Ex Parte Conroy

Board of Patent Appeals and Interferences

Mar 11, 2009

10852750 (B.P.A.I. Mar. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JEFFREY A. CONROY
____________

Appeal 2008-2431
Application 10/852,750
Technology Center 3600
____________

Decided:1 March 11, 2009
____________

Before WILLIAM F. PATE, III, LINDA E. HORNER, and
MICHAEL W. O’NEILL, Administrative Patent Judges.

HORNER, Administrative Patent Judge

DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
Jeffrey A. Conroy (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1-18. We have
jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
The Appellant’s claimed invention is an access ladder for straddling
the coaming of hopper barges and providing access to the hold of a hopper
barge. Spec. 1, para. 2. Claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A portable barge access ladder comprising:
a pair of coaming frame members adapted to
be positioned outside of a barge coaming;
a plurality of safety treads extending
between and attached to the coaming frame
members forming a coaming ladder portion;
a pair of transverse frame members attached
to the pair of coaming frame members at one end
thereof, wherein the transverse frame members are
substantially perpendicular to the coaming frame
members whereby the transverse frame members
are adapted to extend across the barge coaming;
a decking tread member extending between
and attached to the transverse frame members
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forming a walkway for an operator to traverse the
coaming;
hold frame members attached to one end of
the transverse frame members, wherein the hold
frame members have a distal end that is spaced
from the transverse frame members and is
vertically lower than a distal end of the coaming
frame members that is spaced from the transverse
frame members whereby the hold frame members
are adapted to extend into the barge hold;
a plurality of safety treads extending
between and attached to the hold frame members
at least partially forming a hold access ladder
portion;
adjustable legs slidably received in the hold
frame members; and
at least one auxiliary tread attachable to the
legs forming optional additional treads for the
ladder as the legs are extended.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Marryatt US 3,012,626 Dec. 12, 1961
Godde US 4,676,342 Jun. 30, 1987
Patterson US 5,497,850 Mar. 12, 1996
Fukumori US 6,224,296 B1 May 1, 2001
Couillard US 6,533,069 B1 Mar. 18, 2003
The Appellant seeks review of the following Examiner’s rejections:
1. Claims 1-5 and 10-14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Couillard, Marryatt, and Godde.
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2. Claims 6-8 and 15-17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Couillard, Marryatt, Godde, and Fukumori.
3. Claims 9 and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Couillard, Marryatt, Godde, and Patterson.

ISSUES
The Examiner found that Couillard discloses all the elements of the
ladder of claims 1-5 and 10-14 except that it does not disclose “a pair of
coaming frame members and adjustable legs with additional treads.” Ans. 3-
4. The Examiner relied on Marryatt for the disclosure of a ladder having
both hold frame members on one side of the ladder and coaming frame
members on the opposite side, and relied on Godde for the disclosure of a
ladder having adjustable legs with additional treads to adjustably extend the
length of the ladder rails. Ans. 4. The Examiner determined that it would
have been obvious to provide Couillard with a pair of coaming frame
members, as taught by Marryatt, whenever ease of access to the decking
tread member is desired, and to add adjustable legs having additional treads,
as taught by Godde, to enable adjustable lengthening of the ladder and
provide additional stepping surfaces upon the lengthening of the ladder rails.
Ans. 4.
The Appellant contends that Couillard teaches away from having
ladders on both sides of its device and that the structure of Couillard
prevents the attachment of a coaming ladder. App. Br. 27. The Appellant
also argues that there is no reason why one having ordinary skill in the art
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would have attached Marryatt’s ladder structure or Godde’s adjustable legs
with additional treads to the ladder stabilizing device of Couillard. App. Br.
28-29.
The Appellant further contends that Couillard does not teach or
suggest “hold frame members attached to one end of the transverse frame
members” as recited in claim 1, “a stop adjustably attached to the transverse
frame members” as recited in claim 3, and “a handrail attached to the hold
frame members” as recited in claim 4. App. Br. 27 & 29.
The issues presented by this rejection are:
Has the Appellant shown the Examiner erred in determining that
Couillard discloses “hold frame members attached to one end of the
transverse frame members,” “a stop adjustably attached to the transverse
frame members,” and “a handrail attached to the hold frame members”?
Has the Appellant shown the Examiner erred in determining that one
having ordinary skill in the art would have had a reason to modify the ladder
of Couillard with the teachings of Marryatt and Godde in the manner
claimed?
The Examiner determined that the combination of Couillard, Marryatt,
and Godde discloses all the elements of the ladder of claims 6-8 and 15-17
except that it does not disclose lifting cables. Ans. 4. The Examiner relied
on Fukumori to show lifting cables 10 attached at one end to arbitrary
locations 9 and the other ends to a spacer bar. Id. The Examiner determined
it would have been obvious to provide Couillard with lifting cables, as
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taught by Fukumori, for lifting the ladder and to use chains, in lieu of cables
as a matter of obvious mechanical expediency. Ans. 4-5.
The Appellant contends that Fukumori is non-analogous art and that a
chain lifting point would not be used in the ladder and ladder support of
Couillard because the ladder is a separate article from the support. App. Br.
30. The Appellant further contends that Fukumori does not disclose lift
points on the transverse frame members and the hold frame members as
recited in claim 7. App. Br. 31.
The issues presented by this rejection are:
Has the Appellant shown the Examiner erred in finding that Fukumori
is analogous art?
Has the Appellant shown the Examiner erred in determining that one
having ordinary skill in the art would have had a reason to modify the ladder
of Couillard with lifting chains secured to selected frame members to
provide for lifting of the ladder, as recited in claim 6, in view of the
teachings Fukumori?
Has the Appellant shown the Examiner erred in determining that the
prior art discloses “lift points on the transverse frame members and the hold
frame members” as recited in claim 7?
The Examiner determined that the combination of Couillard, Marryatt,
and Godde discloses all the elements of the ladder of claims 9 and 18 except
that it does not disclose pivotable feet at the bottom of the adjustable legs.
Ans. 5. The Examiner relied on Patterson to disclose a ladder having
adjustable legs with pivotable feet. Id. The Examiner determined that it
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would have been obvious to provide the adjustable legs of Couillard, as
modified by Godde, with pivotable feet, as taught by Patterson, to facilitate
positioning of the legs at different angles to the surface. Id.
The Appellant argues that the Examiner’s combination of teachings
resulting in the claimed invention is based on hindsight. App. Br. 31-32.
The issue presented by this rejection is:
Has the Appellant shown the Examiner erred in determining that one
having ordinary skill in the art would have had a reason to add pivotable feet
to the modified ladder of Couillard?

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Couillard discloses a multi-purpose ladder support S having a
frame 10 which supports a platform 12 and an open mesh surface
13 atop the platform for standing. Couillard, col. 3, ll. 39-41;
Fig. 1.
2. The platform 12 includes side rails 32 and 34, front rail 20, and a
rear rail 16. Couillard, col. 3, ll. 41-46 and col. 4, ll. 7-8; Fig. 1.
3. The frame 10 includes a pair of spaced vertical supports 14
attached to and extending upwardly from rear rail 16 and a pair of
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spaced angular supports 18 attached to front rail 20. Couillard, col.
3, ll. 41-46.
4. The side rails 32 and 34 extend across the parapet wall and are
perpendicular to the vertical supports 14. Couillard, Fig. 4.
5. Supports 18 have upper ends that extend above platform 12 and are
joined to upper ends of supports 14 to form handrails. Couillard,
col. 3, ll. 46-49; Fig. 1.
6. The lower ends of spaced angular supports 18 extend below
platform 12 and have ladder support brackets 24. Couillard, col. 3,
ll. 49-51.
7. Couillard discloses that the support S can be used to affix a ladder
to a variety of structures by reconfiguring various portions of the
support elements. Couillard, col. 2, l. 66 – col. 3, l. 1.
8. For example, Couillard discloses a first configuration of the ladder
support S mounted on a parapet wall, a second configuration of the
ladder support S mounted on a flat roof, a third configuration of
the ladder support S mounted on a sloped roof; and a fourth
configuration of the ladder support S mounted on an I-beam.
Couillard, col. 4, l. 15 – col. 5, l. 1 and Figs. 4 & 6; col. 5, ll. 5-20
and Figs. 7 & 8; col. 5, ll. 21-37 and Figs. 9 & 10; and col. 5, ll.
38-53 and Figs. 11 & 12, respectively. In each configuration
described, components of the ladder support S must be
reconfigured to accommodate the different environments in which
the support is being used. Id.
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9. Couillard discloses the support S mounted on a parapet wall 52
with a first adjustable clamping device mounted at the lower ends
of the spaced vertical supports 14 and a pair of extension arms 54
telescopically received in the lower end of vertical supports 14.
Couillard, col. 4, ll. 15-21; Figs. 4 and 6.
10. A clamp plate 66 is disposed at the lower end of each extension
arm 54 to engage an inner side of the parapet wall. Couillard, col.
4, ll. 26-32.
11. Clamp plates 72 are similarly employed on the outer surface of the
parapet wall to clamp the ladder support S to the wall. Couillard,
col. 4, ll. 36-42.
12. Couillard further discloses a ladder L, having side rails 76
interconnected by rungs 78, where the ladder L is attached to the
support S via brackets 24 on frame 10 of the ladder support S and
can be used to access the roof from the ground. Couillard, col. 4,
ll. 44-47; Fig. 4.
13. The structure of the ladder L disclosed in Couillard is capable of
being used to extend into a barge hold.
14. Marryatt discloses an emergency escape ladder including a housing
or platform 63 that spans a window sill of a building when
deployed and a ladder comprised of tubular bars 64 and rungs 65
that is perpendicular to the platform. Marryatt, col. 3, ll. 10-12,
Fig. 10.
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15. Marryatt further discloses that the tubular bars 64 have extensions
66 telescopically connected thereto and feet 67 at the bottom of the
extensions to engage the floor. Marryatt, col. 3, ll. 13-14.
16. Goode teaches that it is desirable to provide auxiliary steps on a
ladder with extendible legs to provide for easy ascent and to avoid
the extended rung distance between the bottom rung of the ladder
and the surface upon which the extension legs are mounted.
Goode, col. 3, ll. 3-7.
17. The distance from the ground to a rooftop varies between buildings
of different heights, such that a ladder of adjustable length would
be desirable.
18. Fukumori discloses using a crane to lift shoring panels and position
them in a trench. Fukumori, col. 6, ll. 50-53.

PRINCIPLES OF LAW
The analogous-art test requires that the Board
show that a reference is either in the field of the
applicant's endeavor or is reasonably pertinent to
the problem with which the inventor was
concerned in order to rely on that reference as a
basis for rejection. In re Oetiker, 977 F.2d 1443,
1447 (Fed. Cir. 1992). References are selected as
being reasonably pertinent to the problem based on
the judgment of a person having ordinary skill in
the art. Id. (“[I]t is necessary to consider ‘the
reality of the circumstances,’-in other words,
common sense-in deciding in which fields a person
of ordinary skill would reasonably be expected to
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look for a solution to the problem facing the
inventor.” (quoting In re Wood, 599 F.2d 1032,
1036 (C.C.P.A.1979))).
In re Kahn, 441 F.3d 977, 986-87 (Fed. Cir. 2006).
“‘A reference is reasonably pertinent if, even though it may be in a
different field from that of the inventor's endeavor, it is one which, because
of the matter with which it deals, logically would have commended itself to
an inventor's attention in considering his problem.’ In re Clay, 966 F.2d 656,
659 (Fed.Cir.1992). In other words, “familiar items may have obvious uses
beyond their primary purposes.” KSR Int'l Co. v. Teleflex, Inc., 127 S. Ct.
1727, ___ (2007).” In re ICON Health and Fitness, Inc, 496 F.3d 1375,
1380-1.
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, ___,
127 S. Ct. 1727, 1734 (2007). The question of obviousness is resolved on
the basis of underlying factual determinations including (1) the scope and
content of the prior art, (2) any differences between the claimed subject
matter and the prior art, (3) the level of skill in the art, and (4) where in
evidence, so-called secondary considerations. Graham v. John Deere Co.,
383 U.S. 1, 17-18 (1966). See also KSR, 550 U.S. at ___, 127 S. Ct. at 1734
(“While the sequence of these questions might be reordered in any particular
case, the [Graham] factors continue to define the inquiry that controls.”)
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ANALYSIS
I. Rejection of claims 1-5 and 10-14 under 35 U.S.C. § 103(a) as
unpatentable over Couillard, Marryatt, and Godde
A. Claims 1, 2, 10, and 11
The Appellant argues claims 1, 2, 10, and 11 as a group. App. Br. 26-
29. We select claim 1 as the representative claim and the remaining claims
stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2008).
Couillard discloses a multi-purpose ladder support S having a frame
10 which supports a platform 12 and an open mesh surface 13 atop the
platform for standing (Fact 1). The side rails 32 and 34 of platform 12 are
the same as the claimed pair of transverse frame members, because these
members extend across the parapet wall and are perpendicular to vertical
supports 14 of support S (Facts 2-4). The open mesh surface 13 atop the
platform for standing satisfies the decking tread member extending between
and attached to the transverse frame members forming a walkway for an
operator to traverse the parapet wall (Fact 1). Couillard further discloses a
ladder L, having side rails 76 interconnected by rungs 78, where the ladder L
is attached to the support S via brackets 24 on frame 10 of the ladder support
S (Facts 6 & 12). The distal ends of the side rails 76 of Couillard extend
from the top of the parapet wall to the ground to enable a user to access the
roof from the ground (Fact 12). Thus, the distal end of the ladder side rails
76 are spaced from the transverse frame members. The structure of the
ladder L disclosed in Couillard is capable of being used to extend into a
barge hold (Fact 13). The rungs 78 between the side rails 76 satisfy the
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claimed safety treads extending between and attached to the hold frame
members to form a hold access ladder portion (Fact 12).
Couillard does not disclose coaming frame members or safety treads
extending between and attached to the coaming frame members to form a
coaming ladder portion. Couillard also does not disclose its transverse
frame members attached and substantially perpendicular to a pair of
coaming frame members at one end thereof. Because Couillard does not
disclose the coaming ladder portion as claimed, Couillard also does not
disclose that its hold frame members have a distal end that is “vertically
lower than a distal end of the coaming frame members.”
The Examiner found that “Marryatt shows an access ladder having a
frame member with a decking member, a hold frame member at 33 on one
side of the frame member and optionally using a pair of coaming frame
members 64,66 (in fig. 10) on the opposite side of the frame member when
ease of access to the decking member is desired.” Ans. 4. The Examiner
further found that “Godde shows a ladder having adjustable legs 12 with
additional treads 18 to adjustable [sic] extend the length of the ladder rails
10.” Ans. 4. We agree with the Examiner’s findings (Facts 14-16).
The Appellant contends the Examiner erred in finding that the scope
and content of Couillard includes disclosure of a “portable barge access
ladder” or “hold frame members attached to one end of the transverse frame
members” as recited in claim 1. App. Br. 27. As to the recitation in the
claim of a “portable barge access ladder,” while the claim recites various
elements of the claimed ladder in terms of its use on a barge, the Appellant
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has failed to adequately demonstrate structural differences between the
claimed ladder for use on a barge and the ladder of Couillard, as modified by
the teachings of Marryatt and Godde. The Appellant simply argues that if
the ladder of Couillard were used in a barge hold, there is nothing to allow
the users to climb the coaming. App. Br. 27. This argument, however, fails
to address the combined teachings of Couillard, Marryatt, and Godde. If, as
the Examiner proposes, one having ordinary skill in the art were to modify
the ladder and support of Couillard with a second ladder portion on the inner
parapet wall of Couillard’s support, then the resulting structure would have a
ladder portion to allow users to climb the coaming. One cannot show
nonobviousness by attacking references individually where the rejections are
based on combinations of references. See In re Merck & Co., 800 F.2d 1091
(Fed. Cir. 1986); In re Keller, 642 F.2d 413 (CCPA 1981).
The Appellant further challenges the Examiner’s finding that the
ladder disclosed in Marryatt is a “coaming ladder portion.” App. Br. 28.
The Appellant fails, however, to structurally distinguish the ladder portion
64, 66 of Marryatt, used to access a window sill from inside a building, and
a coaming ladder used to access the coaming of a barge coaming wall.
Extension of Marryatt’s telescoping portions 66 would accommodate a
variety of desired ladder lengths based on the amount the portions 66 were
extended. As such, we fail to see why the ladder portion 64, 66 of Marryatt
would not be capable of use as a coaming ladder portion.
The Appellant further challenges the Examiner’s articulation of a
reason to combine the teachings of the three references in the manner
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claimed. In particular, the Appellant argues there is no effective method of
adding the ladder structure of Marryatt to the inner parapet wall of Couillard
because to do so would require elimination of the adjustable clamp elements
54-68. App. Br. 27. The Appellant’s argument is not persuasive for two
reasons.
First, the Examiner’s rejection is not based on the bodily
incorporation of Marryatt’s ladder into the ladder and support structure of
Couillard. Rather, the Examiner relied on Marryatt for the teaching that it
was known in the art to add a vertical ladder to the inner side of a wall when
ease of access to the platform decking is desired, and the Examiner thus
determined that it would have been obvious to add such a ladder portion to
the inner parapet side of Couillard’s support structure to provide ease of
access to the decking tread member from the roof surface. Ans. 4. “The test
for obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference.... Rather, the
test is what the combined teachings of those references would have
suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413,
425 (CCPA 1981). See also In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir.
1983) (“[I]t is not necessary that the inventions of the references be
physically combinable to render obvious the invention under review.”); and
In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of
references does not involve an ability to combine their specific structures.”).
Rather, “if a technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve similar
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devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill.” KSR, 550 U.S. at ___, 127 S.Ct. at
1740.
Second, the Appellant has not demonstrated that it would have been
beyond the skill of one having ordinary skill in the art to add a ladder to the
inner parapet wall of Couillard’s ladder structure. In fact, contrary to the
Appellant’s argument, Couillard teaches means to have both a ladder portion
L and a clamp 72 on the outer side of the parapet wall (Fact 11 & 12), and
we see no reason why a person having ordinary skill in the art would not
have been able to add a ladder to the inner side of the parapet wall. See
KSR, 550 U.S. at ___, 127 S. Ct. at 1742 (“A person of ordinary skill is also
a person of ordinary creativity, not an automaton.”).
The Appellant also argues that there is no reason why one of ordinary
skill in the art would attach the ladder structure of Marryatt to the ladder
stabilizing device of Couillard. App. Br. 28. We find that the reason
provided by the Examiner, viz., that one having ordinary skill in the art
would have been led to add a ladder to the inner side of the parapet wall to
provide ease of access to the platform decking, is a rational articulation of a
reason to combine these teachings. In particular, there is a drop from the top
of the platform decking of Couillard above the parapet wall to the roof top
such that a ladder on the inner side of the parapet wall would provide easier
access to the decking (Fact 9). By adding a ladder onto the inner side of the
support structure, the modified support and ladder structure of Couillard
would include a pair of coaming frame members adapted to be positioned
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outside of a barge coaming and a plurality of safety treads extending
between and attached to the coaming frame members forming a coaming
ladder portion, as claimed. The coaming frame members would be attached
to the support structure and thereby attached to the pair of coaming frame
members. Further, Figure 10 of Marryatt discloses an exemplary ladder
portion that is perpendicular to the transverse rails of the platform (Fact 14),
thus addition of such a ladder to the support structure of Couillard would
include the coaming frame members being perpendicular to the transverse
frame members of Couillard’s support structure. Further, because a ladder
on the inner side of the parapet wall would span only a short distance
between the top of the wall and the rooftop, while the ladder on the outer
side of the parapet wall spans the distance from the top of the wall to the
ground (Fact 12), the hold frame members of Couillard’s hold access ladder
portion would have distal ends that are vertically lower than the distal ends
of the coaming frame members.
The Appellant further argues that there is no “teaching or suggestion”
for taking the A-frame ladder of Godde designed to accommodate irregular
surfaces and forming a hold ladder portion, or of modifying the ladder
support of Couillard as suggested by the Examiner. App. Br. 28. The
Examiner determined that it would have been obvious to modify the ladder
L of Couillard with adjustable legs having additional treads to enable
adjustable lengthening of the ladder and provide additional stepping surfaces
upon the lengthening of the ladder rails. We agree with the Examiner that
Godde teaches that upon lengthening ladder rails, it is desirable to include
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auxiliary safety treads or rungs between the lengthened portion of the rails
for easy ascent and to avoid the extended rung distance between the bottom
rung of the ladder and the surface upon which the extension legs are
mounted (Fact 16). We further find that the ladder L of Couillard is meant
to extend from a rooftop to the ground and that such distance varies between
buildings of different heights, such that a ladder of adjustable length would
be desirable (Facts 12 & 17). Both Marryatt and Godde demonstrate that
ladders having adjustable legs were known in the art at the time of the
invention (Facts 15 & 16). As such, one having ordinary skill in the art
would have been led to modify the ladder L of Couillard to accommodate
rooftops of differing heights. Further, even were we to assume that the
ladder L of Couillard is a ladder of fixed length, the substitution of a ladder
of adjustable length therefor would be mere substitution of one element for
another known in the field, to yield a predictable result. KSR, 550 U.S. at
___, 127 S. Ct. at 1740 (“when a patent claims a structure already known in
the prior art that is altered by the mere substitution of one element for
another known in the field, the combination must do more than yield a
predictable result.”).
As such, we conclude that the subject matter of claim 1 would have
been obvious to one having ordinary skill in the art at the time of the
invention, and the Appellant has failed to demonstrate that the Examiner
erred in reaching this conclusion of obviousness. Claims 2, 10, and 11 fall
with claim 1.

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B. Claims 3 and 12
Claims 3 and 12 depend from claims 2 and 10, respectively, and
further define a “coaming securing member” as including “a stop adjustably
attached to the transverse frame members.” The Examiner has failed to
make a finding that the prior art discloses the claimed stop, and we fail to
find such an adjustable stop in the prior art references relied upon by the
Examiner. As such, we cannot sustain the Examiner’s rejection of claims 3
and 12.

C. Claims 4, 5, 13, and 14
The Appellant argues claims 4, 5, 13, and 14 as a group. App. Br. 29.
We select claim 4 as the representative claim and the remaining claims stand
or fall with claim 4. 37 C.F.R. § 41.37(c)(1)(vii).
Claim 4 depends from claim 1 and recites that the ladder further
includes “a handrail attached to the hold frame members.” The Appellant
argues that Couillard does not disclose that its handrail is attached to the
hold frame members. App. Br. 29.
As we found supra, Couillard discloses supports 18 that have upper
ends that form handrails and lower ends including brackets 24 (Facts 5 & 6),
and a ladder L attached to the bracket 24 (Fact 12). As such, hold frame
members of the ladder L are attached to the handrail via the brackets 24. We
do not read the language of claim 4, in view of Appellant’s Specification, so
narrowly as to require direct attachment between the handrails and the hold
frame members. During examination of a patent application, pending claims
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are given their broadest reasonable construction consistent with the
specification. In re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am.
Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). As such, the
Appellant has not demonstrated error in the Examiner’s rejection of claim 4,
5, 13, and 14.

II. Rejection of claims 6-8 and 15-17 under 35 U.S.C. § 103(a) as
unpatentable over Couillard, Marryatt, Godde, and Fukumori
A. Claims 6 and 15
The Appellant argues claims 6 and 15 as a group. App. Br. 30-31.
We select claim 6 as the representative claim, and claim 15 stands or falls
with claim 6. 37 C.F.R. § 41.37(c)(1)(vii).
Claim 6 depends from claim 1 and further recites “lifting chains
secured to selected frame members to provide for lifting of the ladder.” The
Examiner combined the lifting cables, as taught in Fukumori, to the
modified ladder structure of Couillard. Ans. 4-5.
The Appellant argues that one of ordinary skill in the barge access
ladder field would not look to the trench shoring system art to improve the
device, and Fukumori is non-analogous to the ladder art in general. App.
Br. 30. We disagree. While the trench shoring art is in a different field of
endeavor from the ladder art, the lifting system of Fukumori logically would
have commended itself to the Appellant’s attention in considering his
problem. In particular, the problem facing the Appellant was a way to
position a portable ladder system on the coaming of hopper barges. Spec. 1,
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para. 2 and Spec. 2, para. 7. Cranes are typically used in the construction
industry to position heavy or cumbersome structures in difficult-to-reach
locations. For example, Fukumori discloses using a crane and lifting cables
to lift shoring panels and position them in a trench (Fact 18). One having
ordinary skill in the barge access art would have looked to the ways used in
the construction industry to lift large and cumbersome structures using
cranes and lifting cables, as taught by Fukumori, in order to solve the
problem of lifting large and cumbersome ladder structures onto barges.
The Appellant further contends the Examiner erred because Couillard
teaches away from a chain lift point modification because the ladder L of
Couillard is a separate article from the support S. App. Br. 30. Claim 6
does not specify the specific lift points, reciting only that the lifting chains
are “secured to selected frame members.” As such, the claim does not
require that the lifting chains are attached to the hold frame members.
As such, the Appellant has failed to demonstrate error in the rejection
of claims 6 and 15.

B. Claims 7, 8, 16, and 17
Claims 7 and 16, depend from claims 6 and 15, respectively, and
further recite that the chains are “attached to lift points on the transverse
frame members and the hold frame members.” We agree with Appellant
that one having ordinary skill would not have been led by the teachings of
the prior art to add lift points to the specific points on the transverse frame
members and the hold frame members as claimed without the benefit
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hindsight. Claims 8 and 17 depend from claims 7 and 16, respectively.
Thus, the rejection of claims 8 and 17 fails for the same reasons.

III. Rejection of claims 9 and 18 under 35 U.S.C. § 103(a) as
unpatentable over Couillard, Marryatt, Godde, and Patterson
The Appellant argues claims 9 and 18 as a group. App. Br. 30-31.
We select claim 9 as the representative claim, and claim 18 stands or falls
with claim 9. 37 C.F.R. § 41.37(c)(1)(vii).
Claim 9 depends from claim 1 and further recites that “each leg
includes a pivotable foot.” The Appellant admits that Patterson “teaches
pivotable feet on the bottom of ladder extensions.” App. Br. 31. The
Appellant argues generally that the Examiner’s combination of the
references is based on hindsight; however, they offer no specific arguments
to rebut the Examiner’s rationale for adding the adjustable feet to the
modified ladder structure of Couillard. App. Br. 31-32. We agree with the
Examiner that it would have been obvious to add pivotable feet, as taught by
Patterson, to the modified ladder of Couillard to facilitate positioning of the
legs on the ground. Ans. 5. The Appellant has failed to persuade us of error
in the Examiner’s reasoning in rejecting claims 9 and 18.

CONCLUSIONS
The Appellant has failed to show the Examiner erred in determining
that Couillard discloses “hold frame members attached to one end of the
transverse frame members,” as recited in claim 1, and “a handrail attached to
the hold frame members”, as recited in claim 4, but has shown the Examiner
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erred in determining that Couillard discloses “a stop adjustably attached to
the transverse frame members,” as recited in claims 3 and 12.
The Appellant has failed to show error in the Examiner’s
determination that one having ordinary skill in the art would have had a
reason to modify the ladder of Couillard with the teachings of Marryatt and
Godde in the manner claimed.
The Appellant has failed to show the Examiner erred in finding that
Fukumori is analogous art and failed to show error in the Examiner’s
determination that one having ordinary skill in the art would have had a
reason to modify the ladder of Couillard with lifting chains secured to
selected frame members to provide for lifting of the ladder, as recited in
claim 6, in view of the teachings Fukumori.
The Appellant has, however, shown the Examiner erred in
determining that it would have been obvious in view of the prior art to
modify Couillard with “lift points on the transverse frame members and the
hold frame members” as recited in claim 7.
The Appellant has failed to show error in the Examiner’s
determination that one having ordinary skill in the art would have had a
reason to add pivotable feet to the modified ladder of Couillard.

DECISION
The decision of the Examiner to reject claims 1, 2, 4-6, 9-11, 13-15,
and 18 is affirmed. The decision of the Examiner to reject claims 3, 7, 8, 12,
16, and 17 is reversed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED-IN-PART

vsh

BLYNN L. SHIDELER
THE BLK LAW GROUP
3500 BROKKTREE ROAD
SUITE 200
WEXFORD PA 15090