Ex parte Sherard et al.

Board of Patent Appeals and Interferences

Aug 31, 2001

09042761 (B.P.A.I. Aug. 31, 2001)

1
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte JACK L. SHERARD and DOUGLAS H. MASSEY
__________
Appeal No. 2000-1011
Application 09/042,761
___________
ON BRIEF
___________
Before CALVERT, PATE, and BAHR, Administrative Patent Judges.
PATE, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1
through 15 and 17 through 21. These are the only claims
remaining in the application.
The claimed invention is directed to a vehicle restraint
for use at loading docks. The specific subject matter is an
improvement in an existing restraint wherein the pivoting
restraining member is permanently biased into the restraining
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Application 09/042,761
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position.
Claim 1, reproduced below, is further illustrative of the
claimed subject matter.
1. A vehicle restraint for restraining a vehicle
adjacent a loading dock, the vehicle restraint comprising:
a base member adapted to be mounted in front of a face
portion of the dock;
a carriage movably mounted to said base member;
a restraining member mounted to said carriage and movable
between an engaged portion in which said restraining member is
adapted to engage the vehicle and a disengaged position in
which said restraining member is adapted to disengage the
vehicle, said restraining member being biased toward the
engaged position;
a drive mechanism capable of moving said restraining
member between the engaged and disengaged positions; and
a clutch connecting said drive mechanism to said
restraining member.
The references of record relied upon by the examiner as
evidence of anticipation and obviousness are:
Hageman 4,759,678 Jul. 26,
1988
Hahn et al. (Hahn) 5,702,223 Dec. 30,
1997
REJECTIONS
Claims 1 through 15 and 17 through 21 stand rejected
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Application 09/042,761
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under 35 U.S.C. § 112, second paragraph, as being indefinite
for failing to particularly point out and distinctly claim the
subject matter which applicants regard as the invention.
Claims 15, 20 and 21 stand rejected under 35 U.S.C. § 102
as anticipated by Hageman.
Claims 1 through 14 and 17 through 19 stand rejected
under 35 U.S.C. § 103 as unpatentable over Hageman.
Claims 15, 20 and 21 stand rejected under 35 U.S.C. § 102
as anticipated by Hahn.
Claims 1 through 14 and 17 through 19 stand rejected
under 35 U.S.C. § 103 as unpatentable over Hahn.
The appeal brief includes a statement by the appellants
that the claims do not stand or fall together, and the brief
includes separate arguments directed to individual claims.
OPINION
We have carefully reviewed the rejections on appeal in
light of the arguments of the appellants and the examiner. As
a result of this review we have determined that claims 1
through 15 and 17 through 19 are not indefinite under 35
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U.S.C. § 112, second paragraph. We have further determined
that the applied prior art does not anticipate or render
obvious the claimed subject matter on appeal. Therefore the
rejections of all claims on appeal are reversed. Our reasons
follow.
Turning first to the rejections under 35 U.S.C. § 112,
second paragraph, the examiner first questions exactly when
the restraining member is biased toward the engaged position.
We agree with the appellants that this portion of claims 1, 15
and 20 is directed to broadly claiming the restraining member
biasing and does not render any of the independent claims
indefinite within the purview of 35 U.S.C. § 112. Next, the
examiner questions the means by which the restraining member
is biased. Here again, we agree with the appellants that it
is not necessary that the biasing mechanism be recited. The
examiner next questions what portion of the vehicle is
structurally engaged by the claimed subject matter. Here
again, we agree with the appellants that the claim is merely
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Application 09/042,761
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broad in this regard and is not indefinite.
With respect to claim 1 alone, the examiner questions
whether the biasing means is the same or different from the
drive mechanism, and further questions the workings of the
clutch. The appellants are correct when they state that the
drive mechanism and the restraining member biasing means are
individually claimed, and claim 1, while broad, is not
indefinite therefore. Finally, with respect to claims 15 and
20 the examiner states that “no motive means to move the
carriage has been recited and therefore the claim is
incomplete.” Here again, the appellants are correct that the
claim is merely broad with regard to these features, and the
claimed subject matter is not indefinite in this respect.
Finally, we note the last sentence in the examiner’s answer on
page 3, wherein the examiner states that “it is not understood
how and when the claimed clutch functions.” We note that if
this were indeed the case, a rejection under 35 U.S.C. §
112, first paragraph, might be proper, but this certainly is
not a rejection properly grounded under 35 U.S.C. § 112,
Appeal No. 2000-1011
Application 09/042,761
We note several instances in the specification wherein1
the friction clutch is stated as not shown. However, the
clutch is claimed in claim 1. Accordingly, an objection to
the specification and drawing under 37 CFR 1.83(a) would be
proper in this circumstance.
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second paragraph. 1
Turning to the rejection of claims 15, 20 and 21 under
35 U.S.C. § 102 as anticipated by Hageman, we note that both
the general dictionary definition of the term “bias”, and
appellants’ specification makes clear that the term “bias” as
used in appellants’ claims denotes a force tending to move a
mechanism in a certain direction at all times. We note that
hydraulic cylinder 15 of Hageman only moves the restraining
member toward the engaged position when the carriage is in the
highest position. When the carriage is lowered, the cylinder
15 no longer “biases” the restraining member toward the
engaged position. Thus, Hageman does not disclose all the
features of claims 15, 20 and 21.
Turning to the obviousness rejection of claims 1 through
14 and 17 through 19 under 35 U.S.C. § 103 as unpatentable
over Hageman, we disagree with the examiner that a
conventional disconnect clutch would have been obvious when
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considering the Hageman invention. In fact, the conventional
clutch as described in the prior art works with a rotational
motor which Hageman does not disclose. Likewise, it is
unclear to us how a conventional lever arrangement could be
combined with the structure shown in Hageman. The examiner
offers no explanation. Likewise, with respect to claims 8,
10, 14 and 17 through 19 as well as claims 12 and 13, the
examiner has no explanation of how his catalog of components
could be incorporated in the Hageman device. Furthermore, the
examiner includes not a single word with respect to the
suggestion or motivation for making these changes.
With respect to claims 15, 20 and 21 as rejected under
35 U.S.C. § 102 as anticipated by Hahn, we note that the
biasing means disclosed in Hahn is identified by the examiner
as means 92. In actuality this is a screw motor, which as far
as we know provides no biasing effect at all. Hahn does not
disclose a biasing means operative between the carriage and
the restraining member.
With respect to claims 1 through 14 and 17 through 19 the
examiner provides two sentences to explain the scope and
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content of the prior art and the differences between the prior
art and the claimed subject matter with respect to eight
groups of claims. We, like the appellants, find it difficult
to even respond to such a rejection. We do emphasize that in
no way can it establish a proper evidentiary basis for a prima
facie case of obviousness. The art rejections of claims 1
through 14 and 17 through 19 are reversed.
In summary we have reversed all rejections on appeal.
REVERSED
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Application 09/042,761
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IAN A. CALVERT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
WILLIAM F. PATE III )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JENNIFER D. BAHR )
Administrative Patent Judge )
WFP:pgg
David B. Smith
Michael Best & Friedrich
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Application 09/042,761
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