Ex Parte Davis et al

Patent Trial and Appeal Board

Dec 30, 2016

13472668 (P.T.A.B. Dec. 30, 2016)

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.
13/472,668 05/16/2012 Adam DAVIS 23852-0002-C2 6717
121964 7590 12/30/2016
McNees Wallace & Nurick, LLC/
TAIT Towers Manufacturing, LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
EXAMINER
MACARTHUR, VICTOR L
ART UNIT PAPER NUMBER
3658
MAIL DATE DELIVERY MODE
12/30/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte ADAM DAVIS, JAMES FAIRORTH, and MICHAEL TAIT
Appeal 2015-002909
Application 13/472,6681
Technology Center 3600
Before ANTON W. FETTING, MICHAEL C. ASTORINO, and
BRUCE T. WIEDER, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants appeal under 35U.S.C. § 134 from the Examiner’s
decision rejecting claims 1—23. We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellants, “[t]he real parties in interest are the
Inventors, Adam Davis, Michael Tait and James Fairorth and the Assignee,
TAIT TOWERS MANUFACTURING, LLC.” Appeal Br. 1.
Appeal 2015-002909
Application 13/472,668
STATEMENT OF THE CASE
Rejection
Claims 1—23 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Wyse (US 4,759,162, iss. July 26, 1988) and Rebbeck (US 4,192,083,
iss. Mar. 11 1980).
Claimed Subject Matter
Claims 1,11, and 23 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. An assembled portable structure, comprising:
a plurality of platform members arranged to form a
continuous surface, the platform members being attached to each
other along one or more surfaces and being capable of being
disassembled into smaller components;
a plurality of primary support members detachably
engaged at a substantially perpendicular angle to at least a
portion of the plurality of the platform members; and
a plurality of secondary support members detachably
engaged to at least one primary support member of the plurality
of the primary support members and at least one of the platform
members of the plurality of platform members;
wherein one of the plurality of platform members includes
four primary support members detachably engaged to at least a
portion of the one platform member and wherein the number of
primary support members detachably engaged to at least a
portion of the other remaining plurality of the platform members
is less than four for each of the other remaining plurality of
platform members; and
wherein the smaller components include a single one of
the plurality of platform members having at least one of the
plurality of primary support members and at least one of the
plurality of secondary support member.
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Appeal 2015-002909
Application 13/472,668
ANALYSIS
The Appellants argue claims 1—23 as a group. Appeal Br. 4. We
select claim 1 as the representative claim, and claims 2—23 stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
The Appellants contend that “there is no rational underpinning to
combine the references as suggested by the Examiner” because Rebbeck’s
structure 22, which is supported by legs 28 and struts 32, support loads that
are lightweight and “would not be the same or function in the same manner
as supports for a [sic an] assembled platform stage which would hold a very
large amount of weight without bending or swaying during use.” Appeal
Br. 6—7. Similarly, the Appellants contend that the Examiner’s position
“that the strut support of Rebbeck could be used to support the legs of Wyse
is akin to using a toothpick for a secondary support for a stage leg.” Reply
Br. 2. The Appellants’ contentions are not persuasive.
The Appellants’ contentions are based on a premise that the
Examiner’s rejection incorporates Rebbeck’s strut 32 and its load bearing
capacity into the Wyse’s modular platform assembly. See Ans. 7. This is
not the case. Rather, the Examiner relies on Rebbeck’s teachings to support
a finding that secondary members, such as struts 32, were known in the art
to be support members that strengthen an assembly and detachably connect
primary support members to platform members. See Final Act. 3, Ans. 6, 7.
The Appellants contend that the modification of Wyse’s modular
platform assembly in view of Rebbeck’s teachings would result in the
replacement of Wyse’s cross bars 62 for Rebbeck’s struts 32, which destroys
or defeats the teachings of Wyse. Appeal Br. 7 (citing Wyse, col. 3,11. 60—
62). Also, the Appellants contend that “Wyse already describes a platform
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Application 13/472,668
assembly which is strong and durable for long-term use with cross bars.”
Reply Br. 3 (citing Wyse, col. 1,11. 51—52, col. 3,11. 59-63). The
Appellants’ contentions are not persuasive.
As shown in Figure 1, Wyse’s cross bar 62 supports are not placed
between all legs that support the platform. See Ans. 6. Stated otherwise,
some of Wyse’s legs are left without secondary supports. Moreover, a
person of ordinary skill in the art would understand that use of secondary
supports at locations lacking secondary supports would be beneficial when
greater demands are placed on Wyse’s supporting structures. And, a person
of ordinary skill in the art would understand that struts 32 support Rebbeck’s
platform and legs 28 as secondary support members. See also Ans. 8.
The Appellants contend that “Wyse and Rebbeck are found in non-
analogous arts.” Appeal Br. 7; see Reply Br. 3. More particularly, the
Appellants contend that “Wyse and Rebbeck are not from the same field of
endeavor as evidenced by their different classification in the Patent Office.”
Appeal Br. 7—8 (emphasis added). The Appellants point out that “Wyse is
classified in class 52 (static structures) and Rebbeck [sic is] in current class
434 (education and demonstration).” Id. at 8. The Appellants also contend
that “Rebbeck and its three dimensional land use planning models are not
pertinent to supporting large loads that would be on the modular platform
assembly of Wyse” and that “[o]ne of ordinary skill in the art of platforms
bearing large loads would not turn to land use planning models to find a
support structure.” Appeal Br. 8 (emphasis added). The Appellants’
contentions are not persuasive.
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Application 13/472,668
At the outset, we note that:
[t]wo separate tests define the scope of analogous prior art: (1)
whether the art is from the same field of endeavor, regardless of
the problem addressed and, (2) if the reference is not within the
field of the inventor’s endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the
inventor is involved.
In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (citations omitted).
As for the first test directed to “field of endeavor,” the Appellants’
Specification describes the “the field of the invention” — which is
tantamount to the “field of endeavor” — as “directed to portable support
structures” and “[i]n particular,... a portable stage or platform.” Spec.,
para. 2. And, Wyse’s “invention relates to a modular platform assembly and
particularly one which can be assembled and dismantled relatively easily,”
which is in the same field of endeavor as the Appellants. See also Ans. 8.
As such, we find that Wyse is analogous prior art.
As for the second test directed to whether a reference is “reasonably
pertinent,” we note that “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). The Appellants’
Specification offers many problems with which the Appellants are involved,
including providing a portable structure that is “easily assembled and
disassembled with little or no technical skill” and “having a stable structure
that resists deflection when bearing a load.” Spec., para. 5. Similarly,
Rebbeck is directed to problems that include providing a support structure
that is easily assembled, installed, removed, and relocated. See Rebbeck,
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Application 13/472,668
col. 1,11. 51—57. As such, Rebbeck, because of the matter with which it
deals, logically would have commended itself to the Appellants’ attention in
considering their problems and is analogous prior art.
Further, the Examiner correctly explains that Wyse and Rebbeck
being classified in different classifications is merely evidence that needs to
be weighed and is not dispositive of the issue of whether Wyse or Rebbeck
is non-analogous art. See Ans. 8—9 (citing In re Ellis, 476 F.2d 1370, 1372
(CCPA 1973)). In response, the Appellants focus on one characteristic of
Rebbeck’s invention that contrasts with the Appellants’ and Wyse’s
inventions, i.e., load bearing capacity (see Reply Br. 3). However, load
bearing capacity by itself is not sufficient to outweigh the numerous
similarities between the structures and functions of the inventions.
The Appellants contend that the Examiner’s rejection is based on
impermissible hindsight for similar reasons as discussed above. Appeal
Br. 7; see also Reply Br. 3. However, the Appellants’ contention is not
persuasive for reasons previously discussed.
The Appellants also contend that “[t]he alleged combination fails to
teach the limitation in Appellants claims that the secondary member is
DETACHABLE.” Reply Br. 3; see also Appeal Br. 8. The Appellants
contention is not persuasive. The Examiner explains how the combined
teachings of Wyse and Rebbeck result in a secondary member that is
detachable (see Ans. 3 4) and the Appellants do not persuasively explain
how the Examiner’s explanation is in error.
Thus, the Examiner’s rejection of claims 1—23 as unpatentable over
Wyse and Rebbeck is sustained.
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Appeal 2015-002909
Application 13/472,668
DECISION
We AFFIRM the Examiner’s decision rejecting claims 1—23.
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)(l)(iv).
AFFIRMED
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