Ex Parte Kollewe

Patent Trial and Appeal Board

Jan 4, 2017

12709585 (P.T.A.B. Jan. 4, 2017)

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),
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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.
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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
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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
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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
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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
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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
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