Ex Parte Moore, et al

Board of Patent Appeals and Interferences

Mar 28, 2009

10862635 (B.P.A.I. Mar. 28, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ROY E. MOORE, JR., RONALD P. BROCHU,
and DANIEL J. SWISTAK
____________________

Appeal 2009-0484
Application 10/862,635
Technology Center 3600
____________________

Decided:1 March 30, 2009
____________________

Before WILLIAM F. PATE, III, LINDA E. HORNER, and
KEN B. BARRETT, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-0484
Application 10/862,635

STATEMENT OF THE CASE
Roy E. Moore, Jr. et al. (Appellants) seek our review under 35 U.S.C.
§ 134 from the final rejection of claims 13-16, 18, and 19. We have
jurisdiction under 35 U.S.C. § 6(b).

SUMMARY OF THE DECISION
We AFFIRM-IN-PART.

THE INVENTION
According to the Appellants, the claimed invention pertains to a
plastic pallet for the transportation of packaged goods. (Spec. 1, ¶ [0002].)
Claim 13, reproduced below, is representative of the subject matter on
appeal.
13. A reinforcement structure disposed within a deck of a
pallet, said reinforcement structure comprising:
a first reinforcement member extending in a non-parallel
direction to a first edge of said deck, wherein said first edge is
disposed between a first corner and a second corner of said
deck;
a second reinforcement member extending from a point
on said first reinforcement member intermediate ends of said
first reinforcement member toward a second edge of said deck
adjacent to said first edge, wherein said second edge is disposed
between a third corner and either said first corner or said second
corner; and
a third reinforcement member extending from a point on
said first reinforcement member intermediate the ends of said
first reinforcement member toward a third side of said deck
opposite said second side.

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THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Shuert US 5,042,396 Aug. 27, 1991
Jordan US 5,549,056 Aug. 27, 1996
THE RANDOM HOUSE COLLEGE DICTIONARY 644 (unabr. ed., 1st rev.
ed. 1980) (definition of “hub”)
The following rejections are before us for review:
1. Claims 13-16 and 19 are rejected under 35 U.S.C. § 102(b) as
anticipated by Shuert; and
2. Claim 18 is rejected under 35 U.S.C. § 102(b) as anticipated by
Jordan.
Appellants also apparently seek review of the Examiner’s objection
to claim 17 as being dependent upon rejected claim 15 (App. Br. 5). As
Appellants note (App. Br. 8), the Examiner indicated that claim 17 would
be allowable if rewritten in independent form (Final Rej. 3). Claim 17 is
not the subject of a rejection, and therefore the objection thereto does not
present a matter within the jurisdiction of the Board. Cf. In re Mindick, 371
F.2d 892, 894 (CCPA 1967).

ISSUES
The issues before us include whether the Appellants have shown
that the Examiner erred in rejecting claims 13-16 and 19 under 35 U.S.C.
§ 102(b) as anticipated by Shuert.
The issues before us also include whether the Appellants have shown
that the Examiner erred in rejecting claim 18 under 35 U.S.C. § 102(b) as
anticipated by Jordan. This issue turns on whether Jordan discloses at least
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two reinforcement members having an end received in a structural hub
member.

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence.
1. Figure 24C of Appellants’ Specification is reproduced below:

Figure 24C depicts an arrangement 87 of reinforcement members within the
deck structure of the pallet. (Spec. 20, ¶ [0083].) Upper reinforcement
structure 88a comprises first, second and third reinforcement members. (Id.)
Figure 24C shows the upper reinforcement structure 88a having
reinforcement members extending toward the corners of the deck. (Cf. Spec.
21, ¶ [0084] (“In FIGURE 24C, arrangement 87 is configured such that
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upper reinforcement structure 88a is angled at 45 degrees relative to lower
reinforcement structure 88b.”).)2
2. Shuert discloses a plastic pallet with an insert assembly 14.
(Shuert, col. 4, ll. 20-21.) The insert assembly 14 comprises a pair of beams
16, 18 arranged in an X-configuration. (Id., col. 4, ll. 40-47; Fig. 1.)
3. Figure 1 of Shuert is reproduced below:

Figure 1 depicts an exploded perspective view of Shuert’s pallet. (Shuert,
col. 4, ll. 3-4.)

2 We note that the angle shown in Figure 24C between upper reinforcement
structure 88a (which is rectangular, not square) and lower reinforcement
structure 88b does not appear to be 45 degrees.
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4. Shuert teaches that an end of a beam is positioned in each
corner of the pallet. (Shuert, Abstract; Fig. 1; see id., col. 2, ll. 12-16.)
5. Shuert’s beams preferably have a box or tubular cross-section,
and are matingly notched at their midsections so that the upper surfaces 16a,
18a are generally flush with each other. (Id., col. 4, ll. 42-47; see also id.,
Fig. 1.)

PRINCIPLES OF LAW
During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am. Acad. of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). It is Appellants’ burden
to precisely define the invention, not the United States Patent and Trademark
Office’s. In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997) (citing
35 U.S.C. § 112, ¶ 2). Appellants have the opportunity to amend the claims
during prosecution, and broad interpretation by the Examiner reduces the
possibility that the claim, once issued, will be interpreted more broadly than
is justified. Prater, 415 F.2d at 1404-05.
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987) (citations omitted).

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ANALYSIS
The Rejection of Claims 13-16 and 19 Under 35 U.S.C. § 102(b) as
Anticipated by Shuert
Claims 13-16
Regarding independent claims 13 and 15, Appellants argue that
“Shuert does not teach support members extending to a first edge, wherein
the first edge is between a first corner and a second corner; he teaches
extending from corner to diagonal corner.” (App. Br. 6.) Appellants
suggest that these claims exclude an X-configuration with beam ends
positioned in the corners, as taught by Shuert. (Id. at 6-7.) The Examiner
found that Shuert’s beam 16 corresponds to the recited first member.
(Ans. 4.)
Appellants’ arguments are not commensurate with the scope of
claims 13 and 15. The language of those claims does not exclude an
X-configuration. Claim 13 recites “a first reinforcement member extending
in a non-parallel direction to a first edge of said deck.” The first edge is the
frame of reference for the “non-parallel direction.” Thus, claim 13 simply
requires a first member extending in a direction that is not parallel to a first
edge. Claim 15 similarly requires “a first reinforcement member extending
toward a first edge of said deck,” without reciting any particular angle
relative to the edge. The recitation in claims 13 and 15 of the “first edge
[that] is disposed between a first corner and a second corner of said deck”
refers to the edge of the pallet deck extending from a first corner to a
second corner. The recited edge can include the edge of the deck located
at a corner. This understanding of the claims is consistent with the
Specification’s disclosure of an embodiment in which reinforcement
members extend toward the corners of the deck in an X-configuration. (See
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Fact 1.) Shuert discloses a plastic pallet having a beam 16 extending from a
corner to the opposite corner. (See Facts 2, 3.) Thus, Shuert’s beam is a
first reinforcement member extending toward a first edge in a direction not
parallel to that edge, as claimed.
Appellants also argue that “Shuert fails to teach second and third
reinforcement members extending from points on the first reinforcement
member intermediate ends of the first reinforcement member.” (App. Br. 7;
see also id. at 6.) Claim 13, but not claim 15, requires second and third
members extending from intermediate points on the first member. The
Examiner found that the two sections of Shuert’s beam 18 on either side of
beam 16 correspond to the recited second and third reinforcement members.
(See Ans. 3, 4.) Those two sections of beam 18 extend from the midpoint of
beam 16. (Facts 3, 5.) Appellants’ argument in this regard amounts to little
more than a statement as to what the claim recites, with no clear articulation
as to how the Examiner erred. In particular, Appellants do not direct our
attention to any language in the claim or the Specification indicating that
two sections of a single beam cannot constitute the second and third
reinforcement members. Thus, Appellants have not shown error in the
Examiner’s determination that the recited second and third reinforcement
members extending from intermediate points on the first reinforcement
member encompass the two sections of Shuert’s beam 18.
As to dependent claim 14, Appellants additionally assert that “Shuert
fails to teach or suggest second and third reinforcement members attached
to opposing sides of the first reinforcement member.” (App. Br. 7.) We
disagree. The two portions of Shuert’s beam 18 are attached to either side
of beam 16 by way of overlapping notches. (Facts 3, 5.) When given the
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broadest reasonable construction, the recited “attached to opposing sides”
language encompasses Shuert’s configuration.
Appellants do not offer separate arguments for the patentability of
claim 16, which depends from claim 15, and therefore have not shown error
in the rejection of claim 16.
Appellants have failed to persuade us of error in the Examiner’s
rejection of claims 13-16 as anticipated by Shuert.

Claim 19
Independent claim 19 recites “a first reinforcement member having an
opening disposed laterally therethrough define [sic] by an upper wall and a
lower wall.” A second reinforcement member is received through that
opening. Appellants argue that Shuert fails to teach this opening. (App. Br.
7.) The Examiner concluded that the claim does not require “an opening
that includes a perimeter boundary structure,” and found that Shuert’s beam
16 has the recited opening. (Ans. 4.)
Appellants’ Specification indicates that all four sides of a rectangular
member are “walls.” (Spec. 17, ¶ [0077] (identifying items 82a and 82b as
“sidewalls”); Fig. 18.) Thus, the recited upper and lower walls refer to the
top and bottom sides of the first reinforcement member.
Shuert’s beams are described and depicted as being matingly notched
such that their upper surfaces are generally flush with each other. (Facts 3,
5.) We agree with Appellants that this suggests that Shuert’s notches each
have either an upper wall or a lower wall, but not both. The Examiner does
not direct our attention to any disclosure in Shuert of a member having an
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opening with both an upper and lower wall. Therefore, we are constrained
to reverse the rejection of claim 19 as anticipated by Shuert.

The Rejection of Claim 18 Under 35 U.S.C. § 102(b) as Anticipated by
Jordan
Claim 18 recites:
a plurality of reinforcement members supported at said
structural hub member and extendable toward the edges of the
deck, wherein at least two reinforcement members of the
plurality of said reinforcement members have an end received
in said structural hub member.
The Examiner identifies Jordan’s ribs 32 (Jordan, col. 2, ll. 54-55) as the
plurality of reinforcement members, and apparently found that Jordan’s
central indentation 26 (id.) constitutes the recited structural hub. (Ans. 3
(citing Jordan, Fig. 2).) Appellants contend that Jordan’s “hub and ribs are
all one molded piece” and “[a]n end of at least two of the reinforcement
members is not received in the hub.” (App. Br. 8.)
Appellants’ Specification distinguishes between members integrally
formed with the hub and members that are received through a hub opening.
(Spec. 23, ¶ [0088]; Fig. 26D.) Thus, the claim language concerning
members having an end received in the hub, when read in light of the
Specification, refers to reinforcement members that are not integrally formed
with the hub.
We agree with Appellants that Jordan’s hub and ribs appear to be
formed as a single molded piece. (See Jordan, col. 2, ll. 29-31, 46-47, 54-55;
Fig. 2.) Because Jordan’s ribs are integrally formed with the hub rather than
received in the hub, we cannot sustain the rejection of claim 18 as
anticipated by Jordan.
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CONCLUSIONS
We conclude that the Appellants have shown that the Examiner erred
in rejecting claim 18 as anticipated by Jordan, and in rejecting claim 19 as
anticipated by Shuert.
We further conclude that the Appellants have failed to show that the
Examiner erred in rejecting claims 13-16 as anticipated by Shuert.

DECISION
The decision of the Examiner to reject claims 18 and 19 is reversed.
The decision of the Examiner to reject claims 13-16 is 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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED-IN-PART

JRG

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