10856255 (B.P.A.I. Jun. 7, 2010)

Ex Parte Preston

Board of Patent Appeals and InterferencesJun 7, 2010

10856255 (B.P.A.I. Jun. 7, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte JOHN CLEMENT PRESTON ____________________ Appeal 2009-005901 Application 10/856,255 Technology Center 3600 ____________________ Decided: June 7, 2010 ____________________ Before JOHN C. KERINS, STEVEN D.A. McCARTHY and MICHAEL W. O’NEILL, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL The Appellant’s claims being twice rejected, the Appellant appeals 1 under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 2 1-15 under 35 U.S.C. § 103(a) as being unpatentable over Jungman (US 3 4,444,289, issued Apr. 24, 1984) in view of Preston (WO 95/06794, publ. 4 Mar. 9, 1995). We have jurisdiction under 35 U.S.C. § 6(b).5 Appeal 2009-005901 Application 10/856,255 2 We REVERSE. 1 Claim 1 recites: 2 1. A construction platform comprising a 3 stationary support structure fixedly secured to the 4 floor of a building under construction and 5 projecting from the edge of the building to a 6 predetermined maximum extent, and a movable 7 deck mounted on the stationary support structure 8 which may be cantilevered therefrom beyond the 9 predetermined maximum extent or retracted into 10 substantial registration therewith. 11 Claim 9 recites: 12 9. A hybrid construction platform 13 including a stationary inboard portion projecting 14 from a building edge to a predetermined maximum 15 extent of no more than two and a half metres, and a 16 movable portion mounted on the stationary portion 17 which may be cantilevered therefrom beyond the 18 predetermined maximum extent or retracted into at 19 least substantial registration therewith. 20 Claim 12 recites a plurality of partly retractable construction platforms. One 21 limitation of claim 12 recites that: 22 each of said partly retractable construction 23 platforms compris[es] a stationary support 24 structure projecting outwardly from an edge of the 25 building to a predetermined maximum extent, and 26 a movable deck mounted on said stationary 27 support structure which may extend as a cantilever 28 therefrom beyond said predetermined maximum 29 extent or retracted into substantial registration 30 therewith. 31 The application underlying the present appeal is a divisional of 32 Application US 10/273,813 (now US 7,070,020 B2, issued Jul. 4, 2006). In 33 Appeal 2005-1750, the Appellant appealed the rejections of claims 12-16 of 34 Appeal 2009-005901 Application 10/856,255 3 Application US 10/273,813 under § 103(a) as being unpatentable over 1 Preston in view of Jungman. In the course of reversing those rejections, the 2 Board discussed the teachings of Preston and Jungman: 3 Preston discloses two basic embodiments, 4 one as shown in Figures 1 and 2, wherein the 5 stationary support beams (102) on which the 6 movable landing deck (103) may ride and is 7 supported in its outboard position extend as 8 cantilevers from the building and remain there 9 when the movable deck is retracted inboard, and a 10 second embodiment as shown in Figures 18 and 28 11 wherein a self-supporting cantilever landing deck 12 (200)/(300) may be fully extended to an outboard 13 position or retracted to an inboard position where 14 no portion of the platform or its support structure 15 is outboard of the building. 16 Jungman discloses an arrangement having 17 what appears to be a single repositionable 18 contruction platform, wherein a movable landing 19 deck (14) is provided and moves between the 20 inboard and outboard ends of a stationary support 21 structure (18) which projects beyond the face of 22 the building. Like Preston Figures 1 and 2, when 23 the movable deck (14) of Jungman is positioned at 24 its fully extended and retracted positions, the 25 stationary support structure (18) completely 26 supports the movable landing deck. As such, in 27 both Preston and Jungman, when the stationary 28 support structures for the movable landing deck 29 extend beyond the face of the building, the 30 movable deck never achieves a cantilever position 31 as it is always supported by the stationary support 32 structures. 33 Ex Parte Preston, Appeal 2005-1750 slip op. at 5-6 (BPAI Dec. 14, 2005). 34 We adopt these findings in the present appeal. 35 Appeal 2009-005901 Application 10/856,255 4 In an effort to distinguish the present rejection from that reversed in 1 Appeal 2005-1750, the Examiner emphasizes that the present rejection is 2 over Jungman in view of Preston. (E.g., Ans. 5). The Examiner concludes 3 that it would have been obvious “to make the movable platform of Jungman 4 extend further so that it cantilevers beyond the edge of the stationary support 5 structure as in Preston in order to extend the reach of the platforms outside 6 of the building.” (Ans. 6). 7 As the Appellant points out (see App. Br. 16), the Examiner has not 8 articulated a satisfactory apparent reason why one of ordinary skill in the art 9 might have combined the teachings of Jungman and Preston in the fashion 10 claimed in claim 1, claim 9 or claim 12. 11 In particular, the Examiner has not provided a satisfactory reason why 12 one of ordinary skill in the art might have wished to extend the reach of a 13 movable platform such as Jungman’s movable platform section 14 outside of 14 the building beyond the reach of the stationary support structure. As the 15 Appellant points out, “Jungman, at best, would only teach extending the 16 movable platform outwardly from the building to the full extent of the 17 stationary support structure, not beyond the stationary support structure.” 18 (Reply Br. 5). The Examiner’s reasoning that one of ordinary skill in the art 19 might have wished to extend the reach of the movable platform outside of 20 the building beyond the reach of the stationary support structure because 21 “making the movable platform of Jungman extend further so that it 22 cantilevers beyond the edge of the stationary support structure as in Preston 23 in order to extend the reach of the platforms outside of the building allows 24 the worker on the platform a greater working area and would be predictable” 25 Appeal 2009-005901 Application 10/856,255 5 (Ans. 7) conflicts with the teachings of Jungman at column 1, lines 26-29 1 and column 2, lines 1-5. 2 As the Appellant points out (see App. Br. 18-19), the structures and 3 claimed advantages of Preston’s construction platform embodiments are not 4 so similar to the structure and claimed advantages of Jungman’s construction 5 platform as to provide one of ordinary skill in the art reason to modify 6 Jungman’s construction platform in the fashion claimed in claim 1, claim 9 7 or claim 12. Since the Examiner has not articulated reasoning with some 8 rational underpinning sufficient to support the conclusion that it would have 9 been obvious to modify Jungman’s construction platform in the manner 10 proposed by the Examiner, we do not sustain the rejections of claims 1, 9 11 and 12 under § 103(a) as being unpatentable over Jungman and Preston. 12 Neither do we sustain the rejections of claims 2-8, which depend ultimately 13 from claim 1; the rejections of claims 10 and 11, which depend from claim 14 9; or of claims 13-15, which depend from claim 12. 15 16 DECISION 17 We REVERSE the Examiner’s decision rejecting claims 1-15. 18 19 REVERSED 20 21 22 Klh 23 24 CHRISTENSEN, O’CONNOR, JOHNSON, KINDNESS, PLLC 25 1420 FIFTH AVENUE 26 SUITE 2800 27 SEATTLE, WA 98101-2347 28