Ex Parte Louthan

Patent Trial and Appeal Board

Aug 29, 2018

14610053 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/610,053 01/30/2015
49578 7590
SIMMONS PATENTS
P.O. BOX 1560
LENOIR, NC 28645
08/29/2018
FIRST NAMED INVENTOR
Robert Barnes Louthan JR.
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.
ROL-P-1 1081
EXAMINER
ADAMOS, THEODORE V
ART UNIT PAPER NUMBER
3635
MAIL DATE DELIVERY MODE
08/29/2018 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 ROBERT BARNES LOUTHAN, JR.
Appeal2017-010783
Application 14/610,053
Technology Center 3600
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert Barnes Louthan, Jr. ("Appellant"), appeals under 35 U.S.C.
§ 134(a) from the Examiner's decision rejecting claims 1-14, 19, and 20. 1
We have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Claims 15-18 are withdrawn. Br. 35-36 (Claims App.).
Appeal2017-010783
Application 14/610,053
THE CLAIMED SUBJECT MATTER
Claims 1 and 19 are independent. Claim 1, reproduced below, is
illustrative of the subject matter on appeal.
1. A support structure for supporting rigging devices to be
stored, said support structure comprising:
a base portion defining a bottom portion wherein said base
portion defines a center point and is configured to be supported
by a support surface;
an extension member mechanically associated with said
bottom portion and extending perpendicularly away from said
bottom portion to an extension member distal end wherein said
distal end defines an extension interface; and
at least one rigging cradle mechanically associated with
said extension interface wherein said rigging cradle defines a
plurality of rigging receivers each configured for receiving a
rigging item comprising a hoist element so that said hoist element
may be engaged by a lifting device while said rigging item is
associated with one of said rigging receivers.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Crandall us 977,071 Nov. 29, 1910
Simko us 3,291,318 Dec. 13, 1966
Brace us 4,688,685 Aug.25, 1987
Baughman us 5,676,261 Oct. 14, 1997
Beilenhoff US 2007 /0224879 Al Sept. 27, 2007
Volk US 2012/0318761 Al Dec. 20, 2012
Yatscoff US 2013/0168342 Al July 4, 2013
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Application 14/610,053
REJECTIONS
I. Claim 14 stands rejected under 35 U.S.C. § 112(b) as indefinite. Final
Act. 3.
II. Claims 1, 2, 5-8, and 14 stand rejected under 35 U.S.C. § 102(a)(l) as
anticipated by Crandall. Id. at 4--7.
III. Claims 9 and 10 stand rejected under 35 U.S.C. § 102(a)(l) as
anticipated by Crandall, or, in the alternative, under 35 U.S.C. § 103
as unpatentable over Crandall and Volk. Id. at 10-11.
IV. Claim 3 stands rejected under 35 U.S.C. § 103 as unpatentable over
Crandall and Beilenhoff. Id. at 12.
V. Claims 4 and 19 stand rejected under 35 U.S.C. § 103 as unpatentable
over Crandall and Yatscoff. Id. at 12-15.
VI. Claims 11 and 12 stand rejected under 35 U.S.C. § 103 as
unpatentable over Crandall, Baughman, and Brace. Id. at 15-17.
VII. Claim 13 stands rejected under 35 U.S.C. § 103 as unpatentable over
Crandall and Volk. Id. at 1 7.
VIII. Claim 20 stands rejected under 35 U.S.C. § 103 as unpatentable over
Crandall, Yatscoff, and Beilenhoff. Id. at 18.
IX. Claims 1, 5, and 14 stand rejected under 35 U.S.C. § 102(a)(l) as
anticipated by, or, in the alternative, under 35 U.S.C. § 103 as
unpatentable over, Simko. Id. at 8-10.
OPINION
Rejection I
Claim 14 recites, in relevant part, that the "at least one base lifting
interface is suitably configured for receiving the lifting elements of a lifting
device." Br. 35, Claims App. The Examiner determines that this language
"renders the claimed invention indefinite because a person of ordinary skill
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in the art would not know what scope is covered by the term 'suitably
configured' and Applicant's specification does not further define such a
scope." Final Act. 3. In particular, the Examiner determines that "[ o ]ne of
ordinary skill in the art would not know whether the term 'suitably' requires
some type of structure or formation more limiting than any type of formation
or structure which allows for receipt of the lifting elements of a lifting
device." Ans. 19. We disagree with the Examiner that the inclusion of the
word "suitably" renders the claim language indefinite in that we view an
element that is "configured for" a certain application as necessarily being
"suitably configured for" that application. We find no deficiency in the
Examiner's interpretation that "a lifting interface which is capable of
receiving any lifting elements of any lifting device is considered to meet
such limitations" (id. at 20), even taking into account that the claim includes
the word "suitably." For these reasons, we do not sustain the rejection of
claim 14 under 35 U.S.C. § 112(b) as indefinite.
Rejection II
Claims 1 and 5---8
In rejecting independent claim 1, the Examiner finds that Crandall
teaches a support structure including, inter alia,
at least one rigging cradle (#12) mechanically associated with
said extension interface ( see figure 1) wherein said rigging cradle
defines a plurality of rigging receivers each configured for
receiving a rigging item comprising a hoist element so that said
hoist element may be engaged by a lifting device while said
rigging item is associated with one of said rigging receivers (The
rigging receivers can be considered to comprise of elements # 19
and #23 which are configured to receive hoist elements #20 and
#24 which can be engaged by a lifting device, such as a person's
hand. Alternatively, the rigging receivers can be considered to
comprise of elements #19, #20, #23 and #24, where the rigging
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item configured to be received can be considered a bunch of
bananas, which can be engaged by a lifting device, such as a
person's hand.).
Final Act. 5. The Examiner explains that "rigging receivers # 19 and #23 of
Crandall are configured to receive hoist elements #20 and #24," and "hoist
elements #20 and #24 comprise of hooks and where hooks are highly well
known in the art to be used to lift other objects and are configured to be
lifted by a lifting device, such as a rope and pulley system or a crane or other
lifting object." Ans. 21.
Appellant argues that Crandall "neither teaches nor discloses anything
close to meeting the requirements of the Applicant's 'rigging cradle'
comprising 'rigging receivers."' Br. 1 7. Appellant asserts that
[ r Jigging devices are generally heavy and expensive ( and thus,
stored and reused) and Applicant's [S]pecification clearly
teaches and claims a rigging storage device for storing heavy
rigging elements that are moved using a tool/machine such as a
crane and hook by associating same with the master link ( for
example) of such rigging element. ... A device ( such as a bag or
net) used to hold and suspend fruit from a Crandall hook cannot
be reasonably considered a "rigging device" as claimed by the
Applicant.
Id. at 20. According to Appellant, the
claimed "rigging cradle" holds the master link of a rigging device
so that nothing extends through the master link so that a lifting
device ( such as a hook associated with a crane) can be used to
remove the heavy rigging device from the rigging cradle. Such
cannot be done with the Crandall device as there would be a hook
in the master link.
Id. at 21. These arguments are unpersuasive because they are not
commensurate with the scope of claim 1.
As stated by our reviewing court in In re Hiniker Co., 150 F.3d 1362,
1369 (Fed. Cir. 1998), "the name of the game is the claim." It is well
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established that limitations not appearing in the claim cannot be relied upon
forpatentability. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Here,
claim 1 only recites, in relevant part, that the "rigging cradle defines a
plurality of rigging receivers each configured for receiving a rigging item
comprising a hoist element so that said hoist element may be engaged by a
lifting device while said rigging item is associated with one of said rigging
receivers." Br. 32 (Claims App.) ( emphasis added). The claim does not
positively recite the rigging items as structural elements in combination with
the support structure comprising a rigging cradle that defines rigging
receivers. Rather, the claim recites only that the rigging receivers of the
rigging cradle must be configured for receiving rigging items. Id. Appellant
does not point to, nor do we find, any language in claim 1 specifying that the
rigging receivers of the rigging cradle are configured to hold, in particular, a
master link of a rigging item such that no hook extends through the master
link. Although the Specification describes that "many rigging items define
features such as a ring ('master link') that is configured for receiving lifting
elements of a lifting device such as a hook associated with a crane," and
"[t]he rigging receivers are preferably configured to receive the rigging
items so that such ring is in a position to allow one to easily use the hook of
a crane (for example) to remove the rigging item from the rigging receiver"
(Spec. 5), such disclosure in the Specification does not impart any structural
limitations to the claimed system. 5'ee In re Van Geuns, 98 8 F .2d 1191,
1184 (Fed. Cir. 1993) ( Although the claims are interpreted in light of the
Specification, limitations from the Specification are not read into the
claims.).
Similarly, Appellant's arguments regarding the claimed "lifting
device" (Br. 19--22) are not persuasive both because the lifting device is not
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positively recited and because Appellant has not persuasively explained why
the Specification requires the lifting device to be limited to a specific tool.
As to the claimed "rigging cradle" and "rigging receivers," Appellant's
arguments (Id. at 16-17) do not adequately explain why the Examiner's
reliance on Crandall's arms 12, pulley blocks 19, 23, and hooks 20, 24 is in
error. Appellant has not pointed us to an explicit definition of the terms
"rigging cradle" or "rigging receivers" in the Specification nor otherwise
adequately explained why the Specification precludes an interpretation that
encompasses the elements of Crandall identified by the Examiner.
Appellant also argues that "Crandall teaches away from Applicant's
cradle configuration" (id. at 19), and Crandall is non-analogous art (id. at
21 ). These arguments are not convincing because arguments directed to the
issues of teaching away and non-analogous art are irrelevant to the analysis
of an anticipation rejection. See Celeritas Techs., Ltd. v. Rockwell Int 'l
Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998) ("[T]he question whether a
reference 'teaches away' from the invention is inapplicable to an
anticipation analysis."); see also In re Schreiber, 128 F.3d 1473, 1478 (Fed.
Cir. 1997) ("[T]he question whether a reference is analogous art is irrelevant
to whether that reference anticipates.")
For the above reasons, Appellant fails to apprise us of error in the
Examiner's finding that Crandall discloses all of the limitations of claim 1.
Accordingly, we sustain the rejection of claim 1, and its dependent claims 5-
8, for which Appellant relies on the same arguments (Br. 24), under
35 U.S.C. § 102(a)(l) as anticipated by Crandall.
Claim 2
Claim 2 recites "an extension accessory that is one of (a)
mechanically associated with said extension interface, (b) defined by said
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rigging cradle, and ( c) mechanically associated with said rigging cradle."
Br. 32-33 (Claims App.). The Examiner finds that Crandall's "[p]ulleys #14
can be considered an extension accessory which is mechanically associated
with the rigging cradles #12." Final Act. 5.
Appellant points to Figure 5 and page 16 of the Specification and
asserts that "Crandall provides ZERO teachings regarding an extension
accessory." Br. 24. Appellant appears to insist upon an overly-narrow
reading of the language in claim 2. Although the Specification describes
that an "[ e ]xemplary extension accessary (13) is a ring element defining a
hoist point (21, Fig. 5) configured for receiving a lifting element such as
crane hook (17, Fig. 2) so that support structure (10) may be lifted by said
extension interface (16) and moved" (Spec. 16), such disclosure in the
Specification does not impart any stn1ctura11imitations to the claimed
support structure. See Van Geuns, 988 F.2d at 1184; see also SuperGuide
Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004)
("Though understanding the claim language may be aided by the
explanations contained in the written description, it is important not to
import into a claim limitations that are not a pmi of the claim. For example,
a particular embodiment appearing in the written description may not be
read into a claim when the claim language is broader than the
embodiment."). Appellant does not identify error in the Examiner's position
that Crandall's pulleys 14 constitute extension accessories that are
mechanically associated with rigging cradles (arms 2). Final Act. 5.
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner's finding that Crandall discloses aH of the limitations of
claim 2. Accordingly, we sustain the rejection of claim 2 under 35 U.S.C.
§ 102( a)( 1) as anticipated by Crandall.
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Application 14/610,053
Claim 14
The Examiner finds that Crandall discloses at least one base lifting
interface comprising
( d) lift ports (inner walls #9 and outer wall of the base # 1 are
considered to comprise of a base lifting interface) wherein said
at least one base lifting interface is suitably configured for
receiving the lifting elements of the lifting device ( see figure 1,
where the storage areas between walls #9 are capable of
receiving lifting elements).
Final Act. 7.
Appellant argues that "[t]he Crandall reference provides ZERO
teachings related to a lifting interface." Br. 25. Appellant asserts that
"Crandall teach[ es] supporting the Crandall device on wheels so that it can
be pushed when one desires to move the Crandall device." Id. We are not
persuaded by this argument because it is not responsive to the Examiner's
findings presented in the rejection. As discussed supra, the Examiner
explains that Crandall's inner and outer walls of base 1 constitute lift ports
of a base lifting interface that are capable of receiving lifting elements.
Final Act. 7. In this regard, Appellant does not specifically address or
identify error in the Examiner's position. Thus, Appellant does not apprise
us of error in the rejection of claim 14 under 35 U.S.C. § 102(a)(l) as
anticipated by Crandall, which we sustain.
Re} ection III
In contesting the rejection of claims 9 and 10, Appellant argues that
Crandall "does not teach all limitations as argued above," including, in
particular, that Crandall does not teach the claimed rigging cradle. Br. 29.
For the reasons discussed above, Appellant's arguments do not apprise us of
error in the Examiner's finding that Crandall discloses all of the limitations
of claim 1, from which claims 9 and 10 indirectly depend. Thus, Appellant
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does not apprise us of error in the rejection of claims 9 and 10
under 35 U.S.C. § 102(a)(l) as anticipated by Crandall, or, in the alternative,
under 35 U.S.C. § 103 as unpatentable over Crandall and Volk.
Rejections IV-VIII
In contesting the rejections of claims 3, 4, 11-13, 19, and 20, which
depend from claim 1, Appellant argues that the additional cited references
do not teach the features of claim 1 argued by Appellant to be lacking in
Crandall. Id. at 31. Because we have found no deficiencies in Crandall for
the reasons discussed above, Appellant's arguments do not apprise us of
error with respect to the rejections of claims 3, 4, 11-13, 19, and 20.
Appellant further asserts that the additional cited "references are non-
analogous art." Id. This argument is not persuasive of error. As the
Examiner correctly notes, "a prior art reference must either be in the field of
Appellant's endeavor or, if not, then be reasonably pertinent to the particular
problem with which the Appellant was concerned, in order to be relied upon
as a basis for rejection of the claimed invention." Ans. 31 (citing In re
Oetiker, 977 F.2d 1443 (Fed. Cir. 1992)). The Examiner finds that "each
secondary reference can be considered reasonably pertinent to the particular
problem which Appellant is concerned or within Appellant's field of
endeavor." Id. In this regard, Appellant does not specifically address the
Examiner's position or explain why it would be deficient.
For the above reasons, Appellant does not apprise us of error in the
Examiner's conclusion that the subject matter of claims 3, 4, 11-13, 19, and
20 would have been obvious. Accordingly, we sustain the rejections, under
35 U.S.C. § 103, of: claim 3 as unpatentable over Crandall and Beilenhoff;
claims 4 and 19 as unpatentable over Crandall and Yatscoff; claims 11 and
12 as unpatentable over Crandall, Baughman, and Brace; claim 13 as
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unpatentable over Crandall and Volk; and claim 20 as unpatentable over
Crandall, Y atscoff, and Beilenhoff.
Re} ection IX
In this rejection of independent claim 1, the Examiner finds that
Simko discloses, inter alia,
an extension member ( the member comprising of both posts # 14)
mechanically associated with said bottom portion and extending
perpendicularly away from said bottom portion to an extension
member distal end ( figure 4 depicts the extension member
extending perpendicularly from the base #4, where the two
elements are mechanically associated to one another through a
weld) wherein said distal end defines an extension interface
(#16); and
at least one rigging cradle (#20) mechanically associated
with said extension interface (see figure 1) wherein said rigging
cradle defines a plurality of rigging receivers (the assembly
comprises of two rigging receivers #22, and is thus considered to
comprise of a plurality of rigging receivers) each configured for
receiving a rigging item comprising a hoist element (C) so that
said hoist element may be engaged by a lifting device ( the crane
which is attached to hook D can be considered the lifting device)
while said rigging item is associated with one of said rigging
receiver (see figure 1 ).
Final Act. 8-9. Alternatively, the Examiner determines that, if Simko is
interpreted as lacking a plurality of rigging receivers, then
it would have been obvious to a person of ordinary skill in the art
at the time the invention was filed to have constructed the support
structure of Simko to comprise of more than a single pair of
rigging receivers #22 in order to allow more than one hoist
element to be supported by the structure and thus allow for
quicker switching between different hoist elements and also
since it has been held that mere duplication of the essential
working parts of a device involves only routine skill in the art.
In re Harza, 124 USPQ 378 (CCPA 1960).
Id. at 9.
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Appellant argues that "Simko clearly does not teach an extension
member defining a distal end and certainly does not teach one defining [an]
extension interface configured for being associate[d] with Applicant's
rigging cradle." Br. 27. This argument is unpersuasive because it does not
specifically address the Examiner's findings as to the disclosure of Simko
articulated in the rejection. As discussed supra, the Examiner finds that
Simko' s braces 14 constitute an extension member having a distal end that
defines an extension interface (i.e., arms 16). Final Act. 8. In this regard,
Appellant does not offer any factual evidence or persuasive technical
reasoning to explain why the Examiner's findings are in error.
Appellant argues that Simko teaches a bull ring support that "does not
anticipate Applicant's rigging cradle comprising rigging receivers as there is
no rigging cradle nor rigging cradle interface." Br. 28 (citing Spec., Fig.
12). Appellant asserts that "Simko at best shows one feature similar to a
rigging receiver and does not teach or make obvious how to modify the
Simko device to comprise a plurality of rigging receivers." Id. at 29.
According to Appellant, Simko "cannot be modified to have a plurality of
rigging receivers without substantial redesign[]." Id. We are not persuaded
by these arguments because they are not responsive to the Examiner's
specific findings and reasoning presented in the rejection. Namely,
Appellant does not address or identify error in the Examiner's finding that
Simko's "assembly comprises of two rigging receivers #22, and is thus
considered to comprise of a plurality of rigging receivers." Final Act. 8.
Appellant also does not persuasively refute the Examiner's alternative
position that, even if Simko failed to disclose a plurality of rigging receivers,
it would have been obvious to modify Simko to include a plurality of rigging
receivers. Id. at 9. Appellant does not address the Examiner's articulated
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reasoning (id.) or explain why this reasoning lacks rational underpinnings.
Moreover, even assuming arguendo that modifying Simko to include a
plurality of receivers would require "substantial redesign[]" (Br. 29),
Appellant does not offer persuasive argument or factual evidence that such
redesign so as to duplicate rigging receivers would change the basic
principles under which Simko was designed to operate or would somehow
have been beyond the level of ordinary skill in the mi. See in re Ratti, 270
F.2d 810, 813 (CCPA 1959) (holding, under its paiiicular facts, that the
"suggested combination of references would require a substantial
reconstruction and redesign of the elements shown in [the primary reference]
as well as a change in the basic principles under which the [prirnary
reference] construction was designed to operate" (emphasis added), and that
such combination was therefore nonobvious) and KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398,421 (2007) ("A person of ordinary skill is also a person
of ordinary creativity, not an automaton.").
For the above reasons, Appellant fails to apprise us of error in the
Examiner's findings or reasoning presented in the rejection based on Simko.
Accordingly, we sustain the rejection of claim 1, and its dependent claims 5
and 14, for which Appellant relies on the same arguments (Br. 29),
under 35 U.S.C. § 102(a)(l) as anticipated by, or, in the alternative, under
35 U.S.C. § 103 as unpatentable over, Simko.
DECISION
The Examiner's decision to reject claim 14 under 35 U.S.C. § 112(b)
as indefinite is reversed.
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The Examiner's decision to reject claims 1, 2, 5-8, and 14 under
35 U.S.C. § 102(a)(l) as anticipated by Crandall is affirmed.
The Examiner's decision to reject claims 9 and 10 under 35 U.S.C.
§ 102(a)(l) as anticipated by Crandall, or, in the alternative, under 35 U.S.C.
§ 103 as unpatentable over, Crandall and Volk is affirmed.
The Examiner's decision to reject claim 3 under 35 U.S.C. § 103 as
unpatentable over Crandall and Beilenhoff is affirmed.
The Examiner's decision to reject claims 4 and 19 under 35 U.S.C.
§ 103 as unpatentable over Crandall and Y atscoff is affirmed.
The Examiner's decision to reject claims 11 and 12 under 35 U.S.C.
§ 103 as unpatentable over Crandall, Baughman, and Brace is affirmed.
The Examiner's decision to reject claim 13 under 35 U.S.C. § 103 as
unpatentable over Crandall and Volk is affirmed.
The Examiner's decision to reject claim 20 under 35 U.S.C. § 103 as
unpatentable over Crandall, Y atscoff, and Beilenhoff is affirmed.
The Examiner's decision to reject claims 1, 5, and 14 under 35 U.S.C.
§ 102(a)(l) as anticipated by, or, in the alternative, under 35 U.S.C. § 103 as
unpatentable over, Simko is affirmed.
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
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