Ex parte Eekhoff

Board of Patent Appeals and Interferences

Nov 30, 2000

09188421 (B.P.A.I. Nov. 30, 2000)

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for publication and is not binding precedent of the Board.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. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte DAVID L. EEKHOFF
____________
Appeal No. 2000-1489
Application No. 09/188,421
____________
ON BRIEF
____________
Before CALVERT, NASE, and GONZALES, Administrative Patent
Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 to 8, which are all of the claims
pending in this application.
We AFFIRM-IN-PART.
BACKGROUND
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Application No. 09/188,421
The appellant's invention relates to a ramp which may be
mounted in the side door opening of a service van
(specification, p. 1). A copy of the claims under appeal is
set forth in the appendix to the appellant's brief.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Vartanian 4,966,516 Oct.
30, 1990
Best 4,979,867 Dec.
25, 1990
Claims 1 and 5 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Vartanian.
Claims 2 to 4 and 6 to 8 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Vartanian in view of Best.
Rather than reiterate the conflicting viewpoints advanced
by the examiner and the appellant regarding the above-noted
rejections, we make reference to the answer (Paper No. 13,
mailed January 31, 2000) for the examiner's complete reasoning
Appeal No. 2000-1489 Page 3
Application No. 09/188,421
in support of the rejections, and to the brief (Paper No. 12,
filed December 17, 1999) for the appellant's arguments
thereagainst.
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Application No. 09/188,421
OPINION
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. As a consequence of our review, we make the
determinations which follow.
Claims 1 and 5
We sustain the rejection of claims 1 and 5 under 35
U.S.C.
§ 103.
The examiner's position (answer, p. 3) with respect to
the rejection of claims 1 and 5 is that
Vartanian discloses a vehicle step 16 having base
plate 18, etc. secured thereto, upper deck 13 pivotally
connected to lower deck 14, via means 19, etc. and
selectively maintaining means 28, etc. If it is to be
inferred that the pivot is conventionally readily
removable to facilitate disassembly of the deck, this
would have been obvious to one skilled in the art,
desiring the same.
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Application No. 09/188,421
The appellant argues (brief, pp. 5-6) that the vehicle
access ramp of Vartanian is permanently affixed to the vehicle
in which it is placed and thus there is absolutely no
suggestion whatsoever in Vartanian that the ramp could be
removably positioned within the doorway to enable the ramp to
be completely removed therefrom so that the service van may be
used for other purposes. The appellant then concludes that it
would not have been obvious to provide the ramp structure
described in claims 1 and 5 based upon the teachings of
Vartanian. We do not agree for the reasons that follow.
Vartanian's invention relates to a foldable vehicle wheel
chair ramp which can be deployed, swung out of the way, and
stowed in a vehicle, by means of a ramp mounting with mutually
perpendicular alternative pivot axes. Vartanian teaches
(column 1, line 61, to column 2, line 2) that
[t]here is a need for a vehicle access ramp which
can function in the manner of ramps of the type stowed in
doorways, preferably including plural folded panels, but
does not block the doorway when stowed. For this purpose
the ramp of the invention has alternative pivot axes,
namely, a horizontal pivot used to deploy the ramp
downwardly to the ground for wheelchair access, and also
a vertical pivot which allows the stowed ramp to be swung
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Application No. 09/188,421
out of the doorway for providing access to the doorway of
the vehicle.
As shown in Figures 1 to 3 of Vartanian, a wheel chair
access ramp 10 is positioned in a vehicle doorway 15 on the
edge of floor 16 thereof. A ramp member 12, comprising a
movable plate 11 is connected to the deployable ramp sections
by means of a heavily spring-biased hinge 19. Plate 11 is
lockable to a base plate 18, attached to the vehicle doorway.
The ramp member 12 has first ramp panel or section 13, and a
second ramp panel or
section 14, connected together by a knuckle 30. When ramp
member 12 is either stowed or deployed, first ramp panel 13 is
hingeably attached relative to base plate 18 along the lower
edge of the doorway opening by spring biased mounting means
40, hinge 19 and movable plate 11, which is locked to base
plate 18 in these
positions. In the access position, however, movable plate 11
is unlocked from base plate 18, whereupon both hinge leaves
21,23 of hinge 19 can be pivoted away from base plate 18
around a vertical axis defined by rod 41. Plate 11 slides
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Application No. 09/188,421
under fixing flanges 17 on base plate 18 and is locked in the
position illustrated by locking assembly 20, which has a
spring-extended manually
retractable tenon 47 that advances behind a stop 49 (see
Figure 6), to keep movable plate 11 under fixing flanges 17
and immovable relative to the vehicle. From the stowed
position (Figure 1), ramp panels or sections 13 and 14 may be
unlatched from vertical pivot assembly 25 via latch 28, and
deployed downwardly, as illustrated in Figure 2, to define a
stepless ramp and thereby allow wheelchair access to the
vehicle. Alternatively, the sections 13,14 can remain fixed
to assembly 25, and movable plate 11 can be released by
retracting tenon 47, whereupon the ramp sections 13 and 14,
aligned vertically and connected as a unit with hinge 19 and
plate 11, can be hinged outwardly away from base plate 18,
around rod 41. Base plate 18 and rod 41 remain permanently in
place fixed at the lower edge of the doorway. Ramp 10 is
swung as a unit outwardly in the direction of arrow 22 to
assume a position outside the vehicle as illustrated in
phantom in Figure 1, opening the doorway for step-in access to
the vehicle.
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Application No. 09/188,421
After the scope and content of the prior art are
determined, the differences between the prior art and the
claims at issue are to be ascertained. Graham v. John Deere
Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966).
Based on our analysis and review of Vartanian and claims
1 and 5, it is our opinion that there is no difference. The
only possible distinction between Vartanian and claims 1 and 5
raised by either the examiner or the appellant is the
limitation that the upper end of the upper deck is removably
pivotally secured, about a horizontal axis, to the base plate.
It is our view that this limitation is met by Vartanian. In
that regard, clearly Vartanian's upper end of the upper deck
(i.e., ramp section 13) is pivotally secured, about a
horizontal axis (i.e., the axis of hinge 19), to the base
plate (i.e., plate 11 secured to base plate 18). Thus, the
question that remains is whether or not Vartanian's ramp
section 13 is removably pivotally secured, about the axis of
hinge 19, to the base plate (i.e., plate 11 secured to base
plate 18). Since Vartanian's ramp is assembled in the vehicle
doorway, it is our opinion that the ramp is inherently capable
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Application No. 09/188,421
of being disassembled and removed from the vehicle doorway,
and thus Vartanian's ramp section 13 is removably pivotally
secured, about the axis of hinge 19, to the base plate.
For the reasons set forth above, we have concluded that
Vartanian teaches all the limitations of claims 1 and 5. A
disclosure that anticipates under 35 U.S.C. § 102 also renders
the claim unpatentable under 35 U.S.C. § 103, for
"anticipation is the epitome of obviousness." Jones v. Hardy,
727 F.2d 1524, 1529, 220 USPQ 1021, 1025 (Fed. Cir. 1984).
See also In re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569,
571 (CCPA 1982); In re Pearson, 494 F.2d 1399, 1402, 181 USPQ
641, 644 (CCPA 1974). Thus, the decision of the examiner to
reject claims 1 and 5 under 35 U.S.C. § 103 is affirmed.
Claims 2 to 4 and 6 to 8
We will not sustain the rejection of claims 2 to 4 and 6
to 8 under 35 U.S.C. § 103.
The examiner's position (answer, p. 3) with respect to
the rejection of claims 2 to 4 and 6 to 8 is that
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Application No. 09/188,421
it would have been obvious to have selectively
removably mounted the upper deck and on the plate in
order to adjust the decks as taught by Best (42, 44,
etc.). That conventional retractable bolts be used as
claimed would have been the substitution of equivalent
securing means.
The appellant argues (brief, pp. 6-7) that even if the
teachings of Vartanian and Best are combined, there still
would not be provided a ramp which is removably mounted as
described in the claims. The appellant asserts that claims 2
to 4 and 6 to 8 are patentable since they recite retractable
bolts attached to the upper deck with the retractable bolts
being biased into operative engagement with the base plate so
that the upper deck is selectively removably secured to the
base plate. The appellant concludes that the above-noted
limitations are not made obvious by the Vartanian and Best
references. We agree for the reasons that follow.
While Best does teach and suggest the use of ramps that
can be mounted so that their height is adjustable and so that
they can be quickly and easily removed via the use of pins 44,
Best does not teach or suggest using biased retractable bolts
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Application No. 09/188,421
Evidence of a suggestion, teaching, or motivation to1
modify a reference may flow from the prior art references
themselves, the knowledge of one of ordinary skill in the art,
or, in some cases, from the nature of the problem to be
solved, see Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc.,
75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed. Cir. 1996),
Para-Ordinance Mfg., Inc. v. SGS Importers Int'l., Inc., 73
F.3d 1085, 1088, 37 USPQ2d 1237, 1240 (Fed. Cir. 1995), cert.
denied, 117 S. Ct. 80 (1996), although "the suggestion more
often comes from the teachings of the pertinent references,"
In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1456 (Fed.
Cir. 1998). The range of sources available, however, does not
diminish the requirement for actual evidence. A broad
conclusory statement regarding the obviousness of modifying a
reference, standing alone, is not "evidence." See In re
Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir.
1999).
as recited in claims 2 to 4 and 6 to 8. To supply this
omission in the teachings of the applied prior art, the
examiner made the above-quoted determination that this
difference would have been obvious to an artisan. However,
this determination has not been supported by any evidence1
that would have led an artisan to arrive at the claimed
invention.
In our view, the only suggestion for modifying the
applied prior art in the manner proposed by the examiner to
meet the above-noted limitations stems from hindsight
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Application No. 09/188,421
knowledge derived from the appellant's own disclosure. The
use of such hindsight knowledge to support an obviousness
rejection under 35 U.S.C.
§ 103 is, of course, impermissible. See, for example, W. L.
Gore and Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553,
220 USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S.
851 (1984).
For the reasons set forth above, the decision of the
examiner to reject claims 2 to 4 and 6 to 8 under 35 U.S.C. §
103 is reversed.
CONCLUSION
To summarize, the decision of the examiner to reject
claims 1 and 5 under 35 U.S.C. § 103 is affirmed and the
decision of the examiner to reject claims 2 to 4 and 6 to 8
under 35 U.S.C. § 103 is reversed.
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Application No. 09/188,421
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
IAN A. CALVERT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
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Application No. 09/188,421
DENNIS L. THOMTE
ZARLEY, MCKEE, THOMTE, VOORHEES & SEASE
801 GRAND AVENUE
SUITE 3200
DES MOINES, IA 50309
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Application No. 09/188,421
JVN/dl