Ex Parte Hadar

Board of Patent Appeals and Interferences

Sep 17, 2008

10826293 (B.P.A.I. Sep. 17, 2008)

UNITED STATES PATENT AND
TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte NIR HADAR
____________

Appeal 2008-2684
Application 10/826,293
Technology Center 3700
____________

Decided: September 17, 2008
____________

Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and
BIBHU R. MOHANTY, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant seeks our review under 35 U.S.C. § 134 of the final
rejection of claims 14-18 and 24-27. Claims 1-13 and 19-20 have been
Appeal 2008-2684
Application 10/826,293

2
cancelled. Claims 21-23 have been withdrawn. We have jurisdiction under
35 U.S.C. § 6(b) (2002). We REVERSE.

THE INVENTION
The Appellant’s claimed invention is directed to a knock down crate
with walls stored in the base. The base has an elongated recess which
receives the sides of the crate when detached (Spec. 2:19-3:510).
Claim 27, reproduced below, is representative of the subject matter of
appeal.
27. A method for using a knock-down crate to transport
produce from a loading location to an unloading location, the method
comprising the steps of':
(a) providing a knock-down crate having:
(i) a base having a length, a breadth, and an upper surface
that includes an elongated recess, said base including a
pair of forklift tine engagement regions extending
parallel to said length such that a major part of said
recess lies between said forklift tine engagement regions,
each of said forklift tine engagement regions configured
for receiving tines of a forklift mechanism, and
(ii) four sides deployable in a crate configuration wherein
a plurality of said sides are engaged with said base and
each other to form a four-sided crate, said four sides
being further deployable in a knock-down configuration
wherein said four sides are received substantially within
said elongated recess;
(b) deploying said crate in said crate configuration;
Appeal 2008-2684
Application 10/826,293

3
(c) loading said crate at the loading location with produce, at
least part of the produce lying within said elongated recess;
(d) transporting the produce in said crate to the unloading
location;
(e) unloading the produce from said crate; and
(f) deploying said crate in said knock-down configuration with
said plurality of sides located substantially within said
elongated recess for transport to a next loading location.

THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Foy US 4,917,255 Apr. 17, 1990
Luburic US 5,938,059 Aug. 17, 1999

The following rejections are before us for review:
1. Claims 14-18 and 24-27 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Luburic and Foy.

THE ISSUE
The issue is whether the Appellant has shown that the Examiner erred
in rejecting the claims 14-18 and 24-27 as being unpatentable over Luburic
and Foy. This issue turns on whether Foy discloses the claimed limitation
that a “major part of the recess lies between the forklift tine engagement
regions”.
Appeal 2008-2684
Application 10/826,293

4
FINDINGS OF FACT
We find the following enumerated findings of fact (FF) are supported
at least by a preponderance of the evidence1:
FF1. Webster’s New World Dictionary, Third College Edition (1988), lists
the primary definition of “between” as: 1) in or through the space that
separates (two things).
FF2. Foy discloses a collapsible container with a recess 20 between the two
base sides 14. The recess 20 lies above the elongated channels 44 which
also serve as forklift tine engagement regions (Fig. 14).

PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727,
1734 (2007). The question of obviousness is resolved on the basis of
underlying factual determinations including (1) the scope and content of the
prior art, (2) any differences between the claimed subject matter and the
prior art, (3) the level of skill in the art, and (4) where in evidence, so-called
secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18,
(1966). See also KSR, 127 S.Ct. at 1734 (“While the sequence of these

1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
Appeal 2008-2684
Application 10/826,293

5
questions might be reordered in any particular case, the [Graham] factors
continue to define the inquiry that controls.”)

ANALYSIS
The Appellant argues that the rejection of the claim 27 under 35
U.S.C. § 103(a) as being unpatentable over Luburic and Foy is improper
because the references fail to discloses the claimed limitation that “a major
part of the recess lies between said forklift tine engagement regions” (Br. 7).
The Appellant asserts that is incorrect to apply a non-spatial meaning of the
word “between” in interpreting this claim limitation.
In contrast, the Examiner has determined that a major part of the
recess in Foy does lie between the forklift tine engagement regions (Ans. 3).
The Examiner uses a definition of “between” from Merriam Webster’s
Collegiate Dictionary, tenth edition, which defines the term “between” to
have other meanings such as “in common to” or “serving to connect or unite
in a relationship” (Ans. 6).
We agree with the Appellant. We first construe the meaning of the
phrase “between said elongated channels” as used by the Appellant in the
claims. We determine the scope of the claims in patent applications “not
solely on the basis of the claim language, but upon giving claims their
broadest reasonable construction ‘in light of the specification as it would be
interpreted by one of ordinary skill in the art.’” Phillips v. AWH Corp., 415
F.3d 1303, 1316 (Fed. Cir. 2005) (en banc) (quoting In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)). The specification
describes (Spec. 11:18-12:10) that:
Appeal 2008-2684
Application 10/826,293

6
“Crate 10 is preferably configured for handling by standard pallet
handling equipment. To this end, base 12 preferably has a pair of
elongated channels 26 extending parallel to length L for receiving
tines of a forklift mechanism (forklift, pallet carrier etc.). Channels 26
typically extend along the entirety of length L, allowing insertion of
tines from either end of the crate. Most preferably, at least a major
portion of recess 20 is located between channels 26. Thus, considered
from a different point of view, crate 10 may be considered to have a
thin base 12 in the region of recess 20, with locally raised
regions to provide the volume required for channels 26. It will thus be
understood that the usable volume of the inside of the crate is fully
maximized by making all volume other than that required for channels
26 available for loading with produce. Furthermore, since the sides are
stored between the regions of base 12 containing channels 26, nothing
overlies the regions of the base 12 containing channels 26 in the
collapsed state, making the height of the crate in its collapsed state
significantly less than that of "fold-down" crates of similar
dimensions”. (Emphasis added).

The Appellant in the Specification has stated that “since the sides are
stored between the regions of base 12 containing channels 26, nothing
overlies the regions of the base 12 containing channels 2” (Spec. 12:6-8,
emphasis added). One of ordinary skill in the art would interpret this use of
the word “between” in the specification to mean that regions of the base
containing the sides (the recess) are located in or through the space that
separated the channels, and to not overlie the channels. This interpretation
of the phrase “between” is consistent with the definition provided by
Appellant in the Appeal Brief (Br. 8) and our own definition (FF1). For the
reasons given by the Appellant, the definition for “between” selected by the
Examiner are unreasonable because they apply to meanings outside the
context of the claimed subject matter.
Appeal 2008-2684
Application 10/826,293

7
Foy discloses a recess that lies “above” the channels (FF2) and not
between. Since Foy fails to disclose the claimed limitation for “a major part
of the recess to lie between said forklift tine engagement regions (which are
channels)” the rejection of claim 27 under 35 U.S.C. § 103(a) as
unpatentable over Luburic and Foy is not sustained.
The Appellant’s arguments for claims 14-18 and 24-26 are the same
as those argued for claim 27. For the above reason, the rejection of claims
under 35 U.S.C. § 103(a) as unpatentable over Luburic and Foy is also not
sustained.
CONCLUSIONS OF LAW
We conclude that Appellant has shown that the Examiner erred in
rejecting claims 14-18 and 24-27 under 35 U.S.C. § 103(a) as being
unpatentable over Luburic and Foy

DECISON
The Examiner’s rejection of claims 14-18 and 24-27 is not sustained.

REVERSED

vsh

Appeal 2008-2684
Application 10/826,293

8
DR. MARK FRIEDMAN LTD.
C/O BILL POLKINGHORN
DISCOVERY DISPATCH
9003 FLORIN WAY
UPPER MARLBORO MD 20772