Ex Parte Gohlke

Board of Patent Appeals and Interferences

Jul 19, 2005

10347334 (B.P.A.I. Jul. 19, 2005)

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The opinion in support of the decision being entered
today was not written for publication in a law journal
and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte ANDREW D. BAILEY III, ALAN M. SCHOEPP,
DAVID J. HEMKER and MARK H. WILCOXSON

Appeal No. 2005-1395
Application No. 10/347,334

ON BRIEF

Before KIMLIN, PAK and WARREN, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-9.
Claim 1 is illustrative:
1. A method of transporting cargo using containers, the
containers each having bottom flooring, and substantially open
front and rear ends such that a user can walk through the
container via the open front and rear ends, each container being
constructed and arranged to be transported within an interior of
a trailer of a vehicle, method including the steps of:
moving a first container to a cargo collection location,
loading cargo into the first container,
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Application No. 10/347,334
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moving the loaded first container to the trailer and loading
the first container into the interior of the trailer,
moving a second container to the cargo collection location,
loading cargo into the second container,
moving the loaded second container to the trailer and
loading the second container into the interior of the trailer so
that an end of the second container is generally adjacent to an
end of the first container,
transporting the trailer with the containers therein to a
destination,
removing the cargo from the second container while the
second container remains in the trailer, and
walking through the second container in the trailer to
unload the cargo from the first container while the first
container remains in the trailer.
The examiner relies upon the following references as
evidence of obviousness:
Black 3,850,295 Nov. 26, 1974
Bennett 3,993,343 Nov. 23, 1976
Appellant's claimed invention is directed to a method of
transporting cargo, such as tires, using containers that have
substantially open front and rear ends that allow for a person to
enter and exit, respectively. The method entails loading the
cargo into a first container, moving the loaded container into a
trailer, loading cargo into a second container and moving the
second loaded container into a trailer. After the trailer is
transported to its destination, cargo is removed from the second
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container by a person who then walks through the second container
to unload cargo from the first container.
Appealed claims 1-9 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Black in view of Bennett.
In accordance with the grouping of claims set forth at
page 5 of appellant's principal brief, claims 1 and 3-5 stand or
fall together, as do claims 6 and 8-9.
We have thoroughly reviewed each of appellant's arguments
for patentability. However, we are in complete agreement with
the examiner that the claimed subject matter would have been
obvious to one of ordinary skill in the art within the meaning of
§ 103 in view of the applied prior art. Accordingly, we will
sustain the examiner's rejection for essentially those reasons
expressed in the Answer, and we add the following primarily for
emphasis.
There is no dispute that Black, like appellant, discloses a
method of transporting tires by loading the tires into containers
and then unloading the tires from the means of transportation.
Appellant does not argue that "Black does not teach removing
tires from the vehicle, but it is Applicant's position that Black
does not teach or suggest that the tires are removed from his
containers while the containers remain in the vehicle" (sentence
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bridging pages 1 and 2 of Reply Brief). Appellant emphasizes
that "[n]owhere does Black teach or suggest unloading the tires
from the containers while the containers are in the trailer"
(page 6 of principal brief, second paragraph). However, we
concur with the examiner that Black's disclosure that the
containers "with tires in place may be moved to selected storage
areas" would have suggested to one of ordinary skill in the art
that the tires may also be removed while the container remains in
the vehicle (column 10, lines 7-8, emphasis added). Moreover, we
are utterly convinced that one of ordinary skill in the art would
have found it obvious to either remove the loaded containers from
the vehicle or, as presently claimed, remove the tires from the
containers while they are still in the vehicle. Also, we agree
with the examiner that Bennett evidences the obviousness of a
worker moving from one container to the other during the
unloading process. In our view, one of ordinary skill in the art
would have readily ascertained the option of leaving the
containers in the vehicle while removing the tires so that the
vehicle may return to the location of loading for additional
transportation of more tires.
Appellant maintains that "[t]here is no manually unloading
of all the cylinders from all the pallets while the pallets
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remain on the truck in Bennett since this is described as the
undesirable prior art method at column 1, lines 34-37 of Bennett"
(page 7 of principal brief, first paragraph). However, although
Bennett may describe such a method as undesirable, the fact
remains that such a technique was within the prior art.
Likewise, while appellant contends that Black describes
difficulties associated with leaving the containers in the
vehicle, such method remains in the prior art. Appellant has
proffered no objective evidence that such difficulties are
unobviously avoided by the present method.
Appellant also submits that "[i]t is not a moot point that
Black compresses his tires in his containers, since one could not
walk through Black's compressed container having tires therein"
(page 3 of Reply Brief, first paragraph). However, one could not
walk through appellant's containers having tires therein, whether
they be in a compressed state or not.
As a final point, we note that appellant bases no argument
upon objective evidence of nonobviousness, such as unexpected
results, which would serve to rebut the strong prima facie case
of obviousness established by the examiner.
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In conclusion, based on the foregoing and the reasons well-
stated by the examiner, the examiner's decision rejecting the
appealed claims is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)(1)(iv) (effective Sep. 13, 2004; 69 Fed. Reg. 49960
(Aug. 12, 2004); 1286 Off. Gaz. Pat. Office 21 (Sep. 7, 2004)).
AFFIRMED
EDWARD C. KIMLIN )
Administrative Patent Judge )
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)
)
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CHUNG K. PAK ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
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CHARLES F. WARREN )
Administrative Patent Judge )
ECK:clm
Appeal No. 2005-1395
Application No. 10/347,334
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