Ex Parte Pollard

Patent Trial and Appeal Board

Sep 15, 2016

13675043 (P.T.A.B. Sep. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/675,043 11113/2012 ALBERT C. POLLARD SR.
99344 7590 09/19/2016
Patent Law of Virginia, PLLC
PO Box 9319
Richmond, VA 23227
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
POLLARD2 7076
EXAMINER
SNELTING,JONATHAND
ART UNIT PAPER NUMBER
3652
NOTIFICATION DATE DELIVERY MODE
09/19/2016 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):
brian@patentlawva.com
brianjteague@gmail.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALBERT C. POLLARD SR.
Appeal2014-006563
Application 13/675,043 1
Technology Center 3600
Before MICHAEL C. ASTORINO, NINA L. MEDLOCK, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1 and 3-14. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We REVERSE.
1 According to the Appellant, the real party in interest is Albert C. Pollard
Sr. Appeal Br. 2.
Appeal2014-006563
Application 13/675,043
Claimed Subject Matter
Claims 1 and 3 are the independent claims on appeal. Claim 3,
reproduced below, is illustrative of the subject matter on appeal.
3. A log handling machine for handling timber logs capable
of rolling over uneven surfaces, the log handling machine
compnsmg:
a means of lifting logs;
a front arch comprising a first side front arch member, a
second side front arch member and a top front arch member
connecting the first and second side front arch members;
a rear arch comprising a first side rear arch member, a
second side rear arch member and a top rear arch member
connecting the first and second side rear arch members;
wheels fitted to a lower extremity of each of said first side
front arch member, said second side front arch member, said first
side rear arch member, and said second side rear arch member;
first side bracing pivotally connecting said first side front
arch member and said first side rear arch member to form a
rectangular first side of said log handling machine, such that said
rectangular first side has opposite sides of fixed equal length and
a diagonal of fixed length;
second side bracing pivotally connecting said second side
front arch member and said second side rear arch member to
form a flexible parallelogram second side of said log handling
machine, such that said parallelogram second side has opposite
sides of fixed equal length and diagonals having lengths which
are not restrained" [sic]; and
top arch bracing pivotally connecting each top member
forming a rectangular top of said log handling machine such that
said rectangular top has opposite sides of fixed equal length and
a diagonal of fixed length.
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Application 13/675,043
Rejections
Claims 3-14 are rejected under 35 U.S.C. § 112(b) or 35 U.S.C. § 112
(pre-AIA), second paragraph, as indefinite.
Claims 1, 3, and 5-12 are rejected under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over Bogart et al. (US 3,329,284, iss. July 4, 1967,
hereinafter "Bogart") and Tripp (US 2,750,197, iss. June 12, 1956).
Claims 13 and 14 are rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Bogart, Tripp, and Clark (US 1,500,235, iss. July 8,
1924).
ANALYSIS
Indefiniteness
The Appellant's argument concerning the indefiniteness rejection of
independent claim 3 is persuasive. Appeal Br. 7-8, 9-1 O; see also Reply
Br. 2-3. We agree with the Appellant's explanation of the phrase "diagonals
having lengths which are not restrained" in the context of the subject matter
of claim 3, which recites, in part:
second side bracing pivotally connecting said second side
front arch member and said second side rear arch member to
form a flexible parallelogram second side of said log handling
machine, such that said parallelogram second side has opposite
sides of fixed equal length and diagonals having lengths which
are not restrained.
Appeal Br., Claims App. (emphases added). As explained by the Appellant,
the comers of the flexible parallelogram flex due to the pivotal connection
between the second side bracing and the second side front and rear arch
members and "when the comers flex, one diagonal becomes shorter and the
other diagonal becomes longer." Appeal Br. 7; see Spec. 4:26-5:28,
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Application 13/675,043
Figs. 3a, 3b. As such, we determine that one of ordinary skill in the art
would understand what is claimed when the claim is read in light of the
Specification. See Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F .2d
1565, 1576 (Fed. Cir. 1986). Thus, we do not sustain the Examiner's
rejection of claims 3-14 as indefinite.
Obviousness
Independent claim 3 requires the formation of a flexible parallelogram
between the second side bracing and the front and rear arch members.
Appeal Br., Claims App; see Reply Br. 3. Claim 3 requires that the flexible
parallelogram be formed by second side bracing "pivotally connecting" the
front and rear arch members. Appeal Br., Claims App. As discussed above,
the comers of flexible parallelogram flex due to the pivotal connection
between the second side bracing and the second side front and rear arch
members. In other words, the positional relationship between the second
side front arch member and the second side rear arch member changes. For
example, when the second side front arch member rolls over an uneven
surface it moves upwards relative to the second side rear arch member which
stays in place. See, e.g., Spec., Figs. 3a, 3b.
The Appellant argues that the combined teachings of Bogart and Tripp
fail to disclose the aforementioned requirements of claim 3. See Appeal
Br. 12-13; Reply Br. 1-2.
The Examiner finds that Bogart substantially discloses the subject
matter of claim 3, including: upright posts 34a, 34b and one-piece cross
member 3 8 which correspond to the claimed front arch member; upright
posts 34c, 34d and gate member 40 which correspond to the claimed a rear
arch member; elongated tube 44 and beam 48 which correspond to the
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Application 13/675,043
claimed first side bracing; and elongated tube 42 and beam 46 which
correspond to the claimed second side bracing.2 See Final Act. 4.
The Examiner also finds that "Bogart does not explicitly teach that the
compressive/tensile members are pivotally connecting said front arch and
said rear arch." Final Act. 5 (emphasis added). To remedy the deficiency of
Bogart with regard to the subject matter of claim 3, the Examiner finds that
"Tripp teaches compressive/tensile members (146) which are pivotally
connecting front and rear members (via 144)." Id. at 5. The Examiner
concludes that "[i]t would have been obvious to a person having ordinary
skill in the art to modify Bogart's compressive/tensile members to pivotally
connect the front and rear arch as taught by Tripp in order to allow for
flexure and slight angular adjustment of the members." Id.
The Appellant asserts persuasively that the axis of rotation of Tripp's
drums 146 is perpendicular to the pivot connection of the compressive/
tensile members of the Appellant's invention. See Appeal Br. 12. Stated
otherwise, Tripp discloses that drums 146 rotate in bearing members 144.
As such, Tripp's drum 146 does not teach ajlexible parallelogram or
bracing pivotally connecting a front arch and a rear arch, as required by
claim 3, because the positional relationship of Tripp's front and rear arch
members does not change. Further, we note that Tripp's drum 146 is only
located at the top of Tripp's hoist and extends between front upright 8 and
rear upright 12. At best, drum 146 would represent only one side of a
2 Notably, the Examiner's findings appear inconsistent with regard to the
"second side bracing." See Final Act. 4--5. For purposes of clarity, we note
that we agree with the Examiner that elongated tube 42 and beam 46 act as
second side bracing, but we disagree that elongated tube 42 and beam 46 are
pivotally connecting said front arch and said rear arch.
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Application 13/675,043
parallelogram. Therefore, modifying Bogart's article handling machine such
that both the elongated tube 42 and beam 46 rotate as taught by Tripp does
not result in subject matter as required by claim 3.
Thus, we do not sustain the Examiner's rejection of independent
claim 3 as unpatentable over Bogart and Tripp. The Examiner's additional
findings and reasoning with respect to the dependent claims do not
compensate for the shortcomings discussed above. As such, we do not
sustain the Examiner's rejections of: dependent claims 5-12 as unpatentable
over Bogart and Tripp; and dependent claims 13 and 14 as unpatentable over
Bogart, Tripp, and Clark.
The Examiner's rejection of independent claim 1 is substantially
similar to the rejection of claim 3. See Final Act. 3-5. We also note that
claim 1 is similar to claim 3 in that claim 1 requires a front and rear arch and
recites "compressive/tensile members pivotally connecting said front arch
and said rear arch." Appeal Br., Claims App. (emphasis added). Thus, for
reasons similar to those discussed above, we do not sustain the Examiner's
rejection of independent claim 1 as unpatentable over Bogart and Tripp.
DECISION
We REVERSE the Examiner's decision rejecting claims 1 and 3-14.
REVERSED
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