Ex parte Ehrlich

Board of Patent Appeals and Interferences

Jul 18, 1997

08363594 (B.P.A.I. Jul. 18, 1997)

Application for patent filed December 23, 1994. According1
to the appellant, the application is a continuation of
Application No. 08/063,023, filed May 17, 1993, now abandoned.
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 27
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte RODNEY P. EHRLICH
____________
Appeal No. 96-3263
Application No. 08/363,5941
____________
HEARD: April 11, 1997
____________
Before COHEN, STAAB, and NASE, 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 through 8, which are all of the claims
pending in this application.
We REVERSE.
Appeal No. 96-3263
Application No. 08/363,594
2
Appeal No. 96-3263
Application No. 08/363,594
3
BACKGROUND
The appellant's invention relates to a cargo securement
assembly. Claim 1 is representative of the subject matter on
appeal and a copy of claim 1, as it appears in the appellant's
brief, is attached to this decision.
The prior art references of record relied upon by the
examiner as evidence of obviousness under 35 U.S.C. § 103 are:
Watts 3,252,681 May 24, 1966
Berns 3,685,778 Aug. 22, 1972
Ehrlich 4,810,027 March 7, 1989
ANCRA International Designer and Manufacturer of Cargo Restraint
Systems (ANCRA); Catalog No. 206; pp. 16-23; October 1987
Claims 1 through 4 and 6 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over ANCRA Part No. 43451-11 and
Series F track in view of Berns.
Claim 5 stands rejected under 35 U.S.C. § 103 as being
unpatentable over ANCRA Part No. 43451-11 and Series F track in
view of Berns as applied to claims 1 through 4 and 6 above, and
further in view of Watts.
Appeal No. 96-3263
Application No. 08/363,594
4
Claims 7 and 8 stand rejected under 35 U.S.C. § 103 as being
unpatentable over ANCRA Part No. 43451-11 and Series F track in
view of Berns, Watts and Ehrlich.
Rather than reiterate the conflicting viewpoints advanced by
the examiner and the appellant regarding the § 103 rejections, we
make reference to the examiner's answer (Paper No. 23, mailed
April 29, 1996) for the examiner's complete reasoning in support
of the rejections, and to the appellant's brief (Paper No. 22,
filed February 16, 1996) for the appellant's arguments
thereagainst.
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. Upon evaluation of all the evidence before us, it is
our conclusion that the evidence adduced by the examiner is
insufficient to establish a prima facie case of obviousness with
respect to any of the claims on appeal. Accordingly, we will not
sustain the examiner's rejection of claims 1 through 8 under
Appeal No. 96-3263
Application No. 08/363,594
5
35 U.S.C. § 103. Our reasoning for this determination follows.
In rejecting claims under 35 U.S.C. § 103, the examiner
bears the initial burden of presenting a prima facie case of
obviousness. In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955,
1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established by presenting evidence that the reference teachings
would appear to be sufficient for one of ordinary skill in the
relevant art having the references before him or her to make the
proposed combination or other modification. See In re Lintner, 9
F.2d 1013, 1016, 173 USPQ 560, 562 (CCPA 1972). Furthermore, the
conclusion that the claimed subject matter is prima facie
obvious must be supported by evidence, as shown by some objective
teaching in the prior art or by knowledge generally available to
one of ordinary skill in the art that would have led that
individual to combine the relevant teachings of the references to
arrive at the claimed invention. See In re Fine, 837 F.2d 1071,
1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Rejections based on
§ 103 must rest on a factual basis with these facts being
interpreted without hindsight reconstruction of the invention
from the prior art. The examiner may not, because of doubt that
the invention is patentable, resort to speculation, unfounded
Appeal No. 96-3263
Application No. 08/363,594
6
assumption or hindsight reconstruction to supply deficiencies in
the factual basis for the rejection. See In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 177 (CCPA 1967), cert. denied, 389 U.S.
1057 (1968). Our reviewing court has repeatedly cautioned
against employing hindsight by using the appellant's disclosure
as a blueprint to reconstruct the claimed invention from the
isolated teachings of the prior art. See, e.g., Grain Processing
Corp. v. American Maize-Products Co., 840 F.2d 902, 907, 5 USPQ2d
1788, 1792 (Fed. Cir. 1988).
With this as background, we will first analyze the prior art
applied by the examiner in the rejection of claim 1 on appeal.
ANCRA teaches Part No. 43451-11 (page 19) for use with
either a Series A or E track (page 17). Part No. 43451-11 is
disclosed as a tracking fitting (coupling clip member) releasably
insertable through an aperture in either the Series A or E track.
The coupling clip member includes an articulating locking
structure comprising an opening selectively closed in a locked
position by a pivotal gate. The opening is arranged to receive
therein a portion of the aperture in either the Series A or E
track when the gate is selectively pivoted away from the opening
Appeal No. 96-3263
Application No. 08/363,594
See pages 17 and 19 of ANCRA.2
See column 2, lines 1-31 and column 3, line 49 to column3
4, line 2 of Berns.
7
to an unlocked position thereof, so that the coupling clip member
is releasably engagable against the aperture in either the Series
A or E track to enable removable anchoring of the coupling clip
member within the aperture. The aperture in the Series A track
is rectangular and the aperture in the Series E track is I-
shaped. Additionally, it is noted that ANCRA teaches Part No.
40980-11 for use with a Series F track. Part No. 40980-11 is a
track fitting or coupling clip member lacking the claimed
articulating locking structure. The aperture in the Series F
track is circular.2
Berns (Figure 3) teaches the use of a rail anchor A
insertable through a circular opening 15 with a notch 17 provided
in rail C. The rail anchor has a substantially asymmetric omega
shape and is provided with two anchor hook webs 11 and 12 which
grip behind the rail C. The rail anchor can be turned
practically 360° around the opening 15.3
Appeal No. 96-3263
Application No. 08/363,594
8
In proceedings before the PTO, claims in an application are
to be given their broadest reasonable interpretation consistent
with the specification, and claim language should be read in
light of the specification as it would be interpreted by one of
ordinary skill in the art. In re Sneed, 710 F.2d 1544, 1548, 218
USPQ 385, 388 (Fed. Cir. 1983). In accordance with this
principle, we interpret claim 1 as setting forth that the
coupling clip member is inserted in the circular aperture of the
support panel means since the claim is directed to a cargo
securement assembly. Thus, the difference between claim 1 and
ANCRA is that ANCRA lacks any teaching of using Part No. 43451-11
with a track having circular apertures.
The examiner determined that it would have been obvious to
one having ordinary skill in the art to have used ANCRA Part No.
43451-11 with a circular aperture in view of the desirability of
using a rectangular coupling clip in a circular aperture to allow
the coupling clip to swivel to accommodate the desired load as
taught by Berns.
Our review of ANCRA and Berns reveals that the teachings of
the references would not have rendered the claimed subject matter
Appeal No. 96-3263
Application No. 08/363,594
In re Fine, supra; In re Warner, supra.4
Note In re Rijckaert, supra; In re Lintner, supra; and In5
re Fine, supra.
9
obvious to one of ordinary skill in the relevant art at the time
of appellant's invention. In that regard, we see no teaching
whatsoever that would have suggested using ANCRA Part No. 43451-
11 with a track having circular apertures. Nothing in Berns
discloses or suggests that a coupling clip member having the
claimed articulating locking structure be used with a track
having circular apertures. As earlier mentioned, ANCRA only
instructs one to use Part No. 43451-11 with Series A and E tracks
(not Series F track with circular apertures). It appears to us
that the examiner has engaged in a hindsight reconstruction of
the claimed invention, using the appellant's structure as a
template. This, of course, is impermissible. Since all the4
limitations of claim 1 are not taught or suggested by the applied
prior art, the examiner has failed to meet the initial burden of
presenting a prima facie case of obviousness. Thus, we cannot5
sustain the examiner's rejection of appealed claim 1, or claims 2
through 4 and 6 which depend therefrom, under 35 U.S.C. § 103 as
being unpatentable over ANCRA Part No. 43451-11 and Series F
track in view of Berns.
Appeal No. 96-3263
Application No. 08/363,594
Independent claim 7 also recites, inter alia, the coupling6
clip member and circular aperture as in claim 1.
10
We have also reviewed the Watts reference additionally
applied in the rejection of claim 5, and the Ehrlich reference
applied with Watts in the rejection of claims 7 and 8 but find6
nothing therein which makes up for the deficiencies of ANCRA and
Berns discussed above. Accordingly, we cannot sustain the
examiner's rejection of appealed claims 5, 7 and 8 under
35 U.S.C. § 103.
CONCLUSION
To summarize, the decision of the examiner to reject claims
1 through 8 under 35 U.S.C. § 103 is reversed.
Appeal No. 96-3263
Application No. 08/363,594
11
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
Appeal No. 96-3263
Application No. 08/363,594
12
RICHARD BUSHNELL
TREXLER BUSHNELL GIANGIORGI
AND BLACKSTONE JR
105 W ADAMS STREET SUITE 3600
CHICAGO, IL 60603-6299
Appeal No. 96-3263
Application No. 08/363,594
1
APPENDIX
1. A cargo securement assembly for stabilizing freight
cargo upon a transport vehicle or container comprising:
a support panel means for securement to a transport vehicle,
having at least one circular aperture formed through said panel
means and defining circumferential panel surfaces circumscribing
said circular aperture;
a coupling clip member releasably insertable through said
circular aperture and having an articulating locking structure
comprising an opening selectively closed in a locked position by
a pivotal gate, said opening being arranged to receive insertion
therein of a portion of said circumferential panel surfaces when
said gate is selectively pivoted away from said opening to an
unlocked position thereof, so that said coupling clip member is
releasably engagable against one of said circumferential panel
surfaces to enable removably anchoring of said coupling clip
within said aperture in said assembly.
APPEAL NO. 96-3263 - JUDGE NASE
APPLICATION NO. 08/363,594
APJ NASE
APJ COHEN
APJ STAAB
DECISION: REVERSED
Prepared By: Delores A. Lowe
DRAFT TYPED: 14 Apr 97
1st Rev 08 Jul 97
FINAL TYPED:
HEARD April 11, 1997 3 MAN CONF