11371866 (P.T.A.B. Jun. 6, 2013)

Ex Parte Stringer

Patent Trial and Appeal BoardJun 6, 2013

11371866 (P.T.A.B. Jun. 6, 2013)

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. 11/371,866 03/08/2006 Matthew D. Stringer 06016 4517 20879 7590 06/06/2013 EMCH, SCHAFFER, SCHAUB & PORCELLO CO P O BOX 916 ONE SEAGATE SUITE 1980 TOLEDO, OH 43697 EXAMINER FERGUSON, MICHAEL P ART UNIT PAPER NUMBER 3679 MAIL DATE DELIVERY MODE 06/06/2013 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MATTHEW D. STRINGER ____________ Appeal 2011-001570 Application 11/371,866 Technology Center 3600 ____________ Before JAMES P. CALVE, JILL D. HILL, and JEREMY M. PLENZLER, Administrative Patent Judges. HILL, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-001570 Application 11/371,866 2 STATEMENT OF THE CASE Matthew D. Stringer (Appellant) appeals under 35 U.S.C. § 134 from a final rejection of claims 1, 23, 26-31, 34, and 37-41. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The claimed subject matter relates to “a scaffold system and to a connecting device for attaching horizontal and vertical scaffold posts.” Spec, 1, ll. 4-5. Claim 1 is illustrative of the subject matter on appeal and is reproduced below. 1. A connecting head for connecting a first scaffold post to a second post, the second post having a perforated disk annually disposed thereon, the connecting head comprising: opposed upper and lower wedge sections, the upper and lower wedge sections being integrally formed with a post retaining section (43) for coaxially receiving one end (15) of the first post (14) within the post retaining section (43), the upper and lower wedge sections defining a wedge receiving opening, the upper and lower wedge sections defining a horizontally extending slot for receiving a perforated disk; wherein the end (15) of the first post (14) is positioned within the post retaining section (43); wherein the post retaining section (43) includes a ledge (44) and wherein the ledge (44) has an outer diameter greater than an outer diameter of the first post (14); wherein the ledge (44) defines a terminating surface (45) and an inner side (46) which is generally perpendicular to a back surface (42) of the connecting head; and wherein the end (15) of the first post (14) is held in position by the retaining ledge (44) and the inner side (46). Appeal 2011-001570 Application 11/371,866 3 EVIDENCE The Examiner relies on the following evidence: Siegers US 3,992,118 Nov. 16, 1976 Langer US 5,127,757 Jul. 7, 1992 REJECTIONS Claims 1, 23, 26-31, 34, and 37-41 stand rejected under 35 U.S.C. § 112, second paragraph, as being indefinite (Ans. 3); and claims 1, 23, 26- 31, 34, and 37-41 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Langer and Siegers (Ans. 4). ANALYSIS Rejection under 35 U.S.C. § 112 The Examiner finds that the claim term “[a] connecting head for connecting a first scaffold post to a second post... the connecting head comprising ... wherein the end (15) of the first post (14) is held in position by the retaining ledge (44) and the inner side (46)” in independent claims 1 and 31 does not clearly define whether the first post is positively claimed as an element of the claimed invention, or is recited as intended use. Ans. 3-4. Appellant responds by arguing “What could be more clear than that?” App. Br. 7. Appellant then states that, in the interest of “even more” clarity, Appellant will amend the claims, correct the dependency of claims 29 and 40, and provide antecedent basis to claims 23 and 24. Id. We are not persuaded by Appellant’s arguments and we therefore sustain the Examiner’s rejection. Appeal 2011-001570 Application 11/371,866 4 Rejection under 35 U.S.C. § 103(a) Appellant argues that Langer is inoperable, and that it is physically impossible for Langer to have an end of a post positioned within a post retaining section, such that Langer is “so deficient that no amount of rehabilitation can teach Appellant’s invention.” App. Br. 5. Such conclusory statements, lacking any explanation of the inoperability and deficiency, are unpersuasive. Appellant argues that Langer’s connecting head lobes 60 are positioned within the post 21, and that one skilled in the art would have to turn Langer “inside/out to arrive at the claimed invention,” which is not within the purview of one skilled in the art. App. Br. 8. The Examiner acknowledges that Langer does not disclose the post being held within the post retaining section, but finds that Siegers teaches a connecting head 25 having a post retaining section 28 for coaxially receiving a post 1 therein, the post retaining section having a ledge with an inner surface and an outer diameter greater than that of the post 1, concluding that it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the connecting head of Langer to include a post retaining section retaining the post via a flattened shoulder on which an outer surface of the post rests as taught by Siegers to prevent pivoting and swaying of the first post relative to the connecting head, providing increased stability and load- bearing capability for the scaffolding assembly. Ans. 5-6, 13. Appellant alleges that although Siegers discloses a flat shoulder 28 coaxially receiving one end of a post, the shoulder 28 is physically incapable of retaining anything and does not have an inner side. App. Br. 8. Appellant Appeal 2011-001570 Application 11/371,866 5 alleges that Siegers does not teach or suggest a retaining ledge or a post with an end held in position on an inner side thereof. Id. Considering Figures 3 and 4 of Siegers, we agree with the Examiner that Siegers’ aperture plate 25 includes a post retaining section 28. See Siegers, col. 2, ll. 24-29 (a horizontal member 1 is welded at each end into an aperture plate 25 that includes upwardly and downwardly directed tongues 26, 27 and flattened shoulders 28). Appellant has provided no basis for concluding that Siegers’ aperture plate 25 is incapable of retaining its post via at least the shoulder 28, which indeed has an inner side. Lastly, Appellant argues that Langer and Siegers cannot be combined because “[t]he approach of the references are so contrary to each other that one cannot combine them.” App. Br. 9. Appellant has provided no explanation regarding why the approaches of Langer and Siegers are so contrary that they cannot be combined. We therefore are not persuaded by this argument. For the reasons set forth above, we sustain the Examiner’s rejection. DECISION We AFFIRM the rejection of claims 1, 23, 26-31, 34, and 37-41 under 35 U.S.C. § 112, second paragraph. We AFFIRM the rejection of claims 1, 23, 26-31, 34, and 37-41 under 35 U.S.C. § 103(a) as unpatentable over Langer and Siegers. 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). Appeal 2011-001570 Application 11/371,866 6 AFFIRMED msc