Ex Parte Pfeiffer et al

Board of Patent Appeals and Interferences

Jan 26, 2011

11700001 (B.P.A.I. Jan. 26, 2011)

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.
11/700,001 01/31/2007 John W. Pfeiffer PNL21232Div2 7821
77407 7590 01/27/2011
Novak Druce & Quigg LLP
300 New Jersey Ave, NW
Fifth Floor
Washington, DC 20001
EXAMINER
FOX, CHARLES A
ART UNIT PAPER NUMBER
3652
MAIL DATE DELIVERY MODE
01/27/2011 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN W. PFEIFFER,
JAMES E. MOTHERSBAUGH, and ANTHONY BOROCH
____________

Appeal 2009-009824
Application 11/700,001
Technology Center 3600
____________

Before STEVEN D.A. McCARTHY, MICHAEL W. O’NEILL, and
STEFAN STAICOVICI, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown in the PTOL-90A cover letter attached to this decision.

Appeal 2009-009824
Application 11/700,001

2
STATEMENT OF THE CASE
John W. Pfeiffer et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting:
(1) claims 46-48 and 50 under 35 U.S.C.
§ 103(a) as unpatentable over Poulton (U.S. Patent
No. 6,227,408 B1, issued May 8, 2001) and
Fenelon (U.S. Patent No. 5,415,323, issued May
16, 1995);
(2) claim 49 under 35 U.S.C. § 103(a) as
unpatentable over Poulton, Fenelon, and
DeLacerda (U.S. Patent No. 5,975,351, issued
Nov. 2, 1999);
(3) claim 55 under 35 U.S.C. § 103(a) as
unpatentable over Poulton, Fenelon, and Crawley
(U.S. Patent No. 4,834,587, issued May 30, 1989);
(4) claims 51 and 52 under 35 U.S.C.
§ 103(a) as unpatentable over Poulton, Fenelon,
and De Beer (U.S. Patent No. 3,797,682, issued
Mar. 19, 1974); and
(5) claims 53 and 54 under 35 U.S.C.
§ 103(a) as unpatentable over Poulton, Fenelon,
and Hellerich (U.S. Patent No. 4,571,143, issued
Feb. 18, 1986).

Appellants cancelled claims 1-45, 50, and 56-58. We have jurisdiction
under 35 U.S.C. § 6(b). We REVERSE.
The Invention
The claims on appeal relate to a method of handling a container, such
as a bag, of bulk particulate material. The container has a depending,
releasable spout for unloading of the bulk particulate material in the
container.
Claim 46, reproduced below, is representative of the subject matter on
appeal.
Appeal 2009-009824
Application 11/700,001

3
46. A method of handling a container of
bulk particulate material having a depending. [sic:, ]
releasable spout, comprising:
detachably mounting a carrier member on a
mobile apparatus;
transporting said mobile apparatus to the site
of said container;
detachably connecting said container to said
carrier member in suspended relation;
transporting said mobile apparatus with said
carrier member and suspended container supported
thereon to the site of an unloading apparatus
having a material receiving hopper;
detachably connecting said carrier member
with said container supported thereon, to said
unloading apparatus in cantilever relation thereto
with said container spout being disposed above
and in alignment with said hopper;
detaching said carrier member with said
container supported thereon, from said mobile
apparatus; and
opening said container spout to cause
material therein to gravity flow into said hopper.

OPINION
Issue
The determinative issue in this appeal is:
Did the Examiner err in determining that it would have been obvious
to a person of ordinary skill in the art to combine the device of Poulton with
the cantilevered carrier of Fenelon for the purpose of “increas[ing] the
ability to access the hung bag from more sides as needed?” See Ans. 4.
Appeal 2009-009824
Application 11/700,001

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Analysis
Appellants contend that “[t]he patent to Fenelon fails to teach any
modification of Po[u]lton2 to arrive at the method recited in claims 46-48
and 50.” App. Br. 4.3 Appellants also contend that Fenelon discloses using
an L-shaped member having a horizontal portion on which a large bulk bag
9 is suspended, but Fenelon fails to disclose or teach a separation of the
horizontal portion from the vertical portion of the L-shaped member via a
detachable connection and transportation of the horizontal portion with the
bag suspended thereon. App. Br. 4-5. Appellants also contend that,
although Fenelon fails to specifically state whether the L-shaped
cantilevered support member is removable from the base or not, Fenelon
clearly meant for the L-shaped cantilevered support member to be
displaceable relative to the base for the purpose of retracting the L-shaped
cantilevered support member for compactness upon transport and extending
the L-shaped cantilevered support member upon use. Reply Br. 2.
The Examiner’s position is that Poulton discloses the invention
substantially as claimed, except that Poulton fails to explicitly disclose “a
cantilever structure for the carrier.” Ans. 3. The Examiner posits that
Fenelon discloses a method of emptying a bag of bulk material including
providing a cantilevered frame for holding a bag. Ans. 3-4. The Examiner
concludes that it would have been obvious to one of ordinary skill in the art

2 We are assuming that Appellants’ reference to “Polton” throughout the
Appeal Brief is a typographical error and that Appellants meant to refer to
the correct reference name of “Poulton.”
3 Appellants did not provide page numbers on the Appeal Brief and Reply
Brief. However, for ease of referring to Appellants arguments, we have
assigned page numbers 1 through 12 to the Appeal Brief and page numbers 1
through 3 to the Reply Brief.
Appeal 2009-009824
Application 11/700,001

5
to provide the device of Poulton with a cantilevered carrier as taught by
Fenelon “in order to increase the ability to access the hung bag from more
sides as needed.” Ans. 4.
Poulton discloses a method and apparatus for discharging bags. Title.
The bag discharging apparatus 11 includes a rigging frame 18 having two V-
shaped hooks 17, 17 on which a bulk container or bag 12 of particulate or
powdery material is suspended via loops 16. Figs. 1-4, col. 1, ll. 3-6, and
col. 1, l. 63 through col. 2, l. 5. Once the bag 12 is hooked onto the rigging
frame 18, the rigging frame 18 with attached bag 12 is hoisted to the top of
the bag discharging apparatus 11 using a fork-lift truck. Col. 2, ll. 1-6. With
the rigging frame 18 and attached bag 12 in place, a spout 13 of the bag 12 is
clamped to the inlet 15 of a discharge hopper 14 and the tie on the bag 12 is
released for the contents of the bag 12 to be dispensed through the hopper
14. Col. 2, ll. 6-11.
Fenelon discloses a dry mix dispensing apparatus and method. Title.
The dispensing apparatus 10 is a framework structure for operatively
supporting a large bulk bag 9 of premixed mortar or other suitable material
in a cantilevered manner over a portable batch mixer 8. Fig. 3 and col. 4,
ll. 49-65. The dispensing apparatus 10 includes a bracing structure and a
vertically moveable, L-shaped structure that holds the large bulk bag in a
cantilevered manner. Col. 7, ll. 3-5. The moveable, L-shaped structure is
retracted with respect to the bracing structure into a collapsed position for
placement on a forklift or crane for transport. Col. 8. l. 49. The moveable,
L-shaped structure is extended with respect to the base into its operative
position. Col. 9, ll. 12-16. The open, cantilevered construction of the
dispensing apparatus 10 enables a forklift to lift a bulk bag 9 into position
Appeal 2009-009824
Application 11/700,001

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below the rectangular bag support framework 52 of the L-shaped structure
and over the collector assembly 70 of the bracing structure. Col. 9, ll. 35-38.
When the bag 9 is in position, a laborer climbs the ladder 80 of the bracing
structure to engage the bag 9 with the support framework 52 via loop
supports 9a and bag support studs 59. Col. 9, ll. 38-41. The forklift is then
lowered out of engagement with the bag 9 and the bag 9 is fully supported
by the support studs 59 in a manner so that the contents of the bag 9 may be
emptied into the collector assembly 70.
We agree with Appellants that it would not have been obvious to a
person of ordinary skill in the art to modify the apparatus 11 of Poulton by
the cantilever structure of Fenelon. Poulton’s method and Fenelon’s method
appear to be mutually exclusive. More particularly, Poulton uses a forklift
to lift a rigging frame 18 having the bag 12 attached thereto and suspended
thereon, whereas Fenelon uses a forklift to lift the bag 9 up to a bag support
framework 52 where the bag is then attached to the framework 52 to be
suspended therefrom. Since Poulton attaches the bag to the frame and then
lifts both the bag and frame to the top of the apparatus in order to dispense
the contents of the bag and since Fenelon lifts the bag up to the frame and
then attaches the bag to the frame prior to dispensing the contents of the bag,
we are not persuaded that a person of ordinary skill in the art would look to
the teachings of Fenelon to modify Poulton. The methods of the Poulton
and Fenelon references appear to have mutually exclusive steps so that a
person of ordinary skill in the art would not consider a combination of the
two references.
Moreover, even if it would have been obvious to a person of ordinary
skill in the art to combine Poulton and Fenelon, the Examiner has failed to
Appeal 2009-009824
Application 11/700,001

7
make any findings as to how the structure of Poulton could be modified by
the structure of Fenelon. For instance, would the rigging frame 18 of
Poulton be replaced with the L-shaped structure of Fenelon, and if so, how
would the modification affect the removal and reattachment of the L-shaped
member to the apparatus of Poulton?
In view of the foregoing, we do not sustain the Examiner’s rejection
of claims 46-48 and 50 under 35 U.S.C. § 103(a) as unpatentable over
Poulton and Fenelon. Since the Examiner has not alleged that any of
DeLacerda, Crawley, De Beer, and Hellerich cures the deficiency of Poulton
and Fenelon and since the rejection of claim 49, claim 55, claims 51 and 52,
and claims 53 and 54 are based upon the same erroneous obviousness
conclusion as claims 46-48 and 50, we also do not sustain the Examiner’s
rejections of claim 49 under 35 U.S.C. § 103(a) as unpatentable over
Poulton, Fenelon, and DeLacerda, claim 55 under 35 U.S.C. § 103(a) as
unpatentable over Poulton, Fenelon, and Crawley, claims 51 and 52 under
35 U.S.C. § 103(a) as unpatentable over Poulton, Fenelon, and De Beer, and
claims 53 and 54 under 35 U.S.C. § 103(a) as unpatentable over Poulton,
Fenelon, and Hellerich.

CONCLUSION
The Examiner erred in determining that it would have been obvious to
one of ordinary skill in the art to combine the device of Poulton with the
cantilevered carrier of Fenelon for the purpose of “increas[ing] the ability to
access the hung bag from more sides as needed.”
Appeal 2009-009824
Application 11/700,001

8
DECISION
We reverse the Examiner’s rejections of: (1) claims 46-48 and 50
under 35 U.S.C. § 103(a) as unpatentable over Poulton and Fenelon; (2)
claim 49 under 35 U.S.C. § 103(a) as unpatentable over Poulton, Fenelon,
and DeLacerda; (3) claim 55 under 35 U.S.C. § 103(a) as unpatentable over
Poulton, Fenelon, and Crawley; (4) claims 51 and 52 under 35 U.S.C.
§ 103(a) as unpatentable over Poulton, Fenelon, and De Beer; and (5) claims
53 and 54 under 35 U.S.C. § 103(a) as unpatentable over Poulton, Fenelon,
and Hellerich.

REVERSED

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