Ex Parte McLellan et al

Board of Patent Appeals and Interferences

Feb 23, 2011

11196652 (B.P.A.I. Feb. 23, 2011)

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.
11/196,652 08/02/2005 Jeffery S. McLellan 4917-0002-1 4889
35301 7590 02/24/2011
MCCORMICK, PAULDING & HUBER LLP
CITY PLACE II
185 ASYLUM STREET
HARTFORD, CT 06103
EXAMINER
RUDAWITZ, JOSHUA I
ART UNIT PAPER NUMBER
3652
MAIL DATE DELIVERY MODE
02/24/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JEFFERY S. MCLELLAN and
ROBERT J. WAGNER
____________________

Appeal 2009-015324
Application 11/196,652
Technology Center 3600
____________________

Before JAMESON LEE, MICHAEL P. TIERNEY, and JEFFREY B.
ROBERTSON, Administrative Patent Judges.

LEE, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-015324
Application 11/196,652

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A. STATEMENT OF THE CASE
This is a decision on appeal by Appellants under 35 U.S.C. § 134(a)
from a final rejection of claims 1-20. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm-in-part.

References Relied on by the Examiner
Gaibler et al. (“Gaibler”) 3,918,742 Nov. 11, 1975
Anderson 4,496,166 Jan. 29, 1985
Green 5,490,753 Feb. 13, 1996
Rubio 6,276,888 Aug. 21, 2001

The Rejections on Appeal
The Examiner rejected claims 1-6 and 8-16 under 35 U.S.C. § 102(b)
as anticipated by Gaibler.
The Examiner rejected claim 7 under 35 U.S.C. § 103(a) as
unpatentable over Gaibler and Anderson.
The Examiner rejected claim 18 under 35 U.S.C. § 103(a) as
unpatentable over Gaibler and Green.
The Examiner rejected claims 17, 19, and 20 under 35 U.S.C. § 103(a)
as unpatentable over Gaibler and Rubio.

The Invention
The invention relates to a loader and loader frame assembly generally
used for the loading of log trucks. (Spec. 1: ¶ 0002.)
Claim 1 is reproduced below (App. Br. 29 Claims App’x.):
1. A loader frame assembly comprising:

a support member adapted to mount a loader thereto; and
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first and second legs extending from the support member, each
having an end, the ends adapted for connection to a vehicle;

wherein the first and second legs are substantially parallel to
each other and are spaced apart such that the first and second legs
partially define an open area, the open area increasing a payload
capacity and a configuration flexibility of a vehicle by allowing a load
to extend through the loader frame assembly.
B. ISSUES
1. Did the Examiner incorrectly find that Gaibler discloses first
and second legs of a loader frame assembly which are “substantially
parallel” to each other?
2. Did the Examiner incorrectly find that Gaibler discloses an
extendable stabilizer “mounted to” one of first and second legs?
3. Did the Examiner incorrectly find Gaibler discloses first and
second legs which are “adapted for connection to a vehicle bed rear portion,
such that the loader frame assembly is operatively functional with a vehicle
bed equipped with one of rearward dumping functionality and rearward
pushing functionality”?
C. PRINCIPLES OF LAW
An appellant’s specification is the single best guide in determining the
meaning of a claim term. Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed.
Cir. 2005).
Anticipation is established only when a single prior art reference
discloses all elements of the claimed invention. In re Spada, 911 F.2d 705,
708 (Fed. Cir. 1990).

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D. FINDINGS AND ANALYSIS
Anticipation
The Examiner rejected claims 1-6 and 8-16 as anticipated by Gaibler.
Claims 1, 8, and 13 are independent claims. Claims 2-6 and 9-16 ultimately
depend on one of those independent claims. The Appellants do not argue
the patentability of dependent claims 4, 5, 9, 11, 12, and 14-16 apart from
the independent claim on which they depend. Claims 2, 3, 6, and 10 are
separately argued.
Claims 1, 4, 5, and 9-16
Each of independent claims 1, 8, and 13 requires a loader frame
assembly with first and second legs that are “substantially parallel to each
other.” (App. Br. 29, 30, 31 Claims App’x.) The dispute centers on the
meaning of “substantially parallel.”
The Appellants contend that “substantially parallel” legs excludes legs
that converge. As support for that contention, the Appellants point to a
dictionary definition of “parallel” as “extending in the same direction…and
never converging[.]” (App. Br. 12:13-14.) According to the Appellants,
based on that meaning of “parallel,” their claims require legs that never
converge toward one another.
We do not agree with the Appellants’ assessment of the requirement
of their claims. The term at issue is not strictly “parallel” but is instead the
broader term “substantially parallel.” Even if the meaning of the term
“parallel” when appearing alone means “never converging,” that term when
modified by the word “substantially” conveys that some measure of
convergence is within its scope. In resolving how much convergence is
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acceptable for “substantially” parallel legs, we look to the Appellants’
specification as it is the single best guide in determining the meaning of a
claim term. See Phillips, 415 F.3d at 1315. The term “substantially
parallel” does not appear in the specification. However, in describing a
loader frame assembly according to the invention, the specification states
that the first and second legs of the assembly extend so as to “partially
define an open area allowing a load (of logs, for instance) to be passed
through the loader frame assembly.” (Spec. 2:¶ 0006.) Thus, in the context
of the Appellants’ specification, two legs of a loader frame assembly are
“substantially” parallel to one another when they extend in a direction such
that the space formed between them defines an open area suitable for
allowing a load to extend through the frame assembly.
Turning to the Examiner’s rejection, the Examiner found that
Gaibler’s elements 58 and 60 constitute first and second legs that are
substantially parallel. (Ans. 3:17-21.) Gaibler discloses a loader frame that
is adapted to be mounted to the back of a truck. (Gaibler Abstract.)
Gaibler’s Figure 1 illustrates a loader frame 26 mounted to the rails 20 and
22 of truck 10. (Id. at 3:14-30.)

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Figure 1 is reproduced below:

Figure 1 shows a side view of a loader frame
according to Gaibler’s invention.

Gaibler’s Figure 3 depicts a front view of frame 26 and illustrates the
configuration of pillars 58 and 60 which form part of the frame.
Figure 3 is reproduced below:

Figure 3 depicts a front view of Gaibler’s loader frame.
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As illustrated in Figure 3, the pillars 58 and 60 each extend vertically
towards element 34. Although the pillars are shown slightly inclined and
described as being “upwardly converging” (Gaibler 5:40), their extension
with respect to one another forms an open area that is adequately sized for
receiving a load through frame 26. Moreover, although “upwardly
converging,” the legs do not actually intersect at a point of any consequence.
If a hypothetical extension were drawn from each leg, the point of potential
intersection is so far removed from the apparatus that it has no meaningful
consequence as far as providing space for a load is concerned. On this
record, the Examiner reasonably determined that the pillars 58 and 60 form
legs that are “substantially parallel.” The Appellants’ argument treating the
claim term “substantially parallel” the same as “parallel” or “absolutely
parallel” is misplaced.
For the foregoing reasons, we sustain the rejection of claims 1, 4, 5,
and 9-16 as anticipated by Gaibler.
Claims 2, 3, and 10
The Examiner rejected claims 2, 3, and 10 as anticipated by Gaibler.
Claim 2 is dependent on claim 1 and claim 3 is dependent on claim 2. Claim
10 is ultimately dependent on claim 1. Claims 2 and 3 are argued
collectively based on a feature added by claim 2. Claim 10 adds the same
feature added by claim 2. The feature reads (App. Br. 29, 30):
an extendable stabilizer mounted to one of the first and second legs
for engaging a support surface during a loading process.

According to the Examiner, the above-quoted feature is met by the
mounting of Gaibler’s out-rigger type loader stabilizing mechanisms 48 and
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50 to its loader frame assembly. The Appellants contend that their claims
require that the stabilizers must be “mounted to” one of the first and second
legs. The Appellants argue that Gaibler’s stabilizing elements 48 and 50 are
not mounted to either of legs 58 and 60, but are instead mounted to a base
component that is beneath the legs. (App. Br. 13:29-14:3.)
The Examiner does not disagree that Gaibler’s stabilizer elements 48
and 50 are mounted to a base portion 28 of its loader frame that lies beneath
legs 58 and 60. According to the Examiner, however, the requirement that
the stabilizer be “mounted to” one of the legs does not require direct
mounting and instead is met where, as in Gaibler, the stabilizer elements are
connected to the legs via an intermediate structure, i.e., the base. (Ans. 7:9-
15.) The base also has a separate purpose in facilitating the mounting of the
entire frame assembly to the truck rails and does not exist simply to mount
the stabilizer elements to the legs.
The Examiner’s interpretation of “mounted to” is unreasonably broad.
Intrinsic to the meaning of “mounted to” is that the mounted structure is
directly supported by the component on which it is mounted. Indirect
connection of one element to another via intervening structures is
insufficient to establish that one element is “mounted to” the other. For
example, the handle bars of a bicycle are not reasonably viewed as being
“mounted to” a pair of bicycle pedals simply because portions of the
bicycle’s frame may ultimately connect those components. We reject the
Examiner’s proffered meaning of “mounted to” as incorrect.
Anticipation is established only when a single prior art reference
discloses all elements of the claimed invention. In re Spada, 911 F.2d at
708. On this record, the Examiner has not established where Gaibler
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discloses a stabilizer that is “mounted to” one of the first or second legs of
its loader frame. We do not sustain the rejection of claims 2, 3, and 10 as
anticipated by Gaibler.
Claim 6
Claim 6 is ultimate dependent on claim 1 and adds the following
feature (App. Br. 30 Claims App’x.):
wherein the first and second legs ends are adapted for connection to a
vehicle bed rear portion, such that the loader frame assembly is
operatively functional with a vehicle bed equipped with one of
rearward dumping functionality and rearward pushing functionality.

The Examiner rejected claim 6 as anticipated by Gaibler. The
Appellants first challenge that rejection “for the same reasons” given in
connection with claim 1. For the reasons discussed above with respect to
claim 1, we reject the Appellants’ assertion.
The Appellants also contend that Gaibler is insufficient to account for
the features added by claim 6. The Appellants’ basis for that contention is
that Gaibler does not disclose a vehicle bed with one of rearward dumping or
rearward pushing functionality. (App. Br. 14:14-18.)
The Appellants’ argument is misplaced. A vehicle bed having
rearward dumping and pushing functionality is not a structural element of
claim 6. Rather, the claim simply requires that the first and second legs of
the frame are “adapted for connection” to such a vehicle bed. Whether
Gaibler discloses that particular vehicle bed is of no moment in the context
of anticipation if the legs of Gaibler’s loader frame are adapted for or
capable of connection to that type of vehicle bed. Gaibler discloses that its
loader frame is adapted for mounting onto the vehicle bed of different types
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of vehicles. (Gaibler Abstract.) In light of Gaibler’s disclosure, the
Examiner found the legs which make-up Gaibler’s loader frame are
adequately “adapted for connection” to a type of vehicle bed that simply
operates in a particular manner, i.e., provides rearward dumping and
rearward pushing functionality. That finding is reasonable and in accord
with Gaibler’s disclosure. The Appellants have not shown why that finding
is incorrect.
We sustain the rejection of claim 6 as anticipated by Gaibler.
Obviousness
The Examiner rejected claims 7 and 17-20 as unpatentable over
Gaibler and one of Anderson, Green, and Rubio. Claim 7 is dependent on
claim 1 and claims 17-20 are ultimately dependent on claim 13. The
Appellants argue claims 7 and 17-20 based on a feature appearing in each
claims 1 and 13. In particular, the Appellants submit that the feature of a
loader frame with first and second legs that are “substantially parallel” is
missing from each of Gaibler, Anderson, Green, and Rubio.
As discussed above with respect to claims 1 and 13, we disagree with
the Appellants’ assertion that Gaibler, which is relied on by the Examiner to
account for the above noted feature, lacks first and second legs which are
“substantially parallel.” We therefore reject the Appellant’s argument as
applied to claims 7 and 17-20.
We sustain the rejection of claims 7 and 17-20 as unpatentable over
Gaibler and one of Anderson, Green, and Rubio.
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E. CONCLUSION
1. The Examiner did not incorrectly find that Gaibler discloses
first and second legs of a loader frame assembly which are “substantially
parallel” to each other.
2. The Examiner incorrectly found that Gaibler discloses an
extendable stabilizer “mounted to” one of first and second legs.
3. The Examiner did not incorrectly find Gaibler discloses first
and second legs which are “adapted for connection to a vehicle bed rear
portion, such that the loader frame assembly is operatively functional with a
vehicle bed equipped with one of rearward dumping functionality and
rearward pushing functionality.”
F. ORDER
The rejection of claims 1, 4-6, 8, 9, and 11-16 under 35 U.S.C.
§ 102(b) as anticipated by Gaibler is affirmed.
The rejection of claims 2, 3, and 10 under 35 U.S.C. § 102(b) as
anticipated by Gaibler is reversed.
The rejection of claim 7 under 35 U.S.C. § 103(a) as unpatentable
over Gaibler and Anderson is affirmed.
The rejection of claim 18 under 35 U.S.C. § 103(a) as unpatentable
over Gaibler and Green is affirmed.
The rejection of claims 17, 19, and 20 under 35 U.S.C. § 103(a) as
unpatentable over Gaibler and Rubio is affirmed.

Appeal 2009-015324
Application 11/196,652

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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

MCCORMICK, PAULDING & HUBER LLP
CITY PLACE II
185 ASYLUM STREET
HARTFORD CT 06103