Ex Parte KolleweDownload PDFPatent Trial and Appeal BoardJan 4, 201712709585 (P.T.A.B. Jan. 4, 2017) Copy Citation United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/709,585 02/22/2010 Dieter Kollewe 4845 7013 278 7590 MICHAEL J. STRIKER 103 EAST NECK ROAD HUNTINGTON, NY 11743 01/06/2017 EXAMINER LOWE, MICHAEL S ART UNIT PAPER NUMBER 3652 NOTIFICATION DATE DELIVERY MODE 01/06/2017 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): striker@strikerlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DIETER KOLLEWE Appeal 2015-003116 Application 12/709,585 Technology Center 3600 Before MICHAEL W. KIM, PHILIP J. HOFFMANN, and ROBERT J. SILVERMAN, Administrative Patent Judges. KIM, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE This is an appeal from the Non-Final rejection of claims 1, 4—16, 20, 22, and 26—281 mailed June 13, 2014. We have jurisdiction to review the case under 35 U.S.C. §§ 134 and 6. The invention relates generally to a loading lift for a vehicle. Spec. 1:4. 1 Claims 2, 3, 17—19, 21, 23—25, and 29 have been cancelled. App. Br. 5. Appeal 2015-003116 Application 12/709,585 Independent claim 1 is illustrative: 1. Loading lift for a vehicle, to overcome a difference of level in a building or at public transportation ramps, comprising: a holding stand (1, 61) to be attached to the vehicle; a carriage (2, 62) which is moveable backwards and forwards in a first direction on the holding stand (1, 61); and a loading device (3, 63) which is mountable on the carriage (2, 62) and is moveable backwards and forwards by a guided linear movement in a second direction substantially vertical to the first direction between a loading position and a transporting position, wherein the holding stand (1, 61), the carriage (2, 62) and the loading device (3, 63) each consist of a module, it being possible for these modules to be selectively handled individually or to be inserted one inside another and connected together by mutually perpendicular guides to produce a ready-made constructional unit, wherein the loading device (3, 63) is moveable via linear guides in relation to the carriage (2, 62) in a direction perpendicular to a loading area (60a) of the vehicle over a complete operational range, wherein the carriage (2) is provided with two straight mutually parallel first roller rails (29, 30) having a C-shaped cross section, wherein the roller rails (29; 30) are attached to the first rollers (14, 15; 16, 17) mounted on the holding stand (1) such that an upper part (29a; 30a) thereof rests from above against the first rollers (14, 15; 16, 17), a first lateral side (29b; 30b) extending from the upper part (29a; 30a) that rests against second rollers (18, 19; 20,21), and a second lateral side (29c; 30c) extending from the upper part (29a; 30a) parallel and opposite to the first side (29b; 30b) comes to rest against third rollers (22, 23; 24, 25), 2 Appeal 2015-003116 Application 12/709,585 wherein the first rollers (14, 15; 16, 17) have a central recess in which third rollers (22, 23; 24, 25) are rotatably mounted, the axes of rotation being rectangular to each other, and wherein the first rollers (14, 15; 16, 17) support the carriage (2) vertically, while said second and third rollers (18, 19; 20, 21; 22, 23; 24, 25) provide a lateral guidance of the carriage (2). Claims 1, 4—12, 14—16, 20, 22, and 26 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nespor (US 7,568,877, iss. Aug. 4, 2009), Stragier (US 4,219,298, iss. Aug. 26, 1980), and Eisner (US 2,721,668, iss. Oct. 25, 1955). Claim 13 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Nespor, Stragier2, Eisner, and Thorley (US 4,027,807, iss. June 7, 1977). Claim 27 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Nespor, Stragier, Eisner, and Deacon (US 3,913,759, iss. Oct. 21, 1975). Claim 28 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Nespor, Stragier, Eisner, Tomassoni (US 2007/0122258 Al, pub. May 31, 2007), and Gregg (US 2008/0145201 Al, pub. June 19, 2008). Claims 1, 4—16, 20, 22 and 26—28 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. 2 The rejection of claim 13 on page 7 of the non-final Office Action does not include Stragier, however, as claim 13 depends ultimately from independent claim 1, and the rejection of independent claim 1 includes Stragier, we consider Stragier’s omission here as inadvertent. 3 Appeal 2015-003116 Application 12/709,585 Claims 1, 4—16, 20, 22 and 26—28 are 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 applicant regards as the invention. We AFFIRM. ANALYSIS Rejections under 35 U.S.C. $ 112 Claims 1, 4—16, 20, 22 and 26—28 were rejected under 35 U.S.C. § 112, first and second paragraphs. Non-Final Act. 2—3. On October 31, 2014, the Appellant submitted an Amendment after Notice of Appeal, purportedly to address these rejections. Reply Br. 1—2. On November 13, 2014, an Advisory Action was mailed indicating that the amendment would not be entered. The Examiner’s Answer notes that these Section 112 rejections have not been withdrawn, and that the Appeal Brief does not assert any error in either of the Section 112 rejections. Ans. 2—3. Accordingly, for these reasons, those rejections of claims 1, 4—16, 20, 22, and 26—28 are summarily sustained. Rejections under 35 U.S.C. $ 103(a) Independent claim 1 recites “[a] holding stand (1, 61), [a] carriage (2, 62)[,] and [a] loading device (3, 63) each consisting] of a module, it being possible for these modules to be selectively handled individually or to be inserted one inside another and connected together by mutually perpendicular guides to produce a ready-made constructional unit.” The Appellant argues that Nespor fails to teach this claim limitation, because 4 Appeal 2015-003116 Application 12/709,585 “Nespor is not meant to be disassembled into modules for transportation of separate use.” App. Br. 12. The Appellant further argues, also concerning this claim limitation, that even if Nespor’s cargo receiving module 24 could correspond to the claimed carriage, Nespor does not teach the holding stand to be attached to a vehicle or loading device, as claimed. App. Br. 13—14. The Examiner responds by asserting that Nespor discloses modular pieces that can be assembled into a ready-made constructional unit[,] and that Appellant is reading claim 1 ’s modularity limitation too narrowly. Ans. 8 (citing Nespor Fig. 4, 7, and 8). We agree with the Examiner. The Specification does not define “module.” Random House Dictionary defines “module” as “a separable component.” See Dictionary.com Unabridged. Random House, Inc. http://www.dictionary.com/browse/module (accessed: January 3, 2017). Both the aforementioned claim limitation and the Specification are consistent with this definition. See, e.g. ,3:11—12, 3:19—21,5:14—18. This construction does not require that the modules be disassembled for transportation or separate use, as argued by Appellant. Instead, independent claim 1 only requires “a separable component” that meets the rest of the claim limitation, namely, “it being possible for these modules to be selectively handled individually or to be inserted one inside another and connected together by mutually perpendicular guides to produce a ready made constructional unit.” To that end, Nespor discloses a ready-made constructional unit described as a front cargo handling add-on module (82) that is composed of a holding stand (outer structure of item 82) connected to a vehicle. Ans. 9 (citing Nespor, Fig. 8). The front cargo handling add-on module (82) is 5 Appeal 2015-003116 Application 12/709,585 further composed of a carriage module (24) and a loading device module (44), each of which are “separable components” that are “inserted one inside another and connected by mutually perpendicular guides to produce a ready made constructional unit,” as required by claim 1. Ans. 9 (citing Nespor, Fig. 8). We also are not persuaded by the Appellant’s arguments, with respect to independent claim 1, that the addition of components of Stragier and Eisner to Nespor is without motivation, and that the stated rejection contained no articulated reasoning with some rational underpinning to support the legal conclusion of obviousness. App. Br. 14—16. The Examiner has relied upon Stragier and Eisner for disclosing the claimed details of the rails that provide the connection between the holding stand, carriage, and loading device. Ans. 9-10. The Examiner articulated the rationale for combining Nespor with Stragier and Eisner as to “achieve the predictable result of a well-known and simple means of guiding and moving the device with rotational support in multiple directions.” Non-Final Act. 5. When considering obviousness of a combination of known elements, the operative question is “whether the improvement is more than the predictable use of prior-art elements according to their established functions.” KSR International Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results. Id. at 418. Under the Examiner’s proposed combination, the powered tracks used by Nespor’s cargo handling device are replaced by the rails or rollers disclosed by Stragier and Eisner. We are not persuaded that there is 6 Appeal 2015-003116 Application 12/709,585 anything unpredictable about this proposed combination; indeed, it seems the epitome of straightforward substitution with a predictable result. Additionally, the Appellant’s argument that the modification of Nespor with Stragier would change the principle of operation of Nespor is also unpersuasive, because Appellant has failed to demonstrate adequately how modifying the powered tracks of Nespor by replacement with rollers detailed by Stragier would change the principle of operation of Nespor. In our view, even with the proffered modification, Nespor would still function as a “cargo handling apparatus.” Finally, Appellant argues on that the combination of Nespor, Stragier, and Eisner fails to teach the claimed limitations of: an upper part (29a; 30a) thereof rests from above against the first rollers (14, 15; 16, 17), a first lateral side (29b; 30b) extending from the upper part (29a; 30a) that rests against second rollers (18, 19; 20, 21), and a second lateral side (29c; 30c) extending from the upper part (29a; 30a) parallel and opposite to the first side (29b; 30b) comes to rest against third rollers (22, 23; 24, 25), wherein the first rollers (14, 15; 16, 17) have a central recess in which third rollers (22, 23; 24, 25) are rotatably mounted, the axes of rotation being rectangular to each other, and wherein the first rollers (14, 15; 16, 17) support the carriage (2) vertically, while said second and third rollers (18, 19; 20, 21; 22, 23; 24, 25) provide a lateral guidance of the carriage (2). App. Br. 17—18. The Examiner has made a sufficient initial case that the aforementioned claim limitations are disclosed by the specified combination of Nespor, Stragier, and Eisner. Ans. 5—6. Accordingly, the burden now shifts to the Appellant to rebut the Examiner’s mapping. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“[o]nce a prima facie case of obviousness 7 Appeal 2015-003116 Application 12/709,585 [is] established . . ., the burden shift[s] to appellant to rebut it”). To that end, instead of distinctly pointing out the Examiner’s supposed errors, the Appellant has made mere general allegations that the claims define a patentable invention, without specifically articulating what gaps exist between the Stragier and Eisner references, and the aforementioned claim limitations. In the absence of such specific articulations, we are unpersuaded that the Appellant has met their burden of showing Examiner error concerning the limitations set forth above. For these reasons, we sustain the rejections of claims 1, 4—16, 20, 22, and 26—28. DECISION We AFFIRM the rejections of claims 1, 4—16, 20, 22, and 26—28. AFFIRMED 8 Copy with citationCopy as parenthetical citation