Ex Parte Janecek

Board of Patent Appeals and Interferences

Apr 27, 2011

11283186 (B.P.A.I. Apr. 27, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ALBIN JANECEK
____________

Appeal 2009-009279
Application 11/283,186
Technology Center 3600
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Before WILLIAM F. PATE, III, MICHAEL W. O’NEILL, and
STEFAN STAICOVICI, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-009279
Application 11/283,186

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STATEMENT OF THE CASE
Albin Janecek (Appellant) appeals under 35 U.S.C. § 134 (2002) from
the Examiner’s decision rejecting under 35 U.S.C. § 102(e) claims 1-3, 6-9,
12-15, 18-25, 27, and 28 as anticipated by Settelmayer (US 2006/0280583
A1, published Dec. 14, 2006) and under 35 U.S.C. § 103(a) claim 26 as
unpatentable over Settelmayer and claims 4, 5, 10, 11, 16, and 17 as
unpatentable over Settelmayer and Olms (US 5,850,891, issued Dec. 22,
1998). We have jurisdiction over this appeal under 35 U.S.C. § 6 (2002).

THE INVENTION
Appellant’s invention relates to a method and apparatus for carrying,
transporting and moving loads including one or more movable carriages 20,
25. Spec. 2, para. [0006] and fig. 1.
Claim 7 is representative of the claimed invention and reads as
follows:
7. (Previously Presented) An apparatus for carrying a load,
comprising:
a powered vehicle;
first and second opposed carriages mounted to the vehicle each
said carriage capable of carrying a load;
said first and second carriages rotatable in opposite directions
and having a range of motion defined by a substantially vertical
position and a substantially horizontal position with respect to the
powered vehicle.

SUMMARY OF DECISION
We REVERSE.

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Application 11/283,186

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ANALYSIS
Appellant’s Declaration filed under 37 C.F.R. § 1.131
Appellant argues that the Examiner’s rejection of independent claims
1, 7, and 13 as anticipated by Settelmayer is in error as Settelmayer is not a
reference. Appellant submitted a Declaration under 37 C.F.R. § 1.1311
(hereafter “Declaration”) for the purpose of showing that his invention
antedates Settelmayer. App. Br. 9-11. In response, the Examiner states that
the Declaration has been considered, but finds that “[t]he evidence submitted
is insufficient to establish a conception of the invention prior to the effective
date of the 09/27/2004 [Settelmayer] reference.” Ans. 6.
We have thoroughly considered the Declaration and we have found a
lack of evidence supporting the assertion that the actual reduction to practice
date of the claimed invention antedates Settelmayer’s filing date. Rather, we
observe that Appellant has merely repeated the claim language. See
Declaration, page 2, ¶ 4. Further, we note that although the drawings
presented in Exhibits A and B, submitted with the Declaration, show various
structures, it is not clear which represents a “support structure” and which is
a “carriage” that is “moveable between a substantially vertical position and
a substantially horizontal position,” as called for by Appellant’s claimed
invention. Thus, we find Appellant’s assertion of actual reduction to
practice amounts to a mere pleading that is unsupported by proof or a
showing of facts of sufficient character and weight to establish prior
invention. See In re Borokowski, 505 F.2d 713, 718 (CCPA 1974).
Accordingly, we find no reversible error in the Examiner’s finding
that the Declaration submitted under 37 C.F.R. § 1.131 is defective and thus

1 Declaration of inventor Albin Janacek filed March 18, 2008.
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Application 11/283,186

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fails to establish actual reduction to practice before the effective filing date
of the Settelmayer reference.
The anticipation rejection over Settelmayer
Each of independent claims 1, 7, and 13 requires a carriage moveable
between a “substantially vertical position and a substantially horizontal
position.” App. Br., Claims Appendix. Pointing to Figure 9 of Settelmayer,
the Examiner found that “carriage 92 is in a vertical relationship relative to
the vehicle 18” and in Figure 10, “the carriage is in a horizontal
positionrelative to the vehicle 18.” Ans. 7.
We disagree with the Examiner’s view that the position of carriage 92
shown in Figures 9 and 10 of Settelmayer constitutes a vertical position and
a horizontal position, respectively, as called for by each of independent
claims 1, 7, and 13. We agree with Appellant that, “a change from a vertical
to a horizontal position requires a 90 degree change in position.” Reply Br.
2. An ordinary and customary meaning of the term “vertical” is
“perpendicular to the plane of the horizon or to a primary axis: UPRIGHT.”
MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (10th Ed. 1997). In this
case, if we consider the position of carriage 92 shown in Figure 10 of
Settelmayer as the horizontal position (primary axis), as the Examiner
proposes, then a vertical position would be a position perpendicular (upright)
to this position. We do not find that the position of carriage 92 shown in
Figure 9 of Settelmayer is perpendicular (upright) to its position shown in
Figure 10. Similarly, if we consider the position of carriage 92 shown in
Figure 9 of Settelmayer as the vertical position, as the Examiner proposes,
then a horizontal position would be a position perpendicular to this position.
Likewise, we do not find that the position of carriage 92 shown in Figure 10
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of Settelmayer is perpendicular to its position shown in Figure 9.
Accordingly, carriage 92 of Settelmayer is not moveable between a
“substantially vertical position and a substantially horizontal position,” as
called for by each of independent claims 1, 7, and 13.
In conclusion, for the foregoing reasons, the rejection of independent
claims 1, 7, and 13 and their respective dependent claims 2, 3, 6, 8, 9, 12, 14,
15, 18-25, 27, and 28 under 35 U.S.C. § 102(e) as anticipated by Settelmayer
cannot be sustained.

The obviousness rejections
With respect to the rejection of claim 26 under 35 U.S.C. § 103(a) as
unpatentable over Settelmayer, the Examiner’s proposed modification of
Settlemayer does not cure the deficiencies of Settelmayer as described
supra. See Ans. 5, 6. Accordingly, the rejection of claim 26 likewise cannot
be sustained.
Lastly, regarding the rejection of claims 4, 5, 10, 11, 16, and 17 under
35 U.S.C. § 103(a) as unpatentable over Settelmayer and Olms, the addition
of Olms does not cure the deficiencies of Settelmayer as described supra.
Therefore, we shall not sustain the rejection of claims 4, 5, 10, 11, 16, and
17 over the combined teachings of Settlemayer and Olms.

SUMMARY
The decision of the Examiner to reject claims 1-28 is reversed.

REVERSED
JRG