Ex parte McNeilus et al.

Board of Patent Appeals and Interferences

Jun 28, 2000

08876869 (B.P.A.I. Jun. 28, 2000)

THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 28
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte GARWIN McNEILUS, RONALD E. CHRISTENSON
and WILBUR R. HARRIS
____________
Appeal No. 1999-0711
Application No. 08/876,869
____________
ON BRIEF
____________
Before McQUADE, NASE, and BAHR, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 11, 48, 49, 52,
53 and 55-57, which are all of the claims pending in this application.
Appeal No. 1999-0711 Page 2
Application No. 08/876,869
BACKGROUND
The appellants' invention relates to vehicles equipped with refuse collection systems
which incorporate side-loading lift and dump bucket systems which cooperate with
corresponding offset or recessed receiving hoppers having packing devices to load refuse
materials into truck bodies (specification, page 1). With particular reference to Figures 9-13,
the vehicle of the invention comprises a truck body having upper and lower storage
compartments (202, 204) and a charging hopper (208) which is narrower than the truck body
and has a flared sidewall (300) which is recessed relative to the maximum width of the truck
body, as seen in Figures 10 and 11 so as to accommodate a loading bin or bucket (218). The
bucket is provided with rollers (292, 294) which ride in angled candy cane shaped guide
channels (264, 266) for movement between a lower rest position, as shown in Figure 10, and a
raised dump position, as shown in Figure 11. The upper rollers (294) are laterally offset
relative to the lower rollers (292) when the bucket is in the lower rest position. This offset,
which maintains the bucket in an upright orientation when the rollers are disposed in the lower
outwardly angled portion of the guide channels, helps enhance the tipping of the bucket for
dumping as the rollers travel in the upper arcuate portions of the guide channels (specification,
page 22). The claims on appeal are reproduced in the appendix to the appellants' Reply Brief.
Appeal No. 1999-0711 Page 3
Application No. 08/876,869
The examiner's inclusion of claim 3 of application No. 08/963,541 in the statement of this rejection on1
page 4 of the answer is presumed to have been an inadvertent error, as claim 3 was canceled in Paper No. 17, filed
(continued...)
The prior art references of record relied upon by the examiner in rejecting the appealed
claims are:
Stragier et al. (Stragier) 4,219,298 Aug. 26, 1980
Matsumoto 5,035,564 Jul. 30, 1991
Horning et al. (Horning) 5,316,430 May 31, 1994
Ratledge WO 94/05570 Mar. 17, 1994
(published international application)
The following rejections are before us for review.
Claims 48, 49, 52 and 53 stand rejected under 35 U.S.C. ß 103 as being unpatentable
over Matsumoto in view of Horning.
Claim 11 stands rejected under 35 U.S.C. ß 103 as being unpatentable over Matsumoto
in view of Horning, as applied to claims 48, 49, 52 and 53 above, and further in view of
Ratledge.
Claims 55-57 stand rejected under 35 U.S.C. ß 103 as being unpatentable over
Matsumoto in view of Horning, as applied to claims 48, 49, 52 and 53 above, and further in
view of Stragier.
Claims 48, 49, 52, 53 and 55-57 stand provisionally rejected under the judicially created
doctrine of obviousness-type double patenting as being unpatentable over claims 2, 4, 9 and 13-
16 of Application No. 08/963,541.1
Appeal No. 1999-0711 Page 4
Application No. 08/876,869
(...continued)1
April 17, 1998 in that application. Further, we note that the provisional rejection set forth in the final rejection
(Paper No. 20, page 4) is no longer provisional, as claims 2, 4, 9 and 13-16 of Application No. 08/963,541 on which
the provisional rejection was based were subsequently patented as claims 2, 3, 5, 11, 12, 1 and 13, respectively, in
U.S. Patent No. 5,813,818, issued September 29, 1998.
Reference is made to the Brief and Reply Brief (Paper Nos. 24 and 26) and the answer
(Paper No. 25) for the respective positions of the appellants and the examiner with regard to
the merits of these rejections.
OPINION
In reaching our decision in this appeal, we have given careful consideration to the
appellants' specification and claims, to the applied prior art references, and to the respective
positions articulated by the appellants and the examiner. As a consequence of our review, we
make the determinations which follow.
The obviousness-type double patenting rejection
The appellants have not contested the examiner's rejection of claims 48, 49, 52, 53 and
55-57 under the judicially created doctrine of obviousness-type double patenting. Rather, the
appellants have indicated that they "stand ready and willing to supply any necessary Terminal
Disclaimer in a timely fashion should the claims of this Appeal otherwise be held allowable"
(see Brief, page 6). Therefore, we shall summarily sustain the examiner's rejection of claims
48, 49, 52, 53 and 55-57 under the judicially created doctrine of obviousness-type double
patenting.
Appeal No. 1999-0711 Page 5
Application No. 08/876,869
The hoisting apparatus used to lift the bin comprises side channels (86), chains (92) anchored to a2
crosshead (91), a hydraulic cylinder (88) operatively connected to the crosshead (91) via a rod (89) and lower sheaves
(94) around which the chains run.
The obviousness rejections under 35 U.S.C. ß 103
Matsumoto discloses a recyclable refuse handling truck comprising a truck body (22)
having lateral sides (28) formed at the front of the body with an inset (39) which accommodates
a hoisting apparatus for a bin (84). The body is separated into three longitudinally extending2
compartments (57, 59 and 73) separated by partitions (29, 41), as shown in Figure 5. The bin
(84) is divided into three parts for separate types of refuse by bin partitions (110) and is
pivotally mounted at a pivot shaft (83) to a frame comprising upper and lower horizontal frame
members (166, 167) and vertical members (168). Rollers (102) are rotatably connected to the
member (168) and slide in channels (81), which include a vertical portion and an
inward/downward slanted portion (82) to guide the bin from a position (Figure 17) wherein it is
tucked under the truck body to a dumping position wherein the pivot shaft (83) is disposed at
the top of the channels (81). When the bin reaches the dumping position, a cylinder (121) is
actuated to pivot the bin to a dumping orientation, as shown in Figure 7A. The upper front
region of the truck body is provided with a plurality of downwardly and inwardly extending
chutes (56, 58, 71) separated by chute partitions (48, 51) for directing refuse dumped from the
respective parts of the bin (84) into the various compartments (see column 4, line 21, to column
5, line 12). When the truck is proceeding along a highway, the overall width of the truck body
Appeal No. 1999-0711 Page 6
Application No. 08/876,869
is not increased by the bin (84) and thus is not extended over highway limits because the bin
(84) is tucked under the body (column 2, lines 12-17, and column 8, lines 37-40).
Horning discloses an apparatus for concurrently collecting and segregating diverse
waste materials such as bottles, cans and newspapers. In contrast to Matsumoto's truck body,
Horning's truck body is divided into upper and lower compartments (18, 20), each extending
the entire width of the body, which receive trash through associated openings (22, 24) formed
in the top of the truck body. The truck body has a narrow front section (16a) in the operator
loading region and an enlarged rear section (16b) so that a recess is formed in a sidewall near
the front of the vehicle. A bucket assembly, including a bucket (26) divided into bins (26a,
26b) and provided with upper and lower rollers (44 and 46, respectively) guided in support
tracks (48, 49), operates within the recess and as a result does not extend beyond the side walls
of the vehicle for at least most of its travel. This arrangement reduces the clearance necessary
for operating the apparatus and enables the vehicle to be operated in relatively close quarters
(column 3, lines 14-27). As best seen in Figure 5, each of the guide tracks includes a
substantially vertical portion (48a) and a portion near the top thereof which veers inwardly and
defines a 90 degree curve connected to a transverse section (48b). As the upper support rollers
(44) travel from the vertical section to the transverse section of the tracks, the bucket rotates or
tilts inwardly (column 8, lines 54-64).
Appeal No. 1999-0711 Page 7
Application No. 08/876,869
While the side (28) of the truck body (22) of Matsumoto is formed at the front thereof with an inset (39),3
the inset accommodates only the hoisting apparatus and not the full width of the bin. As seen, for example, in Figure
7, the bin (84) extends outwardly beyond the maximum width of the truck body (22) even when tucked under the truck
body.
Ratledge discloses an apparatus for collecting separated refuse material comprising a
refuse receiving container (12) divided into upper and lower compartments and a refuse-
receiving trough (50) which is lifted from its curbside position and tipped by a lifting means
(60) to dump trash into upper loading openings (25, 26) of the container. The lifting means
comprises a pair of lift cylinders (62) pivotally mounted to each side of a roof (28) overlying
the openings (25, 26). The roof, in turn, is connected to the trough (50) via a connecting link
(66) such that, upon actuation of the cylinders, the trough is elevated.
Stragier discloses a refuse collection truck comprising a storage compartment (13), a
narrower loading compartment (17) and a vertical rail assembly (37) for guiding an apparatus
(29) having a pair of arms (31, 33) designed to engage and lift refuse containers (27). The
upper portion of the side wall of the loading compartment (17) facing the rail assembly is
outwardly flared, as seen in Figures 1 and 4a-8a.
In rejecting claims 48, 49, 52 and 53, the examiner finds that Matsumoto, the jumping
off point for the examiner's conclusion of obviousness, lacks a charging hopper having an
offset side recessed a sufficient amount to accommodate the full width of the loading bucket (bin
84) and the path of the bucket having "an arcuate upper dumping portion" as required by the3
claims. However, according to the examiner, it would have been obvious to modify the
Appeal No. 1999-0711 Page 8
Application No. 08/876,869
Matsumoto apparatus so as to offset the charging hopper (the front portion of the truck body
including the chutes) and to provide the bucket path with an arcuate upper portion in view of
the teachings of Horning as it would facilitate maneuvering of the vehicle and emptying of the
bucket (Answer, page 3).
The appellants argue (Brief, pages 13-14) that "the basic combination of [Matsumoto
and Horning] cannot properly be applied as suggested to render claim 48 and the remaining
claims depending from it obvious." For the reasons which follow, we agree with this
statement.
Matsumoto discloses an arrangement wherein the overall width of the truck is reduced
during travel on a highway by providing an inwardly and downwardly slanted channel portion
(82) which enables the bin (84) to be tucked under the truck body. Horning, on the other
hand, discloses a different arrangement for reducing the overall width of the truck not only
during highway travel but during operation at a collection site, wherein the front section of the
truck body is narrower than the rear section to form a recess in which the bucket assembly is
accommodated throughout at least most of its travel. The bucket assembly travels from its
lowermost position along a substantially vertical path up to the top of the truck body and then
veers inwardly to assume a dumping position over the top of the truck body. The guide tracks
do not include "lower segments that are outwardly directed" so as to define "an initially
outward extending path" as required by claim 48.
Appeal No. 1999-0711 Page 9
Application No. 08/876,869
From our perspective, even accepting the examiner's position that it would have been
obvious to one of ordinary skill in the art in view of the teachings of Horning to modify
Matsumoto by recessing the front loading portion of Matsumoto's truck body sufficiently to
accommodate the full width of the loading bin or bucket within the maximum width of the truck
body and providing the channels (81) with an arcuate upper dumping portion, Horning would
have taught one of ordinary skill in the art to provide on such an apparatus guide channels
having a substantially vertical section followed by a curved upper section leading to a short
horizontal section. Specifically, a skilled artisan would have appreciated from the teachings of
Horning that the need to provide inwardly and downwardly directed lower portions on the
guide channels to permit the bucket to be tucked under the truck body during highway travel is
obviated in an arrangement wherein the front loading section of the body is sufficiently recessed
relative to the rear section to accommodate the full width of the loading bucket. Therefore, we
conclude that the reference combination proposed by the examiner would not have suggested an
apparatus comprising both a charging hopper having an offset side recessed a sufficient amount
to accommodate the full width of the loading bucket within the maximum width of the truck
body and "an initially outward extending path" of the bucket including recesses having "lower
segments that are outwardly directed" as required by claim 48.
Appeal No. 1999-0711 Page 10
Application No. 08/876,869
It is elementary that to support an obviousness rejection, all of the claim limitations must be taught or4
suggested by the prior art applied (see In re Royka, 490 F.2d 981, 984, 180 USPQ 580, 582 (CCPA 1974)) and that all
words in a claim must be considered in judging the patentability of that claim against the prior art (In re Wilson, 424
F.2d 1382, 1385, 165 USPQ 494, 496 (CCPA 1970)).
Accordingly, we shall not sustain the examiner's rejection of independent claim 48, or
claims 49, 52 and 53 which depend from claim 48, under 35 U.S.C. ß 103 as being
unpatentable over Matsumoto in view of Horning.4
As to the examiner's rejections of claims 11 and 55-57, which also depend from claim
48, we have reviewed the teachings of Ratledge and Stragier, but find nothing therein which
overcomes the above-noted deficiency of the combination of Matsumoto and Horning.
Accordingly, we also shall not sustain the examiner's 35 U.S.C. ß 103 rejections of claim 11 as
being unpatentable over Matsumoto in view of Horning and Ratledge and of claims 55-57 as
being unpatentable over Matsumoto in view of Horning and Stragier.
CONCLUSION
To summarize, the decision of the examiner to reject claims 48, 49, 52, 53 and 55-57
under the judicially created doctrine of obviousness-type double patenting is affirmed. The
examiner's decision to reject claims 11, 48, 49, 52, 53 and 55-57 under 35 U.S.C. ß 103 is
reversed. The examiner's decision is affirmed-in-part.
Appeal No. 1999-0711 Page 11
Application No. 08/876,869
No time period for taking any subsequent action in connection with this appeal may be
extended under 37 CFR ß 1.136(a).
AFFIRMED-IN-PART
JOHN P. McQUADE )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
jb/rk
Appeal No. 1999-0711 Page 12
Application No. 08/876,869
C G MERSEREAU
HAUGEN & NIKOLAI
820 INTERNATIONAL CENTRE
900 SECOND AVENUE SOUTH
MINNEAPOLIS MN 55402-3325