Ex Parte Greene

Board of Patent Appeals and Interferences

Dec 19, 2003

09824544 (B.P.A.I. Dec. 19, 2003)

The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board.
Paper No. 22
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte STEVEN L. GREENE
__________
Appeal No. 2004-0217
Application 09/824,544
___________
ON BRIEF
___________
Before COHEN, MCQUADE, and BAHR, Administrative Patent Judges.
MCQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Steven L. Greene appeals from the final rejection of claims
1 through 6, 8 through 21, 23, 24 and 28. Claim 27 stands
allowed. Claims 7, 22, 25 and 26, the only other claims pending
in the application, stand objected to as depending from rejected
base claims.
THE INVENTION
The subject matter on appeal relates to “pallets for
supporting intermediate bulk containers (IBC’s) or bulk bags”
Appeal No. 2004-0217
Application 09/824,544
2
(specification, page 1). Representative claim 1 reads as
follows:
1. A modular pallet comprising:
a top wall;
a bottom wall;
a guide channel defining portion configured for defining at
least one guide channel at least partially between the top wall
and the bottom wall;
at least one opening in the bottom wall, wherein the opening
being adapted to receive a corresponding lift strap of a bulk bag
so that the lift strap defines a loop in the at least one guide
channel; and
an insert member configured to be inserted into the at least
one guide channel for engaging the loop of a lift strap received
in the at least one opening to thereby fasten the bulk bag to the
modular pallet for forming a bulk bag combination, wherein the
insert member being configured for engagement by a lifting device
for lifting and maneuvering the bulk bag combination.
THE REJECTION
Claims 1 through 6, 8 through 21, 23, 24 and 28 stand
rejected under 35 U.S.C. § 102(b) as being anticipated by U.S.
Patent No. 4,875,419 to Helton et al. (Helton).
Attention is directed to the main and reply briefs (Paper
Nos. 17 and 19) and to the final rejection and answer (Paper Nos.
8 and 18) for the respective positions of the appellant and the
examiner regarding the merits of this rejection.
DISCUSSION
Anticipation is established only when a single prior art
reference discloses, expressly or under principles of inherency,
each and every element of a claimed invention. RCA Corp. v.
Appeal No. 2004-0217
Application 09/824,544
3
Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ
385, 388 (Fed. Cir. 1984).
Helton discloses a collapsible pallet comprising a planar
top 10, a planar bottom 11, pillars 14 formed by paired tabs 25
and 26 cut out from the top and bottom and extending
therebetween, openings in the top and bottom formed by the cut
out tabs, opposite sides 12 defining forklift orifices/channels
18 and opposite ends defining forklift orifices/channels 28. The
opposite ends also embody fastening structure adapted to be
inserted between the top and bottom into engagement with adjacent
pillars to maintain the pallet in an erected condition. The
fastening end structure shown in Figures 1 through 6 consists of
foldable tabs having vertical portions 19 and fastening portions
20, and the fastening end structure shown in Figures 7 and 9
consists of tubular elements having bottoms 32, sides 33 and tops
34.
As indicated above, independent claim 1 recites a modular
pallet comprising, inter alia, an insert member “configured for
engagement by a lifting device for lifting and maneuvering the
bulk bag combination.” Similarly, independent claim 28 recites a
modular pallet comprising, inter alia, insert means “adapted to
be engaged by a lifting means for lifting and maneuvering the
Appeal No. 2004-0217
Application 09/824,544
4
bulk bag combination.” The examiner finds (see pages 2 and 3 in
the final rejection) that these limitations are met by either the
end fastening structure shown in Helton’s Figures 1 through 6 or
the end fastening structure shown in Helton’s Figures 7 and 9.
In this regard, the examiner submits that
the [Helton] tab (20 or part of 34) which extends into
the channel between the tabs 25 and 26, located over
the opening caused by the fold 27 (shown in Fig. 5), is
capable of being engaged by an appropriately configured
lifting device, such as one which will extend between
the vertical end portion 19 and either of the tabs
25,26 or such as one which will extend into such a
channel from one of the bottom openings. The examiner
further asserts that said tabs are capable of being
engaged by such a lifting device which is capable of
maneuvering the combination of a bulk bag with the
pallet of Helton [answer, page 5].
The contention that Helton’s insertable end structure is
capable of being engaged by some unspecified lifting device
extending through one of the bottom openings in the pallet is
somewhat far-fetched and completely lacking in factual support.
On the other hand, the examiner’s alternative position that the
insertable end structure is capable of being engaged by a lifting
device extending between vertical end portion 19 and the tabs 25,
26, e.g., by a forklift tine extending into a forklift
orifice/channel 28, arguably is more plausible. Ostensibly,
however, any such engagement would be incidental and fairly
minimal along one of the side edges of the insertable end
Appeal No. 2004-0217
Application 09/824,544
5
structure. Such limited engagement cannot reasonably be
construed as serving the purpose of lifting and maneuvering the
bulk bag combination as required by the insert member/means
limitations at issue. Thus, the examiner’s determination that
Helton meets these structural limitations, and is anticipatory
with respect to the modular pallet recited in claims 1 and 28, is
not well founded.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 102(b) rejection of independent claims 1 and 28, and dependent
claims 2 through 6, 8 through 21, 23 and 24, as being anticipated
by Helton.
SUMMARY
The decision of the examiner to reject claims 1 through 6, 8
through 21, 23, 24 and 28 is reversed.
Appeal No. 2004-0217
Application 09/824,544
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REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
) BOARD OF PATENT
)
) APPEALS AND
JOHN P. MCQUADE )
Administrative Patent Judge ) INTERFERENCES
)
)
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
JPM/kis
Appeal No. 2004-0217
Application 09/824,544
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MARTHA ANN FINNEGAN, ESQ.
CABOT CORPORATION
157 CONCORD ROAD
BILLERICA, MA 01821-7001