Ex Parte Dean

Board of Patent Appeals and Interferences

Jan 24, 2003

09301985 (B.P.A.I. Jan. 24, 2003)

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for publication and is not binding precedent of the Board.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. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte WILLIAM C. DEAN
____________
Appeal No. 2002-0937
Application No. 09/301,985
____________
ON BRIEF
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Before FRANKFORT, STAAB and BAHR, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 1-5.
Claims 6-8, the only other claims pending in this application, stand withdrawn from
further consideration as being directed to a non-elected invention.
We REVERSE.
Appeal No. 2002-0937
Application No. 09/301,985
Page 2
1 This patent is available as prior art as of January 3, 1997 under 35 U.S.C. § 102(e).
2 Appellant’s brief is not in compliance with 37 CFR § 1.192(c)(7) in that it does not include, under
an appropriate heading, a grouping of claims. Nonetheless, in the interest of administrative efficiency, we
have decided the appeal on the basis of appellant’s arguments.
BACKGROUND
The appellant’s invention relates to mobile loaders such as those used for
loading and unloading freight in the cargo holds of aircraft (specification, page 1).
Claim 1, the sole independent claim, is reproduced in the opinion section of this
decision.
The examiner relied upon the following prior art references in rejecting the
appealed claims:
Leon 4,978,272 Dec. 18, 1990
Ihara 5,630,694 May 20, 1997
McGrath et al. (McGrath) 6,071,063 Jun. 6, 20001
Claims 1-5 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over
Ihara in view of McGrath or Leon.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejection, we make reference to the answer
(Paper No. 13) for the examiner's complete reasoning in support of the rejection and to
the brief2 and reply brief (Paper Nos. 12 and 14) for the appellant’s arguments
thereagainst.
OPINION
Appeal No. 2002-0937
Application No. 09/301,985
Page 3
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. For the reasons
which follow, it is our opinion that the examiner’s rejection is not sustainable.
Claim 1, the sole independent claim before us on appeal, reads as follows:
1. A platform for use in loading and/or unloading one or
more cargo containing objects such as containers or pallets
onto or from an adjacent surface, including:
a deck having one end disposable adjacent the
surface, an opposite end and longitudinally extending sides,
and
an array of roller assemblies rotatably mounted on the
deck in position to support the objects, including
first and second groups of laterally spaced, generally
parallel roller assemblies each along a side of the deck and
selectively rotatable in opposite directions about longitudinal
axes in order to move an object longitudinally onto or off of
the deck,
third and fourth groups of roller assemblies extending
longitudinally along the inboard side of each of the first and
second groups, and selectively rotatable in opposite
directions about lateral axes, whereby, those of the third and
fourth sets may be rotated with one another in the same
direction or in the opposite direction, and
a fifth group of roller assemblies extending
longitudinally between the third and fourth groups and
having a pair of longitudinally spaced portions each portion
including laterally spaced and long extending sets with each
set being selectively rotatable in the same or different
directions as the other, and
Appeal No. 2002-0937
Application No. 09/301,985
Page 4
means for rotating the roller assemblies in such a
manner than [sic] an object may be loaded longitudinally
from the adjacent surface onto the deck or from the deck
onto the adjacent surface or from the surface onto the
platform by rotation of third and fourth groups of roller
assemblies in the same direction as one another, as the
first, second and fifth groups remain passive, and, when
loaded on the deck, the object may be rotated about a
vertical axis centered generally equidistant the sets of the
fifth group as well as equidistant the third and fourth groups
by simultaneous rotation of the roller assemblies of the third
and fourth groups in opposite rotational directions with
respect to one another and rotation of the assemblies of the
spaced portions of the fifth group in the opposite directions
with respect to one another.
Appellant complains in the brief (pages 16 and 17) that the examiner has not
explained where in the primary reference to Ihara the five groups of roller assemblies,
as claimed, are found or where suggestion to modify Ihara’s back elevator 16 to provide
the five groups of roller assemblies as claimed is found in either of the secondary
references. We appreciate appellant’s difficulty in this regard and note that, even in the
answer, the examiner has failed to identify which rollers or groups of rollers of Ihara
correspond to the recited five groups of roller assemblies recited in claim 1. The
examiner’s rejection only broadly refers to two roller assemblies 29 and 30 and makes
no attempt to correlate any of the rollers of these two roller assemblies with any of the
first through fifth groups of roller assemblies recited in the claim. The statement on
page 3 of the answer that “it would have been obvious to have included conventional
grouped and fifth roller assemblies (as claimed) and to have conventionally rotated the
Appeal No. 2002-0937
Application No. 09/301,985
Page 5
roller assemblies (as claimed) depending upon the intended application of the platform”
appears to indicate that the examiner found that Ihara lacked at least a fifth group of
roller assemblies meeting the limitations of claim 1. Indeed, we have carefully reviewed
the teachings of Ihara and find no disclosure therein of “a fifth group of roller
assemblies extending longitudinally between the third and fourth groups and having a
pair of longitudinally spaced portions each portion including laterally spaced and long
extending sets with each set being selectively rotatable in the same or different
directions as the other” as called for in claim 1.
While the secondary references to McGrath and Leon, in our opinion, would
have broadly suggested modification of Ihara’s assembly to provide independent drives
for the rollers of Ihara’s rear elevator which permit rotation in the same or opposite
directions in order to enable rotation of containers thereon, we find no suggestion in
either of these references to modify Ihara’s roller arrangement so as to provide “a fifth
group of roller assemblies extending longitudinally between the third and fourth groups
and having a pair of longitudinally spaced portions each portion including laterally
spaced and long extending sets with each set being selectively rotatable in the same or
different directions as the other” as called for in claim 1. Further, the examiner’s
statement on page 3 of the answer that “it would have been obvious to have included
conventional grouped and fifth roller assemblies (as claimed)” is unavailing as to what
Appeal No. 2002-0937
Application No. 09/301,985
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modification of Ihara the examiner is proposing to arrive at the claimed invention and
where suggestion is found for such modification.
In establishing a prima facie case of obviousness, it is incumbent upon the
examiner to provide a reason why one of ordinary skill in the art would have been led to
modify a prior art reference or to combine reference teachings to arrive at the claimed
invention. See Ex parte Clapp, 227 USPQ 972, 973 (Bd. Pat. App. & Int. 1985). To this
end, the requisite motivation must stem from some teaching, suggestion or inference in
the prior art as a whole or from the knowledge generally available to one of ordinary
skill in the art and not from the appellant's disclosure. See, e.g., Uniroyal, Inc. v.
Rudkin-Wiley Corp., 837 F.2d 1044, 1052, 5 USPQ2d 1434, 1439 (Fed. Cir.), cert.
denied, 488 U.S. 825 (1988).
For the reasons discussed above, we conclude that the examiner has failed to
adduce the necessary evidence or explanation to establish a prima facie case of
obviousness of the subject matter of claim 1. Accordingly, we shall not sustain the
rejection of claim 1 or claims 2-5 which depend therefrom.
Appeal No. 2002-0937
Application No. 09/301,985
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CONCLUSION
To summarize, the decision of the examiner to reject claims 1-5 under 35 U.S.C.
§ 103(a) is reversed.
REVERSED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
JDB/ki
Appeal No. 2002-0937
Application No. 09/301,985
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MARVIN B EICKENROHT
BROWNING BUSHMAN
5718 WESTHEIMER
SUITE 1800
HOUSTON, TX 77057