Ex Parte Nitereka et al

Patent Trial and Appeal Board

Mar 26, 2013

11745198 (P.T.A.B. Mar. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CLAVER NITEREKA,
RONALD OSTROWSKI,
and
JOHN PAWL
____________

Appeal 2011-006221
Application 11/745,198
Technology Center 3600
____________

Before JOHN C. KERINS, BRADFORD E. KILE and WILLIAM A. CAPP,
Administrative Patent Judges.

KILE, Administrative Patent Judge.

DECISION ON APPEAL

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below

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06221
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d John Paw
final rejec
nceled. A
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t roll-off
’ Specifica
pellants a
l (Appell
tion of cla
n oral hea
pearing on
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trailers. S
tion are re
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ants),1
ims 1, 3,
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traile
plate
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Claim 1,
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1.
to
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su
06221
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- 3 -
ates and d
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Appeal 2011-006221
Application 11/745,198

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container or substantially 24 feet to carry a
single, 24-foot container;
a single hydraulic lift cylinder having a first
end coupled to the king pin section and a second
end attached to the tilt frame, the lift cylinder
having a retracted state wherein the tilt frame is
generally horizontal and an extended state
wherein the tilt frame is pivoted at an angle with
the rearward section of the tilt frame spaced
apart above a ground surface;
a ‘stinger’ tail mechanism including a set of
telescoping rails driven in and out of the tilt
frame by a hydraulic cylinder, thereby enabling
the rearward section of the tilt frame to reach
ground level for container loading and
unloading; and
a mechanism for pulling a cable with a
container attached thereto onto the tilt frame for
hauling, the cable-pulling mechanism further
comprising:
a slide plate,
a single hydraulic cylinder having a
first end attached to the tilt frame
and a second end attached to the
slide plate, and
a plurality of pulleys on the slide
plate and tilt frame around
which the cable is reeved.

EVIDENCE RELIED UPON
The Examiner relies upon the following as evidence in support of the
rejections:
Haberle
Helton
US 3,606,059
US 5,478,190
Sep. 20, 1971
Dec. 26, 1995
Appeal 2011-006221
Application 11/745,198

- 5 -
Oliver
Marmur
US 6,641,353 B2
US 7,192,239 B2
Nov. 4, 2003
Mar. 20, 2007

THE REJECTIONS
The following rejections are before us for review:
1. Claims 1 and 3 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haberle, Marmur, and Oliver.
2. Claim 9 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haberle, Marmur, and Oliver.
3. Claim 10 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haberle, Marmur, and Oliver.
4. Claim 11 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haberle, Marmur, and Oliver.
5. Claims 9-11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haberle, Marmur, Oliver, and Helton.

OPINION
1. Obviousness Rejection of
Claims 1 and 3 Over Haberle, Marmur, and Oliver
Appellants argue claims 1 and 3 as a group. App. Br. 3-6. We select
claim 1 as representative of the group. Claim 3 will stand or fall with claim
1. See 37 C.F.R. § 41.37(c)(1)(iv) (2011).
The Examiner finds that Haberle discloses a compact roll-off trailer
with a king pin section configured for attachment to a tractor and a tilt frame
operable for carrying a single container. Ans. 3. The Examiner further finds
that Haberle discloses other aspects of claim 1 but acknowledges that
Haberle, while teaching a container loading mechanism, does not
App
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spec
this
that:
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of a
of th
discl
Figu
The
18 to
eal 2011-0
lication 11
ifically dis
feature the

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m
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p
a
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The Exa
frame exte
e frame. A
osure of O
re 6 depict
Oliver pat
provide a
06221
/745,198
close a sli
Examiner
t would h
skill in th
ade to
armur t
ulley con
chieve th
ower and
miner also
nsion mem
ns. 4. Fo
liver. Fig
s a vehicle
ent disclos
n extensio
de plate an
relies on t
ave been
e art at t
have trie
o have a
tainer m
e predict
speed cha
acknowle
ber to fac
r this featu
ure 6 of th
capable o
es use of h
n support
- 6 -
d pulley m
he disclos
obvious to
he time t
d modify
slide pla
oving sys
able resu
racteristic
dges that H
ilitate han
re the Exa
e Oliver p
f loading
ydraulical
between th
oving sys
ure of Ma
one of o
he inventi
ing Hab
te, cylind
tem in o
lts of im
s.
aberle do
dling of a
miner reli
atent is rep
and off-lo
ly actuate
e frame 1
tem. Id. a
rmur and c
rdinary
on was
erle by
er and
rder to
proving
es not dis
container
es upon th
roduced b
ading cont
d side fram
0 and a gr
t 4. For
oncludes
close use
on and off
e
elow:

ainers.
e support
ound

s
Appeal 2011-006221
Application 11/745,198

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surface to guide containers on and off when the frame 10 has a pivot 16
located at a distal end of the truck frame. Ans. 4-5; Oliver, col. 4, ll. 21-37.
Appellants first contend that since Haberle discloses a beveled edge
26 to rest on a ground surface as illustrated in Figure 3 there would be no
reason and the Examiner has not provided one to include extendable arms on
the Haberle bed. Second, to have tried to modify Haberle would be an
impermissible “‘obvious to try’” rationale. Third, the proposed modification
of adding extension arms to Haberle would alter Haberle’s principle of
operation. App. Br. 4-5.
Figure 3 of Haberle discloses an operation of the trailer device 10 to
roll-off dump body 132. Figure 4 illustrates use of the dump body 132 in a
dump mode with a pivot about point 92 located at a rear portion of the
support frame 12. When the frame pivot is effected at the rear of the trailer
the tail of dump body is above a ground surface. The Examiner finds that
adding an extensible stinger as taught by Oliver, inter alia, “adds flexibility
in loading and unloading . . . as well as the versatility in making the trailer
length longer or shorter during regular transit.” Ans. 6.
With respect to “obvious to try” the Supreme Court instructs in KSR
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007) that obvious to try is not
an impermissible rationale - as suggested by Appellants. App. Br. 4.
Finally, with respect to altering Haberle’s structure and principle of
operation, obviousness is not determined by one’s ability to physically
incorporate the structure of one prior art disclosure into another. In re
Keller, 642 F.2d 413, 425 (CCPA 1981) “[t]he test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference . . . . Rather, the test is what the
Appeal 2011-006221
Application 11/745,198

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combined teachings of the references would have suggested to those of
ordinary skill in the art.” Appellants do not explain how the addition of
extendable arms would alter the basic principle of operation of Haberle.
More specifically, Appellants have not shown that the Haberle trailer, when
modified as proposed by the Examiner, would not be able to perform both
the roll-off loading/unloading and dump functions performed by an
unmodified trailer.
The Examiner’s reasoning and conclusions have not been persuasively
shown to be unreasonable or lacking in rational underpinnings. KSR Int’l at
418, citing with approval In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
We sustain the Examiner’s rejection of claims 1 and 3.

2. Obviousness Rejection of
Claim 9 Over Haberle, Marmur, and Oliver
Claim 9 depends from claim 1 and adds the limitation: “wherein the
tilt frame has two outer rails with upper surfaces and rollers to accommodate
‘inside’ type containers.” App. Br., App’x A at 8.
The Examiner finds that Haberle teaches a frame having two rails that
have upper and outer surfaces with rollers. Ans. at 5; see Haberle, Fig. 6.
Further the Examiner finds that Haberle indicates that all types of containers
may be used with the trailer. Id., Haberle, col. 6, ll. 4-5.
Appellants traverse the Examiner’s rejection arguing that the
Examiner has failed to establish a prima facie case. App. Br. 6.
We find that the Examiner’s analysis is supported by Haberle’s
disclosure and we sustain the Examiner’s rejection of claim 9 for the reasons
stated in section 1 above and the further disclosure of the Haberle patent.

Appeal 2011-006221
Application 11/745,198

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3. Obviousness Rejection of
Claim 10 Over Haberle, Marmur, and Oliver
Claim 10 depends from claim 1 and adds the limitation: “wherein the
tilt frame has two outer rails with outer surfaces and rollers to accommodate
‘outside’ type containers.” App. Br., App’x A at 9.
Appellants’ argument against the Examiner’s rejection of claim 9 is
essentially the same argument that Appellants raise against the rejection of
claim 10. The issue having been determined with respect to claim 9,
Appellants fail to persuade us that the Examiner’s rejection of claim 10 is
erroneous. The Examiner’s rejection of claim 10 is sustained for the reasons
stated above.

4. Obviousness Rejection of
Claim 11 Over Haberle, Marmur, and Oliver
Claim 11 depends from claim 1 and adds the limitation: “wherein the
tilt frame has two outer rails with upper surfaces and outer surfaces, both
with rollers to accommodate both ‘inside’ and ‘outside’ type containers.”
App. Br., App’x A at 9.
Appellants’ arguments against the Examiner’s rejection of claims 9
and 10 are essentially the same arguments that Appellants raise against the
rejection of claim 11. The issues having been determined with respect to
claims 9 and 10, Appellants fail to persuade us that the Examiner’s rejection
of claim 11 is erroneous. The Examiner’s rejection of claim 11 is sustained
for the reasons stated above.

Appeal 2011-006221
Application 11/745,198

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5. Obviousness Rejection of Claim 9-11 Over
Haberle, Marmur, Oliver, and Helton
Claims 9-11 depend from claim 1 and add the limitations of “two
outer rails” and “rollers.” App. Br., App’x A at 8-9.
The Examiner finds that Helton teaches inner and outer rollers with
various surfaces to handle a variety of loads. Ans. 5. The Examiner
concludes that it would have been obvious to have tried modifying Haberle
by Helton to have inner and outer rollers and various surfaces to achieve the
predictable result of handling a greater variety of container loads. Id.
Appellants assert that the Examiner has failed to produce evidence
about how the mechanisms of Haberle, Marmur, Oliver, and Helton would
function in combination. App. Br. 7. We find that the evidence provided by
the Examiner via the cited prior art and the disclosures of those prior art
patents supports the Examiner’s findings. As the Court stated in KSR Int’l
“[t]he combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.”
KSR Int’l, 550 U.S. at 416.
The Examiner’s rejection of claims 9-11 is further sustained for the
reasons stated above in section 5.
DECISION
The decision of the Examiner to reject claims 1, 3, and 9-11 is
affirmed.

Appeal 2011-006221
Application 11/745,198

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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). See 37
C.F.R. § 1.136(a)(1)(iv) (2011).

AFFIRMED

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