Ex Parte McMurray

Patent Trial and Appeal Board

Feb 28, 2017

13373057 (P.T.A.B. Feb. 28, 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.
2945-1A1 4616
EXAMINER
CHAVCHAVADZE, COLLEEN MARGARET
ART UNIT PAPER NUMBER
3634
MAIL DATE DELIVERY MODE
13/373,057 11/03/2011
45971 7590
ERIC FINCHAM
871 Shefford Street
Suite 304
Bromont, QC J2L 1C4
CANADA
Daniel McMurray
02/28/2017 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 DANIEL MCMURRAY
Appeal 2015-006294
Application 13/373,057
Technology Center 3600
Before ANNETTE R. REIMERS, THOMAS F. SMEGAL, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant, Daniel McMurray, appeals1 under 35U.S.C. § 134 from
the Examiner’s decision rejecting claims 1—13. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies Daniel McMurray and RDLS Innovation as the
real party in interest. Br. 2.
Appeal 2015-006294
Application 13/373,057
THE CLAIMED SUBJECT MATTER
The claims are directed to a ladder stabilizer. Claims 1, 6, and 13 are
the independent claims. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A ladder stabilizer for an extension ladder, said extension
ladder having a lower section and an upper section, said lower
section and said upper section being slidable with respect to each
other, said lower section having a pair of side rails with rungs
extending therebetween comprising:
first and second rear legs each having a distal end and a
proximal end, said proximal ends being designed to be secured
to a respective side rail of the lower section of the ladder at a
point spaced from an end of the respective side rail by a distance
equal to between 25% and 75% of the side rail length;
a first interconnecting member extending between said
first and second rear legs intermediate their respective distal and
proximal ends;
a second interconnecting member having a first end
connected to said first rear leg intermediate said distal and
proximal ends thereof with a second end thereof designed to be
secured at a side rail of the ladder;
a third interconnecting member having a first end
connected to said second rear leg intermediate said distal and
proximal ends and a second end thereof designed to be secured
to a side rail of the ladder;
first and second lateral legs each having a distal end and a
proximal end, said proximal ends being designed to be secured
to a respective rear leg at the proximal end thereof;
a first flexible cable extending between said first lateral
leg and said second interconnecting member; and a second cable
extending between said second lateral leg and said third
interconnecting member.
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Appeal 2015-006294
Application 13/373,057
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Yordy US 1,526,654
Levi US 4,899,849
Zelikovitz US 5,454,446
Laug US 6,382,353 B2
REJECTIONS
The Examiner made the following rejections:
1. Claim 11 stands rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite.
2. Claims 1, 2, 6, 7, 11, and 12 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Zelikovitz, Yordy, and Laug.
3. Claims 3—5 and 8—10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Zelikovitz, Yordy, Laug, and Levi.
4. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Zelikovitz and Yordy.
Appellant seeks our review of these rejections.
Feb. 17, 1925
Feb. 13, 1990
Oct. 3, 1995
May 7, 2002
ANALYSIS
The Rejection of Claims 1, 2, 6, 7, 11, and 12
as Unpatentable Over Zelikovitz, Yordy, and Laug
Appellant argues claims 1, 2, 6, 7, 11, and 12 as a group. Br. 11—29.
We select claim 1 as the representative claim, and claims 2, 6, 7, 11, and 12
stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Zelikovitz discloses all of the limitations of
claim 1 including lateral legs 44 and second and third interconnecting
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Application 13/373,057
members 30 (Final Act. 7), but not (1) the first and second flexible cables
extending between the lateral legs and ladder side rails, and (2) the rear legs
secured to side rails of the lower section of the ladder at a point spaced from
an end of the side rail by distance equal to between 25% and 75% of the side
rail length {Id. at 8). The Examiner finds that Yordy and Laug disclose these
missing limitations. Id. at 8—9. Specifically, the Examiner determines that it
would have been obvious to modify Zelikovitz’ ladder stabilizer with (1)
Yordy’s “first and second flexible cables extending between the respective
first and second lateral legs [to] the interconnecting members” to provide “a
stabilizer providing additional guidance and assistance in the stabilizing of
the ladder by providing a flexible connection between the lateral legs and the
interconnecting members so as to limit the lateral extension and positioning
of the legs with respect to the ladder and stabilizer,” and (2) Laug’s “ladder
stabilizer capable of being mounted at a point along the length of the ladder
side rails and via a hollow rung connection” in order to provide “a more
versatile and adaptable stabilizer connection means capable of being
adjusted for the various angles of different support surfaces.” Id. at 10.
Appellant contends that the Examiner’s rejection is erroneous for
three reasons. First, Appellant acknowledges that Yordy’s cables 12, 29
extend between two portions of ladder for stabilization, but contend that
Yordy does not teach that cables 12, 29 extend between the lateral legs and
the second and third interconnecting members, recited in claim 1. Br. 12.
Appellant is improperly attacking the teachings of Zelikovitz and Yordy
individually. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
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Appeal 2015-006294
Application 13/373,057
combination of references.”). Contrary to Appellant’s argument, the
Examiner finds that both Zelikovitz and Yordy disclose the lateral legs and
second and third interconnecting members recited in claim 1, and determines
that it would be obvious to use Yordy’s flexible cables in Zelikovitz for
additional stabilization. Final Act. 7—10. The Examiner also correctly
explains that “the drawings of Yordy clearly disclose 29 as a form of flexible
cables that are connected to the lateral legs and interconnecting members as
claimed by the appellant.” Ans. 3. Appellant does not address the rejection
as articulated by the Examiner, and, thus, does not show Examiner error.
Second, Appellant contends that Laug does not disclose a stabilizer
attached to the ladder side rail “at a point spaced from an end of the
respective side rail by a distance equal to between 25% and 75% of the side
rail length.” Relying on Figures 3 and 4 of Laug, Appellant contends that
“Laug teaches the point of attachment to the side rail is proximate the feet of
the ladder and clearly does not connect at a point between 25% and 75% of
the length. Rather the connection point is clearly below 25%.” Br. 12.
Appellant’s argument, however, is not commensurate with the broad
scope of claim. As the Examiner correctly explains, claim 1 is not directed
to the combination of a ladder and stabilizer, but rather the rear stabilizer
legs are broadly claimed as “being designed to be secured to a respective
[ladder] side rail....between 25% and 75% of the side rail length.” Ans. 3—
4. In addition, contrary to Appellant’s argument, “Laug teaches a stabilizer
designed to be secured at different points along the length of the ladder . . .
and discloses at both the beginning and end of the specification that the
stabilizer is designed to be used on a variety of different sized and shaped
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Appeal 2015-006294
Application 13/373,057
ladders.” Id. at 4 (citing Laug 1:33—35, 5:62—65, Figs 1—7). Thus, Appellant
does not identify error by the Examiner, and is not persuasive.
Third, Appellant argues that “it is not sufficient to clearly show that
the individual elements are know[n] in the art, but rather that the
combination would be obvious.” Br. 13—29. As Appellant correctly
acknowledges, the key to supporting any rejection under 35 U.S.C. § 103 is
a clear “articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” Br. 27 (citing KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007)). Here, the Examiner determines that it
would have been obvious to modify Zelikovitz’ ladder stabilizer with (1)
Yordy’s “first and second flexible cables extending between the respective
first and second lateral legs [to] the interconnecting members” to provide “a
stabilizer providing additional guidance and assistance in the stabilizing of
the ladder by providing a flexible connection between the lateral legs and the
interconnecting members so as to limit the lateral extension and positioning
of the legs with respect to the ladder and stabilizer,” and (2) Laug’s “ladder
stabilizer capable of being mounted at a point along the length of the ladder
side rails and via a hollow rung connection” in order to provide “a more
versatile and adaptable stabilizer connection means capable of being
adjusted for the various angles of different support surfaces.” Id. at 10. The
Examiner’s articulated reasoning has rational underpinning. Appellant does
not address the Examiner’s rationale and, thus, does not show Examiner
error.
For the reasons discussed above, the rejection of claim 1 is sustained.
Claims 2, 6, 7, 11, and 12 fall with claim 1.
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Appeal 2015-006294
Application 13/373,057
The Rejections of Claims 3—5, 8—10, 11, and 13
Because Appellant does not address the additional rejections of
dependent claims 3—5, 8—111, and 13, they are summarily sustained.2
DECISION
For the above reasons, the Examiner’s rejections of claims 1—13 are
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)(l)(iv).
AFFIRMED
2 We note that, because an Examiner’s rejection of the dependent
claims 2—5 and 7—12 inherently includes a rejection of the independent
claims 1 and 6 from which they depend, the rejection of claims 1 and 6 must
also be sustained. See Ormco Corp. v. Align. Tech., 498 F.3d 1307, 1319
(Fed. Cir. 2007) (when a dependent claim is “found to have been obvious,
the broader claims . . . must also have been obvious”); see also 37 C.F.R. §
41.37(c)(l)(iv); Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008)
(“When the appellant fails to contest a ground of rejection to the Board, []
the Board may treat any argument with respect to that ground of rejection as
waived.”).
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