Ex Parte Fought et al

Patent Trial and Appeal Board

Aug 28, 2018

13507528 (P.T.A.B. Aug. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/507,528 07/05/2012
7590
Ryan M. Fountain, Esq.
420 Lincoln Way West
Mishawaka, IN 46544
08/29/2018
FIRST NAMED INVENTOR
David Fought
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
7150
EXAMINER
DAYOAN, DARRELL G
ART UNIT PAPER NUMBER
3612
MAIL DATE DELIVERY MODE
08/29/2018 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 PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID FOUGHT and MARTIN CLANTON
Appeal2017-000315
Application 13/507,528
Technology Center 3600
Before STEVEN D.A. McCARTHY, NATHAN A. ENGELS and
PAUL J. KORNICZKY, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 STATEMENT OF THE CASE
2 The Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
3 decision finally rejecting claim I underpre-AIA 35 U.S.C. § 102(b) as being
4 anticipated by Dietrich (US 4,049,311, issued Sept. 20, 1977); and claim 2
5 under§ 102(b) as being anticipated by McDougal (US 2,752,864, issued
6 July 3, 1956). An oral hearing was held on August 23, 2018. We have
7 jurisdiction under 35 U.S.C. § 6(b ).
8 We AFFIRM.
The Appellants identify Thor Industries, Inc., and its wholly owned
subsidiary, Heartland Recreational Vehicles, LLC, as the real parties in
interest. (See Appeal Brief, dated Jan. 13, 2016, at 2).
Appeal2017-000315
Application 13/507 ,528
1 THE CLAIMED SUBJECT MATTER
2 Claims 1 and 2 are independent and self-explanatory:
3 1. A travel trailer having a first and second
4 compartment therein separated by a wall assembly which is
5 movable so as to alter the relative dimensions of the first and
6 second compartments without altering the exterior appearance of
7 the travel trailer.
8 2. A travel trailer having a front wall, rear wall, and
9 two side walls with a first and a second compartment therein,
10 those compartments being separated by a wall assembly,
11 the wall assembly having a forward wall and at least one
12 side member,
13 the side member being located adjacent to and movable in
14 parallel with respect to one of the side walls of the trailer, and
15 the wall assembly being moved along the longitudinal
16 length of the trailer by drive means positioned between the side
17 member and the side wall.
18
19 ISSUES
20 The issues are straightforward:
21 First, whether the recitation of a "travel trailer" in the preamble of
22 claim 1 is a mere statement of intended use, that is, whether the recitation is
23 capable of distinguishing the subject matter of claim 1 from the refrigerated
24 trailer described in Dietrich? (See Appeal Brief, dated Jan. 13, 2016 ("App.
25 Br."), at 8-13; see also Reply Brief, dated Sept. 20, 2016 ("Reply Br."), at 3
26 & 4).
27 Second, is claim 2 limited to a trailer with two usable compartments?
28 (See App. Br. 14).
2
Appeal2017-000315
Application 13/507 ,528
1 FINDINGS OF FACT
2 The record supports the following findings of fact ("FF") by a
3 preponderance of the evidence.
4
5 Dietrich
6 1. Dietrich anticipates claim 1.
7 2. We adopt and incorporate by reference the findings of the
8 Examiner at page 2 of the Final Office Action, mailed January 13, 2015
9 ("Final Act."). Dietrich describes a conventional truck trailer 11, such as a
10 refrigerated trailer. (See Dietrich, col. 3, 11. 42--44). Figure 1 of Dietrich
11 depicts the trailer 11 being pulled by a cab-over-engine truck. The trailer 11
12 has a wall structure defining a substantially closed cargo storage
13 compartment. A bulkhead door assembly 26 positioned in the interior of the
14 cargo storage compartment separates the cargo storage compartment into
15 first and second subcompartments 21, 22. (See Dietrich, col. 3, 11. 45-53 &
16 Fig. 1). The bulkhead door assembly 26 includes a panel 31 is supported by
17 a roller carriage 51 including rollers 53 in rolling engagement with a track
18 structure 33 fixed with respect to the frame of the trailer 11. (See Dietrich,
19 col. 4, 1. 56- col. 5, 1. 2 & Figs. 2 & 3). The bulkhead door assembly 26 is
20 movable so as to alter the relative dimensions of the first and second
21 compartments without altering the exterior appearance of the travel trailer.
22 (See Dietrich, col. 7, 1. 56 - col. 8, 1. 11 ).
23
24 McDougal
25 3. McDougal anticipates claim 2.
3
1
Appeal2017-000315
Application 13/507 ,528
4. McDougal describes a bulkhead B that may be used to partition
2 the interior space of a shipping compartment C of a freight or box railway
3 car, a motor vehicle, a detachable van-body or a ship. (See McDougal, col.
4 1, 11. 15-23; col. 2, 11. 51-58 & Fig. 1). The shipping compartment C, as
5 depicted in Figure 1 and 2, has a front wall as well as two side walls 23.
6 (See McDougal, col. 2, 11. 66-71 & Fig. 1). The bulkhead B includes spaced
7 outer walls 20, 21 extending perpendicularly to the side walls 23; and
8 transverse reinforcing bracing and spacer plates d extending between the
9 outer walls 20, 21. (See McDougal, col. 2, 11. 51-58 & Fig. 7). The two
10 outer walls 20, 21 define rimming members a along each side of the
11 bulkhead B. (See id.)
12 5. McDougal' s bulkhead B includes vertically spaced mechanisms
13 Mfor adjusting the position of the bulkhead relative to the side walls 23.
14 (See McDougal, col. 2, 11. 66-71 & Fig. 1 ). Each mechanism M includes a
15 pair of aligned arbors 24 rotatably mounted on the outer wall 21 and
16 extending outwardly through one of the spacer plates d. Each arbor 24
17 mounts a pinion gear 27 that engages rack-teeth r of a trackway 41 affixed to
18 a side wall 23. (See McDougal, col. 3, 11. 8-20; col. 4, 11. 4--10; & Fig. 7).
19 The two arbors 2 4 within a mechanism M are joined by a shaft 3 4 coaxial
20 with the two arbors. (See McDougal, col. 3, 11. 27-31 & Fig. 6). The shaft
21 3 4 mounts a bevel gear 3 7. A stud shaft 3 8 mounts a bevel gear 3 6 engaged
22 with the bevel gear 37. (See McDougal, col. 3, 11. 33-39 & Fig. 7). If one
23 engages a crank with a socket-receiving extension 38a of the stud shaft 38
24 and turns the shaft, the pinion gears 2 7 roll over the trackway 41 to move the
25 bulkhead B relative to the side walls 23. (See McDougal, col. 3, 11. 39--43 &
26 col. 5, 11. 10-18).
4
Appeal2017-000315
Application 13/507 ,528
1 6. The Examiner correctly finds that McDougal's bulkhead B
2 corresponds to the wall assembly recited in claim 2; that McDougal's outer
3 wall 20 corresponds to the forward wall recited in claim 2; and that
4 McDougal' s rimming members a correspond to the side members recited in
5 claim 2. (See Final Act. 2 & 3). Alternatively, McDougal's spacer plates d
6 might correspond to the recited side members. Both the rimming members a
7 and the spacer plates dare located adjacent to, and move in parallel with
8 respect to, one of the side walls 23. McDougal's mechanisms M, including
9 the pinion gears 27, constitute "drive means" positioned between the side
10 member a, d and the side wall 23 such that McDougal's wall assembly or
11 bulkhead B may be moved along the longitudinal length of the side walls 23
12 by drive means positioned between the side member and the side wall. (See
13 McDougal, col. 3, 11. 39--43; & col. 5, 11. 10-18; compare McDougal, col. 2,
14 11. 66-71; col. 3, 11. 8-20, 27-31 & 33--43; col. 4, 11. 4--10; col. 5, 11. 10-18;
15 & Figs. 1, 6 & 7, with Spec. 3, 11. 14--18 & Figs. 1 & 2).
16
17 ANALYSIS
18 First Issue
19 Dietrich describes a conventional truck trailer 11, such as a
20 refrigerated trailer, having a movable wall or bulkhead assembly that divides
21 the interior into separate compartments. (See FF 2). McDougal describes a
22 shipping compartment C of a detachable van-body, that is, a trailer, having a
23 movable wall or bulkhead assembly that divides the shipping compartment
24 into separate subcompartments. (See FF 4). The Appellants argue that
25 Dietrich fails to anticipate claim 1, and McDougal fails to anticipate claim 2,
26 because neither describes a travel trailer. (See App. Br. 8-13; see also Reply
5
Appeal2017-000315
Application 13/507 ,528
1 Br. 3 & 4). The Examiner correctly concludes that the term "travel trailer,"
2 as used in the preambles of claims 1 and 2, is a mere statement of intended
3 use or purpose of the trailer that does not limit claim 1 or claim 2 so as to
4 distinguish what is disclosed in the prior art. (See Final Act. 3).
5 Even assuming that a travel trailer is a distinct type of trailer, the
6 recitation of a "travel trailer" in the preamble merely recites an intended use
7 or purpose of a trailer, such as the trailers described by Dietrich and
8 McDougal. It is noteworthy that the term "travel trailer" appears only once
9 in the body of claim 1, and not at all in the body of claim 2. The sole
10 recitation of the term "travel trailer" in the body of claim 1 relates to
11 "alter[ing] the relative dimensions of the first and second compartments
12 without altering the exterior appearance of the travel trailer." This recitation
13 relates to a feature, namely, an external appearance, which travel trailers
14 share with other trailers such as refrigerated trailers and detachable van-
15 bodies. Thus, the recitation of the term "travel trailer" in claims 1 and 2
16 relates to the use or purpose of the trailer in which the wall assembly is
1 7 installed and not to any structural distinction between a travel trailer and any
18 other type of trailer. Because Dietrich describes each feature recited in
19 claim 1 except, arguably, a travel trailer; because McDougal describes each
20 feature recited in claim 2 except, arguably, a travel trailer; and because the
21 term "travel trailer" is a statement of intended use or purpose, Dietrich
22 anticipates claim 1 and McDougal anticipates claim 2.
23 That said, the term "travel trailer" itself merely identifies an intended
24 use or purpose of a trailer rather than a trailer having any particular
25 structural distinction. On pages 9--11 of the Appeal Brief, the Appellants
26 rely on two statements regarding "travel trailers" as evidence of the meaning
6
Appeal2017-000315
Application 13/507 ,528
1 of the term in the art. The first of these statements is taken from Miller (US
2 2010/0096873 Al, publ. Apr. 22, 2010):
3 "Recreational vehicles" or "RVs," as referred to herein, can be
4 motorized or towed, but in general have a living area which
5 provides shelter from the weather as well as personal
6 conveniences for the user, such as bathroom(s), bedroom(s),
7 kitchen, dining room, and/or family room. Each of these rooms
8 typically forms a separate compartment within the vehicle .... A
9 towed recreational vehicle is generally referred to as a "travel
10 trailer."
11 (Miller, para. 2). In other words, Miller distinguishes travel trailers from
12 recreational vehicles primarily in terms of an intended purpose or use,
13 namely, towability. At most, Miller distinguishes recreational vehicles and
14 travel trailers, if at all, from trailers such as those described by Dietrich and
15 McDougal in terms of the intended use or purpose the space within the
16 trailer, that is, in terms of providing "living space" rather than cargo space.
17 Likewise, Woodall's RV Buyer's Guide (1998) states that:
18 Probably the single most-popular class of towable RV is the
19 Travel Trailer. Spanning 13 to 3 5 feet long, travel trailers are
20 designed to be towed by cars, vans, and pickup trucks with only
21 the addition of a frame or bumper mounted hitch. Single axles
22 are common, but dual and even triple axles may be found on
23 larger units to carry the load.
24 Id., quoted in In re Thor Tech, Inc., 113 USPQ2d 1546, 1547 (TTAB Jan.
25 26, 2015). Once again, travel trailer is distinguished in terms of an intended
26 use or purpose, namely, towability. Woodall 's RV Buyer's Guide also says
2 7 that "[ m Jost travel trailers are equipped with electric and water capacities on
28 board as well as toilet facilities. Self-contained (independent of hookups)
29 operation is possible with most travel trailers, and all may be connected to
30 facilities at RV parks and campgrounds for extended stays." Id., quoted in
7
Appeal2017-000315
Application 13/507 ,528
1 Thor Tech at 154 7. A statement regarding what "most travel trailers are
2 equipped" with falls short of defining a structural distinction between the
3 trailers described by Dietrich and McDougal, on the one hand, and the
4 trailers recited in claims 1 and 2, on the other.
5 Therefore, we agree with the Examiner that the term "travel trailer" as
6 used in the preambles of claims 1 and 2 is a statement of intended use or
7 purpose that does not patentably distinguish the trailers described in Dietrich
8 and McDougal. Based on this conclusion, we sustain the rejection of claim
9 1 under § 102(b) as being unpatentable over Dietrich.
10
11 Second Issue
12 The Appellants argue that McDougal fails to anticipate claim 2
13 because it fails to describe first and second "useful" compartments. (See
14 App. Br. 14). Claim 2 does not recite "useful" compartments. The
15 Specification, at one point, mentions that, "for example, compartment 22 is
16 the living quarters of the travel trailer, and compartment 24 is the garage
17 portion where vehicles may be stored." (Spec. 3). The use of the words "for
18 example" indicates that this statement was not intended to limit the use, or
19 usefulness, of the first and second compartments recited in claim 2. The
20 Appellants' argument is not commensurate with the scope of claim 2. As
21 such, we sustain the rejection of claim 2 under § 102(b) as being anticipated
22 by McDougal.
23
24 DECISION
25 We AFFIRM the Examiner's decision rejecting claims 1 and 2.
26 More specifically, we sustain the rejection of claim 1 under
8
Appeal2017-000315
Application 13/507 ,528
1 § 102(b) as being anticipated by Dietrich; and we sustain the rejection of
2 claim 2 under § 102(b) as being anticipated by McDougal.
3 No time period for taking any subsequent action in connection with
4 this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
5 § 1.136(a).
AFFIRMED
9