. § 102(b) as being anticipated by Schurz has not been
sustained. Thus, the decision of the examiner is affirmed-in-
part.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
CEF/lbg
Appeal No. 2004-1938
Application No. 09/887,741
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RALPH BAILEY
BAILEY & HARDAWAY
125 BROADUS AVE.
GREENVILLE, SC 29601