Ex Parte Ogburn

Patent Trial and Appeal Board

Jul 10, 2017

12016987 (P.T.A.B. Jul. 10, 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.
12/016,987 01/18/2008 Sean T. Ogburn 7345 PUS; 67080-377PUS1 5464
26096 7590 07/12/2017
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
KOEHLER, CHRISTOPHER M
ART UNIT PAPER NUMBER
3726
NOTIFICATION DATE DELIVERY MODE
07/12/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SEAN T. OGBURN
Appeal 2015-007225
Application 12/016,9s?1
Technology Center 3700
Before HUBERT C. LORIN, PHILIP J. HOFFMANN, and
MATTHEW S. MEYERS, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the final rejection of
claims 12—34. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
According to Appellant, the “invention relates to a pallet for storing or
transporting goods.” Spec. 11. Claims 12 and 27 are the independent
claims on appeal. We reproduce claim 12, below, as illustrative of the
appealed claims.
1 According to Appellant, “REHRIG PACIFIC COMPANY is the real party
in interest.” Appeal Br. 1.
Appeal 2015-007225
Application 12/016,987
12. A method for manufacturing a pallet including the
steps of:
a) forming a lower deck portion having a lower planar
portion, a peripheral wall of the lower deck portion having a
recess at an upper exterior surface thereof;
b) forming an upper deck portion having a upper planar
portion, a peripheral lip protruding downwardly from a periphery
of the upper planar portion, one of the upper planar portion and
the lower planar portion including a plurality of transversely
intersecting ribs and a plurality of mating portions protruding
from the plurality of intersecting ribs;
c) placing the upper deck portion on the lower deck
portion, with the peripheral wall of the lower deck portion within
the peripheral lip of the upper deck portion; and
d) vibration welding the mating portions of the ribs to the
other of the upper planar portion and the lower planar portion.
REJECTIONS AND PRIOR ART
The Examiner rejects claims 12 and 14—28 under 35 U.S.C. § 102(b)
as anticipated by Ogbum (US 2006/0032413 Al, pub. Feb. 16, 2006).
The Examiner rejects claims 13 and 29-34 under 35 U.S.C. § 103(a)
as unpatentable over Ogbum.
ANALYSIS
Anticipation rejection
Based on our review of the record, for the reasons discussed in detail
below, Appellant does not persuade us of error in the Examiner’s rejection
of claims 12 and 14—28 as anticipated by Ogbum. Thus, we sustain the
anticipation rejection.
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Appeal 2015-007225
Application 12/016,987
As an initial matter, Appellant does not argue separately claims 12
and 14—28. Thus, dependent claims 14—28 stand or fall with independent
claim 12, which we select for our analysis. See 37 C.F.R. § 41.37 (c)(iv).
As set forth above, independent claim 12 recites “forming a lower deck
portion having a lower planar portion, . . . forming an upper deck portion
having a upper planar portion,” and vibration welding the upper and lower
deck portions to one another. Appeal Br., Claims App. As summarized by
Appellant, “[t]he Examiner reads the claimed Tower deck portion’ on
Ogbum’s base 18[,] and the claimed Tower planar portion’ on Ogbum’s
mid-top member 30.” Id. at 4. Appellant argues that the rejection is in error
because “the Examiner’s interpretation [of claim 12] ... is unreasonably
broad and is not consistent with the specification.” Id. We disagree with
Appellant, however, that the Examiner’s rejection is inconsistent with the
broadest reasonable interpretation of the claim, in view of the Specification.
Specifically, we do not agree that either Appellant’s Figure 1, or
paragraphs 21 or 29 of Appellant’s Specification, precludes the Examiner
from finding that Ogbum’s separate base 18 and mid-top member 30 teach
the claimed lower deck portion having a lower planar portion, because the
claim requires a lower deck portion integral with a lower planar portion. Id.
We note, for example, that the Specification describes that “[i]n the example
embodiment, ... the example lower deck portion 14 is integrally molded as
a single part from a thermoplastic material via injection molding.”
Specification 129 (emphases added); see also Answer 8—9. Thus, we
determine that Appellant does not persuade us that the Specification limits
the claimed lower deck and planar portions to an integral, molded unit.
Based on the foregoing, we sustain the anticipation rejection.
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Appeal 2015-007225
Application 12/016,987
Obviousness rejection of claim 13
Inasmuch as Appellant does not argue separately dependent
claim 13’s obviousness rejection based on Ogbum, we sustain the rejection.
Obviousness rejection of claims 29—34
Based on our review of the record, we do not sustain the obviousness
rejection of dependent claims 29—34, based on Ogbum.
As pointed out by Appellant, “[cjlaims 29 and 32, for example,
include that ‘the lower deck portion is integrally molded as a single part
Appeal Br. 4. “Ogbum vibration welds its top deck 12 to the mid-top
member 30 before the joined top deck 12/mid-top member 30 stmcture is
snap fit onto the base 18. See Ogbum at [0037]. Thus, the mid-top
member 30 could not be integrally formed with the base 18.” Id. at 5. The
Examiner’s determinations that “[i]t would have been obvious ... to provide
the lower deck portion (18, 30) as a single integrally molded part” (Final
Action 7), because
[o]ne . . . would recognize that the design of Ogbum could be
formed with the lower deck portion (18) integrally molded with
the mid-top member (30); furthermore, such a constmction
would increase the joint strength between the mid-top member
(30) and lower deck portion (18) since it would provide more
than the shoulder connection of Ogbum (see paras. [0005]—
[0009]) thereby further strengthening the plastic pallet member
which is the goal of Ogbum .... Finally, nothing would prevent
one from vibration welding the upper deck portion 12 to the mid­
top member 30 integrally formed with the base 18 since access
to mid-top member 30 remains between the columns,
(Answer 9—10) is not adequate to support the rejection, in view of Ogbum’s
express, contrary teaching as to how the pallet is assembled. Further, the
supposed advantages that would result from the modification, as indicated
above by the Examiner, are speculative and without evidence. Thus, based
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Appeal 2015-007225
Application 12/016,987
on the foregoing, we do not sustain the rejection of claim 29 and 32, or the
rejection of claims 30, 31, 33, and 34 that further depend from claims 29
and 32.
DECISION
We AFFIRM the Examiner’s anticipation rejection of claims 12
and 14—28.
We AFFIRM the Examiner’s obviousness rejection of claim 13.
We REVERSE the Examiner’s obviousness rejection of claims 29—34.
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-IN-PART
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