Ex Parte Leslie et alDownload PDFPatent Trials and Appeals BoardMay 20, 201914749787 - (D) (P.T.A.B. May. 20, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/749,787 06/25/2015 112378 7590 Dureska & Moore, LLC 4580 Stephen Circle NW Suite 301 Canton, OH 44718 05/21/2019 FIRST NAMED INVENTOR Bruce Alexander Leslie 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. FISHER-S-CON(l)-CIP 5648 EXAMINER TROUTMAN, MATTHEW D ART UNIT PAPER NUMBER 3671 MAIL DATE DELIVERY MODE 05/21/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRUCE ALEXANDER LESLIE, BEVAN HALL, SIMON PETER ORTON, DEREK MULDER, and DAVID ANDREWS Appeal2018-008714 Application 14/749,787 1 Technology Center 3600 Before PHILIP J. HOFFMANN, TARA L. HUTCHINGS, and KENNETH G. SCHOPPER, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the Examiner's rejection of claims 1, 10, and 20. We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. According to Appellants, the "invention is concerned with improvements in excavator buckets." Spec. 1, 11. 11-12. Each of claims 1, 1 Appellants identify CQMS Pty Ltd. as the real party in interest. Br. 3. Appeal2018-008714 Application 14/749,787 10, and 20 is an independent claim. Below, we reproduce claim 1 as illustrative of the appealed claims. 1. An excavator bucket comprising: a generally rectangular floor, opposed side walls and a rear wall; a lip member extending transversely of a front portion of said floor, said lip member including spaced mountings for replaceable wear members; [and] opposed wing members adjacent respective front portions of said side walls, said wing members including mountings for replaceable wear members, said wing members each including a drag rope mounting located forwardly of a front edge of said lip member; said excavator bucket characterized in that said side walls incline outwardly towards respective upper regions thereof at an angle of from 5° to 20° relative to a plane perpendicular to a plane of said floor, said excavator bucket further characterized in that a ratio of lip width to side wall height in the region of said lip member is in the range of from 2.5 : 1.0 to 4.4 : 1.0 and the ratio of the length of the floor to the width of the floor is in the range of from 0.8 : 1.0 to 1.6 : 1.0. REJECTIONS AND PRIOR ART The Examiner rejects the claims as follows: I. Claims 1 and 10 under 35 U.S.C. § 103(a) as unpatentable over Leslie et al. (US 6,834,449 B2, iss. Dec. 28, 2004) ("Leslie") and Weimer (US 2,096,773, iss. Oct. 26, 1937); and II. Claim 20 under 35 U.S.C. § 103(a) as unpatentable over Leslie. 2 Appeal2018-008714 Application 14/749,787 ANALYSIS Re;ection I As set forth above, independent claim 1 recites, in relevant part, "said excavator bucket further characterized in that ... the ratio of the length of the floor to the width of the floor is in the range of from 0.8: 1.0 to 1.6: 1.0." Appeal Br., Claims App. The Examiner does not find that either Leslie or Weimer expressly states the claimed range. See, e.g., Final Action 5 ("[NJ either Leslie nor Weimer specifically state[ s] in the written description [that] the ratio of the length of the floor to the width of the floor is in the [ claimed] range."). Instead, the Examiner relies on measurements taken from Leslie's Figure 3, and Weimer's Figure 2, to demonstrate that each reference discloses a ratio within the claimed range of ratios. Id. at 3- 5. Based on our review of the record, however, we agree with Appellants' argument that the Examiner errs. Appeal Br. 14--15. The Examiner does not support adequately the findings that each of Leslie and Weimer discloses a ratio within the claimed range of ratios. "[I]t is well established that patent drawings do not define the precise proportions of the elements and may not be relied on to show particular sizes if the specification is completely silent on the issue." Hockerson-Halberstadt, Inc. v. Avia Group Int'!, Inc., 222 F.3d 951, 956 (Fed. Cir. 2000). In this case, the Examiner does not establish that either Leslie or Weimer intends to illustrate a relationship between the bucket floor length and width. See also Nystrom v. TREX Co., 424 F.3d 1136, 1149 (Fed. Cir 2005) (holding that the district court erred in relying on models made from drawings contained in a prior art reference as the basis for summary judgment of invalidity of claims 3 Appeal2018-008714 Application 14/749,787 reciting a ratio of a thickness to a width of a board being about 1 :40, which was not disclosed expressly in the prior art). The Examiner sets forth an alternate basis for the rejection: [I]t would have been obvious ... to specify wherein the ratio of the length of the floor to the width of the floor is a ratio that falls within the range of 0.8: 1.0 to 1.6: 1.0[,] as both Leslie and Weimer have depicted drag buckets that comprise floors that have a ratio oflength to width that fall within the range of 0.8: 1.0 to 1.6: 1.0. Final Action 5---6. This rationale is insufficient to support the rejection, however, because the rationale lacks any factual basis. It may be, for example, that illustrators of Leslie's and Weimer's figures chose the relative sizes of the floor's lengths and widths for aesthetic reasons, and one of ordinary skill looking at the figures would have dismissed immediately the idea of constructing a bucket floor with the illustrated ratio. Thus, based on the foregoing, we do not sustain claim 1 's rejection. Inasmuch as independent claim 10 includes a similar recitation, and the Examiner rejects the claim for similar reasons, as claim 1, we also do not sustain claim 10' s rejection. Reiection II Claim 20 includes a recitation similar to that discussed above with respect to claim 1. The Examiner's rationale for rejecting the claim as obvious based on Leslie is similar to that set forth above for claim 1. Thus, we do not sustain claim 20's rejection for reasons similar to the reasons we do not sustain claim 1 's rejection. 4 Appeal2018-008714 Application 14/749,787 DECISION We REVERSE the Examiner's obviousness rejections of claims 1, 10, and 20. REVERSED 5 Copy with citationCopy as parenthetical citation