Ex Parte Schmid

Board of Patent Appeals and Interferences

Apr 17, 2012

10350239 (B.P.A.I. Apr. 17, 2012)

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.
10/350,239 01/23/2003 Scott Michael Schmid 0334.66449 1523
7590 04/17/2012
GREER, BURNS & CRAIN, LTD.
Suite 2500
300 South Wacker Drive
Chicago, IL 60606
EXAMINER
LOWE, MICHAEL S
ART UNIT PAPER NUMBER
3652
MAIL DATE DELIVERY MODE
04/17/2012 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 SCOTT MICHAEL SCHMID
____________________

Appeal 2010-004005
Application 10/350,239
Technology Center 3600
____________________

Before: JENNIFER D. BAHR, LINDA E. HORNER, and
GAY ANN SPAHN, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Scott Michael Schmid (Appellant) appeals under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1-5, 7-16, 18, and 19. The
Examiner rejected under 35 U.S.C. § 103(a) claims 1-5, 7-16, 18, and 19 as
unpatentable over Pase (US 3,528,570, iss. Sep. 15, 1970) and Clements (US
4,275,869, iss. Jun. 30, 1981); claims 1-5, 7-12, and 19 as unpatentable over
Pase, Clements, and Mills (US 4,461,455, iss. Jul. 24, 1984); claims 13-16
and 18 as unpatentable over Pase and Mills; and claim 19 as unpatentable
over Pase, Clements, and Emrey (US 5,542,500, iss. Aug. 6, 1996). We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. Apparatus for use in unloading bulk material from containers
having at least one discharge outlet at an elevation spaced
above the apparatus, said apparatus being vertically adjustable
to engage the discharge outlet so that bulk material can be
received during unloading thereof, said apparatus comprising:
a generally rectangular frame assembly having four
corners and having an upper portion and a lower portion that
are generally coextensive with one another and are only
attached to one another by a plurality of inflatable flexible
members, each portion having an opening through which
material may pass;
a flexible boot assembly mounted to said upper portion
and having a passage for communicating material from said
opening in said upper portion to said opening in said lower
portion;
said plurality of inflatable flexible members being
disposed between said upper and lower portions such that one
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of said plurality of inflatable flexible members is disposed at
each of said four corners of said frame assembly for changing
the elevation of the upper portion relative to the lower portion
by selectively varying the inflation of the members;
said upper portion being supported in position to engage
the discharge outlet by said flexible members without any
additional structural or stabilizing members.
OPINION
For each of the rejections involved in this appeal, the issue raised is
whether the combined teachings of the applied references would have
prompted a person of ordinary skill in the art to modify the Pase unloading
apparatus by replacing the elevating mechanism of Pase (lifting arms 44, 46,
44’, 46’, pivot shafts 48, 48’, crank arms 56, 56’, pneumatic power cylinder
60, etc.) with inflatable flexible lifting members disposed at or adjacent each
of said four corners of said frame assembly and around openings in the
upper and lower frame members to permit passage of bulk material, as called
for in independent claims 1, 13, and 19.
Pase discloses an unloading apparatus comprising a flexible boot 14
and an elevating mechanism (lifting arms 44, 46, 44’, 46’, pivot shafts 48,
48’, crank arms 56, 56’, pneumatic power cylinder 60, etc.) for raising the
boot into contact with the frame of the outlet of a railroad hopper car 10.
Pase, col. 1, ll. 13-19, 33-35, 50-54; col. 3, l. 70 to col. 4, l. 2; col. 4, l. 66 to
col. 6, l. 19; figs. 2-5, 8. The Examiner found that Pase’s apparatus includes
a generally rectangular frame assembly having an upper portion and a lower
portion generally coextensive with one another. Ans. 3-4; Pase, fig. 8
(depicting upper H-frame 21 and lower frame comprising pivot shafts 48,
48’ and stringers 52).
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Clements discloses an air cushion lifting device that is capable of
lifting a load above a surface while substantially retaining load stability.
Col. 1, ll. 14-17. Clements describes compound air cushion devices wherein
the cushions are stacked, and the compartments thereof may be connected
vertically and/or horizontally. Col. 3, ll. 41-54, figs. 3-6. Clements teaches
that two or more compound air cushions can be arranged at different
locations beneath the load and that the angle of the load relative to the base
can be controlled by controlling the amount of air in each cushion. Col. 1, l.
66 to col. 2, l. 3; fig. 8. As pointed out by the Examiner (Ans. 4), Clements
teaches a plurality of spaced apart air cushions used as a stable elevating
means of an upper portion without any other structural attachments between
the upper load member and lower (base) surface. Fig. 8.
Mills discloses expandable/contractible rubber elevator bellows 120,
122, 124, 126 for exerting a lifting force, disposed substantially adjacent the
four corners of the assembly. Col. 6, ll. 39-43; figs. 1-4. According to
Mills, the “resiliently cushioned, yieldable, lifting and positioning means”
allows the device to gently urge and maintain the mounting position of the
load so as to avoid overloading of any section thereof, and limits the amount
of lifting force over the last few inches, thereby preventing damage to the
engine or wing mounting elements by inadvertent misalignment or operator
error. Col. 6, ll. 49-54; col. 3, ll. 54-59.
Emrey teaches that an air bellows is a relatively inexpensive and
easily adjustable means for vertical adjustment of a platform. Abstract; col.
1, ll. 49-52.
Each of Clements, Mills, and Emrey evidences that inflatable air
cushions or bellows were well known mechanisms for elevating a load at the
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time of Appellant’s invention. Accordingly, the modification of Pase to
provide a plurality of inflatable flexible members between the upper frame
and lower frame at spaced locations around the openings therein including at
or adjacent the four corners thereof, for elevating the upper frame and
flexible boot 14 supported thereon, as proposed by the Examiner (Ans. 4, 8,
10, 11), is nothing more than the simple substitution of one known elevating
mechanism for another known elevating mechanism to yield the predictable
result of a simple, stable, and relatively inexpensive lifting mechanism.
“[W]hen a patent claims a structure already known in the prior art that is
altered by the mere substitution of one element for another known in the
field, the combination must do more than yield a predictable result.” KSR
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). Thus, the Examiner did
not err in determining that the modification would have been obvious.
We have considered the arguments set forth in the Appeal Brief and
Reply Brief, but we do not find them persuasive.
For purposes of showing obviousness under 35 U.S.C. § 103(a),
“[a] reference is reasonably pertinent if, even though it may be
in a different field from that of the inventor's endeavor, it is one
which, because of the matter with which it deals, logically
would have commended itself to an inventor's attention in
considering his problem.” In other words, “familiar items may
have obvious uses beyond their primary purposes.”
In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379-80 (Fed. Cir.
2007) (citations omitted).
Inasmuch as Appellant’s invention and each of the cited references
(Pase, Clements, Mills, and Emrey) deals with the problem of elevating a
load, each of the references applied by the Examiner is reasonably pertinent
to Appellant’s invention. Any suggestion that a person of ordinary skill in
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the art would not have been expected to look to these references for a
solution to problems facing Appellant (i.e., that these references are not
analogous art), is not persuasive. See App. Br. 13-16 (discussing “the
analogous-art test”); Reply Br. 2 (suggesting that the prior art references
combined in the rejections in this case may not be “closely related”).
Appellant’s arguments directed to the age of the Pase reference and
the long-known use of inflatable flexible members for lifting (App. Br. 18;
Reply Br. 3) do not point to the nonobviousness of the claimed invention.
Absent a showing of long-felt need or the failure of others, the mere passage
of time without the claimed invention is not evidence of nonobviousness.
Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1324-25
(Fed. Cir. 2004). It is well established that the mere age of the references is
not persuasive of the unobviousness of the combination of their teachings,
absent evidence that, notwithstanding knowledge of the references, the art
tried and failed to solve the problem. In re Wright, 569 F.2d 1124, 1127
(CCPA 1977). Appellant has not pointed to any evidence in the record that
there was a long-felt need in the art that others tried and failed to solve,
notwithstanding knowledge of the teachings of the applied references.
Appellant argues that figure 2 of Pase suggests that there would be no
room to put flexible members in the apparatus of Pase. App. Br. 10. Based
on a review of the top view of the apparatus shown in figure 6 of Pase, it is
not readily apparent that there would be insufficient room to incorporate the
flexible members between the upper and lower frame members, in place of
the lifting arms 44, 46, 44’, 46’, pivot shafts 48, 48’, crank arms 56, 56’,
pneumatic power cylinder 60, etc. of Pase’s elevating mechanism. In any
event, to the extent that the frame structure of Pase’s unloading apparatus
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might require some modification to accommodate the flexible members,
Appellant has not adequately explained why this would have been beyond
the technical grasp of a person of ordinary skill in the art. “A person of
ordinary skill is also a person of ordinary creativity, not an automaton.”
KSR, 550 U.S. at 421. See also Perfect Web Tech., Inc. v. InfoUSA, Inc.,
587 F.3d 1324, 1329 (Fed. Cir. 2009) (“while an analysis of obviousness
always depends on evidence … it also may include recourse to logic,
judgment, and common sense available to the person of ordinary skill that do
not necessarily require explication in any reference”).
As for the particular placement of the flexible members disposed at or
adjacent each of said four corners of said frame assembly and around
openings in the upper and lower frame members to permit passage of bulk
material, as called for in independent claims 1, 13, and 19, Appellant has not
pointed out any flaw in the Examiner’s reasoning in the Answer at page 8,
lines 1-10; page 10, lines 5-18; and page 13, lines 8-17.
Appellant argues that Clements does not disclose a frame assembly
with upper and lower portions each having an opening through which the
material may pass. App. Br. 11, 21. This argument is not persuasive,
because, as pointed out by the Examiner (Ans. 13), Pase is relied on for this
feature. Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986). Appellant’s argument that Emrey does not teach an opening
therethrough (App. Br. 21) is unconvincing for the same reason.
For the above reasons, we sustain all of the Examiner’s rejections.
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DECISION
The Examiner’s decision rejecting claims 1-5, 7-16, 18, and 19 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

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