Ex Parte Stone et al

Board of Patent Appeals and Interferences

May 7, 2009

10145426 (B.P.A.I. May. 7, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT M. STONE and GUY G. COX
____________

Appeal 2008-3312
Application 10/145,426
Technology Center 3600
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Decided:1 May 8, 2009
____________

Before: WILLIAM F. PATE, III, JENNIFER D. BAHR, and KEN B.
BARRETT, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

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).
Appeal 2008-3312
Application 10/145,426

STATEMENT OF THE CASE
Robert M. Stone et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner's decision rejecting claims 1, 4-10, 14-17, 19-21, 23, 24,
27-29, 31-33, and 35-37. Claims 2, 3, 11-13, 18, 22, 25, 26, 30, and 34 have
been withdrawn from consideration. We have jurisdiction over this appeal
under 35 U.S.C. § 6 (2002).

The Invention
Appellants' claimed invention is directed to a pallet positioner device.
The positioner 210 is made of horizontal platform assembly 212 attached to
vertical structure 214 that is supported by outriggers 216 at the ground level.
Specification 14:1-9, 24:22-25, fig. 17. Positioner 210 keeps the horizontal
platform assembly 212 at a position that is convenient for the worker loading
the pallet on assembly 212. Specification 1:20 to 2:4, figs. 16A-D. As a
worker loads the pallet, the device can be lowered such that the worker is
always loading the pallet at a convenient height that does not require the
worker to reach or bend. Specification figs. 16A-D.
Horizontal platform assembly 212 includes carrier 218 and rotatable
platform 220. Specification 14:7-9, 24:22-25, fig. 17. The rotatable
platform 220 allows the pallet to be easily rotated by the worker while in the
air, while a brake mechanism prevents the platform 220 from rotating as it
approaches ground level. Specification 31:12-16, 32:16-23, 35:8-17, figs.
24A-24C. The brake operates as depicted in figs. 24A-24C, with teeth 484
pressed up against teeth 492 by the tension in spring 474 caused when arm
464 rotates as it touches the ground. Specification 31:12-25, 38:17-25.
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A problem with pallet loading devices is the potential for the worker
to be injured by the device lowering onto the worker's feet, for example, if
the worker is not expecting the device to lower, or is not paying attention.
Specification 4:3-9. The present invention attempts to solve this problem by
automatically stopping the downward movement of the horizontal platform
assembly 212 (including carrier 218 and platform 220) at a fixed location
when switch 448 is triggered as platform assembly 212 passes by, stopping
the platform's movement. Specification 31:1-11.
Claims 1 and 24, reproduced below, are illustrative of the claimed
invention:
1. A load handling apparatus comprising:
support means including an upwardly and
downwardly extending support structure;
a platform assembly movable up-and-down
on said support structure between an uppermost
position, a lowermost position and a substantially
fixed intermediate position; and
means for controlling movement of said
platform assembly, said controlling means
including means arranged to automatically stop
downward movement of said platform assembly at
said intermediate position each time said platform
assembly descends from said uppermost position
to said lowermost position.

24. A load handling apparatus comprising:
support means including an upwardly and
downwardly extending support structure;
a platform assembly movable up-and-down
on said support structure between an uppermost
position and a lowermost position, said platform
assembly including a rotatable platform;
means for controlling movement of said
platform assembly; and
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means for preventing rotation of said
platform in said lowermost position, said
preventing means including a retaining member for
holding said platform against rotation and means
for urging said retaining member towards said
platform in said lowermost position with a spring
action.

The Rejections
The Examiner relies upon the following as evidence of
unpatentability:
Mosley et al. US 5,189,388 Feb. 23, 1993
Billington, III et al. US 5,217,090 Jun. 8, 1993
Mehta et al. US 5,782,602 Jul. 21, 1998
Arnst US 6,112,858 Sep. 5, 2000

Appellants seek review of the Examiner's rejections of claims 1, 4-6,
10, 14, 19-21, 23, and 36 as anticipated under 35 U.S.C. § 102(b) by Mehta;
claims 7-9 as unpatentable under 35 U.S.C. § 103(a) over Mehta in view of
Mosley; claims 15-17 as unpatentable under 35 U.S.C. § 103(a) over Mehta
in view of Arnst; claims 24, 27, 31-33, 35, and 37 as unpatentable under 35
U.S.C. § 103(a) over Mehta in view of Billington; and claims 28 and 29 as
unpatentable under 35 U.S.C. § 103(a) over Mehta in view of Billington and
Arnst.

SUMMARY OF DECISION
We REVERSE.

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ISSUES
Appellants argue claims 1, 4-6, 10, 14, 19-21, 23, and 36 together as a
first group, and claims 24, 27, 31-33, 35, and 37 together as a second group.
App. Br. 7 and 19. The first group of claims require a means for (claim 1) or
step of (claim 36) automatically stopping movement of the platform at a
substantially fixed intermediate position each time the platform assembly
descends from an uppermost position to a lowermost position. The second
group of claims require a means for (claim 24) or step of (claim 37)
preventing rotation of the platform in the lowermost position including or
using a retaining means, and a means for or step of urging the retaining
member towards the platform in the lowermost position with a spring action.
The dispositive issues presented in this appeal are as follows:
(1) Have Appellants demonstrated that the Examiner erred in rejecting
claims 1 and 36 as anticipated under 35 U.S.C. § 102(b) by Mehta?
The issue turns on whether the pallet loading device of Mehta
describes a means or step for automatically stopping downward
movement of the platform at a fixed intermediate position each time
the platform lowers. App. Br. 10-12, Ans. 10-11.
(2) Have Appellants demonstrated that the Examiner erred in rejecting
claims 24 and 37 as unpatentable under 35 U.S.C. § 103(a) in view of
Mehta and Billington? The issue turns on whether the Examiner has
provided a reason with rational underpinning for combining Mehta
and Billington. App. Br. 20-21, Ans. 12-13.

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FACTS PERTINENT TO THE ISSUES
(FINDINGS-OF-FACT (FF))
FF1 Mehta describes a pallet loading and unloading device. A platform
assembly 18 moves up and down along housing 9, which is held up by
outrigger legs 16 and 17. Col. 2, ll. 53-57, col. 3, ll. 22-36, fig. 6.
Platform assembly 18 is made of carrier 19 that is further made of
main platform 20 and rotatable turntable 21. Col. 3, ll. 46-61, fig. 6.
A pallet is placed on turntable 21 for loading. Col. 6, ll. 21-29. When
loading is complete, the pallet is lowered to the ground. Col. 6, ll. 36-
44. To protect operators from injury, a photoelectric switch 46 is
mounted on outrigger 16. Col. 5, ll. 53-65. Platform assembly 18 is
prevented from lowering further when switch 46 is triggered, such as
by an operator's foot positioned under the platform assembly 18. Col.
5, ll. 57-64. Additionally, tape switch 48 is placed on top of outrigger
16 and 17 so that a triggering of the tape switch (such as by collision
with an off-center load) will prevent platform assembly 18 from
lowering further. Col. 5, l. 66 - col. 6, l. 10, fig. 6. Switch 46 and
tape switch 48 stop movement of the platform assembly only if certain
events, which may or may not occur on any given descent, are
detected, and at whatever position the platform assembly is in when
such event is detected. They do not stop movement of the platform
assembly on each descent.
FF2 Mehta describes a rotatable turntable that allows a pallet to be rotated
as it is loaded. The turntable 21 is free to rotate when platform
assembly 18 is raised, and is prevented from rotation by brakes 40
when the platform assembly 18 is in its fully lowered position. Col. 5,
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ll. 34-46, figs. 4, 5. Shafts 41 are allowed to move freely up and down
relative to platform 19, and are kept from falling on the ground by
plate 42 disposed above the platform 19, such that plate 42 is between
platform 19 and turntable 21. Col. 5, ll. 25-30. As platform assembly
18 is lowered, shafts 41 contact the ground before carrier 19 touches
the ground. Col. 5, ll. 34-46. This causes brake pads 43 attached to
plates 42 on the upper portion of shafts 41 to contact turntable 21 to
prevent it from rotating. Id.
FF3 The Examiner finds that Mehta does not describe a spring action.
Ans. 8.
FF4 Billington describes a platform with adjustable height. A user of
Billington stands on platform 144 which moves up and down
stationary posts 136. See Col. 8, ll. 16-24, Fig. 7. As shown in fig. 8,
frictional brake shoe 196 prevents platform 144 from lowering down
post 136. Col. 9, ll. 18-24. Brake shoe 196 is held up against post
136 by the forces exerted by spring 188. Id. Brake shoe 196 is
released when brake rod 190 is retracted by pressing foot pedal 140,
overcoming the spring force to pull brake shoe 196 from post 136.
Col. 9, l. 46 - col. 10, l. 2, fig 9.
FF5 Mehta describes that the automatic braking of the platform assembly
18 permits a vehicle to move onto the platform assembly 18 safely.
Col. 7, ll. 15-17.

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PRINCIPLES OF LAW
Anticipation is established only when a single prior art reference
discloses, expressly or under the principles of inherency, each and every
element of a claimed invention. RCA Corp. v. Applied Digital Data Sys.,
Inc., 730 F.2d 1440, 1444 (Fed. Cir. 1984). In other words, “there must be
no difference between the claimed invention and the reference disclosure, as
viewed by a person of ordinary skill in the field of the invention.” Scripps
Clinic & Research Found. v. Genentech Inc., 927 F.2d 1565, 1576 (Fed. Cir.
1991). It is not necessary that the reference teach what the subject
application teaches, but only that the claim read on something disclosed in
the reference, i.e., that all of the limitations in the claim be found in or fully
met by the reference. Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772
(1984).
When claim terminology is construed in the United States Patent and
Trademark Office, claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004).
“[C]laims are interpreted with an eye toward giving effect to all terms
in the claim.” Bicon Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir.
2006). See also Stumbo v. Eastman Outdoors, Inc., 508 F.3d 1358, 1362
(Fed. Cir. 2007) (denouncing claim constructions which render phrases in
claims superfluous).
While there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness, “the analysis
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need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
When a work is available in one field of endeavor,
design incentives and other market forces can
prompt variations of it, either in the same field or a
different one. If a person of ordinary skill can
implement a predictable variation, § 103 likely
bars its patentability. For the same reason, if a
technique has been used to improve one device,
and a person of ordinary skill in the art would
recognize that it would improve similar devices in
the same way, using the technique is obvious
unless its actual application is beyond his or her
skill.
Id. at 417. We must ask whether the improvement is more than the
predictable use of prior art elements according to their established functions.
Id.
Common sense teaches . . . that familiar items may
have obvious uses beyond their primary purposes,
and in many cases a person of ordinary skill will
be able to fit the teachings of multiple patents
together like pieces of a puzzle….. A person of
ordinary skill is also a person of ordinary
creativity, not an automaton.
Id. at 420. Moreover, an artisan must be presumed to know something about
the art apart from what the references disclose. See In re Jacoby, 309 F.2d
513, 516 (CCPA 1962).

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ANALYSIS
Issue (1) - Anticipation of Claims 1 and 36
As noted in our findings above, Mehta describes a pallet loading and
unloading device. FF1. Mehta has a safety feature that prevents the device
from lowering when a photoelectric or tape switch is triggered. Id. Claims
1 and 36 require a means or step for automatically stopping the platform
assembly at a substantially fixed intermediate position each time the
platform lowers. In other words, claims 1 and 36 require a means or step for
stopping the platform assembly at a position, which does not change from
one descent to another, each time the platform assembly lowers. To
construe the claim otherwise would be to impermissibly refuse to give effect
to, or treat as superfluous, the terminology “fixed” and “each time.”
Regarding the "each time" limitation, the Examiner states that the
platform is automatically stopped each time the platform is lowered and
there is an interference. Ans. 10. Appellants argue that claim 1 requires that
the platform is automatically stopped each time the platform descends to its
lowermost position, not each time there is an interference. App. Br. 10.
The Examiner’s position is untenable. As the Examiner ostensibly
appreciates, Mehta’s safety features, comprising switches 46 and 48, stop
movement of the platform assembly only if certain events, which may or
may not occur on any given descent, are detected, and at whatever position
the platform assembly is in when such event is detected. They do not stop
movement of the platform assembly on each descent. FF1. Moreover, even
if one of the switches stops the platform assembly at an intermediate
position, the stopping position is not fixed, in that it will vary depending on
where the platform assembly is at the time the event is detected. Mehta thus
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lacks a means or step for automatically stopping downward movement of the
platform at a fixed intermediate position each time the platform lowers, as
called for in independent claims 1 and 36. Therefore, Appellants' arguments
persuade us that the Examiner erred in finding that Mehta anticipates the
subject matter of claims 1, 4-6, 10, 14, 19-21, 23, and 36.
The Examiner does not rely on any teaching in Mosley or Arnst that
would make up for the deficiency of Mehta discussed above. Appellants’
arguments thus persuade us that the Examiner erred in rejecting claims 7-9,
which depend from claim 1, as being unpatentable over Mehta in view of
Mosley, and claims 15-17, which also depend from claim 1, as being
unpatentable over Mehta in view of Arnst.
Issue (2) - Obviousness of Claims 24 and 37
As noted in our findings above, Mehta describes a pallet loading and
unloading device (FF1) that has a rotatable turntable that is braked as the
turntable approaches the ground (FF2). Mehta does not describe a spring
action that urges the retaining member. FF3. Billington describes a brake
that holds a platform in place. FF4. When the brake is disengaged, the
platform lowers. Id. Billington uses a spring to bias the brake. Id.
Appellants argue that the Examiner has not provided a reason why
one of ordinary skill would use the spring in Billington to bias the brakes in
Mehta. App. Br. 21. The Examiner responds that Billington's spring would
provide a toggling action for Mehta's brakes (Ans. 8 and 12-13), or
alternatively, provide a cushion for the platform as it descends and the
brakes engage (Ans. 8).
Regarding the "cushioning" line of reasoning, we find no passage of
Mehta or Billington describing such a feature. Billington's spring biases the
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brake to the "on" position, the brake being useful for holding an object in
place. FF4. Billington's spring does not act as a cushion. The Examiner
does not articulate any rationale for desiring a "cushion" feature.
Regarding the "toggling action" line of reasoning, we find no
articulated reason why one of ordinary skill would incorporate Billington's
brake spring to create a toggling action of Mehta's brakes. Mehta's brakes
are automatically disengaged while the platform is in the air so the platform
holding the pallet can rotate (FF2), and are automatically engaged when the
platform is lowered for safety purposes (FF5). The brake springs in
Billington would bias the brakes of Mehta to always be engaged such that
the platform would no longer be rotatable while in the air. This
configuration does not provide a "toggling action."
Even if some additional structure were added to create a toggling
action, providing a toggling action is counter to the stated purpose and
function of Mehta's automatic brakes. See FF2, FF5. The Examiner
provides no clear articulated reason why a toggling action is desirable.
In light of the above, Appellants' arguments persuade us that the
Examiner erred in finding that Mehta and Billington render obvious the
subject matter of claims 24, 27, 31-33, 35, and 37.
The Examiner does not rely on Arnst for any teaching that would
overcome the deficiency in the combination of Mehta and Billington
discussed above. Thus, Appellants’ arguments also persuade us that the
Examiner erred in rejecting claims 28 and 29, which depend from claim 24,
as being unpatentable over Mehta in view of Billington and Arnst.

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CONCLUSIONS
(1) Appellants have demonstrated that the Examiner erred in rejecting
claims 1, 4-6, 10, 14, 19-21, 23, and 36 as anticipated under 35 U.S.C.
§ 102(b) by Mehta. Appellants likewise have demonstrated that the
Examiner erred in rejecting claims 7-9, which depend from claim 1, as
being unpatentable over Mehta in view of Mosley, and claims 15-17,
which also depend from claim 1, as being unpatentable over Mehta
and Arnst.
(2) Appellants have demonstrated that the Examiner erred in rejecting
claims 24, 27, 31-33, 35, and 37 as obvious under 35 U.S.C. § 103(a)
in view of Mehta and Billington. Appellants likewise have
demonstrated that the Examiner erred in rejecting claims 28 and 29,
which depend from claim 24, as being unpatentable over Mehta in
view of Billington and Arnst.

DECISION
The Examiner's decision is reversed as to claims 1, 4-10, 14-17, 19-
21, 23, 24, 27-29, 31-33, and 35-37.
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) (2007).

REVERSED

mls
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