Ex Parte Curl

Board of Patent Appeals and Interferences

Jul 20, 2009

10795751 (B.P.A.I. Jul. 20, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte WILLIAM E. CURL
____________________

Appeal 2009-001799
Application 10/795,751
Technology Center 3600
____________________

Decided:1 July 20, 2009
____________________

Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
KEN B. BARRETT, Administrative Patent Judges.

BARRETT, 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
William E. Curl (Appellant) seeks our review under 35 U.S.C. § 134
of the final rejection of claims 1 through 20. We have jurisdiction under
35 U.S.C. § 6(b).

SUMMARY OF THE DECISION
We AFFIRM.

THE INVENTION
Appellant’s claimed invention pertains to all-terrain vehicle safety
and, more particularly, a protective cage designed to contain a conventional
child safety seat. (Spec. 1, ¶ [0002].) Claims 1 and 10, reproduced below,
are representative of the subject matter on appeal.
1. An all-terrain vehicle child safety system
comprising:
a protective cage constructed to house an
automobile child safety seat;
one or more fasteners for affixing said cage
to a solid structure of said all-terrain vehicle; and
a connector for engaging said child safety
seat in said cage.

10. A method of safely transporting a
child on an all-terrain vehicle, said method
comprising securing said child in an automobile
child safety seat that is secured in a protective cage
secured to said all-terrain vehicle.

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THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Gutta US 5,174,622 Dec. 29, 1992
Kain US 6,592,183 B2 July 15, 2003

Before us for review is the Examiner’s rejection of claims 1-20 under
35 U.S.C. § 103(a) as being unpatentable over Gutta and Kain.

ISSUES
The Examiner found that Gutta discloses a protective cage for an
all-terrain vehicle (ATV) and that Kain discloses an anchoring system for a
juvenile vehicle seat. (Ans. 3.) The Examiner concluded that it would have
been obvious, based on the teachings of Kain, to modify Gutta’s ATV to
have a child safety system to provide safety for a child riding on the vehicle.
(Id.)
As to system claim 1, Appellant argues that the combination of cited
references does not teach or suggest “an all-terrain vehicle child safety
system that includes a connector for engaging a child safety seat with a
protective cage affixed to an all-terrain vehicle,” and that “[t]his subject
matter is entirely outside the scope and content of the cited prior art.”
(Reply Br. 8.) Therefore, the first issue is:
Has Appellant shown that the Examiner erred in determining that
Gutta in combination with Kain would have led one of ordinary skill in the
art to an ATV child safety system having the recited connector of claim 1?

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As to method claim 10, Appellant argues that neither cited reference
teaches or suggests a method of safely transporting a child in an ATV by
securing an automobile child safety seat in an ATV protective cage, and that
there is no reason to combine the references other than impermissible
hindsight. (Reply Br. 2, 4.) Appellant further argues that, because the cited
prior art does not address the specific issue of safely transporting a child on
an ATV, the claimed method “is entirely outside the scope and content of
the cited prior art.” (Reply. Br. 6.) Therefore, the second issue is:
Has Appellant shown that the Examiner erred in rejecting claim 10 as
obvious over Gutta and Kain because there is no rational reason to combine
the references, and because the combined references fail to teach the recited
method?
As to system claim 19, Appellant argues that the combination of the
cited references does not teach or suggest the recited “protective cage
specifically constructed and sized to house and protect an automobile child
safety seat without obstructing other portions of said all-terrain vehicle.”
(Reply Br. 6.) Appellant also argues that “[t]his subject matter [concerning
the specifically constructed cage] is entirely outside the scope and content of
the cited prior art.” (Id. at 7.) Therefore, the third issue is:
Has Appellant shown that the Examiner erred in determining that
Gutta in combination with Kain would have led one of ordinary skill in the
art to an ATV child safety system having the recited protective cage of
claim 19?

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FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence.
1. Gutta discloses a protective cage-like construction (frame 20)
which is easily mounted to an all-terrain vehicle (ATV) 1. (Gutta, col. 2, ll.
64-66; col. 4, ll. 4-6, 26-29; figs. 1, 10.) The frame provides rollover
protection for a rider and a passenger. (Id., col. 2, l. 66 – col. 3, l. 20.) Gutta
discloses that attachment of the protective frame to the ATV is preferably
achieved by the use of four sets 33 and 34 of threaded nuts and bolts. (See
id., col. 5, ll. 11-25; fig. 10.)
2. Gutta states that “the frame 20 of the preferred embodiment
attaches to the ATV 1 such that the majority of the rear carrier rack 10 is still
accessible.” (Gutta, col. 6, ll. 37-39.) Gutta’s frame 20 is large enough to
house and protect an automobile child safety seat. (Compare Gutta, fig. 10
with Spec., fig. 2.)
3. Kain discloses a system for anchoring a juvenile safety seat to a
vehicle seat. (See Kain, col. 1, ll. 13-15, fig. 1.) Kain’s system utilizes an
anchor belt 16, including an adjustable strap 40 with a clasp 42 and a hook
49 on each end, for anchoring the juvenile seat 10 in a vehicle. (Id., col. 5,
ll. 19-26, 57-67, figs. 1, 4.) Kain also teaches securing a child in a safety
seat in a vehicle. (See id., fig. 22; see also id., col. 9, ll. 8-12 (referring to
child restraint harnesses or belts for infant and toddler seats).)

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PRINCIPLES OF LAW
A claim is unpatentable for obviousness if “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.” 35 U.S.C. § 103. 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 Int’l Co. v. Teleflex Inc., 550 U.S.
398, 407 (2007) (“While the sequence of these questions might be reordered
in any particular case, the [Graham] factors continue to define the inquiry
that controls.”). The scope and content of the prior art includes the explicit
and inherent teachings of the prior art. In re Zurko, 258 F.3d 1379, 1383-84
(Fed. Cir. 2001) (citing In re Napier, 55 F.3d 610, 613 (Fed. Cir. 1995)).
In KSR, the Supreme Court reiterated that “[t]he combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” KSR Int’l Co., 550 U.S. at
416.
“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)).

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ANALYSIS
Appellant argues the three independent claims separately. As an
initial matter, we address two of Appellant’s arguments common to all the
independent claims. In the Appeal Brief, Appellant argued that there is no
teaching, suggestion, or motivation in the prior art to combine the cited
references. (App. Br. 6, 8, 9.) This argument is foreclosed by KSR, in
which the Court rejected the rigid requirement of a teaching, suggestion or
motivation to combine known elements in order to show obviousness. KSR
Int’l Co., 550 U.S. at 418-19. Appellant, in the Reply Brief, “update[d] the
arguments in this matter in light of [the KSR] decision.” (Reply Br. 1.)
Appellant then asserts that the subject matter of certain claim limitations is
“entirely outside the scope and content of the cited prior art” and that these
differences are significant. (Id. at 6, 7, 8.) Even if Appellant’s assertions are
correct, that does not end our inquiry. Discerning the scope and content of
the prior art, and the differences between the prior art and the claimed
subject matter, are merely steps in the analysis leading to the ultimate
conclusion of obviousness or nonobviousness. See KSR Int’l Co., 550 U.S.
at 406-07. Further, we are not persuaded by Appellant’s arguments that the
differences are significant because the claimed subject matter is a system or
method “that did not exist and was completely unrecognized in the prior art
of record” (Reply Br. 6, 7, 8). While these arguments that the claimed
invention was not known in the art might suggest error in an anticipation
rejection, they do little to address whether the claimed subject matter would
have been obvious to one of ordinary skill in the art. We now turn to
Appellant’s other arguments for patentability.
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Claim 1 and its dependent claims
Appellant argues independent claim 1 and its dependent claims 2-9 as
a group. (App. Br. 8-9; Reply Br. 7-8.) We select claim 1 as the
representative claim, and claims 2-9 stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii) (2008).
Gutta discloses a protective cage for an ATV and fasteners to attach
the cage to the ATV. (Fact 1.) Gutta’s cage is large enough to house a child
safety seat. (Fact 2.) Kain discloses the technique of using an anchor belt
system with an adjustable strap having hooks on the ends to secure a child
safety seat in a vehicle. (See Fact 3.) To provide Gutta’s ATV cage with
Kain’s anchor system would have been prima facie obvious as the
combination of prior art elements according to known methods to yield
predictable results. See KSR Int’l Co., 550 U.S. at 416.
We are not persuaded by Appellant’s argument that the recited
connector for engaging a child safety seat in a cage “is entirely outside the
scope and content of the cited prior art.” (Reply Br. 8.) Appellant does not
dispute that Kain teaches a seat-to-vehicle connector. (Id.) Rather,
Appellant attempts to distinguish the claimed connector based on its
intended function, asserting that Kain does not teach a connector for
engaging a child seat in an ATV cage. (Id.) However, Appellant does not
indicate how Kain’s connector is structurally different from the recited
connector, and does not offer any persuasive argument or evidence that
Kain’s anchoring system would be incapable of performing the claimed
connector’s recited function of “engaging said child safety seat in said
cage.” To the contrary, Appellant’s Specification describes the engaging
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function as being performed by “a safety belt (201) or other connector . . .
[to fasten the seat to the cage] just as an automobile safety belt would fasten
a child safety seat within an automobile seat.” (Spec. 6, ¶ [0035].)
Appellant has not shown that the Examiner erred in rejecting claim 1
as unpatentable over Gutta and Kain. Accordingly, we sustain the rejection
of claim 1, as well as the rejection of claims 2-9, which fall with claim 1.

Claim 10 and its dependent claims
Appellant argues independent claim 10 and its dependent claims
11-18 as a group. (App. Br. 5-7; Reply Br. 2-6.) We select claim 10 as the
representative claim, and claims 11-18 stand or fall with claim 10.
37 C.F.R. § 41.37(c)(1)(vii) (2008).
Claim 10 recites a method for safely transporting a child on an ATV
comprising the single step of securing a child in an automobile child safety
seat that is secured in a cage secured to an ATV. Gutta teaches a cage
secured to ATV to protect both the rider and a passenger. (Fact 1.) Kain
teaches securing a child in a safety seat in a vehicle. (Fact 3.) To secure a
juvenile ATV passenger in a safety seat secured to the cage, rather than
relying on the child’s ability to hold onto the rider or the ATV itself, would
have been obvious to the person of ordinary skill in the art. We determine
that the Examiner’s reasoning – that one would modify Gutta based on the
teachings of Kain to provide safety for a child riding on the vehicle (Ans. 3)
– is a rational basis supporting the conclusion of obviousness. Thus, we are
not persuaded by Appellant’s assertion that the Examiner’s conclusion of
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obviousness is based on impermissible hindsight (Reply Br. 2) or lacks
supporting reasoning (App. Br. 6).
Appellant’s assertion that neither reference teaches or suggests the
claimed method (Reply Br. 2, 6) is misplaced as the Examiner’s rejection is
based on the combination of references. See In re Merck & Co., 800 F.2d at
1097. Also, we are not persuaded by Appellant’s assertion that Gutta does
not disclose a cage in which there is a place to secure an automobile safety
seat (App. Br. 3). Gutta’s cage is large enough to house a child seat (Fact 2),
and Appellant does not suggest that it would have been beyond the skill of
the ordinary artisan to secure the seat in the cage using Kain’s anchoring
system (cf. Spec. 6, ¶ [0035] (the child’s seat is fastened to the cage just as
an automobile safety belt fastens a child safety seat in a car)).
Appellant has not shown that the Examiner erred in rejecting claim 10
as unpatentable over the cited references. Thus, we sustain the rejection of
claim 10, as well as the rejection of dependent claims 11-18.

Claim 19 and its dependent claim
Appellant argues independent claim 19 and its dependent claim 20 as
a group. (App. Br. 7-8; Reply Br. 6-7.) We select claim 19 as the
representative claim, and claim 20 stands or falls with claim 19. 37 C.F.R.
§ 41.37(c)(1)(vii) (2008).
Claim 19 recites “a protective cage specifically constructed and sized
to house and protect an automobile child safety seat without obstructing
other portions of said all-terrain vehicle.” Appellant’s argument that the
combined references do not teach or suggest this feature (Reply Br. 6) is not
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persuasive. Gutta discloses a cage that is large enough to house and protect
a child seat, and that the cage is designed so that the majority of the rear
carrier rack remains accessible. (Fact 2.) Further, one of ordinary skill in
the art would have been able to specifically construct and size a cage when
given the appropriate design constraints. See KSR Int’l Co., 550 U.S. at 421
(A person of ordinary skill has good reason to pursue known options within
his or her technical grasp when there is a design need and a finite number of
identified, predictable solutions.).
Appellant has not shown error in the Examiner’s rejection of claim 19
and its dependent claim 20 as unpatentable over Gutta and Kain.

CONCLUSIONS
We conclude that the Appellant has failed to show that the Examiner
erred in determining that Gutta in combination with Kain would have led
one of ordinary skill in the art to an ATV child safety system having the
recited connector of claim 1.
We also conclude that the Appellant has failed to show that the
Examiner erred in rejecting claim 10 as obvious over Gutta and Kain.
We further conclude that the Appellant has failed to show that the
Examiner erred in determining that Gutta in combination with Kain would
have led one of ordinary skill in the art to an ATV child safety system
having the recited protective cage of claim 19.

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DECISION
The decision of the Examiner to reject claims 1-20 is affirmed.
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

Klh

STEVEN L. NICHOLS
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