Ex parte FAILOR

Board of Patent Appeals and Interferences

Sep 20, 1999

08814550 (B.P.A.I. Sep. 20, 1999)

Application for patent filed March 11, 1997. 1
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not written for publication in a law journal and (2) is not binding
precedent of the Board.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. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte MICHAEL E. FAILOR
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Appeal No. 1999-0213
Application No. 08/814,5501
____________
ON BRIEF
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Before CALVERT, McQUADE, and GONZALES, Administrative Patent
Judges.
CALVERT, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1 to
3, 5 to 11, 13, 14, 16 to 21 and 23. Claims 4, 12, 15 and 22,
the other claims in the application, have been indicated as
allowable, subject to being rewritten in independent form.
Appeal No. 1999-0213 Page 2
Application No. 08/814,550
Although the claims are drawn to a “tool kit,” we note2
that no tools are claimed.
The claims on appeal are drawn to a tool kit for placement
on a front tire of a cab-over-engine tractor, and are
reproduced in the appendix of appellant’s brief.2
The reference applied in the final rejection is:
Vaccaro 3,618,749 Nov. 9,
1971
Claims 1 to 3, 5 to 11, 13, 14, 16 to 21 and 23 stand
finally rejected as anticipated by Vaccaro, under 35 U.S.C.
102(b).
Appellant’s arguments as to why he does not consider claim
1 to be anticipated by Vaccaro may be summarized as follows:
(1) Vaccaro does not disclose sloped front and rear sections;
only the top surfaces of Vaccaro’s front and rear sections are
sloped (brief, pp. 7 and 10).
Appeal No. 1999-0213 Page 3
Application No. 08/814,550
(2) The compartments (trays) 6, 7, 8, 6', 7', 8' of Vaccaro are
not separate from the unitary body of the tool kit (carrier)
(brief, pp. 7 to 8).
(3) Vaccaro does not disclose “at least one tray extending
transversely across each of said front sections and said rear
section beneath the level of said center section,” as claimed,
because Vaccaro’s compartments are on the same level as the
center section (brief, p. 8).
We do not agree with arguments (1) and (2). It is
fundamental that claims are to be given their broadest
reasonable interpretation, and limitations are not to be read
into them from the specification. In re Van Geuns, 988 F.2d
1181, 1184, 26 USPQ2d 1057, 1059 (Fed. Cir. 1993). As for
argument (1), the top surface of Vaccaro’s front section (with
compartments 6, 7, 8) slopes forwardly and downwardly from its
rear end to its front end, and the top surface of Vaccaro’s
rear section (with compartments 6', 7', 8') slopes rearwardly
and downwardly from its front end to its rear end. This is
sufficient to meet the language of claim 1, since claim 1 does
not specify what part or how much of each of the front and rear
Appeal No. 1999-0213 Page 4
Application No. 08/814,550
sections slopes. Argument (2) is likewise more narrowly drawn
than the language of claim 1, since there is no recitation in
the claim that the trays are separate from the unitary body.
However, we do agree with appellant’s argument (3) to the
extent that we do not consider that the “trays” 6, 7, 8, 6',
7', 8' in Vaccaro’s front and rear sections are “beneath the
level of said center section”, as claimed. Words in a claim
are to be given their ordinary and accustomed meaning, unless
it appears that the inventor used them differently. Envirotech
Corp. V. Al George, Inc., 730 F.2d 753, 759, 221 USPQ 473, 477
(Fed. Cir. 1984). In the present case, the bottom of Vaccaro’s
center section (the portion of the carrier box between handle
straps 16) is on the same level as the bottom of the
compartments in the front section and in the rear section,
since the bottoms of all three sections are apparently made of
a single flat piece of material (see Figs. 4 and 5). To
describe the compartments in the front and rear sections as
being “beneath the level of the center section” when their
bottom surfaces are in fact on the same level as the center
section would be to give the quoted language a meaning other
Appeal No. 1999-0213 Page 5
Application No. 08/814,550
than its ordinary meaning. Although the compartments in
Vaccaro’s front and rear sections, because of their sloping top
surfaces, are not as deep overall as the center section, it
does not necessarily follow that they are “beneath the level of
said center section.”
Since Vaccaro does not disclose every limitation recited
in claim 1, expressly or inherently, it does not anticipate
that claim. See In re Schreiber, 128 F.3d 1473, 1477, 44
USQP2d 1429, 1431 (Fed. Cir. 1997). Claims 2, 3, 5 to 11, 13,
14, 16 to 21 and 23, all of which are directly or indirectly
dependent on claim 1, are likewise not anticipated.
Conclusion
The examiner’s decision to reject claims 1 to 3, 5 to 11,
13, 14, 16 to 21 and 23 is reversed.
REVERSED
Appeal No. 1999-0213 Page 6
Application No. 08/814,550
IAN A. CALVERT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN P. McQUADE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
IAC/jlb
Appeal No. 1999-0213 Page 7
Application No. 08/814,550
ROGER S. DYBVIG
22 GREEN STREET
DAYTON, OH 45402