Ex Parte Jensen

Board of Patent Appeals and Interferences

Jun 24, 2003

09759950 (B.P.A.I. Jun. 24, 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for publication and is not binding precedent of the Board.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. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JENS HERMAN JENSEN
____________
Appeal No. 2003-0677
Application No. 09/759,950
____________
ON BRIEF
____________
Before ABRAMS, McQUADE, and NASE, Administrative Patent Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 1 and 3
to 9, which are all of the claims pending in this application.
We AFFIRM.
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BACKGROUND
The appellant's invention relates to a loading platform system for mounting on a
vehicle, particularly on a truck, comprising a platform lifting structure, an essentially
plate-like loading platform for lifting and lowering loads and at least one lifting actuator
mechanism for lifting and lowering the loading platform (specification, p. 1). A copy of
the claims under appeal is set forth in the appendix to the appellant's brief.
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Randall et al. (Randall) 3,257,011 June 21, 1966
Mortenson 4,078,676 Mar. 14, 1978
Claims 1 and 3 to 9 stand rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite for failing to particularly point out and distinctly claim the subject matter
which the appellant regards as the invention.
Claims 1 and 3 to 9 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Randall in view of Mortenson.
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Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejections, we make reference to the final
rejection (Paper No. 5, mailed March 10, 2002) and the answer (Paper No. 10, mailed
October 9, 2002) for the examiner's complete reasoning in support of the rejections,
and to the brief (Paper No. 9, filed September 12, 2002) for the appellant's arguments
thereagainst.
OPINION
Initially, we must determine if the rejection of claims 1 and 3 to 9 under 35 U.S.C.
§ 112, second paragraph, made in the final rejection is before us in this appeal. The
facts are as follows:
1. The final rejection included a rejection of claims 1 and 3 to 9 under 35 U.S.C.
§ 112, second paragraph.
2. Following the final rejection, the appellant submitted a response under 37 CFR
§ 1.116 (Paper No. 6, filed July 10, 2002) in which the appellant proposed amendments
to overcome the rejection under 35 U.S.C. § 112, second paragraph, and also to
distinguish over the applied prior art.
3. In the Advisory Action (Paper No. 7, mailed July 25, 2002) responding to Paper
No. 6, the examiner informed the appellant that the proposed amendments would not
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Application No. 09/759,950
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be entered, however, the examiner also indicated that the response had overcome the
rejection under 35 U.S.C. § 112, second paragraph.
4. In the brief, the appellant noted that the rejection under 35 U.S.C. § 112, second
paragraph, had be overcomed, and that the sole issue under appeal was the rejection
of claims 1 and 3 to 9 under 35 U.S.C. § 103.
5. In the answer, the examiner stated that the appellant's statement of the issues in
the brief was correct. Nevertheless, the examiner thereafter stated that one of the
rejections applicable to the appealed claims was a rejection of claims 1 and 3 to 9
under 35 U.S.C. § 112, second paragraph, and that the appellant had not contested
this rejection but that the proposed and unentered amendment after final would
overcome this rejection.
6. In the response to the answer (Paper No. 11, filed November 23, 2002), the
appellant noted that it had been assumed that the rejection under 35 U.S.C. § 112,
second paragraph, had been resolved per the Advisory Action and that this response is
submitted for clarification of the examiner's continued rejection of claims 1 and 3 to 9
under 35 U.S.C. § 112, second paragraph.
7. The examiner did not respond to this request for clarification. Instead, the
examiner treated Paper No. 11 as a reply brief (see Paper No. 12, mailed December
12, 2002) and stated that the reply brief had been entered and that the application has
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1 37 CFR § 1.196(c) provides:
Should the decision of the Board of Patent Appeals and Interferences include an explicit
statement that a claim may be allowed in amended form, appellant shall have the right to amend
in conformity with such statement which shall be binding upon the examiner in the absence of new
references or grounds of rejection.
been forwarded to the Board of Patent Appeals and Interferences for decision on the
appeal.
Since the rejection of claims 1 and 3 to 9 under 35 U.S.C. § 112, second
paragraph, was set forth in both the final rejection and the answer, it is our view that
rejection under 35 U.S.C. § 112, second paragraph, is properly before us in this appeal.
Since the appellant has not specifically contested the rejection under 35 U.S.C.
§ 112, second paragraph, we summarily sustain the rejection of claims 1 and 3 to 9
under 35 U.S.C. § 112, second paragraph. However, in the interest of justice we
include herewith an explicit statement under 37 CFR § 1.196(c)1 that the proposed
amendments to claims 1 and 3 set forth in the response under 37 CFR § 1.116 (Paper
No. 6, filed July 10, 2002) may be allowed if submitted in amended form omitting the
word "single" in claim 1.
We now turn to the rejection of claims 1 and 3 to 9 under 35 U.S.C. § 103.
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The claims under appeal are drawn to a loading platform system for mounting
on a vehicle having a loading bed. The system comprises, inter alia, (1) a loading
platform; (2) a lift support structure with a lift actuator for raising and lowering the
loading platform between lower and upper end positions; (3) a tilt structure with a tilt
actuator for pivoting the loading platform from a horizontal to a vertical position and vice
versa; and (4) a releasable locking means for locking the loading platform in its upper
end position level with, and directly to, the loading bed, and also for releasably locking
the loading platform in the vertical position.
Randall's invention relates to loading apparatus and particularly to an improved
power operated loader adapted to be mounted on a truck or other platform to be
loaded. As shown in the drawings, a load supporting platform 34 is actuated by a
power cylinder 60 controlled by a manually actuated lever 90 so as to movable
between lower and upper end positions. As shown in Figures 1 and 3, a rotary collar 41
is provided with a manually actuated latch means indicated generally at 70 which
includes a manually actuated latch lever 72 having an inner end pivotally mounted on
beam member 22 at a pivot 74. Lever 72 includes a first latch portion in the form
of a recess 76 and a second latch portion 78 mounted on rotary collar 41 so as
to enter recess 76 when lift platform 34 is manually pivoted to the closed tailgate
position illustrated in Figure 5. Also, in the position of Figure 5 the platform 34 is
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supported by an angle bracket 81 mounted on the gear edge of truck platform
80. A recess 83 forms a downwardly facing surface that rests on the bracket 81.
Latch lever 72 is constantly urged upwardly towards the latched position by a tension
spring 82 connected between a hole 84 in the lever and a hole 86 in the end of a
bracket 88 the latter being attached to frame mounting brackets 23. As shown in Figure
4, an angle bracket 150 is mounted on the edge of truck platform 80 and a
corresponding recess 152 is formed on lift platform 34.
In operation of Randall's loading apparatus, platform 34 is manually moved from
the tailgate forming position of Figure 5 to the platform level position of Figure 4 but the
latch mechanism of Figure 3 must first be released by depressing foot lever 70. Upon
actuation of the control lever 90 towards the rear of the apparatus, or to the left in
Figure 3, power cylinder 60 will drain permitting platform 34 to drop downwardly to the
ground level or loading position. In order to lift a load placed on lift platform 34 from the
ground level or loading position of Figure 6, an electric motor is energized by actuating
the control lever 90 forwardly, or to the right as seen in Figure 3, which connects the
power cylinder 60 with the outlet of a pump 170 to raise the lift platform 34. When
control lever 90 is actuated towards the rear of the apparatus, to a centered position,
pressurized fluid is trapped in the power cylinder 60 and thus the load supporting
platform 34 can be arrested at the bed level or unloading position of Figure 4 or at any
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other desired position. After loading operations are completed, platform 34 is manually
pivoted from the horizontal position of Figure 4 to the vertical tailgate position of Figure
5 and the manual effort required is greatly reduced by the helper springs 102.
Mortenson's invention is especially designed to provide a lift gate in which the
linkage is so arranged as to lie in underlying supporting relationship to the platform
when the platform is in its stored position to fully support the platform assembly and to
minimize rattling and the accompanying jarring road shock impacts on the lift linkage.
As shown in Figure 1, the rear of the load carrying bed B of a truck T has a fixed
rearward extension plate 46 attached thereto to partially shield the lift gate linkage when
in its stored position and to serve as a mounting member for a latching mechanism and
as an aligning member cooperable with load supporting platform 28 when in its raised
position. As best seen in Figures 2 and 3, load supporting platform 28 has a pair of
fixedly mounted forwardly projecting pins 48 located at the front edge of the platform
adjacent each side of the platform. A downwardly turned flange 50 at the rearward
edge of extension plate 46 is formed with elongate slots 52 into which pins 48 project
when the platform 28 is at its elevated position, shown in broken line in Figure 3. When
received within slots 52, pins 48 function to prevent further upward movement of
platform 28, thereby establishing its upper limit of movement, while at the same time
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the pins prevent any transverse sway of platform 28 (left to right as viewed in Figure 2)
relative to the stationary extension plate 46.
To latch the linkage and platform of Mortenson in their stored position, a latch
assembly best shown in Figures 2 and 3 is mounted on the underside of extension
plate 46. The latch assembly includes a latch member 74 having an opening 76 therein
to receive pin 48 when the linkage and platform are moved to their stored position. To
release the pin 48 from opening 76, a rotary shaft 78 is journaled in frame members 54
and 56 of extension plate 46 and a latch actuator arm 80 is fixedly secured to shaft 78.
Handles 82 are provided at the opposite ends of shaft 78 for manually rotating shaft 78
from either side of the device. With reference to Figure 3, it is seen that if handle 82 is
manipulated to rotate shaft 78 in a clockwise direction, arm 80 will press downwardly on
the right hand end of latch member 74, thus causing latch member 74 to rotate in a
clockwise direction against the action of torsion spring 68. This clockwise rotation of
latch member 74 swings the left hand end of the latch member outwardly beyond the
outer end of pin 48, thus releasing the latched relationship.
The overall operation of Mortenson's lift gate is as follows. Referring first to
Figure 1, the assembly is shown in its normal operating position with platform 28
disposed in a horizontal position resting upon the ground. A load to be placed in the
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truck bed is then placed upon platform 28 and hydraulic motors 42 of the assembly are
actuated to causing the linkage to rotate upwardly from the position shown in Figure 1
until the forward edge of platform 28 is in abutting relationship with the rearward edge
of extension plate 46, as shown in broken line in Figure 3. The load is then transferred
from platform 28 into the interior of the truck bed. When the platform 28 moves into
abutting relationship with the rearward edge of extension plate 46, the pins 48 on the
platform are received within the slots 52 in plate 46 to prevent further upward
movement of the platform and to prevent the platform against transverse sway relative
to the extension plate. By reversing the foregoing procedure, a load can be lowered
from the truck bed to ground level.
To place Mortenson's assembly in its stored position, the apparatus is first put in
the position shown in Figure 1, see also Figure 4. Extension plate 28a is manually
folded to the broken line position of Figure 3 and rearward edge of platform 28 is then
manually grasped and elevated to the position shown in Figure 5. With parts in the
position shown in Figure 5, to place the device in its stored position, motors 42 are
actuated to collapse or fold platform 28. In Figure 6, the device is shown as it is
approaching its stored position. Further extension of motor 42 will drive the assembly
into its stored position with pin 48 seated in latch member 74 as shown in Figures 3 and
7.
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2 The test for obviousness is what the combined teachings of the references would have
suggested to one of ordinary skill in the art. See In re Young, 927 F.2d 588, 591, 18 USPQ2d 1089, 1091
(Fed. Cir. 1991) and In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981).
After the scope and content of the prior art are determined, the differences
between the prior art and the claims at issue are to be ascertained. Graham v. John
Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966).
Based on our analysis and review of Randall and claim 1, it is our opinion that
the only differences are (1) a tilt structure with a tilt actuator for pivoting the loading
platform from a horizontal to a vertical position and vice versa and (2) a releasable
locking means for locking the loading platform in its upper end position level with, and
directly to the loading bed, and also for releasably locking the loading platform in the
vertical position.
In our view, the teachings of the applied prior art2 would not have made it
obvious at the time the invention was made to a person of ordinary skill in the art to
have modified Randall's loading apparatus to arrive at the claimed subject matter. In
that regard, neither Randall's load supporting platform 34 or Mortenson's load
supporting platform 28 locks (i.e. secures from movement) the load supporting platform
in its upper end position level with, and directly to the loading bed as claimed since
each load supporting platform in its upper end position level with the loading bed is free
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(i.e., not secured or locked) to move down. That is, Randall's cooperating angle
bracket 150 and recess 152 and Mortenson's pins 48 and slots 52 do not in any way
prevent Randall's load supporting platform 34 or Mortenson's load supporting platform
28 from being lowered from their upper end position level with the loading bed. As
such, the claimed subject matter is not suggested by the teachings of the applied prior
art.
For the reasons set forth above, the decision of the examiner to reject claims 1
and 3 to 9 under 35 U.S.C. § 103 is reversed.
CONCLUSION
To summarize, the decision of the examiner to reject claims 1 and 3 to 9 under
35 U.S.C. § 112, second paragraph, is affirmed and the decision of the examiner to
reject claims 1 and 3 to 9 under 35 U.S.C. § 103 is reversed.
A statement pursuant to 37 CFR § 1.196(c) has been made in this decision. A
time period in which the appellant may file an amendment for the purpose stated in
§ 1.196(c) is hereby set to expire TWO MONTHS FROM THE DATE OF THIS
DECISION.
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No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
AFFIRMED; 37 CFR § 1.196(c)
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN P. McQUADE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
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Application No. 09/759,950
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KLAUS J. BACH
4407 TWIN OAKS DRIVE
MURRYSVILLE, PA 15668
JVN/jg