Ex Parte Reinert

Board of Patent Appeals and Interferences

Mar 26, 2009

10294429 (B.P.A.I. Mar. 26, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte GARY L. REINERT, SR.
__________

Appeal 2008-5742
Application 10/294,429
Technology Center 3600
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Decided:1 March 26, 2009
__________

Before TONI R. SCHEINER, ERIC GRIMES, and LORA M. GREEN,
Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1-20. We have jurisdiction under 35 U.S.C. § 6(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
“This invention relates to a segmented anchoring and support
apparatus utilized as a tool for the installation of finned and non-finned
tubular foundations . . . [and] to a method of installation of foundations in
the ground utilizing the apparatus” (Spec. 1: 23-27), particularly “for the
installation of SAFE Foundations Secure Anchoring and Foundation
Equipment” (id at 1: 29-31).
Claims 1 and 11 are representative of the subject matter on appeal:
1. Anchoring or foundation apparatus to be installed in an earthen
hole, comprising:
(a) a vertical segmented support means; and
(b) a plurality of spaced media consolidation plates swingably
mounted about respective pivot points on said vertical support
means, said plates having media-facing surfaces swingable
outwardly from said vertical support means into the
surrounding media.

11. A method for installing an anchor for a foundation device in the
earth, comprising:
(a) preparing a hole in the earth;
(b) lowering into said hole a segmented anchor or foundation
device having swingable media facing plates; and
(c) applying force to swing said plates outwardly into the
surrounding media.

The Examiner relies on the following evidence:
Collins US 5,622,015 Apr. 22, 1997
The claims stand rejected as follows:
• Claims 1-4 and 7 under 35 U.S.C. § 102(b) as anticipated by Collins.
• Claims 5, 6, and 8-20 under 35 U.S.C. § 103(a) as unpatentable over
Collins.

We affirm in part and enter a new ground of rejection.
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ANTICIPATION
The issue raised by this rejection on appeal is whether the Examiner
has established that Collins describes an anchoring or foundation apparatus
comprising a vertical segmented support means.
Findings of Fact
FF1 According to the Specification, a foundation anchoring device
is used to install a finned or non-finned tubular foundation in a pre-augered
earthen hole. Essentially, the anchoring device prepares the way for the
tubular foundation by compacting the soil that will ultimately support the
foundation, and by serving as a plumb, stable vertical support that a
hydraulic system can pull against (i.e., use as leverage) as it pushes the
tubular foundation into the ground. Once the tubular foundation is in its
final position, the anchoring device is withdrawn through the center of the
foundation, and can be used again to install another foundation. (Spec. 17:8
to 18:24).
FF2 The Specification teaches that conventional anchoring devices
are available in different lengths to accommodate foundations of different
lengths, but each conventional anchoring device “consist[s] of a one-piece,
standard threaded rod with an anchorhead [and compaction/consolidation
plates] attached at the end of the rod and . . . a one-piece pipe column, with
fins” (Spec. 2:26-29; Figure 1).
FF3 The claims are directed, in pertinent part, to an anchoring or
foundation apparatus to be installed in an earthen hole comprising a “vertical
segmented support means” (claim 1).
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FF4 Figure 2 of the Specification, reproduced immediately below,
illustrates “one embodiment of the segmented foundation anchoring and
support assembly of the present invention” (Spec. 7:30-32):

In Figure 2, “one embodiment of the segmented foundation anchoring and
support assembly . . . is shown partially assembled” (Spec. 10:9-11). The
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“segmented foundation-anchoring and support assembly . . . includes top
segment 30, middle segment 50, bottom segment 70, and anchoring head
assembly 90” (id. at 10:13-15) and “pivoting compaction and consolidation
plates 94” (id. at 11:22). “Threaded rod 96 goes through the inside of
segments 30, 50, and 70. Rod 96 can be segmented, i.e., made of several
length[s] of rod joined together by means of a threaded coupling” (id. at 11:
25-28).
FF5 “By bringing to the installation site a number of each, top,
middle, bottom segments, anchoring head assemblies, lengths of rod 112,
and couplings . . . , a large number of segmented anchoring assembly lengths
can be assembled easily” (Spec. 26:5-9) to accommodate on-site conditions.
FF6 The Examiner rejected claims 1-4 and 7 as anticipated by
Collins. The Examiner finds that Collins describes an anchoring apparatus
with “vertical segmented support means . . . 102, 103 and 104 as seen in Fig.
15, or 136, 138 as seen in Fig. 19” (Ans. 3).
FF7 According to the Examiner, “‘segmented’ is defined . . . as
‘divided into distinct segments’, wherein ‘segments’ . . . is defined as ‘any of
the parts into which something can be divided’” (id. at 5). Thus, “items 102,
103 and 104 as seen in Fig. 15, or 136 and 138 as seen in Fig. 19 . . . are, in
fact, ‘segmented’, since they are distinct parts that make up a support
means” (id.).
FF8 Collins’ Figure 15, which illustrates a portion of anchoring
device 100, is reproduced immediately below:
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Figure 15 is a partial sectional side view of Collins’ anchoring device 100
initially inserted in a bore hole (Collins, col. 4, ll. 12-14). “Anchoring
device 100 includes a threaded longitudinal rod or vertical support 102 that
extends along the longitudinal axis X through a tube 104. A single-acting,
hollow plunger cylinder 103 . . . is coupled to an upper end of the rod 102”
(id. at col. 8, ll. 2-9), and the “lower end of the threaded rod 102 is coupled
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to an anchor pivot plate assembly 110 that includes bottom side plates or
media consolidation plates 112” (id. at col. 8, ll. 22-24).
FF9 Collins’ Figure 19, which illustrates another embodiment of an
anchoring device 100', is reproduced immediately below:

Figure 19 depicts a partial sectional side view of Collins’ anchoring device
100', which is similar to anchoring device 100, showing consolidation plates
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112 expanded into the soil (Collins, col. 4, ll. 24-26). Rod 102 passes
through tubular sleeve 136, the upper end of which includes “a plurality of
radially extending fins or drive members 138” (id. at col. 9, l. 67 to col. 10, l.
3).
FF10 The word “segmented” is an adjective meaning “divided into or
composed of segments or sections ”2 while the word
“segment” is a noun with several ordinary meanings:3
1 : a portion cut off from a geometric figure by one or more points,
lines, or planes: as a : the area of a circle bounded by a chord and an arc of
that circle b : the part of a sphere cut off by a plane or included between two
parallel planes c : the finite part of a line between two points in the line

2 a : a separate piece of something : BIT, FRAGMENT b one of the constituent parts into which a body,
entity, or quantity is divided or marked off by or as if by natural boundaries

FF11 Ordinary meanings 2 a and 2 b are consistent with the
Specification’s use of the term “segmented” to describe upper, middle, and
lower segments that can be coupled end to end to make up vertical support
assemblies of any desired length (FF4, FF5).
Principles of Law
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).

2 From Merriam-Webster’s Online Dictionary, at http://www.merriam-
webster.com/dictionary/segmented
3 From Merriam-Webster’s Online Dictionary, at http://www.merriam-
webster.com/dictionary/segment
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During examination, the PTO must interpret terms in a claim using
“the broadest reasonable meaning of the words in their ordinary usage as
they would be understood by one of ordinary skill in the art, taking into
account whatever enlightenment by way of definitions or otherwise that may
be afforded by the written description contained in the applicant’s
specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
In addition, “[t]he ordinary and customary meaning of a claim term
may be determined by reviewing a variety of sources. Some of these
sources include the claims themselves; dictionaries and treatises; and the
written description, the drawings, and the prosecution history.” Brookhill-
Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003)
(citations omitted).
The purpose of giving claims their broadest reasonable interpretation
during examination is to reduce “the possibility that claims . . . will be given
broader scope than is justified” by the prior art. In re Bigio, 381 F.3d 1320,
1324 (Fed. Cir. 2004) (internal citations omitted).
Analysis
Appellant contends that claim 1 “requires anchoring or foundation
apparatus to be installed in an earthen hole comprising a segmented support
means” (App. Br. 10), but “Collins nowhere contemplates segmented
apparatus and method” (id.). Appellant contends that Collins discloses a
device “representative of the conventional anchoring devices” (id. at 11),
“made in one piece (not segmented), consisting of a one-piece, standard
threaded rod with an anchor head attached at the end of the rod and of a one-
piece pipe column, with fins” (id.).
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The Examiner finds that Collins describes an anchoring apparatus
with “vertical segmented support means . . . 102, 103 and 104 as seen in Fig.
15, or 136, 138 as seen in Fig. 19” (Ans. 3; FF6). According to the
Examiner, “‘segmented’ is defined . . . as ‘divided into distinct segments’,
wherein ‘segments’ . . . is defined as ‘any of the parts into which something
can be divided’” (id. at 5). Thus, “items 102, 103 and 104 as seen in Fig. 15,
or 136 and 138 as seen in Fig. 19 . . . are, in fact, ‘segmented’, since they are
distinct parts that make up a support means” (id.; FF7).
While the Examiner’s definition of “segmented” comports with the
ordinary meaning of the word (FF10), and we agree that items 102 and 104
are “distinct parts” of the vertical support means of the anchoring apparatus,
we disagree with the Examiner’s conclusion that Collins discloses an
anchoring or foundation apparatus with a vertical segmented support means.
According to Collins, item 102 is a threaded rod or vertical support that
extends the entire length of the anchoring device, and is surrounded by, and
coaxial with tube 104, while plunger cylinder 103 is part of the hydraulic
system that ultimately causes consolidation plates 112 to pivot upwardly and
outwardly (FF8). Sleeve 136, with concentric fins 138 is similar to tube 104,
in that it also surrounds rod 102.
We conclude that the term “vertical segmented support means,”
interpreted in light of the Specification, together with the ordinary meaning
of the word “segmented,” refers to a support structure that is divided into
distinct parts along its length (FF4, FF5, FF11). We conclude that it is not
reasonable to interpret the term broadly enough to encompass distinct parts
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of a support structure that are merely in concentric relationship with each
other.
Again, the purpose of giving claims their broadest reasonable
interpretation during examination is to reduce the possibility that the claims
will be given broader scope than is justified. See Bigio, 381 F.3d at 1324.
The purpose is not to stretch the interpretation of a claim limitation beyond
what would be reasonably understood by the skilled worker in the light of
the Specification, to read on a prior art structure which could possibly, but
not reasonably, be covered by it.
Conclusions of Law
The Examiner has not established that Collins describes an anchoring
or foundation apparatus comprising a vertical segmented support means.
Accordingly, the rejection of claims 1-4 and 7 as anticipated by
Collins is reversed.
OBVIOUSNESS
The principal issue raised by this rejection is whether the Examiner
has established that Collins teaches or suggests an anchoring or foundation
apparatus comprising a vertical segmented support means or a central
segmented rod means. A related issue is whether Collins teaches or suggests
a “segmented anchor or foundation device.”
Findings of Fact
FF12 The Examiner rejected claims 5, 6, and 8-20 as unpatentable
over Collins.
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FF13 Claims 5, 6, and 8-10 depend from claim 1, and therefore
require a vertical segmented support means. Similarly, independent claim
20 requires a central segmented rod means.
FF14 Independent claim 11, directed to a method for installing an
anchor for a foundation device in the earth, includes the step of “lowering
into . . . [a] hole a segmented anchor or foundation device,” but unlike claim
1, claim 11 does not specify that the vertical support means of the anchor
device is segmented.
FF15 Claim 12 depends from claim 11, and recites “varying the
segmented lengths to form said segmented vertical support 2006.” Claims
13-19 depend directly or indirectly from claim 12.
FF16 Collins describes the “[u]se of the anchoring device” in
pertinent part:
Initially, a bore hole 30 is formed . . . in uncompacted and
unconsolidated soil . . . The tube 104, pivot plate assembly 110,
cone 116 and the lower end of rod 102 are lowered into the bore
hole . . . Bearing plate 106 is urged downwardly and cone 116
is urged upwardly by rod 102 causing side plates 112 to pivot
upwardly and outwardly toward bearing plate 106 . . . and the
soil engaging surfaces 119 is consolidated and compacted.

(Collins, col. 9, ll. 19-41.)
Analysis and Conclusions of Law
Claims 5, 6, 8-10, and 20
Claims 5, 6, and 8-10 require a vertical segmented support means, a
feature we have already determined is not disclosed by Collins. Similarly,
Collins does not disclose the central segmented rod means required by claim
20, as Collins’ rod 102 extends the entire length of the anchoring device
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(FF8). As the Examiner has not otherwise addressed this issue, we conclude
that the Examiner has not established that Collins teaches or suggests an
anchoring or foundation apparatus comprising a vertical segmented support
means or a central segmented rod means.
Claims 11-19
“Regarding claims 11-19,” Appellant contends that “[t]he differences
between the Collins disclosure and Appellant’s Claims at issue as presented
and highlighted hereinabove in respect to the 35 U.S.C. 102 rejection apply
with equal force to the obviousness rejection” (App. Br. 20). In addition,
Appellant contends that “Collins nowhere teaches or suggests the
specifically recited method steps” (id.).
However, claim 11 does not recite or require “a vertical segmented
support means” or “a central segmented rod means,” but merely requires
preparing a hole in the ground; lowering “a segmented anchor or foundation
device having swingable media facing plates” into the hole; and applying
force to swing the plates outwardly.
Appellant has not identified any error in the Examiner’s finding that
Collins describes an anchoring apparatus made up of various parts or
segments. Moreover, Collins explicitly teaches that “use” or installation of
the anchoring device includes boring a hole in soil; lowering the anchoring
device into the bore hole; and applying force to cause media consolidation
plates on the anchoring device to swing upwardly and outwardly into the
surrounding soil (FF16).
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Claims 12-19, on the other hand, depend from claim 11, but require
“said segmented vertical support 2006.” Nevertheless, claim 11 does not
provide antecedent support for “said segmented vertical support.”
Accordingly, the rejection of claims 5, 6, and 8-20 is affirmed with
respect to claim 11, reversed with respect to claims 5, 6, 8-10, and 20, and
vacated with respect to claims 12-19.
NEW GROUND OF REJECTION
Under the provisions of 37 C.F.R. § 41.50(b), we enter the following
new ground of rejection: Claims 12-19 are rejected under 35 U.S.C. § 112,
second paragraph, as indefinite.
As discussed above, claim 12 depends from independent claim 11,
and recites “varying the segmented lengths to form said segmented vertical
support 2006.”
Claim 12 is indefinite because the phrases “the segmented lengths”
and “said segmented vertical support 2006” lack antecedent basis in claim
11, from which claim 12 depends. Claims 13-19 depend directly or
indirectly from claim 12, and are likewise indefinite.
SUMMARY
• The rejection of claims 1-4 and 7 under 35 U.S.C. § 102(b) as
anticipated by Collins is reversed.

• The rejection of claims 5, 6, and 8-20 under 35 U.S.C. § 103(a) as
unpatentable over Collins is affirmed with respect to claim 11;
reversed with respect to claims 5, 6, 8-10, and 20; and vacated with
respect to claims 12-19.

• Claims 12-19 are newly rejected under 35 U.S.C. § 112, second
paragraph, as indefinite.

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TIME PERIOD FOR RESPONSE
Regarding the affirmed rejection(s), 37 C.F.R. § 41.52(a)(1) provides
“Appellant may file a single request for rehearing within two months from
the date of the original decision of the Board.”
In addition to affirming the Examiner’s rejection(s) of one or more
claims, this decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960
(August 12, 2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37
C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the proceeding will be remanded to
the examiner….

(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record….

Should the Appellant elect to prosecute further before the Examiner
pursuant to 37 C.F.R. § 41.50(b)(1), in order to preserve the right to seek
review under 35 U.S.C. §§ 141 or 145 with respect to the affirmed rejection,
the effective date of the affirmance is deferred until conclusion of the
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prosecution before the Examiner unless, as a mere incident to the limited
prosecution, the affirmed rejection is overcome.
If the Appellant elects prosecution before the Examiner and this does
not result in allowance of the application, abandonment or a second appeal,
this case should be returned to the Board of Patent Appeals and Interferences
for final action on the affirmed rejection, including any timely request for
rehearing thereof.
AFFIRMED-IN-PART; 41.50(b)

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