Ex Parte Rohr

Patent Trial and Appeal Board

Jun 5, 2013

11584303 (P.T.A.B. Jun. 5, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CHRISTOPH ROHR
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Appeal 2011-001556
Application 11/584,303
Technology Center 3600
____________________

Before: JAMES P. CALVE, SCOTT A. DANIELS, and
NEIL T. POWELL, Administrative Patent Judges.

POWELL, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-001556
Application 11/584,303

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STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims
24-26 and 32-48. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

THE CLAIMED SUBJECT MATTER
Independent claim 32 is reproduced below and is illustrative of the
appealed subject matter.
32. An apparatus for moving goods units
between a loading area and a transport
compartment, the apparatus comprising:
a conveying unit for installing in the loading
area, the conveying unit having an insertion device
forming an area on which the goods units are to be
placed,
wherein the conveying unit is adapted to
move the insertion device into the transport
compartment in a loading direction with the goods
units located on the insertion device, and
the conveying unit is adapted to move the
insertion device out of the transport compartment
in an unloading direction as the goods units are
deposited in the transport compartment.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Vivian US 1,073,376 Sept. 16, 1913
Fleischauer US 3,610,406 Oct. 5, 1971
Gebbardt US 4,832,559 May 23, 1989

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Application 11/584,303

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REJECTIONS
Appellant seeks our review of the following rejections.
1. Claims 24-26, 32-38, and 42-45 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Gebbardt.
2. Claims 39-41, 46, and 48 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Gebbardt and Fleischauer.
3. Claim 47 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Gebbardt and Vivian.

ANALYSIS
Claims 32, 26, and 38
Appellant argues claims 32, 26, and 38 as a group. See App. Br. 9-10.
We select independent claim 32 as representative, treating dependent claims
26 and 38 as standing or falling with representative claim 32. See 37 C.F.R.
§ 41.37(c)(1)(vii).
The Examiner finds that Gebbardt meets the claim 32 limitation “the
conveying unit is adapted to move the insertion device into the transport
compartment in a loading direction with the goods units located on the
insertion device.” App. Br. 9-10; Ans. 3-4. Appellant disagrees with the
Examiner’s finding that Gebbardt’s conveyor 2 and conveyor 3 collectively
form an “insertion device” according to claim 32. App. Br. 9-10; Ans. 3, 7.
Appellant argues that Gebbardt’s conveyor 2 cannot constitute the claimed
“insertion device” because Gebbardt does not disclose moving the conveyor
2 into the transport compartment. App. Br. 9-10. Appellant further argues
that Gebbardt’s conveyor 3 cannot constitute the claimed “insertion device”
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because Gebbardt does not disclose locating goods units on conveyor 3
during movement of conveyor 3 into the transport compartment. Id. at 10.
These arguments do not convince us of error in the Examiner’s
determination that the broadest reasonable interpretation of the claim
language “insertion device” reads on the portion of Gebbardt’s system
collectively formed by conveyor 2 and conveyor 3. Appellant argues that
roller conveyor 2 cannot be considered part of the insertion device because it
is not moved into the transport compartment. App. Br. 9-10. The language
of claim 32 itself does not require that the entire “insertion device” or even
any particular portion of the insertion device move into the transport
compartment, and Appellant does not provide any evidence or explanation
convincing us that we should interpret the claim to require as much.
Additionally, claim 32 merely requires that the goods units be “located on
the insertion device”; the language of claim 32 itself does not require goods
units located specifically on the portion of the insertion device moved into
the transport compartment, and Appellant does not provide any evidence or
explanation convincing us that we should interpret the claim to require as
much. Consequently, while we acknowledge that Gebbardt does not
disclose moving the conveyor 2 portion into the transport compartment or
locating the goods units on the conveyor 3 portion while moving conveyor 3
into the transport compartment, this does not apprise use of error in the
Examiner’s finding that Gebbardt’s device collectively formed by conveyor
2 and conveyor 3 constitutes an “insertion device” that moves into the
transport compartment with goods units located on it.

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Claim 24
Appellant argues that “[t]here is no part of Gebbardt that is an
insertion device that exists in a loading area as defined by claim 32.” App.
Br. 10. In connection with this argument, Appellant suggests that the claim
requires that the insertion device move goods from the loading area to the
transport compartment. Id. Based on this, Appellant argues that Gebbardt’s
transport conveyor 3 cannot correspond to the claimed insertion device
because the transport conveyor 3 does not move goods from the loading area
to the transport compartment. Id.
These arguments rest on an assumption that the Examiner erred in
determining that the claim language “insertion device” reads on the device
collectively formed by Gebbardt’s conveyor 2 and conveyor 3. As discussed
supra with respect to claim 32, Appellant’s asserted differentiation between
conveyors 2 and 3 does not provide convincing support for this assumption.
Accordingly, even if we accept Appellant’s contention that the claimed
insertion device must move goods from the loading area to the transport
compartment, this does not apprise us of error in the rejection because the
apparatus collectively formed by Gebbardt’s conveyor 2 and conveyor 3
does so.

Claim 25
Appellant disputes the Examiner’s finding that Gebbardt’s rollers 7
meet the claim 25 limitation “said insertion device has supporting rollers for
supporting said insertion device.” App. Br. 10; Ans. 4. Specifically,
Appellant argues that Gebbardt’s rollers 7 are attached to commercial
vehicle 10, not to conveyor 3. App. Br. 11.
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In response, the Examiner correctly notes that Figure 1 of Gebbardt
demonstrates that support rollers 7 form part of conveyor 3. Ans. 9.
Appellant does not respond to this observation. See Reply Br. 5-6.
Accordingly, Appellant’s arguments do not apprise us of error in the
rejection of claim 25.

Claim 33
Appellant argues claims 33-35 as a group. See App. Br. 11. We
select claim 33 as representative, treating claims 34 and 35 as standing or
falling with representative claim 33.
Appellant disputes the Examiner’s finding that Gebbardt’s drive 12
for conveyor 3 meets the claim 33 limitation “an insertion device drive unit
that drives an insertion device.” App. Br. 11; Ans. 4. Specifically,
Appellant argues that Gebbardt’s drive 12 does not meet the claim limitation
because the drive 12 “does not move transport conveyor 3 as a unit” and
“does not drive transport conveyor 3 into the transport compartment.” App.
Br. 11; Reply Br. 5.
Even if they accurately characterize Gebbardt, these arguments are not
commensurate in scope with the language of claim 33, which does not recite
that the claimed insertion device drive unit drives the insertion device “as a
unit” or “into the transport compartment.” Moreover, Appellant has not
presented evidence or explanation supporting the argument that Gebbardt’s
drive 12 does not drive the conveyor 3 as a unit. Accordingly, Appellant’s
arguments do not apprise us of error in the Examiner’s determination that
Gebbardt’s drive 12 meets the broadest reasonable interpretation of claim
33.
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Claim 36
The Examiner finds that Gebbardt meets claim 36 because Gebbardt
suggests driving its conveyor 3 in a manner that would cause the bottom
portion of the conveyor belt to move at a higher speed in the loading
direction than the insertion device backs out of the transport compartment.
Ans. 9-10. In response, Appellant correctly notes that the bottom of
Gebbardt’s conveyor 3 does not move in the claimed “loading direction,”
i.e., the direction in which the conveying unit is adapted to “move the
insertion device into the transport compartment” (see Claims Appendix,
claim 32). Reply Br. 5-6; see also Gebbardt, col. 2, ll. 22-40, fig. 2.
Accordingly, we do not sustain the rejection of claim 36.

Claim 37
Appellant argues that Gebbardt cannot meet claim 33 because
Gebbardt does not disclose an insertion device drive unit meeting the
limitation of claim 33, from which claim 37 depends. App. Br. 12. This
argument does not apprise us of error in the rejection of claim 37 because, as
discussed above, Appellant does not apprise us of error in the Examiner’s
determination that Gebbardt’s drive 12 meets the limitation of claim 33.

Claims 42, 43, and 45
Appellant argues claims 42, 43, and 45 as a group. See App. Br. 12-
13. We select claim 42 as representative, treating claims 43 and 45 as
standing or falling with representative claim 42.
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Regarding claim 42, Appellant suggests that Gebbardt does not meet
the claim language “moving the insertion device into the transport
compartment in a loading direction with the goods units located on the
insertion device,” basing this contention on the same arguments presented in
connection with the similar language of claim 32. App. Br. 12-13. For the
reasons discussed above in connection with claim 32, these arguments do
not apprise us of error in the rejection of claim 42.

Claim 44
In response to Appellant’s argument that Gebbardt does not meet
claim 44, the Examiner apparently relies on the findings associated with
claim 36 to support the rejection of claim 44, stating “Gebbardt as discussed
above discloses a conveyor moving in the loading direction at a higher speed
than the insertion device simultaneously moves in the unloading direction.”
Ans. 11; see also Ans. 9-10; App. Br. 13. Just as they fail to support the
rejection of claim 36, the Examiner’s findings regarding claim 36 fail to
support the rejection of claim 44. Accordingly, we do not sustain the
rejection of claim 44.

Claims 39, 41, 46, and 48
Appellant traverses the obviousness rejection of claims 39, 41, 46, and
48 by asserting that Fleischauer does not cure the deficiencies that Appellant
alleges in the rejection of independent claims 32 and 42 as anticipated by
Gebbardt. App. Br. 14. This argument does not apprise us of error in the
rejection of claims 39, 41, 46, and 48 because, as discussed above,
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Appellant’s arguments do not apprise us of any deficiencies in the
anticipation rejection of independent claims 32 and 42.

Claim 40
Appellant argues that Gebbardt does not meet the limitations of claim
40 because Gebbardt does not contain any reference to a railroad track.
App. Br. 15. In response, the Examiner correctly notes that the functional
language of claim 40 only requires a system with the capability to be located
and operate in the claimed manner relative to a railroad track. Ans. 11. In
concert with this, the Examiner finds that Gebbardt’s system has the
capability to serve the functions recited in claim 40. Id. Appellant does not
dispute this finding or otherwise further argue the rejection of claim 40. See
Reply Br. 5-6. Accordingly, Appellant does not apprise us of error in the
rejection of claim 40. See In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir.
1997) (if a prior art device is capable of serving a function recited in a claim,
the prior art structure meets the functional claim language).

Claim 47
Appellant traverses the obviousness rejection of claim 47 by asserting
that Vivian does not cure the deficiencies that Appellant alleges in the
rejection of independent claim 42 as anticipated by Gebbardt. App. Br. 15-
16. This argument does not apprise us of error in the rejection of claim 47
because, as discussed above, Appellant’s arguments do not apprise us of any
deficiencies in the anticipation rejection of independent claim 42.

Appeal 2011-001556
Application 11/584,303

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DECISION
We affirm the Examiner’s decision rejecting claims 24-26, 32-35, 37-
43, and 45-48.
We reverse the Examiner’s decision rejecting claims 36 and 44.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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