Ex Parte Garringer

Patent Trial and Appeal Board

Jun 19, 2013

10907644 (P.T.A.B. Jun. 19, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte ROBERT GARRINGER
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Appeal 2011-005758
Application 10/907,644
Technology Center 3600
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Before: JAMES P. CALVE, JEREMY M. PLENZLER, and
BEVERLY M. BUNTING, Administrative Patent Judges.

BUNTING, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claims are directed to panelized log home construction. Claims 1,
11, and 19 are independent. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A wall panel comprising:
a plurality of stacked logs of predetermined length, each
log having a tongue at each end such that when stacked, a wall
tongue is formed at each side of the plurality of stacked logs;
a non-flexing preshaped tongue channel shaped to
intimately receive the wall tongue;
a rod channel transversing the panelized wall from a first
horizontal surface to a second horizontal surface;
a tension/lifting rod within the rod channel;
a first rod tensioning attachment received by a rod first
end and a second rod tensioning attachment received by a rod
second end; and
a lifting attachment received by the rod first end
positioned superior to the rod tensioning attachment.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Heeren
Huguet
Faw
Tanner
Dietz
Hubbard
US 2,270,672
US 4,154,030
US 4,823,528
US 5,265,390
US 5,477,646
US 5,577,356
Jan. 20, 1942
May 15, 1979
Apr. 25, 1989
Nov. 30, 1993
Dec. 26, 1995
Nov. 26, 1996
Appeal 2011-005758
Application 10/907,644
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Frohlich
Stutts
Martensson
Richardson

US 5,649,782
US 2004/0134142 A1
US 6,854,235 B2
GB 2 355 025 A

Jul. 22, 1997
Jul. 15, 2004
Feb. 15, 2005
Apr. 11, 2001

REJECTIONS1
The Examiner made the following rejections:
Claims 1, 2, 6-8, 11, 12, 14, 15, 17, 19, 20, 22 and 24 are rejected
under 35 U.S.C. § 103(a) as being unpatentable over Tanner, Heeren, Stutts
and Frohlich. Ans. 3.
Claim 3 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tanner, Heeren, Stutts, Frohlich and Richardson. Ans. 11.
Claim 4 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tanner, Heeren, Stutts, Frohlich and Faw. Ans. 12.
Claim 5 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tanner, Heeren, Stutts, Frohlich and Huguet. Ans. 12.
Claim 9 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tanner, Heeren, Stutts, Frohlich and Dietz. Ans. 13.
Claim 10 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tanner, Heeren, Stutts, Frohlich and Martensson. Ans. 14.
Claim 13 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tanner, Heeren, Stutts, Frohlich and Martensson. Ans. 15.
Claims 16, 18 and 21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tanner, Heeren, Stutts, Frohlich and Hubbard. Ans. 15 -
16.

1 The Examiner stated that any reference to Long in the Final Rejection,
dated 11-19-2009, was a typographical error and that Long was not relied
upon in the Ground of Rejection provided in the Answer, dated 9-27-2010.
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Claim 23 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tanner, Heeren, Stutts, Frohlich, Hubbard and Martensson. Ans. 17.

ANALYSIS
Obviousness Rejections
Claims 1, 2, 6-8, 11, 12, 14, 15, 17, 19, 20, 22 and 24
Appellant argues claims 1, 2, 6-8, 11, 12, 14, 15, 17, 19, 20, 22 and 24
together as a group. App. Br. 12-22. We select claim 1 as representative,
treating claims 2, 6-8, 11, 12, 14, 15, 17, 19, 20, 22 and 24 as standing or
falling with representative claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
Claim 1 is directed to a wall panel of stacked logs, each log having a
non-flexing preshaped tongue channel that receives the wall tongue and a
transverse rod channel that receives a tension/lifting rod connected to a
lifting attachment.
The Examiner found that Tanner discloses a wall panel of stacked
logs 14, each having an end tongue 30 forming a wall tongue 30 along each
side of the stacked logs. Ans. 3, citing Tanner fig. 1. Next, the Examiner
relied on Heeren to disclose a panel with a tongue and groove joint that
includes a non-flexing pre-shaped tongue channel 20 that receives the panel
tongue. Id. at 4, citing Heeren figs. 1, 2. The motivation to combine these
references, according to the Examiner, would have been to improve strength,
and prevent chipping of the panels during handling, shipping and
installation. Id., citing Hereen, col. 1, ll. 10-15.
The Examiner then relied on Stutts to disclose a transverse rod
channel extending across the wall with a tension/lifting rod 26 positioned
within the rod channel and secured therebetween first and second rod
tensioning attachments 58, 36. Id., citing Stutts paras. [0026], [0029], fig. 1.
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Finally, the Examiner relied on Frohlich to disclose a lifting attachment 43
positioned superior to the rod tensioning attachment. Id., citing Frohlich fig.
3a. Since Tanner and Stutts are both from the field of log panel
construction, the Examiner concluded that the references are analogous art.
Id. at 5. Additionally, the Examiner concluded that Stutts and Frohlich are
analogous art since they are both from the same field of vertical tying
supports. Id. Based on these findings, the Examiner reasoned it would have
been obvious to combine the lifting attachment of Frohlich with the
tensioning rod of Stutts and wall panel of Tanner “to create additional
reinforcement and sealing of the wall panel, and to allow for greater ease in
transport of the panel with the lifting attachments.” Id.
Appellant contends that the non-flexing single slab of Heeren is non-
analogous art since the metal tongue channel is structurally different and
functions to prevent chipping and not flexing of the wall panel. App. Br. 12-
14. Appellant also argues that Heeren does not teach a non-flexing tongue
channel because the slab itself is non-flexing. App. Br. 13. The Examiner
countered that “[j]ust like concrete, wood is susceptible to chipping and
other forms of deformation and damage” and Heeren is reasonably pertinent
to protecting tongue and groove joints from damage. Ans. 19-20. Appellant
has not persuasively shown how the channel in the concrete material panel
of Heeren, which Appellant characterizes as non-flexing, is structurally
different than the “non-flexing pre-shaped tongue channel” required by
claim 1. Further, Appellant’s contention that the channel in the slab of
Heeren would not be capable of performing the “non-flexing” function is
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unsupported attorney argument and does not specifically apprise us of how
the Examiner’s finding is erroneous or that Heeren is non-analogous art.2
With respect to Frohlich, Appellant argues Frohlich teaches a lifting
attachment attached to a ribbed concrete steel anchoring element 19 that has
been cast into the concrete slab and not a rod as recited in claim 1. Id. at 14,
citing Frohlich, col. 5, ll. 5-10. The Examiner countered that the primary
reference to Heeren was modified by Stutts to teach a rod channel and lifting
rod and by Frohlich to teach a lifting attachment. Ans. 4, 19. The Examiner
further explained that Stutts and Frohlich “are analogous art wherein
Frohlich is reasonably pertinent to external attachments for handling of a
tensioned structural product with embedded anchoring members.” Ans. 19.
Acknowledging that the embedded tensioning/anchoring member of
Frohlich is different than the rod described in claim 1, the Examiner pointed
out that “the lifting attachment of Frohlich is still reasonably pertinent to the
particular problem with which Appellant was concerned for lifting via
attachment to an embedded anchoring/tensioning member.” Id. Appellant’s
argument does not apprise us of error in the Examiner’s determination that
the lifting attachment of Frohlich is combinable with the tensioning rod of

2 “The analogous-art test requires that the Board show that a reference is
either in the field of the applicant’s endeavor or is reasonably pertinent to the
problem with which the inventor was concerned in order to rely on that
reference as a basis for rejection.” In re Kahn, 441 F.3d 977, 986-87 (Fed.
Cir. 2006) (citing In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992)). The
“field of endeavor” test asks if the structure and function of the prior art is
such that it would be considered by a person of ordinary skill in the art
because of the similarity to the structure and function of the claimed
invention as disclosed in the application. In re Bigio, 381 F.3d 1320, 1325-7
(Fed. Cir. 2004).

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Stutts and wall panel of Tanner to improve ease of transport of the panel
with the lifting attachments.
Appellant also argues that the reasoning articulated by the Examiner
to combine the references lacks some rational underpinning. App. Br. 15-
16. According to Appellant, “the wood of the present invention is not prone
to chipping as is a panel of rigid cementitious materia1,” alleging “[t]he
motivation to add a covering to such a rigid, chip prone cementitious
material is not present with wood which is not prone to chipping.” App. Br.
16. The Examiner offered reasons with rational underpinnings to modify
Tanner using Heeren as modified by Stutts and Frohlich to provide a wall
panel that includes logs having a non-flexing preshaped tongue channel, and
rod with attachment handle disposed in a transversely extending channel
through the wall panel. The Examiner also reasoned that the fact that the
material of Tanner (wood) differs from the material of Heeren (concrete)
does not obviate the motivation to protect the edge of the tongue via a metal
reinforcement and both wood and concrete materials in a tongue and groove
joint would be susceptible to damage and such damage could be prevented
by way of Heeren’s metal reinforcement. Ans. 20. Appellant’s arguments
do not apprise us of error in the Examiner’s findings and conclusions of
obviousness as set forth in the Answer.
Appellant’s further argument that Frohlich does not teach a vertical
support rod (Ans. 17) is not persuasive since the Examiner relied on Stutts to
disclose this feature.
As such, the rejection of claim 1, and claims 2, 6-8, 11, 12, 14, 15, 17,
19, 20, 22 and 24 is sustained.

Claims 3, 4, 5, 9, 10, 13, 16, 18, 21 and 23
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Claims 3, 4, 5, 9, 10, 13, 16, 18, 21 and 23 are dependent claims
including additional features. The Examiner relied on the findings discussed
supra with respect to the combination of Tanner, Heeren, Stutts and
Frohlich, and provided findings and reasoning with regard to the additional
features as disclosed in Richardson, Faw, Huguet, Dietz, Martensson and
Hubbard respectively. Appellant relies on the arguments discussed supra
with respect to the base combination of Tanner, Heeren, Stutts and Frohlich,
and contends that the addition of Richardson, Faw, Huguet, Dietz,
Martensson or Hubbard respectively, does not make the base combination
proper. App. Br. 17-22. For the reasons discussed supra with respect to
claim 1, we likewise sustain the rejection of claims 3, 4, 5, 9, 10, 13, 16, 18,
21 and 23.

DECISION
The Examiner’s rejection of claims 1-24 is sustained.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2011).

AFFIRMED

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