Ex Parte Gillotti

Patent Trial and Appeal Board

Oct 17, 2014

12328235 (P.T.A.B. Oct. 17, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/328,235 12/04/2008 Michael Gillotti 1128.02 6580
85444 7590 10/20/2014
Bay Area Technolgy Law Group PC
2171 E. Francisco Blvd., Suite L
San Rafael, CA 94901
EXAMINER
SNELTING, JONATHAN D
ART UNIT PAPER NUMBER
3652
MAIL DATE DELIVERY MODE
10/20/2014 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 MICHAEL GILLOTTI
____________

Appeal 2012-007137
Application 12/328,2351
Technology Center 3600
____________

Before ROBERT E. NAPPI, KIMBERLY J. McGRAW, and
ROBERT L. KINDER, Administrative Patent Judges.

McGRAW, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 17, 18, and 22. Appeal Br. 3. Claims 1–15 and 19–21
have been withdrawn from consideration. Answer 3. Claim 16 is cancelled.
Answer 3. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1According to Appellant, the real party in interest is the named inventor,
Michael A. Gillotti. Appeal Br. 1.

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BACKGROUND
The subject matter of the claimed invention is directed to methods of
increasing the spacing of potted plants, such as those found at nursery or
garden store, using a device connected to a forklift. Appeal Br. 2; Spec. ¶ 2.
Claim 22, the sole independent claim on Appeal, and dependent claim
18 are the focus Appellant’s brief and are reproduced below.
22. A method of increasing spacing of pots arranged in an
array of columns comprising
operating a vehicle having appended thereto a device
configured for attachment to a vertically actuatable forklift
supported by a moving vehicle, said device comprising
a horizontally extending member,
a plurality of forks, each fork comprising a pair of parallel
rails, a first end of said parallel rails being appended to a
continuous drive located within said horizontally extending
member,
a reversible motor geared to said continuous drive such that
when said reversible motor is actuated in a first direction, said
forks are caused to separate from one another and when said
reversible motor is actuated in a second direction, said forks are
caused to move closer to one another,
a series of longitudinally extending members extending
from said horizontally extending member along each of said
parallel rails, each longitudinally extending member supporting
a plurality of flippers, each flipper spaced apart from an
adjacent flipper on each of said longitudinally extending
members such that when said longitudinally extending
members are in a first orientation, said flippers extend
substantially horizontally from said parallel rails and when said
longitudinally extending members are in a second orientation,
said flippers extend substantially vertically from said parallel
rails,
means to move said longitudinally extending members
between said first and second orientations wherein said
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longitudinally extending members are biased to cause said
flippers to assume said first orientation,
said method comprising
aligning said pots within said forks of said device such
that said columns are positioned between said pairs of parallel
rails,
moving said device to capture said pots between said
parallel rails,
actuating said reversible motor and moving said
continuous drive to separate said forks from one another,
rotating said longitudinally extending members from
their first to their second orientations,
elevating said device a sufficient height such that a first
series of pots between flippers remain at ground level and a
second series not between flippers are elevated above said first
series,
moving said vehicle away from said array to displace said
second series of pots away from said first series of pots.

18. The method of claim 22 wherein diverters, appended to a
second end of said forks are introduced to and between said
columns such that as said forks move toward said columns, said
diverters urge said pots between said rails.

Claim App’x 9 (with indentations added).

THE REJECTION
Claims 17, 18, and 22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Olsthoorn et a1. (US Patent 5,215,427; June 1,
1993) (“Olsthoorn”) in view of Fridlington, Jr. et al. (US Patent Application
No. 2006/0181039 A1; Aug. 17, 2006) (“Fridlington”). Answer 3.
Olsthoorn teaches a forklift truck attachment that can be used to
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transport rows of potted plants. Appeal Br. 5; Olsthoorn Abstract. The
apparatus of Olsthoorn has parallel rails (Fig. 6a, elements 1, 2) with a series
of flippers (Fig. 8, elements 11, 12, 15, 16) along the rails that can be raised
or lowered. Final Act. 2–3, citing Olsthoorn Fig. 6a, 8–12. When the
flippers are raised to the horizontal position, the flippers and rails can
support all of the potted plants in a row so that the pots can be lifted by the
rails/flippers and moved. Final Act. 3; see also Olsthoorn 6:61–7:53
(describing Figs. 6, 8, 10–12). Thereafter, the rails are lowered and the
potted plants are set down on the ground. Olsthoorn 6:61–7:53. The
flippers can be moved to their vertical positions. Id. When the flippers are
vertical and the rails are raised, only the potted plants that are supported by
the rails are lifted up and the potted plants that were originally supported by
the flippers remain on the ground. Id. The fork lift can then move the
potted plants, which are supported on the rails, to another location. Id. This
allows the device to capture and move some, but not all, of the pots in a row,
thereby increasing spacing of the pots. Id.
The Examiner stated that Olsthoorn does not explicitly teach a
continuous drive, a reversible motor, and actuating the reversible motor that
can cause the forks to separate from one another as recited in claim 22.
Final Act. 3. However, the Examiner found that Fridlington, which is
directed to a pallet jack with width adjustable parallel rails, teaches these
features. Final Act. 3–4; Answer 6–8; Fridlington Abstract. In particular,
the Examiner found that Fridlington teaches an apparatus having a first end
of parallel rails or forks (Fig. 6, elements 36, 38) that are appended to a
continuous drive (90) located within a horizontally extending member, a
reversible motor (100, 110) geared to the continuous drive such that when
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the reversible motor is actuated in a first direction, the forks are caused to
separate from one another and when the reversible motor is actuated in a
second direction, the forks are caused to move closer to one other and
actuating the reversible motor in moving the continuous drive to separate the
forks from one another. Answer 6, citing Fridlington, Figs. 5, 6, ¶ 50.
The Examiner concluded that it would have been obvious to a person
of ordinary skill in the art to modify Olsthoorn’s method of moving potted
plant by adding a continuous drive, a reversible motor, and the step of
actuating the reversible motor as taught by Fridlington in order to vary the
distance between the forks/rails. Answer 6.
Regarding claim 18, the Examiner found that Olsthoorn teaches
diverters that are appended to a second end of the forks. Final Act. 4, citing
Olsthoorn, Fig. 8 (angled portions on left side of Figure). The Examiner
further found that the diverters are introduced to and between the columns of
pots so that as the forks move towards the columns of pots, the diverters
urge the pots between the rails. Id.
ANALYSIS
Claim 22
The Appellant argues that the Examiner erred in concluding that the
subject matter of claim 22 would have been obvious because there is no
teaching to combine the references and because the combination could not
function. Appeal Br. 3–7. Appellant contends that because the fork
elements in Olsthoorn are fixed, a reversible motor geared to a continuous
drive to move the forks apart from one another would change the principle
of operation of Olsthoorn. Appeal Br. 6–7.
This argument is not persuasive. Fridlington teaches that it is
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beneficial to be able to vary the distance between forks/rails in order to lift
different sized loads. Answer 8, citing Fridlington ¶ 20 (stating that “a need
exists for a pallet jack having width-adjustable fork prongs having prongs
that can be spread further apart or brought closer together, that can be
quickly and readily adjusted by a single user . . . .”) and ¶ 8. The Examiner
found, and we agree, that it would have been obvious to one of ordinary skill
in the art to modify Olsthoorn’s invention with a reversible motor as taught
by Fridlington in order to vary the distance between the forks/rails of
Olsthoorn. Appellant’s argument that the loads (planted pots) lifted by
Olsthoorn are of a constant size and thus there would be no motivation to
combine Fridlington and Olsthoorn is unpersuasive as varying the distance
of the forks would enable Olsthoorn to be able to lift different size pots. If a
technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond the skill of one ordinarily skilled in the art. KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007).
Appellant’s argument, that because the Olsthoorn fork elements are
fixed, modifying Olsthoorn to make the fork elements adjustable would
change Olsthoorn’s principle of operation, is not persuasive. Appeal Br. 7.
The principle of operation of Olsthoorn is to transport potted plants and to
pick up and increase the spacing between pots thereby decreasing the density
of the pots. See Olsthoorn Abstract (“The invention relates to an apparatus
for transporting potted plants . . . allowing it to pick up only a limited
number of plant pots in a row . . . . This allows decreasing the density of the
plant pots.”). Making the forks/rails adjustable would not render
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Olsthoorn’s device incapable of picking up and increasing the spacing
between pots. Answer 8.
Applicant’s argument, that Olsthoorn teaches only one fork between
pots, unlike the present invention which has two forks between pots, is not
persuasive. Appeal Br. 6. Applicant is arguing limitations not found in the
claims.
Considering the evidence of record and arguments of the Appellant,
we conclude the Examiner did not err in determining that the subject matter
of claim 22 would have been obvious over the cited art.
Claims 17 and 18
Appellant argues that claims 17 and 18 are also allowable by virtue of
their dependence from allowable base claim 22. As we have sustained the
Examiner’s rejection of base claim 22, we do not find this argument
persuasive.
Appellant also argues that the Examiner erred in rejecting claim 18
because Olsthoorn does not teach or suggest diverters “appended” to a
second end of the forks as set forth in the claim. Appellant contends that
Fig. 8 of Olsthoorn merely shows forks or tines with pointed ends and that
these pointed ends “are not separate elements as provided in claim 18.”
Appeal Br. 7.
The Examiner stated that claim 18 does not require that the diverters
be separate and distinct from the forks/rails. Answer 8. We agree.
Appellant has not provided any argument that Examiner’s construction is
inconsistent with specification. See Phillips v. AWH Corp., 415 F.3d 1303,
1316 (Fed. Cir. 2005) (stating that during examination, pending claims must
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be given their broadest reasonable interpretation consistent with the
specification).
Additionally, we disagree with Appellant’s statement that “there are
no separate elements at the end of the forks of Olsthoorn whatsoever.”
Appeal Br. 7. As shown in Figure 6a of Olsthoorn, the recess 9 and 10 of
the carriers 1 and 2 can be provided with “carrying elements 11 and 12.”
These carrying elements 11 and 12 of Fig. 6a are rotatable around the
longitudinal side of the carrier and appear to create the same pointed ends of
the forks/rails shown in Figure 8, cited by the Examiner.
For these reasons, we sustain the Examiner’s rejection of claims 17
and 18.

DECISION
The decision of the Examiner to reject claims 17, 18 and 22 under 35
U.S.C. § 103(a) is affirmed.
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).

AFFIRMED

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