Ex Parte Pahlow et al

Board of Patent Appeals and Interferences

Mar 26, 2010

10950167 (B.P.A.I. Mar. 26, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOSEPH R. PAHLOW, ALAN R. SUMNER, JR.
and DENNIS A. VANDERHOEVEN
____________

Appeal 2009-000015
Application 10/950,167
Technology Center 3600
____________

Decided: March 26, 2010
____________

Before JENNIFER D. BAHR, JOHN C. KERINS, and STEFAN
STAICOVICI, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2009-000015
Application 10/950,167

2
STATEMENT OF THE CASE
Joseph R. Pahlow et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the final rejection of claims 1-8 and 22-36, the only claims pending
in the application. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM.

THE INVENTION
Appellants’ invention is directed to a conveyor system having a
frame, a conveyor supported on the frame, and an elevator assembly that
includes a shuttle movable relative to the frame between a first position and
a second position. In the first position, an upper surface of the shuttle is
positioned to allow product to travel along the conveyor, and, in the second
position, the upper surface of the shuttle is spaced at a distance from the
conveyor in a direction substantially normal to the travel direction.
Independent claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A conveyor system for carrying products, the
conveyor system comprising:

a frame;

a conveyor supported on the frame for movement
in a travel direction relative to the frame; and

an elevator assembly supported on the frame and
including a shuttle positioned alongside the
conveyor, the shuttle including an upper surface
and being moveable relative to the frame between
a first position, in which the upper surface is
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Application 10/950,167

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positioned to allow product to travel along the
conveyor, and a second position, in which the
upper surface is spaced a distance from the
conveyor in a direction substantially normal to the
travel direction to remove product from the
conveyor.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Lem US 4,511,030 Apr. 16, 1985
Abert US 6,848,563 B2 Feb. 1, 2005

The Examiner has rejected:
(i) claims 1-8, 22-26, and 28-36 under 35 U.S.C. § 102(b) as being
anticipated by Lem; and
(ii) claim 27 under 35 U.S.C. § 103(a) as being unpatentable over
Lem in view of Abert.

ISSUE
The issue joined on appeal is whether the Lem patent discloses a
shuttle positioned alongside a conveyor and having an upper surface,
wherein the shuttle is movable relative to the frame between first and second
positions, such that the upper surface of the shuttle is positioned to allow
product to travel on the conveyor (first position) and such that the upper
surface is spaced a distance from the conveyor in a direction substantially
normal to the travel direction.

Appeal 2009-000015
Application 10/950,167

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PRINCIPLES OF LAW
A proper finding of anticipation requires a showing that each element
or limitation in a claim is present in the cited reference, either explicitly or
inherently, and that the elements must be arranged in the same manner as in
the claim under review. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
A claim under examination is given its broadest reasonable
interpretation consistent with the underlying specification. In re Am. Acad.
of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). In the absence of
an express definition of a claim term in the specification or a clear
disclaimer of scope, the claim term is interpreted as broadly as the ordinary
usage of the term by one of ordinary skill in the art would permit. In re
ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Properties of preferred
embodiments described in the specification which are not recited in a claim
do not limit the reasonable scope of the claim. E-Pass Techs., Inc. v. 3Com
Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003).

ANALYSIS
Claims 1-8, 22-26 and 28-36--Anticipation--Lem
Independent claims 1, 22 and 34 are argued under separate headings
by Appellants, however the same arguments relative to the cited prior art are
essentially the same for each of these claims. The dependent claims subject
to this rejection were not separately argued, and will each stand or fall with
the independent claim that they depend from.
Appellants argue that the Lem patent fails to anticipate claim 1
because channel members 35 of Lem are flexed to a partially lifted position
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in which the channel members intersect the belts 11, 12. (Reply Br. 2).
Appellants assert that claim 1 calls for a shuttle as a whole to be moveable
between a first and second position and that the upper surface of the shuttle,
and not just a portion of the upper surface, be positioned either to allow
product to travel along a conveyor (first shuttle position) or spaced a
distance from the conveyor in a direction substantially normal to the travel
direction (second shuttle position). (Appeal Br. 5; Reply Br. 3).
Aside from reciting that the shuttle is part of an elevator system and
that the shuttle has an upper surface, claim 1 does not further structurally
define the shuttle. Appellants do not provide, either in their Specification or
in the form of extrinsic evidence, a definition of “shuttle” that imparts any
particular structural limitations to the claim term. In relevant part, dictionary
definitions of the term “shuttle” appear to indicate that the term is used to
describe an element, such as a vehicle, that travels back and forth over a
short route.1 As such, and consistent with the operation of the shuttles
described in Appellants’ Specification, a broadest reasonable meaning of the
term “shuttle” encompasses an element having an upper surface capable of
being moved back and forth between the first claimed position and the
second claimed position.
Lem discloses an inverted channel having such an element, namely
the section of the inverted channel extending between notches 46 and
flanked by two ramp elements 44, that operates as a shuttle having an upper

1 shuttle (n). 3. a. Regular travel back and forth over an established, often
short route by a vehicle. b. A vehicle used in such travel: took the shuttle
across town. THE AMERICAN HERITAGE® DICTIONARY OF THE ENGLISH
LANGUAGE (4th ed. 2009).

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surface that moves back and forth between a first position in which the upper
surface is positioned to allow product to travel along the conveyor, and a
second position in which the upper surface of the shuttle component is
spaced a distance from the conveyor in a direction substantially normal to
the travel direction. (Lem, Figs. 3-4; col. 3, ll. 2-8). The flexing referred to
by Appellants occurs at the juncture of the shuttle and the ramps,
immediately above notches 46. (Lem, Fig. 4). As such, the entire shuttle
and upper surface thereof travels between the claimed first and second
positions, Appellants’ arguments to the contrary notwithstanding.
Claim 34 is directed to a method for selectively removing products
from a conveyor, and replaces the language found in independent claims 1
and 22, directed to the elevator assembly and shuttle, with the simple
recitation of “support surfaces” positioned alongside the conveyor. (Appeal
Br., Claims Appendix). The support surfaces in claim 34 are recited as
being in a first position to allow movement of product with the conveyor,
and the recited method includes lifting the support surfaces to a second
position in which the support surfaces are spaced a distance from the
conveyor in a direction substantially normal to the travel direction, much
like the first and second shuttle positions in claims 1 and 22.
Appellants do not present any arguments for claim 34 that are
different from those advanced for the patentability of claims 1 and 22. Our
analysis above directed to the Lem patent is equally applicable to the
provision of support surfaces, those being, in Lem, sections of the inverted
channels extending between notches 46 and flanked by ramp elements 44,
positioned alongside the conveyor that may be moved from the claimed first
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position to the claimed second position. The rejection of claims 1-8, 22-26
and 28-36 as anticipated by Lem will thus be sustained.
Claim 27--Obviousness--Lem in view of Abert
Appellants present no arguments for claim 27 that are different from
those raised with respect to claim 22, from which claim 27 depends. For the
same reasons articulated above, the rejection of claim 27 will also be
sustained.
CONCLUSIONS
We are not persuaded that the Lem patent falls short of anticipating
the subject matter of claims 1-8, 22-26 and 28-36, nor that the combined
teachings of Lem and Abert render obvious the subject matter of claim 27.

DECISION
The decision of the Examiner to reject claims 1-8 and 22-36 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

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