Ex Parte Frick et al

Patent Trials and Appeals Board

Jan 31, 2019

13856853 - (D) (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/856,853 04/04/2013
32116 7590 02/04/2019
WOOD, PHILLIPS, KATZ, CLARK & MORTIMER
500 W. MADISON STREET
SUITE 1130
CHICAGO, IL 60661
Rory Frick
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.
FRI10464P00051US 8153
EXAMINER
BRADFORD, CANDACE L
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
02/04/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing@woodphillips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RORY FRICK and KIRK NELSON
Appeal2018-005557
Application 13/856,853 1
Technology Center 3600
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
TARA L. HUTCHINGS, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner's decision rejecting claims 1-14. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 "Inventor Rory Frick listed in the application is a real part[y] in interest in
the pending appeal. Inventor Kirk Nelson has assigned his interest to
Assignee Universal Ladder, LLC, which also has an interest in the appeal."
Appeal Br. 1 (filed Oct. 4, 2017).
Appeal2018-005557
Application 13/856,853
STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellants' "invention relates to the field of ladders and
scaffolding, particularly ladders with platform steps and accessories that
attach thereto." Spec. ,r 1.
Claims 1 and 7 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A ladder to allow a user to access heavy equipment from the
ground, the ladder convertible from a ladder configuration to a
storage configuration, including:
A first and second ladder frame, each having a first end
and a second end, each ladder frame including two rails
connected by a plurality of support rods,
A plurality of steps, each step rotatably connected to a first
support rod selected from the plurality of support rods on the first
ladder frame and to a second support rod selected from the
plurality of support rods on the second ladder frame, each step
having a length perpendicular to the first support rod, the
distance between the first and second support rods connected by
each step being substantially equal to the length of each step,
The first end of the second ladder frame being pivotably
connected to the heavy equipment,
The first and second ladder frames maintaining a parallel
relationship as the ladder is converted from the ladder
configuration to the storage configuration.
Rejections
I. Claims 1 and 7 are rejected under 35 U.S.C. § 112(b) or
35 U.S.C. § 112 (pre-AIA), second paragraph, as being indefinite. 2 Final
Act. 4--5.
2 The Examiner has withdrawn the rejection of independent claims 1 and 7
as indefinite for reasons particular to claim 1 's and 7 's recitation, "the
distance between the first and second support rods connected by each step
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Appeal2018-005557
Application 13/856,853
II. Claims 1-14 are rejected under (pre-AIA) 35 U.S.C. § I03(a) as
being unpatentable over Howlett (GB 2426029A, pub. Nov. 15, 2006), Loix
(US 4,053,028, iss. Oct. 11, 1977), and Fuqua et al. (WO 2009/025642 Al,
pub. Feb. 26, 2009) (hereinafter "Fuqua"). Final Act. 5-10.
ANALYSIS
Rejection I
The Examiner rejects independent claims 1 and 7 because it is unclear
if"[ a] first and second ladder frame, each having a first end and a second
end, each ladder frame including two rails connected by a plurality of
support rods," as recited in the claims, calls for a lateral pair or a fore/ aft pair
of rails. See Final Act. 5. The Appellants argue that the foregoing recitation
of claims 1 and 7 are definite. See Appeal Br. 5-7; Reply Br. 1-2. The
Appellants contend that 'just because the invention as claimed is broad and
may cover more than one possible construction does not make it indefinite."
Appeal Br. 7.
We agree with the Appellants. In this case, the Examiner's concern is
directed to a matter of breadth, not indefiniteness. See In re Gardner, 427
F.2d 786, 788 (CCPA 1970). Thus, we do not sustain the Examiner's
rejection of claims 1 and 7 as indefinite.
Rejection II
The Examiner's rejection of independent claims 1 and 7 relies on a
finding that Howlett's angle brackets 20, 22 correspond to the claimed
being substantially equal to the length of each step." See Ans. 3; see also
Final Act. 4 (rejecting claims 1 and 7 because "the distance" lacks sufficient
antecedent basis and "the distance ... connected" is unclear.).
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Appeal2018-005557
Application 13/856,853
"plurality of support rods." See Final Act. 6, 8; see also Howlett 8 ("Each
tread is attached at each end to an angle bracket 20, 22 best seen in Fig 7.").
We also note that the Examiner's rejection does not rely on either Loix or
Fuqua to teach a support rod. The Appellants argue that Howlett's angle
brackets 20, 22 are not "support rods." Appeal Br. 9. Appellants contend
that Howlett's angle brackets 20, 22 "are commonly known as angles or
angle irons" and "[a]ngles are not rods under any reasonable interpretation
of the claim language." Id. In response, the Examiner offers a dictionary
definition of the term "rod," i.e., "a thin straight piece of bar or metal."
Ans. 5, 7 ( citing www.freedictionary.com). The Examiner determines that
this definition reads on Howlett's angle brackets 20, 22. See id. at 4--5, 7.
We agree with the Appellants. We appreciate that the Examiner
provided a definition for the term "rod." In this case, however, we view the
term "angle bracket" as a term of art and determine that one of ordinary skill
in the art would understand that Howlett's angle brackets 20, 22 do not
correspond to the claimed "plurality of support rods." See also Appeal
Br. 9; Reply Br. 4. Thus, we do not sustain the Examiner's rejection of
independent claims 1 and 7, and dependent claims 2---6 and 8-14, as
unpatentable over Howlett, Loix, and Fuqua.
DECISION
We REVERSE the Examiner's decision rejecting claims 1-14.
REVERSED
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