Ex Parte Moore

Board of Patent Appeals and Interferences

Nov 23, 2009

10249066 (B.P.A.I. Nov. 23, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte THOMAS R. MOORE
____________

Appeal 2008-002524
Application 10/249,066
Technology Center 3600
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Decided: November 23, 2009
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Before: JENNIFER D. BAHR, STEVEN D.A. McCARTHY, and
MICHAEL W. O'NEILL, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2008-002524
Application 10/249,066

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STATEMENT OF THE CASE
Thomas R. Moore (Appellant) appeals under 35 U.S.C. § 134 (2002)
from the Examiner's decision rejecting claims 1-3, 5, 6, 15, 16, 18, and 19.
The Examiner has withdrawn claims 7-14 from consideration. Claims 4 and
17 have been canceled. We have jurisdiction over this appeal under 35
U.S.C. § 6 (2002).

The Invention
Appellant's claimed invention is directed to a truck-mounted toolbox
bracket assembly. Spec. para. 0006, figs. 1, 2.
Claim 1, reproduced below, is illustrative of the claimed invention.
1. A bracket assembly for pivotally supporting a
container at the rear of a vehicle bed, said vehicle
bed having a pair of upstanding, oppositely
disposed sidewalls, said bracket assembly
comprising:
a hinged support member including a first
hinge plate and a second hinge plate rotatably
connected by a hinge pin,
said first hinge plate being attached to one of
said sidewalls,
said second hinge plate providing support
means for said container;
said support means being located inwardly
of said vehicle bed and
latching means for detachably attaching said
support means to the other of said sidewalls.
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The Rejections
The Examiner relies upon the following as evidence of
unpatentability:
Snazuk US 3,891,111 Jun. 24, 1975
Smith US 4,564,167 Jan. 14, 1986
Checkovich US 5,592,780 Jan. 14, 1997
Kost US 5,988,534 Nov. 23, 1999
Appellant seeks review of the Examiner's rejections under 35 U.S.C.
§ 103(a) of claims 1-3 and 6 as unpatentable over Smith and Kost; claims 5
and 18-19 as unpatentable over Smith, Kost, and Checkovich; and under §
102(b) of claims 15 and 16 as being anticipated by Snazuk.

SUMMARY OF DECISION
We AFFIRM.

ISSUES
Appellant argues claims 1, 5, and 15. Appellant does not separately
argue any other claims, such that claims 2, 3, and 6 stand or fall with claim
1, claims 18 and 19 stand or fall with claim 5, and claim 16 stands or falls
with claim 15. Appeal Br. 6-7. Therefore, the dispositive issues are:
(1) For claim 1, has Appellant demonstrated that the Examiner has failed
to provide reasoning with rational underpinning for determining that it
would have been obvious to modify the truck bed toolbox bracket
assembly of Smith to have a latching means attachable to the other
end of the truck bed, as described in Kost?
(2) For claim 5, has Appellant demonstrated that the Examiner erred in
finding that the piston-style brace of Checkovich describes a brace
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means that secures a hinged support member? In particular, does the
piston-style brace lock in a fixed position?
(3) For claim 15, has Appellant demonstrated that the Examiner erred in
finding that Snazuk describes a rod having two continuous portions
bent angularly relative to one another?

FACTS PERTINENT TO THE ISSUES
(FINDINGS-OF-FACT (FF))
FF1 The Examiner correctly found that Smith describes a bracket
assembly for pivotally supporting a container 12 at the rear of a
vehicle bed, the vehicle bed having a pair of upstanding, oppositely
disposed sidewalls, the bracket assembly having a hinged support
member including a first hinge plate (vertical plate 66) and a second
hinge plate (frame 20) rotatably connected by a hinge pin 22, the first
hinge plate 66 being attached to one of the sidewalls, the second hinge
plate 20 providing support means (flat surface 30) for the container,
the support means being located inwardly of the vehicle bed. Ans. 4;
see also Smith, figs. 1, 2.
FF2 The Examiner correctly found that Smith fails to explicitly describe a
latching means for detachably latching the support means to the other
sidewall. Ans. 4.
FF3 The Examiner correctly found that Kost describes a bracket assembly
having a second hinge plate with support means (gate 50) for
supporting a container (spreader 20) and a latching means (lock sleeve
108) for detachably latching the support means to the other sidewall
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(36). Ans. 4; see also Kost, col. 6, ll. 7-10 ("lock plate 140 is secured
to inner surface 40 of side wall 36").
FF4 The Examiner found that Smith and Kost fail to explicitly describe a
brace means that allows the hinged support member to be secured in a
position free of the interior of the vehicle bed. Ans. 5; but see Smith
col. 3, ll. 34-43, figs. 1, 3 (noting the toolbox can be locked in a
position free of the interior of the vehicle bed by placing the lever 28
in the second slot 64).
FF5 The Examiner correctly found that Checkovich describes a brace
means (piston assembly 20 with latch plate 26) for a vertically
pivoting door that secures the door in an open position. Ans. 5; see
also Checkovich, col. 4, ll. 44-47, 61-67.
FF6 Checkovich's brace means (piston assembly 20 with latch plate 26) is
a familiar household object that provides a solution to the problem of
fixing an object that swings freely into a particular position. See col.
4, ll. 61-67.
FF7 The Examiner correctly found that Snazuk describes a brace structure
(prop 5) for securely propping open a hinge plate (door 10) on a
hinged device of vehicle 14, the brace structure having a rod (formed
of tubular members 18 and 20) having two continuous portions
(tubular member 18 and end 22) bent angularly relative to one
another, the rod being rotatably connected to the hinge plate (door
10), and with the vehicle 14 providing means (bracket 32) for
receiving one of the bent portions of the rod. Ans. 3.
FF8 Snazuk describes a prop 5 made of two telescoping tubular members
18 and 20. Fig. 3, col. 2, ll. 5-7. The end 22 of each tubular member
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is collapsed such as to close the end of the tubular member. Col. 2, ll.
7-9.
Snazuk’s figure 6, modified to show axes A and B, is
reproduced below:

Snazuk's figure 6 depicts a tubular member 20 with one end bent at an
acute angle from the center axis of the tubular member. We have
modified Snazuk’s figure 6 to show the central longitudinal axis A of
tubular member 20 and the central longitudinal axis B of the end 22 of
the tubular member 20. Axis B lies at an acute angle relative to axis
A.
The axis that runs through the center of collapsed end 22 is at
an angle to the axis that runs through the main body of the tubular
member 20. Fig. 6. The axes are at an angle because collapsed end
22 of the tubular member is bent relative to the tubular member. Id.
Tubular member 18 is of similar construction, except that the end 22
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of tubular member 18 bends in the opposite direction as the end 22 of
tubular member 20. Id. Therefore, each half of prop 5 has two
continuous portions (tubular member 18 or tubular member 20 and its
corresponding end 22) bent angularly relative to one another.

PRINCIPLES OF LAW
While there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness, "the analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ." KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Finally, "if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill." Id. at 417.

ANALYSIS
Issue (1) - Obviousness of Claim 1 in view of Smith and Kost
The Examiner found that Smith describes a bracket assembly for
pivotally supporting a container at the rear of a vehicle bed with a hinged
support means. FF1. The Examiner found that Smith did not explicitly
describe a latching means for detachably latching the support means to the
other sidewall of the vehicle. FF2. However, the Examiner found that Kost
describes a bracket assembly with a support having a latching means on the
other sidewall of the vehicle. FF3. Therefore, the Examiner concluded that
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it would have been obvious to modify the bracket assembly of Smith to have
a latching means on the other sidewall of the vehicle, in order to better
secure the support means and the container. Ans. 4.
Appellant first argues that the salt spreader in Kost is outside the
vehicle bed. Reply Br. 3. While the salt spreader in Kost is outside the
vehicle, the latching means that the Examiner takes from Kost to modify
Smith is within the sidewalls of the vehicle bed. FF3. The location of
Kost's salt spreader is not germane because the Examiner does not propose
modifying Smith's bracket assembly by adding a salt spreader.
Appellant next argues that the assembly in Smith does not extend
across a truck bed. Reply Br. 3. Appellant's argument is attacking the
reference in isolation. Nonobviousness cannot be established by attacking
the references individually when the rejection is predicated upon a
combination of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986). The Examiner found that Kost describes a
latch for a bracket that extends across a truck bed. FF3. In order to modify
Smith's bracket with Kost's latch, Smith's bracket must be extended across
the truck bed as shown in Kost. Appellant has not argued, much less shown,
that Smith's bracket could not be extended across the truck bed as described
in Kost.
Appellant finally argues that the Examiner has failed to provide a
teaching or suggestion for combination. Reply Br. 3. The Supreme Court
has stated that a rigid insistence on teaching, suggestion, or motivation is
incompatible with its precedent concerning obviousness. KSR, 550 U.S. at
419. As to why it would have been obvious to combine Smith's bracket with
Kost's latch, the Examiner concluded that by modifying Smith's bracket
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assembly such that it latched to the other sidewall, as described in Kost, the
modified bracket assembly would better secure the container. Ans. 4.
Clearly, one of ordinary skill in the art would recognize that a device
secured in multiple locations is more secure than a device only secured in
one location. Thus, the Examiner has provided a reason for modifying the
bracket in Smith with the latching means in Kost that has rational
underpinning. See KSR, 550 U.S. at 419.

Issue (2) - Obviousness of Claim 5 in further view of Checkovich
The Examiner found that Smith and Kost fail to explicitly describe a
brace means that allows the hinged support member to be secured in a
position free of the interior of the vehicle bed. FF4. The Examiner found
that Checkovich describes a brace means for a vertically pivoting door that
allows the door to be secured in an open position. FF5. Therefore, the
Examiner concluded that it would have been obvious to modify the bracket
in Smith, as modified by Kost, with the brace means of Checkovich, in order
to allow Smith's hinged support member to be secured in a position so that a
user can easily access items within the bed of the vehicle. Ans. 5.
Appellant argues that Checkovich's brace would be inoperative if
utilized as proposed by the Examiner. Reply Br. 4. Particularly, Appellant
argues that the piston-style brace moves such that it cannot be secured in one
position. Id. However, Checkovich's brace is a modified version of the
piston-style brace seen on most exterior household doors, and fixes at any
position the user wishes by way of the latch plate. See FF5.
Appellant further argues that Checkovich's brace is not analogous art
to the devices in Smith and Kost, and that the Examiner has not shown a
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teaching or suggestion for applying a brace commonly used in doors.
Appeal Br. 13. Checkovich's brace, however, is a familiar household object
that provides a solution to the problem of fixing an object that swings freely
into a particular position. FF6. As such, Checkovich describes a solution to
a known problem, and the Examiner has merely proposed to modify Smith's
bracket to incorporate Checkovich's brace to improve Smith's bracket in the
same way and with the same result. See KSR, 550 U.S. at 417.

Issue (3) - Anticipation of Claim 15 by Snazuk
The Examiner found that Snazuk describes a brace structure for
propping open a hinge plate on a vehicle, the brace having a rod with two
continuous portions bent angularly relative to one another. FF7. Appellant
argues that the two portions to which the Examiner refers are not bent
angularly relative to one another because they both lie within the same axis.
Appeal Br. 8.
As shown in figure 6, axis B, which runs through the center of
collapsed end 22, is at an angle to axis A, which runs through the main body
of the tubular member 20. FF8. The axes are at an angle because collapsed
end 22 of the tubular member is bent relative to the tubular member. Id.
Therefore, Appellant has not demonstrated that the Examiner erred in
determining that Snazuk's prop has two continuous portions bent angularly
relative to one another.
Appellant further argues that the two tubular members 18 and 20 of
prop 5 do not constitute a single rod because they are two separate pieces.
Appeal Br. 8; Reply Br. 2. Appellant provides a dictionary definition of rod
to support his position. Appeal Br. 8 ("'any straight, or almost straight, stick,
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shaft, bar, staff, etc…'"). However, the definition provided does not require
that a rod must be formed of one continuous piece of material, that is, a
unitary construction, as Appellant argues. Claim 15 merely requires a rod
that has two continuous portions that are bent, not a continuous, or unitary
bent rod. The Examiner correctly found that prop 5 is a rod including two
tubular members 18 and 20, each of which comprises an end portion 22 bent
angularly relative to the remainder of the tubular member. See FF7 and FF8.
Therefore, Appellant has not demonstrated that the Examiner erred in
determining that Snazuk's prop 5 is a rod having at least two continuous
portions, namely, tubular member 18 or 20 and its respective end portion 22.

CONCLUSIONS
(1) Appellant has not demonstrated that the Examiner has failed to
provide reasoning with rational underpinning for determining that it
would have been obvious to modify the truck bed toolbox bracket
assembly of Smith to have a latching means attachable to the other
end of the truck bed, as described in Kost, and thus has not
demonstrated error in the Examiner’s rejection of claim 1. Likewise,
Appellant has not demonstrated error in the Examiner's rejections of
dependent claims 2, 3, and 6, which fall with claim 1.
(2) Appellant has not demonstrated that the Examiner erred in finding that
the piston-style brace of Checkovich describes a brace means that
secures a hinged support member, and thus has not demonstrated error
in the Examiner’s rejection of claim 5. Likewise, Appellant has not
demonstrated error in the Examiner's rejections of independent claims
18 and 19.
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(3) Appellant has not demonstrated that the Examiner erred in finding that
Snazuk describes a rod having two continuous portions bent angularly
relative to one another, and thus has not demonstrated error in the
Examiner’s rejection of claim 15. Likewise, Appellant has not
demonstrated error in the Examiner's rejection of dependent claim 16.

DECISION
The Examiner's decision is affirmed as to claims 1-3, 5, 6, 15, 16, 18,
and 19.
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) (2007).

AFFRIMED

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