Ex Parte Smith

Board of Patent Appeals and Interferences

Mar 26, 2004

09950535 (B.P.A.I. Mar. 26, 2004)

The opinion in support of the decision being
entered today was not written for publication
and is not binding precedent of the Board.
Paper No. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte KENNETH R. SMITH
____________
Appeal No. 2004-0697
Application No. 09/950,535
____________
ON BRIEF
____________
Before COHEN, FRANKFORT and MCQUADE, Administrative Patent
Judges.
MCQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Kenneth R. Smith appeals from the final rejection (Paper No.
7) of claims 12 through 14 and 16. Claim 15, the only other
claim pending in the application, stands objected to as depending
from a rejected base claim.
THE INVENTION
The invention relates to “a handle for a wheeled food
service table where the handle is pivotable between an operative
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Application No. 09/950,535
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and an inoperative position” (specification, page 1).
Representative claim 12 reads as follows:
12. The combination of a pivotal handle and a wheeled food
service table comprising:
a table having a top surface, an underside, and a plurality
of wheels attached to said underside of said table;
a handle;
means for pivotably attaching said handle to said table,
said means for attaching being secured to said table adjacent an
edge thereof and said means for attaching allowing said handle to
rotate more than 180° from an operative position above said top
surface of said table to an inoperative position adjacent said
underside of said table;
a spring clip located on said underside of said table away
from said means for attaching, said clip adapted to secure said
handle to said underside of said table in said inoperative
position; and
means for releasably locking said handle in said operative
position.
THE PRIOR ART
The references relied on by the examiner to support the
final rejection are:
Griffith 2,571,442 Oct. 16, 1951
Messier 2,603,500 Jul. 15, 1952
Smith 4,856,810 Aug. 15, 1989
THE REJECTIONS
Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Messier in view of Smith.
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Application No. 09/950,535
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Claims 13, 14 and 16 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Messier in view of Smith and Griffith.
Attention is directed to the brief (Paper No. 11) and answer
(Paper No. 12) for the respective positions of the appellant and
examiner regarding the merits of these rejections.
DISCUSSION
Messier, the examiner’s primary reference, discloses a
combination picnic table and wagon comprising a main casing 10,
castors 17 attached to the bottom 16 of the casing, extension
leaves 23 and 24 hinged to the top of the casing for defining,
with the upper surface of the casing, a table top, legs 31 hinged
to the bottom corners of the casing for supporting the casing in
an elevated position, a pull handle 36 hinged to a bracket 35
mounted on the bottom of the casing, and a clip on the front of
the casing for holding the pull handle in an adjacent stowed
position.
The examiner concedes (see page 3 in the answer) that
Messier’s table/wagon combination does not respond to the
limitations in independent claim 12 requiring (1) a means for
pivotably attaching the handle to the table which allows the
handle to rotate more than 180° to an inoperative position
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Application No. 09/950,535
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adjacent the underside of the table and (2) a means for
releasably locking the handle in an operative position. Implicit
in this concession is that the Messier combination also fails to
respond to the related limitations in the claim requiring (3) the
operative position to be above the top surface of the table and
(4) a spring clip located on the underside of the table to secure
the handle in the inoperative position. To cure these
shortcomings, the examiner turns to Smith.
Smith discloses “a collapsible cart for use in moving
miscellaneous items of cargo” (column 1, lines 6 and 7). The
cart 10 includes a floor panel 12, side panels 14 and 16 and end
panels 18 and 20 pivotally connected to the floor panel, wheels
22 attached to the bottom of the floor panel, and a tow
bar/handle 24 pivotally connected to brackets 34 and 36 affixed
to the bottom of the floor panel for movement between an upright
ready position (see dotted lines 24a in Figure 1) and a stowed
position beneath the floor panel (see Figure 2). The tow
bar/handle can be locked in the upright ready position by the lug
and keyway structure shown in Figures 3 through 5 and in the
stowed position by the clip 60 shown in Figure 2. Smith teaches
(see column 1, lines 46 through 51) that the subject cart
fulfills the need for a collapsible transport cart that
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Application No. 09/950,535
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facilitates transporting various items of cargo while being
sufficiently lightweight and collapsible to be routinely stored
in an automobile trunk or other limited storage space.
In proposing to combine Messier and Smith to reject claim
12, the examiner submits that
[b]ased on the teachings of Smith, it would have been
obvious to one having ordinary skill in the art at the
time the invention was made to modify the table of
Messier to replace the means for attaching the handle
to allow the handle to pivot more than 180 degrees from
an operative position to an inoperative position
adjacent the underside of the table and a means for
releasably locking the handle in the inoperative and
operative position[s] to permit hidden stowage of the
handle and to provide ease in transporting various
items of cargo, while being sufficiently lightweight
and collapsible to be routinely stored in an automobile
trunk or other limited storage space, as taught in
Smith in column 1, lines 46-51 [answer, page 4].
Given the relatively bulky and non-collapsible nature of
Messier’s main casing 10, however, the Messier table/wagon
combination is not particularly amenable to hidden stowage of the
pull handle 36 adjacent the underside of the casing. Moreover,
even if modified in view of Smith in the manner proposed, the
Messier combination would not be any more lightweight and
collapsible than it already is, and hence would not be more
readily stored in an automobile trunk or other limited space.
Furthermore, even as so modified, Messier’s table/wagon would not
have a handle whose operative position is above the top surface
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of the table as recited in claim 12. Thus, the examiner’s
rationale for combining Messier and Smith to reject this claim
finds no reasonable support in the fair teachings of these
references. The only suggestion for combining the two in the
manner proposed stems from hindsight knowledge impermissibly
derived from the appellant’s disclosure.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejection of claim 12 as being unpatentable over Messier
in view of Smith.
As Griffith’s disclosure of a mobile grocery receptacle does
not overcome the foregoing deficiencies of Messier and Smith
relative to the subject matter recited in parent claim 12, we
also shall not sustain the standing 35 U.S.C. § 103(a) rejection
of dependent claims 13, 14 and 16 as being unpatentable over
Messier in view of Smith and Griffith.
Finally, the application is remanded to the examiner to
reconsider the patentability of the appealed claims with a focus
on Smith as the closest and most pertinent prior art. By way of
example, should the examiner determine that Smith’s transport
cart meets, either expressly or under principles of inherency,
each and every element of the invention set forth in claim 12, a
35 U.S.C. § 102(b) rejection of this claim would be in order.
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Application No. 09/950,535
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SUMMARY
The decision of the examiner to reject claims 12 through 14
and 16 is reversed, and the application is remanded to the
examiner for further consideration.
REVERSED AND REMANDED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOHN P. MCQUADE )
Administrative Patent Judge )
JPM/gjh
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NORMAN E. LEHRER, P.C.
1205 NORTH KINGS HIGHWAY
CHERRY HILL, NJ 08034