Ex Parte Jones et al

Patent Trial and Appeal Board

Jul 18, 2018

13877900 (P.T.A.B. Jul. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/877,900 06/18/2013
24222 7590 07/20/2018
Maine Cernota & Rardin
547 Amherst Street
3rd Floor
Nashua, NH 03063
FIRST NAMED INVENTOR
Keith Jones
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
STRA002-US 4987
EXAMINER
KEENAN, JAMES W
ART UNIT PAPER NUMBER
3652
NOTIFICATION DATE DELIVERY MODE
07/20/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patents@mcr-ip.com
dwitmer@mcr-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEITH JONES and WILLIAM LAMBERT
Appeal2017-010974
Application 13/877,900 1
Technology Center 3600
Before MEREDITH C. PETRA VICK, MICHAEL C. ASTORINO, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner's decision rejecting claims 1-8 and 12. We have jurisdiction over
the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to the Appellants, the real party of interest is Grise Limited.
Br. 3.
Appeal2017-010974
Application 13/877,900
STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellants' invention is directed to a vehicle chassis having four
lifting arms and an engagement bracket (Spec., Figs. 1-3, 5) that correspond
respectively to four pick-up points and engagement knuckle fitting of a load
(id. at Fig. 4). Id. at Abstract2. Claim 1 is representative of the subject
matter on appeal and is reproduced below.
1. A substantially 'U' shaped vehicle chassis defined by a
pair of side members and a front connecting member
therebetween and having respective chassis wheels mounted on
each of said side members;
wherein the pair of side members and front connecting
member define a chassis footprint having an open
rear end that is substantially free of any obstruction
impeding lifting and lowering of a load having four
pick-up points mounted thereon;
the chassis comprising four rotating lifting arms pivotally
connected to the chassis, each rotating lifting arm
having a free end which engages with a respective
one of the four pick-up points on the load in a first
position and deposits said load on said chassis in a
second position;
and which chassis provides an engagement bracket, close
to the chassis wheels, for a knuckle fitting,
incorporated into the load, to engage therewith;
wherein the 'U' shaped vehicle chassis is attached by
means of a fixed rigid connection to a vehicle cabin
for travel, said fixed rigid connection comprising a
first attachment member defined by the chassis and
co-operable with a second attachment member
defined by a vehicle cabin.
2 "Abstract" refers to the Amended Abstract, filed October 23, 2015.
2
Appeal2017-010974
Application 13/877,900
Rejections
The Examiner maintains, and the Appellants appeal, the following
rejections:
I. Claims 7 and 8 are rejected under 35 U.S.C. § 112(b) or 35
U.S.C. § 112 (pre-AIA), second paragraph, as indefinite.
II. Claim 7 is rejected under 35 U.S.C. § 102(b) as anticipated by
Shiels (US 4,673,328, iss. June 16, 1987).
III. Claims 1 and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Shiels in view of Andre et al. (WO 96/34778, pub. Nov. 7,
1996) (hereinafter "Andre").
IV. Claim 12 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Shiels in view of Andre and Tuvim (US 7,371,038 B2, iss. May 13,
2008).
V. Claims 7 and 8 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hillberg (US 2,934,228, iss. Apr. 26, 1960) in view of
Shiels.
VI. Claims 1 and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hillberg in view of Shiels, and Andre.
VII. Claims 2-5 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hillberg in view of Shiels, Andre, and Kossila
(WO 92/18350, pub. Oct. 29, 1992).
VIII. Claim 12 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Hillberg in view of Shiels, Andre, and Tuvim.
3
Appeal2017-010974
Application 13/877,900
ANALYSIS
Re} ection I. Cl aims 7 and 8 re} ected under 3 5 US. C. § 112 (b) or 3 5 US. C.
§ 112 (pre-AJA), second paragraph, as indefinite
Claim 7 recites:
A corresponding load interface, to be built into a load or load
platform to enable it to be engaged by the chassis in claim 1 and
deposited on said chassis, such interface incorporating four pick-
up points which correspond to the chassis rotating lifting arm
non-pivoted ends and a knuckle fitting, incorporated into each
side of the load or load platform.
The Examiner rejects claims 7 and 8 as indefinite for two reasons.
The first reason is directed to claim 7 's recitation "the chassis rotating lifting
arm non-pivoted ends" and the second reason is directed to claim 7's
recitation "incorporated into each side of the load." Final Act. 3.
As for the first reason, the Examiner explains that "the chassis rotating
lifting arm non-pivoted ends" is indefinite because it lacks antecedent basis.
Id. The Appellants assert, "[t]his rejection is apparently based on the fact
that the term 'non-pivoted end' is not explicitly recited in claim 1, from
which claim 7 depends." Br. 10. The "Appellant[s] respectfully assert[] that
the non-pivoted end was implicitly described, and therefore antecedent basis
provided, by the description of the rotating lifting arms being pivotally
connected (the pivoted end) to the chassis on one end and also having a free
end (the non-pivoted end) in claim 1." Id. at 11. The Appellants' assertions
are not persuasive of error. First, although claim 1 recites "four rotating
lifting arms pivotally connected to the chassis," there is no requirement that
the four rotating lifting arms are pivotally connected at an "end." Second,
the use of the term "free" in the phrase "free end" of claim 1 does not create
a binary construct where each end of the lifting arm is either "pivoted" or
4
Appeal2017-010974
Application 13/877,900
"free." Stated otherwise, a "free end" does not necessarily equate to a "non-
pivoted end." Hence, it is not inherent that a "free end" of each rotating
lifting arm necessarily corresponds to the "non-pivoted ends" in claim 7.
See also Ans. 2 ("it is not specified relative to what the ends are 'free' ( e.g.,
they are not 'free' relative to the load)").
As for the second reason, the Examiner explains that "incorporated
into each side of the load" is indefinite because "a generic 'load' would not
inherently have sides (e.g., it could be cylindrical or spherical)." Final
Act. 3. The Appellants argue that in view of claim 1 's requirements it is
"clear what is meant by 'each side' of the load, namely that the load, even if
circular or spherical, must incorporate the described elements on axially
opposite areas of the load." Br. 12. We agree with the Appellants. The
term "side" is better understood in the context of claim 7 as being a lateral
part or area of an object, e.g., a left side or a right side.
Thus, we sustain the Examiner's rejection of claims 7 and 8 under 35
U.S.C. § 112(b) or 35 U.S.C. § 112 (pre-AIA), second paragraph, as
indefinite for the first reason, but not the second reason.
Rejection II. Claim 7 rejected under 35 US.C. § 102(b) as anticipated by
Shiels
Claim 7 is directed to a load interface having four pick-up points and
a knuckle fitting. The Examiner finds that Shiels' roller wheels 18a-18d,
headed bars 28a and 28b, and bed 16 correspond to the claimed "four pickup
points," "knuckle fitting" and "load," respectively. Final Act. 4; see Shiels,
col. 4, 11. 18-20, 39--40, Figs. 1-3. We determine that the Examiner's
findings are adequately supported.
5
Appeal2017-010974
Application 13/877,900
To the extent the subject matter of claim 7 references "the chassis in
claim 1," we interpret the quoted language to limit the load interface of
claim 7 functionally, rather than include the all of the subject matter of
claim 1. The Examiner's rejection implies a construction of claim 7 that is
in harmony with our own. We agree with the Examiner's finding that
Shiels' load interface is capable of use with the vehicle chassis of claim 1.
See Final Act. 4. In this regard, the Examiner finds Shiels teaches a three-
sided, rigid substantially rectangular "U" frame 1 Oa-1 Oc that corresponds to
the functionally recited chassis of claim 1 (id.; see Shiels, col. 4, 14--15), but
fails to disclose all of the requirements of the vehicle chassis of claim 1.
Final Act. 4. More specifically, the Examiner finds that Shiels fails to
disclose the fixed rigid connection between the vehicle chassis and a vehicle
cabin required by claim 1. See id. at 5. However, with regard to its structure
and function, claim 7's load interface, which includes four pick-up points
and a knuckle fitting, is not affected by the limitation particular to the
chassis of claim 1, which recites "attached by means of a fixed rigid
connection to a vehicle cabin." As such, Shiels' failure to disclose the fixed
rigid connection of the vehicle chassis of claim 1 is inconsequential to the
rejection of claim 7.
The Appellants appear to disagree with the Examiner's implied
construction of claim 7 (see Br. 12), but do not offer a cogent reason
explaining the error in the construction. To the extent that the Appellants
assert that the Examiner's rejection fails to apply Shiels to meet the
functional recitations of claim 7 (see id. at 13), we disagree.
The Appellants argue that Shiels' bed 16 is not equivalent to the "load
described in the present disclosure" because bed 16 is a permanent part of a
6
Appeal2017-010974
Application 13/877,900
chassis, i.e., it is not removable. Id. at 14. The Appellants' argument is not
persuasive.
At the outset, we note that the Specification does not define the term
"load." In the absence of an express definition of a claim term in the
specification or a clear disclaimer of scope, the claim term is interpreted as
broadly as the ordinary usage of the term by one of ordinary skill in the art
reasonably would permit. In re ICON Health & Fitness, Inc., 496 F.3d
1374, 1379 (Fed. Cir. 2007); In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). An ordinary usage of the term "load" is "the weight supported by a
structure or part." DICTIONARY.COM UNABRIDGED, ("load," def. 5),
http://www.dictionary.com/browse/load (last visited July 2, 2018). This
definition is consistent with the Specification.
Additionally, the Specification describes, "the term 'vehicle chassis'
is to be interpreted broadly to incorporate a chassis structure that may form
part of a rigid or articulated vehicle." Spec. 1 :23-25. Here, the definition of
"vehicle chassis" does restrict how the vehicle chassis interfaces with
another structure or part. As such, there is no reason to exclude a load that is
permanently attached to a vehicle chassis. See Ans. 4.
The Examiner explains that "load bed 16 is clearly lifted and
deposited on the chassis members [ 1 Oa-1 Oc] to engage therewith, even if it
is not removable from the vehicle." Id. We agree. In this case, Shiels' bed
16 is a weight supported by a structure or part, and as such, is a load as
required by claim 7.
The Appellants argue that "the 'four pick-up points which correspond
to the chassis rotating lifting arm non-pivoted ends' of the claim at issue are
not anticipated by the Shiels reference as the lifting arms of the Shiels
7
Appeal2017-010974
Application 13/877,900
reference are clearly pivotable at both ends." Br. 14. However, we agree
with the Examiner that Shiels' four pick-up points 18a-18d are non-pivoted
and/ or free ends because the ends of lifting arms ( four tracks) 12a-12d are
positioned away from pivots 14a-14d. Ans. 4; see Shiels, col. 4, 11. 15-17;
see, e.g., Shiels, Fig. 2.
Thus, we sustain the Examiner's rejection of claim 7 as anticipated by
Shiels.
Rejection III. Claims 1 and 6 rejected under 35 USC§ 103(a) as
unpatentable over Shiels in view of Andre
The Appellants grouped all of the rejections of claims 1 and 6
together, i.e., Rejections III and VI. See Br. 15-17. We have addressed the
Appellants' arguments separately. Immediately below, we address the
arguments concerning the Examiner's rejection of claims 1 and 6 as
unpatentable over Shiels in view of Andre (Rejection III).
The Appellants argue that the Examiner fails to apply Shiels'
teachings to the subject matter of claims 1 and 6. See id. at 15. We
disagree. The Examiner relied on findings for claim 7 for the rejection of
claim 1 and "only addressed the limitations of claim 1 that ... Shiels did not
disclose" to avoid "unnecessary repetition." Ans. 5.
The Appellants argue that the Examiner's rejection is based on
impermissible hindsight and lacks a reason to combine the teachings of
Shiels and Andre. Br. 15-16. The Appellants' argument is primarily based
on the premise that the references do not teach the Appellants' invention as
described in the Specification. See id. For example, the Appellants assert
that "[b ]oth Shiels and Andre require the load to, presumably, be pushed or
8
Appeal2017-010974
Application 13/877,900
rolled onto their respective load-bearing surfaces prior to the lifting and
lowering operation" whereas "invention described herein, as claimed in
claims 1 and 6, provides the benefit of increasing the efficiency of and
reducing the risk of injury relating to loading and unloading of large freight
by minimizing the need for a worker to load and unload the freight." Id. at
16. The Appellants' arguments are not persuasive.
First, claims 1 and 6 do not require the benefits that Appellants
suggest. See Ans. 6 ("the arguments are simply beyond the scope of the
claims"); In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998)
(unclaimed features cannot impart patentability to claims). Second, we fail
to ascertain how the Examiner's rejection lacks articulated reasoning with
rational underpinning. See Final Act. 5---6; Ans. 5---6; In re Kahn, 441 F .3d
977, 988 (Fed. Cir. 2006) ("[R]ejections on obviousness grounds ...
[require] some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.") ( cited with approval in KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007)).
Thus, we sustain the Examiner's rejection of claims 1 and 6 as
unpatentable over Shiels in view of Andre.
Rejection IV. Claim 12 rejected under 35 US.C. § 103(a) as unpatentable
over Shiels in view of Andre and Tuvim
The Appellants have not provided further arguments for the rejection
of claim 12, which depends from claim 1. Br. 18. The Appellants merely
rely on the arguments presented for the Examiner's rejection of claim 1 for
this ground of rejection. Id. For the same reasons we have sustained the
rejection of claim 1 under Shiels in view of Andre, we likewise sustain the
9
Appeal2017-010974
Application 13/877,900
rejection of claim 12 as unpatentable over Shiels in view of Andre, and
Tuvim.
Rejection V. Claims 7 and 8 rejected under 35 US.C. § 103(a) as
unpatentable over Hill berg in view of Shiels
Claim 7 recites:
A corresponding load interface, to be built into a load or load
platform to enable it to be engaged by the chassis in claim 1 and
deposited on said chassis, such interface incorporating four pick-
up points which correspond to the chassis rotating lifting arm
non-pivoted ends and a knuckle fitting, incorporated into each
side of the load or load platform.
Claim 8 recites, "[a] corresponding load interface in accordance with
claim 7, wherein each of the four pick up points is substantially a hook
configuration."
The Appellants argue that "the Examiner erred in stating, in essence,
that Hillberg discloses lifting arms that engage corresponding pickup points
on the load" because Hillberg's lifting hook engages with bar 28 to lift a
load. Br. 18. The Appellants' argument is not persuasive.
At the outset, we note that the Appellants' argument is directed to
claim 8, which depends from claim 7. The Appellants do not separately
argue the rejection of claim 7.
The Examiner finds that "Hillberg teaches the ends of the lifting arms
to each comprise a hook configuration for engaging a corresponding rod-
shaped pick-up point on the load, rather than vice-versa." Final Act. 8
( emphasis added). "[R ]ather than vice versa" demonstrates that the
Examiner acknowledges that Hillberg does not teaches a hook configuration
associated with the four pick up points of the load interface as required by
10
Appeal2017-010974
Application 13/877,900
claim 8, but does teach a hook configuration at the corresponding position of
the chassis, i.e., the lifting arms. The Examiner remedies the deficiency of
Hillberg's disclosure with regard to the subject matter of claim 8, by
determining that
it would have been obvious to have provided the pick-up points
on the load as having a hook configuration for engaging a
corresponding rod-shaped engagement structure of the lifting
arms, as it has been held that a mere reversal of the essential
working parts of a device involves only routine skill in the art.
Id. In other words, the Examiner's rationale is that one of ordinary skill in
the art would have found it obvious to switch the positions of the hook
configuration and rod-shaped engagement structure so that the pick-up point
is a hook configuration instead of a rod-shaped engagement structure and
lifting arm has a rod-shape engagement structure instead of a hook
configuration.
The Appellants' remaining comments do not address the Examiner's
rationale and/or are not commensurate in scope with the claimed invention.
See Br. 18.
Thus, we sustain the Examiner's rejection of claims 7 and 8 as
unpatentable over Hillberg in view of Shiels.
Rejection VI. Claims 1 and 6 rejected under 35 USC§ 103(a) as
unpatentable over Hill berg in view of Shiels and Andre
As discussed above, the Appellants grouped all of the rejections of
claims 1 and 6 together, i.e., Rejections III and VI. See id. at 15-17. We
have addressed the Appellants' arguments separately. Immediately below,
we address the arguments concerning the Examiner's rejection of claims 1
11
Appeal2017-010974
Application 13/877,900
and 6 as unpatentable over Hillberg in view of Shiels and Andre
(Rejection VI).
The Appellants assert that Hillberg "fails to describe how the chassis
should be mounted to a vehicle" and "Shiels, while disclosing that the
chassis could be 'incorporated into' a vehicle," lacks a reason for retrofitting
a vehicle. Id. at 17. The Appellants' assertion is not persuasive. The
Examiner's rejection (i.e., Rejection VI) does not rely on Shiels to teach
mounting a chassis to a vehicle. The Appellants' assertion appears to
concern the fixed rigid connection between the vehicle chassis and a vehicle
cabin required by claim 1. For this requirement of claim 1, the Examiner
relies on Andre's teachings to modify Hillberg' s pickup vehicle. See Final
Act. 8-10.
The Appellants argue:
the Hillberg reference only discloses a design that would be
suitable for specialized cargo and, even then does not appear to
disclose a system that would allow a load to be lowered
completely to the surface on which the vehicle is travelling, as
opposed to the invention of the present disclosure, as claimed,
which allows any load that fits within its chassis to be raised from
and lowered to the surface being travelled.
Br. 17. The Appellants' argument is not persuasive. Here, the asserted
differences between the Appellants' invention - as allegedly claimed -
and Hillberg's pickup vehicle are not reflected in claims 1 and 6. See In re
Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998); In re Self, 671 F.2d
1344, 1348 (CCPA 1982).
Thus, we sustain the Examiner's rejection of claims 1 and 6 as
unpatentable over Hillberg in view of Shiels and Andre.
12
Appeal2017-010974
Application 13/877,900
Rejections VII & VIII. Claims 2-5 rejected under 35 USC§ 103(a) as
unpatentable over Hill berg in view of Shiels, Andre, and Kossila, and
claim 12 rejected under 35 USC§ 103(a) as unpatentable over Hillberg in
view of Shiels, Andre, and Tuvim
The Appellants have not provided further arguments for the rejections
of claims 2-5 and claim 12, which depend directly or indirectly from
claim 1. Br. 18, 19. The Appellants merely rely on the arguments presented
for the Examiner's rejection of claim 1 (Rejection VI) for these grounds of
rejection. Id. For the same reasons we have sustained the rejection of
claim 1 under Hillberg in view of Shiels and Andre, we likewise sustain the
rejections of claims 2-5 as unpatentable over Hillberg in view of Shiels,
Andre, and Kossila and claim 12 as unpatentable over Hillberg in view of
Shiels, Andre, and Tuvim.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1-8 and 12.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
13