Ex Parte Conaway et al

Board of Patent Appeals and Interferences

Aug 18, 2010

10805685 (B.P.A.I. Aug. 18, 2010)

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.
10/805,685 03/19/2004 Brian J. Conaway 3984500-146939 8539
3705 7590 08/18/2010
ECKERT SEAMANS CHERIN & MELLOTT
600 GRANT STREET
44TH FLOOR
PITTSBURGH, PA 15219
EXAMINER
AVERY, BRIDGET D
ART UNIT PAPER NUMBER
3618
MAIL DATE DELIVERY MODE
08/18/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BRIAN J. CONAWAY, KEITH KRISTIANSEN,
DAVID DEMAR, and MARK MILLMAN
____________

Appeal 2009-004214
Application 10/805,685
Technology Center 3600
____________

Before WILLIAM F. PATE, III, MICHAEL W. O’NEILL, and
KEN B. BARRETT, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal No. 2009-004214
Application No. 10/805,685

2
STATEMENT OF THE CASE
Brian J. Conaway et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner’s decision finally rejecting claims 23-25, 27-34, and 36-
50. Specifically, the Examiner rejects under 35 U.S.C. § 102(b) claims 23,
25, 27, 28, 30-32, 36, 38-42, 46, and 47 as anticipated by Edhardt (US
2,660,446, issued Nov. 24, 1953); and rejects under 35 U.S.C. § 103(a)
claims 24, 43-45, and 48-50 as obvious over Edhardt in view of Leger (US
6,017,053, issued Jan. 25. 2000); claims 29 and 37 as obvious over Edhardt
in view of Donze (US 5,026,079, issued Jun. 25, 1991); and claims 33 and
34 as obvious over Edhardt in view of Aielli (US 6,186,523, issued Feb. 13,
2001). Appellants canceled claims 1-22 and 35. We have jurisdiction under
35 U.S.C. § 6(b). We REVERSE.
The Invention
The claims on appeal relate to a collapsible wheelbarrow.
Claim 23, reproduced below, is illustrative of the subject matter on
appeal.
23. A wheelbarrow comprising, in combination:
a rigid front bracket;
a wheel rotatably secured to the front bracket and
rotatable about a horizontally, laterally extending axis of
rotation;
first and second handle arms pivotably attached to the
front bracket;
a rigid tray; and
a clamping device extending between the first and second
handle arms and removably applying a laterally-extending
clamping force between the first and second handle arms to
move the first and second handle arms relative to one another in
a lateral direction and clamp the tray between the first and
second handle arms.
Appeal No. 2009-004214
Application No. 10/805,685

3
The Rejections
The Examiner posits that Edhardt’s disclosure of a bolt provided with
a winged nut that, pursuant Edhardt’s disclosure, acts as a “suitable
clamping means” (see col. 1, ll. 26-34) anticipates the claimed “clamping
device extending between the first and second handle arms and removably
applying a laterally-extending clamping force between the first and second
handle arms to move the first and second handle arms relative to one another
in a lateral direction and clamp the [wheelbarrow’s] tray between the first
and second handle arms” as set forth in claims 23 and 31. Ans. 3.
Contentions
Appellants contend, inter alia, that the structure the Examiner has
identified as anticipating the claimed clamping device does not appear to
extend between the handle members or the inclined shafts. As such, this
structure does not anticipate the claimed feature of the clamping device
extending between first and second handle arms. App. Br. 11.

DISCUSSION
Pertinent Facts
Figure 2 of Edhardt is reproduced below.

Appeal No. 2009-004214
Application No. 10/805,685

4
Figure 2 of Edhardt depicts a side view of the folding wheelbarrow
described in Edhardt’s disclosure.
As shown the bolt and winged nut structure diagrammatically
depicted as 8 in Figure 2 is forward of the pair of shafts 7 and handle-bars
11.

Principles of Law
To establish anticipation, every element and limitation of the claimed
invention must be found in a single prior art reference, arranged as in the
claim. See Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383
(Fed. Cir. 2001).
Analysis
Claims 23 and 31 require that the clamping device extends between
the first and second handle arms. The bolt and winged nut structure in
Edhardt that the Examiner finds to meet the claimed clamping device does
not extend between the first and second handle arms, but instead is forward
of the handle arms. See Pertinent Facts supra. Since Edhardt’s bolt and
winged nut structure does not extend between first and second handle arms,
it is not arranged as recited in claims 23 and 31; and therefore, while,
arguendo, it is suitable for clamping, does not anticipate the claimed
clamping device as set forth in claims 23 and 31, viz., extending between
handle arms.
The Examiner does not rely on Leger, Donze, or Aielli to cure the
deficiency noted above concerning Edhardt’s disclosure.

Appeal No. 2009-004214
Application No. 10/805,685

5
DECISION
Based on the foregoing, we are constrained to reverse the Examiner’s
decision to reject claims 23, 25, 27, 30-32, 36, 38-42, 46, and 47 for lack of
novelty and claims 24, 29, 33, 34, 37, 43-45, and 48-50 for want of non-
obviousness.

REVERSED

mls

ECKERT SEAMANS CHERIN & MELLOTT
600 GRANT STREET
44TH FLOOR
PITTSBURGH, PA 15219