Ex Parte Gaines

Patent Trial and Appeal Board

Jan 25, 2019

12161127 (P.T.A.B. Jan. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/161,127 07/16/2008
25686 7590 01/29/2019
CARGILL & ASSOCIATES, P.L.L.C.
21360 Cass Avenue
Clinton Township, MI 48036
FIRST NAMED INVENTOR
Robert G. Gaines
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.
Gaines P-305US 8559
EXAMINER
BRADFORD, CANDACE L
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
01/29/2019 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):
Cargillpatents@usa.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT G. GAINES
Appeal2018-005592
Application 12/161, 12 71
Technology Center 3600
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's rejection of claims 1-5, 9, 14, and 16-18. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
According to Appellant, "the invention relates to a ladder docking
device for attaching to a building." Spec. 1. Claim 1 is the sole independent
1 According to Appellant, the "real party in interest ... is ... Robert G.
Gaines." Br. 1.
Appeal2018-005592
Application 12/161, 127
claim on appeal. Below, we reproduce claim 1 as representative of the
appealed claims.
1. A ladder docking device permanently installed on a
building having a roof for securing a ladder having at least one
rung to help avoid slippage, comprising:
a ladder securement device to be permanently affixed to
the building; and
at least one wide open upwardly and outwardly extending
ladder rung catcher for directly contacting at least one rung of a
ladder to be secured by resting a rung of the ladder on the at least
one wide open upwardly and outwardly extending ladder rung
catcher, said ladder docking device being permanently fastened
to the building, and wherein said at least one ladder rung catcher
extends outwardly from the roof and is permanently affixed
thereto, and the ladder securement device will receive a rung of
the ladder;
wherein the at least one wide open upwardly and
outwardly extending ladder rung catcher of the ladder
securement device provides ease of use as it secures a ladder rung
to help avoid the ladder being secured from slipping on unstable
surfaces and wherein the ladder docking device provides a safe
transition to the roof when stepping off the ladder.
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows:
I. Claims 1-5, 9, 14, and 16-18 under 35 U.S.C. § 112, second
paragraph, as indefinite for failing to particularly point out and
distinctly claim the subject matter Appellant regards as the
invention;
II. Claims 1 and 2 under 35 U.S.C. § 102(b) as anticipated by Roy
(US D459,483 S, iss. June 25, 2002); and
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Application 12/161, 127
III. Claims 3-5, 9, 14, and 16-18 under 35 U.S.C. § 103(a) as
unpatentable based on Roy and Ellis (US 6,095,283, iss. Aug.I,
2000).
ANALYSIS
Reiection I
In response to the Examiner's indefiniteness rejection of all of the
claims in the Final Office Action (see Final Action 2-3), Appellant proposed
to amend the claims (see Amendment filed June 29, 2017, 3---6). The
Examiner denied entry of the claim changes, finding that the "claim
amendments raise new issues that would require further consideration and
search." Advisory Action mailed July 27, 2017, 1. Further, in the Advisory
Action, the Examiner does not withdraw the indefiniteness rejection.
In the Appeal Brief, Appellant argues that the Examiner incorrectly
finds that "a new search would be required [because] the subject matter, as
originally filed and claimed, has not changed." Br. 3. Appellant, however,
does not argue that the Examiner's finding of indefiniteness is erroneous.
Additionally, in the Answer, the Examiner maintains the indefiniteness
rejection. Answer 3 ("Every ground of rejection set forth in the Office
[Action] ... is being maintained by the [E]xaminer.").
Based on the foregoing, Appellant does not persuade us that the
Examiner's factual findings supporting the indefiniteness rejection are
inadequate. Therefore, we summarily sustain the rejection.
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Application 12/161, 127
Rei ection II
As set forth above, independent claim 1 recites, in relevant part, "[a]
ladder docking device permanently installed on a building having a roof for
securing a ladder having at least one rung to help avoid slippage,
comprising ... a ladder securement device to be permanently affixed to the
building; ... said ladder docking device being permanently fastened to the
building." Br., Claims App. (Claim 1). The Examiner relies on Roy to
disclose the claimed permanent installation or fixation. See, e.g., Answer 5-
7. Appellant argues that the Examiner errs, because, according to Appellant,
"there is no indication that [Roy's] device ... is permanently installed on a
roof." Br. 4; see also id. at 4--5. Based on our review, we do not sustain the
anticipation rejection.
Initially, we note that Roy is a design patent, with a limited written
narrative. Regardless, the Examiner finds that Roy's title and description
support the finding that Roy's device "must be permanently affixed to the
roof." Answer 6. We disagree, however, even when reading Roy in view of
the dictionary definition provided by the Examiner. Id. More specifically,
Roy's statements that the device "immobiliz[ es]" the ladder, that the device
"firmly secure[ s] ... ladders to a roof edge," or that the device is "installed
to the ladder [ and] then mounted to the roof edge" do not support adequately
that the device is intended to be permanently installed on a roof. Roy Title,
Description. Instead, these statements may also be used to describe a device
that is intended to be temporarily, but securely, mounted to a roof.
Thus, based on the foregoing, we do not sustain the Examiner's
anticipation rejection of independent claim 1. We also do not sustain the
anticipation rejection of claim 2 that depends from claim 1.
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Application 12/161, 127
Rei ection III
The Examiner does not rely on Ellis to disclose the claimed
permanent installation or fixation, discussed above. See, e.g., Final
Action 8-12 (relying on Ellis to disclose details of various handrails).
Although the Examiner's Answer, presumably in response to Appellant's
argument in the Appeal Brief, does state that "Ellis ... teaches the utility of
a fixed ladder having at least one handrail including a flared section"
(Answer 10 ( emphasis added); see also id. at 11 ), the Examiner does not find
that Ellis discloses a permanently fixed ladder, and the record does not
clearly provide any rational reason for modifying Roy to include structure
from Ellis to enable Roy's device to be installed or fixed permanently to a
roof, as recited in independent claim 1. Thus, Ellis does not remedy the
deficiency in claim 1 's rejection, discussed supra, and, therefore, we do not
sustain the Examiner's obviousness rejection of claims 3-5, 9, 14, and 16-
18 depending from claim 1.
DECISION
We AFFIRM the Examiner's indefiniteness rejection of claims 1-5, 9,
14, and 16-18.
We REVERSE the Examiner's anticipation and obviousness
rejections of claims 1-5, 9, 14, and 16-18.
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Application 12/161, 127
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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