11298336 (B.P.A.I. Jun. 13, 2012)

Ex Parte Edgar

Board of Patent Appeals and InterferencesJun 13, 2012

11298336 (B.P.A.I. Jun. 13, 2012)

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. 11/298,336 12/09/2005 Elizabeth Ann Edgar 7576 7590 06/13/2012 Elizabeth A. Edgar 12 Harness Downs Road Port Matilda, PA 16870 EXAMINER PARSLEY, DAVID J ART UNIT PAPER NUMBER 3643 MAIL DATE DELIVERY MODE 06/13/2012 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 ELIZABETH ANN EDGAR ________________ Appeal 2010-004129 Application 11/298,336 Technology Center 3600 ________________ Before EDWARD A. BROWN, MICHAEL L. HOELTER, and BENJAMIN D. M. WOOD, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-004129 Application 11/298,336 2 STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from a final rejection of claims 1-20 (App. Br. 2). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. The Claimed Subject Matter The claimed subject matter is directed to a ladder having, inter alia, a gate, the gate comprising a top rail. Independent claim 1 is illustrative of the claims on appeal and is reproduced below: 1. A ladder comprising: a top step; at least one other step; and a gate configured to be used at the top of a stairwell, the gate comprising a top rail; wherein said top step is adapted to be placed on said top rail of said gate so that said at least one other step is positioned below said top step and alongside said gate. References Relied on by the Examiner Burton US 3,891,053 Jun. 24, 1975 Baranowski US 4,538,314 Sep. 3, 1985 Peacock US 4,757,876 Jul. 19, 1988 Kuroda JP 2003-312366 Nov. 6, 2003 GSP online catalog, C channel and U channel sizes, retrieved from internet and , retrieved on Jul. 10, 2009. The Rejections on Appeal 1. Claims 1-3, 5 and 14-18 are rejected under 35 U.S.C. § 102(b) as being anticipated by Kuroda (Ans. 3). Appeal 2010-004129 Application 11/298,336 3 2. Claims 4, 8 and 19 are each separately rejected under 35 U.S.C. § 103(a) as being unpatentable over Kuroda and Baranowski (Ans. 5, 8). 3. Claims 6 and 20 are each separately rejected under 35 U.S.C. § 103(a) as being unpatentable over Kuroda and Peacock (Ans. 6, 9). 4. Claims 7 and 9-13 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Kuroda and Burton (Ans. 6). ANALYSIS The rejection of claims 1-3, 5 and 14-18 as being anticipated by Kuroda Independent claims 1 and 14 each require a gate and further, “the gate comprising a top rail.” The Examiner finds that “item F of the Japanese patent [i.e., Kuroda] is a gate” and “the top edge of item F equating to a top surface/rail” (Ans. 9). Appellant contends that the Examiner erred in equating Kuroda’s gate F used on a truck with the claimed gate used at the top of a stairwell and further in finding that the top edge of Kuroda’s gate F serves as the claimed “top rail” (App. Br. 6-7 and 11-12). Appellant specifically contends that “[a] ‘gate comprising a top rail’ requires more than a gate having merely a side” (App. Br. 7, 12). Appellant does not expressly define the term “rail” but uses this term consistently with its dictionary definition of “a bar extending from one post or support to another and serving as a guard or barrier 1” (see Spec. ¶ [0016]). Kuroda identifies item F as a “gate,” describes it as extending “around the peripheral edge of a load-carrying platform” and illustrates it as a 1 Webster’s New Collegiate Dictionary 946 (1979). Appeal 2010-004129 Application 11/298,336 4 longitudinally extending barrier (Spec. ¶¶ [0014], [0009] and Figs. 1-8). However, Kuroda does not identify, describe or illustrate a “top rail” that the gate F comprises. We are not persuaded, without more, that the Examiner’s reference to a two dimensional “top edge” of Kuroda’s gate satisfies the claim limitation of a “gate comprising a top rail.” Independent claim 14 further specifies that separate first and second ladder components “are each placed on said top rail of said gate.” The Examiner relies on Kuroda’s ladder components 3a and 3b as disclosing this limitation but Kuroda only discloses that one of these telescoping components is placed on the top rail, not “each” as claimed (Ans. 4, 10; Kuroda ¶¶ [0020-22] and Figs. 1-2, see also App. Br. 9-12). Accordingly, we do not sustain the anticipation rejection of independent claims 1 and 14, nor of dependent claims 2, 3, 5 and 15-18. The rejection of claims 7 and 9-13 as being unpatentable over Kuroda and Burton Independent claim 7 also requires a “gate comprising a top rail” and both the Examiner and Appellant repeat their previous contentions (Ans. 11; App. Br. 16-17). The Examiner relies on Burton for disclosing a top step as a landing pad and does not rely on Burton to cure the deficiencies noted above with respect to claim 1? (Ans. 7). As Burton does not cure the deficiency noted above, we do not sustain the rejection of independent claim 7 nor of dependent claims 9-13. Appeal 2010-004129 Application 11/298,336 5 The rejection of claims 4, 8 and 19 as being unpatentable over Kuroda and Baranowski Each dependent claim requires a ladder or a component thereof “covered with carpet.” The Examiner relies on Baranowski for disclosing a ladder covered with carpet but Baranowski does not cure the deficiency noted above with respect to their parent claims (Ans. 6, 8). Accordingly, we do not sustain the rejection of claims 4, 8 and 19. The rejection of claims 6 and 20 as being unpatentable over Kuroda and Peacock Both dependent claims require a ladder fixed to the top rail by “one of screws, clamps, and bolts and nuts.” The Examiner relies on Peacock for disclosing a ladder fixed “by bolts and nuts or clamps” but the Examiner’s application of Peacock for claims 6 and 20 does not cure the deficiency of Kuroda discussed supra (Ans. 6, 9). Accordingly, we do not sustain the rejection of claims 6 and 20. DECISION The rejection of claims 1-20 is reversed. REVERSED hh