Ex Parte McGurn

Board of Patent Appeals and Interferences

Apr 25, 2012

11373347 (B.P.A.I. Apr. 25, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ARTHUR S. MCGURN
____________________

Appeal 2010-003216
Application 11/373,347
Technology Center 3600
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Before: JOHN C. KERINS, KEN B. BARRETT, and
WILLIAM V. SAINDON, Administrative Patent Judges.

SAINDON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-003216
Application 11/373,347

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1-10, 12, and 13 under 35 U.S.C. § 103(a) as
unpatentable over Warhurst (US 6,155,770, iss. Dec. 5, 2000) and Hagge
(US 4,699,558, iss. Oct. 13, 1987). We have jurisdiction under 35 U.S.C.
§ 6(b). Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. An apparatus for transporting, delivering, or
positioning a portable storage unit, the apparatus
comprising:
a wheeled frame, the frame having height,
width, and length dimensions with four corners
defining two sides and two ends, the frame
including:
a vertical post at each of the four corners,
a leg extending from the lower end of each
post, the leg being selectively extendable or
retractable relative to the post to change the
vertical height of the frame,
a wheel assembly supporting each leg, each
wheel assembly independently and selectively
pivotable,
a cross-member on each side of the frame,
each cross-member connected to two of the posts,
an end-tube on each end of the frame, each
end-tube connected to two of the fixed posts,
an interior tubular element in each end-tube,
the end-tube selectively slidable upon the tubular
element to change the width of the frame,
at least one connector that connects the
frame to the portable storage unit,
at least one hitch mount on the frame,
a self-propelled power unit selectively
secured to the at least one hitch mount, the power
unit including selectively attached couplings to
Appeal 2010-003216
Application 11/373,347

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transfer energy from the power unit to the frame to
change the dimensions of the frame, the self-
propelled power unit operable to move the frame
across a surface, and the power unit being
positionable independent of the frame,
a transport vehicle, the transport vehicle
including a flat bed operable to transport the frame
and power unit; and
wherein the frame and the selectively
removable power unit are effective to lift and
position the portable storage unit.

SUMMARY OF DECISION
We AFFIRM.

OPINION
The Examiner’s rejection of independent claims 1 and 10 is premised
on a finding that Warhurst teaches each of the aspects of the claimed
transport apparatus, except that the Warhurst frame is self-propelled by its
own power unit whereas the claimed invention requires a separate self-
propelled power unit. Ans. 3. The Examiner then found that Hagge teaches
a transport apparatus that has a separate self-propelled power unit and
teaches that, alternatively, the apparatus can have self-contained power.
Ans. 3-4, 7; see Hagge, col. 3, ll. 61-67 (“alternatively, the source of
propulsion may be built into the present loader rather than being supplied by
an auxiliary vehicle”). The Examiner concludes that it would have been
obvious to use an external power unit to power the Warhurst apparatus, as
taught in Hagge, because Hagge teaches self-powered devices (and thus,
self-propelled) and separately-powered devices (and thus, separately-
propelled) are alternatives. Ans. 4, 7.
Appeal 2010-003216
Application 11/373,347

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Reviewing Appellant’s arguments for independent claims 1 and 10,
we are not apprised of error in the Examiner’s rejection. The Examiner’s
Response to Argument (Ans. 5-8) sufficiently conveys why Appellant’s
arguments are not persuasive. In particular, Appellant’s arguments focus on
the specifics of the structure and use of the Hagge device but fail to explain
how Hagge’s teaching of a self-powered transport as an alternative to an
separately-powered transport is only limited to devices the same as Hagge’s.
In other words, Appellant has not explained why the alternative external
power source taught in Hagge could not have been predictably applied to
Warhurst’s device in the manner proposed by the Examiner. As such, we
are not apprised of error in the Examiner’s rejection of claims 1 and 10.
For claims 2 and 12, the Examiner took Official Notice of the
knowledge of pins in casters to lock wheels in place. Non-Final Rejection
mailed Apr. 23, 2008 at 6; Final Rejection mailed Oct. 24, 2008 at 3.
Appellant did not demand the Examiner produce authority for the finding
before this appeal, nor has Appellant provided a basis for questioning the
finding’s accuracy. See In re Chevenard, 139 F.2d 711, 712-13 (CCPA
1943) (declining to consider the belated challenge by an appellant to an
examiner’s assertion as to “common knowledge” in the art “in the absence
of any demand by appellant for the examiner to produce authority for his
statement”); In re Boon, 439 F.2d 724, 728 (CCPA 1971) (requiring “a
challenge to judicial notice … contain adequate information or argument so
that on its face it creates a reasonable doubt regarding the circumstances
justifying the judicial notice”). Accordingly, we are not apprised of error in
the Examiner’s rejection of claims 2 and 12.
Appeal 2010-003216
Application 11/373,347

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For claims 3-9 and 13, Appellant maintains the unconvincing
arguments addressed above. App. Br. 14. Accordingly, we are not apprised
of error in the Examiner’s rejection of claims 3-9 and 13.

DECISION
For the above reasons, we affirm the Examiner’s decision regarding
claims 1-10, 12, and 13. No time period for taking any subsequent action in
connection with this appeal may be extended under 37 C.F.R. §
1.136(a)(1)(iv).

AFFIRMED

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