Ex Parte Sturdy

Patent Trial and Appeal Board

Jun 12, 2017

13045545 (P.T.A.B. Jun. 12, 2017)

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.
13/045,545 03/11/2011 Vincent J. Sturdy JR. STURD.50562-NY 3139
5409 7590 06/14/2017
SCHMEISER, OLSEN & WATTS
22 CENTURY HILL DRIVE
SUITE 302
LATHAM, NY 12110
EXAMINER
TORRES, ALICIA M
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
06/14/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
AZ5409@IPLAWUSA.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VINCENT J. STURDY, JR
Appeal 2016-001129
Application 13/045,545
Technology Center 3600
Before JENNIFER D. BAHR, WILLIAM V. SAINDON, and ANTHONY
KNIGHT, Administrative Patent Judges.
KNIGHT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Vincent J. Sturdy, Jr., Appellant1, appeals under 35 U.S.C. § 134 from
the Examiner’s final decision rejecting claims 1—17. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Brief, Vincent J. Sturdy, Jr., is the real party in interest.
Br. 1.
Appeal 2016-001129
Application 13/533,748
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
LeBlanc US 5,321,938 June 21, 1994
Oxley US 6,330,783 B2 Dec. 18,2001
Blanchard US 6,374,584 B2 Apr. 23,2002
REJECTIONS2
The Examiner made the following rejections:
Claims 1—15 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over LeBlanc and Blanchard.
Claim 16 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over LeBlanc, Blanchard, and Oxley.
CLAIMED SUBJECT MATTER
The claims are directed to lawn mowers and more specifically relate
to extension lawn mowers. Spec. 11. Claims 1 and 19 are independent.
Claim 1 reproduced below, is representative of the claimed subject matter:
1. A seat-less, walk-behind lawn mower system
comprising:
a wheeled, walk-behind push lawn mower primary
cutting deck, a user being able to walk directly behind the
wheeled, walk-behind push lawn mower primary cutting deck,
2 The rejection of claims 1—17 under 35 U.S.C. § 112, second paragraph was
overcome by an amendment filed April 22, 2015. See Advisory Act. 2.
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Application 13/533,748
the wheeled, walk-behind push lawn mower primary cutting
deck having;
at least one cutting blade;
a connector shaft;
a motor;
a controller; and
a first auxiliary pivotably-attached secondary cutting
deck and a second auxiliary pivotably-attached secondary
cutting deck;
wherein the wheeled, walk-behind push lawn mower
primary cutting deck has a first forward edge;
wherein said primary cutting deck shrouds said at least
one cutting blade;
wherein said at least one cutting blade is connected to
said motor via said connector shaft;
wherein said motor provides power to operate said at
least one cutting blade in a rotary motion;
wherein said motor is variably speed-manipulated by said
controller;
wherein both of said first and said second auxiliary
pivotably-attached secondary cutting decks are mounted to said
wheeled, walk-behind push lawn mower primary cutting deck,
and are aligned at the first forward edge of the wheeled, walk-
behind push lawn mower primary cutting deck, wherein the
first forward edge of the wheeled, walk behind push lawn
mower primary cutting deck, a second forward edge of the first
auxiliary pivotably-attached secondary cutting deck and a third
forward edge of the second auxiliary pivotably-attached
secondary cutting deck share a common axis; and
wherein said wheeled, walk-behind push lawn mower
primary cutting deck and said first and said second auxiliary
pivotably-attached secondary cutting deck are usable for cutting
at least one outdoor lawn;
wherein said controller controls cutting action of said
cutting blade in each said primary cutting deck and said first
and said second secondary cutting deck by controlling said
motor;
wherein said primary cutting deck and said first auxiliary
pivotably-attached secondary cutting deck and said second
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Application 13/533,748
auxiliary pivotably-attached secondary cutting deck include at
least one height-adjustable gauge wheel;
whereby adjustment of said least one height-adjustable
gauge wheel from at least one height to at least a second height
achieves a more uniform cutting height at all nonplanar
locations under both said primary cutting deck and each of said
first and second secondary cutting deck.
OPINION
We have reviewed the Examiner’s Final Action and Appellant’s
arguments and are not apprised of error in the Examiner’s rejection of the
claims. Appellant’s arguments are addressed below.
Appellant argues that “Blanchard is vastly different from Appellant's
extension lawn mower and [thus] does not comprise analogous art.” Br. 5.
“Whether a reference in the prior art is ‘analogous’ is a fact question.” In re
Clay, 966 F.2d 656, 658 (Fed. Cir. 1992) (citing Panduit Corp. v. Dennison
Mfg., 810 F.2d 1561, 1568 n.9 (Fed. Cir.), cert, denied, 481 U.S. 1052
(1987)).” Therefore, a review of the facts must be made and an analysis of
the two criteria for determining whether a reference is analogous.
Two criteria have evolved for determining whether prior
art is analogous: (1) whether the art is from the same field of
endeavor, regardless of the problem addressed, and (2) if the
reference is not within the field of the inventor’s endeavor,
whether the reference still is reasonably pertinent to the
particular problem with which the inventor is involved. Id.
(citing In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986); In
re Wood, 599 F.2d 1032, 1036 (CCPA 1979)).
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Application 13/533,748
In this instance, Appellant’s field of endeavor is lawn mowers. Spec.
11. Blanchard’s field of endeavor is also lawn mowers, as evidenced by
Blanchard’s statement that the invention relates to “apparatus and method
for severing vegetation” and discussion of lawn mowers in the “Description
of the Related Art” in columns 1 and 2. See also id. 3:7 (stating that “[a]
mower for severing vegetation is disclosed”). Thus, in comparing the
inventions under the first part of the test for analogous art, both are directed
to the same field of endeavor, lawn mowers. Therefore, Blanchard is
analogous art to Appellant’s claimed invention. Appellant does not show
error in the Examiner’s reasoning on the basis of nonanalogous art.
Appellant argues that the “combination does not teach each and every
aspect of the claims.” Br. 6. In particular, Appellant argues that, “LeBlanc
fails to teach a ‘seat-less, walk-behind lawn mower system’ . . . [and]
Blanchard does depict a push, walk-behind lawn mower . . . [that] only
includes one cutting housing.” Id. (emphasis omitted). We are not
persuaded by Appellant’s arguments because they attack the references
individually, rather than as combined in the rejection. 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., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642
F.2d 413, 425 (CCPA 1981). The Examiner finds that FeBlanc teaches the
use of multiple cutting housings (i.e., multiple cutting decks pivotably
attached) in a mower, and Blanchard, “walk-behind, ride-on and towing
configurations” as “alternative means for moving a lawn mower.” Final Act.
7. The Examiner determines it would have been obvious to substitute a seat­
less, walk behind configuration, as taught by Blanchard, for FeBlanc’s
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riding configuration because of Blanchard’s teaching of these configurations
as alternatives and because “a predictable result would be achieved.”
Appellant argues that, “Blanchard . . . teaches away from a walk-
behind push lawn mower unit when multiple housings are to be used.” Br.
7. In support of this argument, Appellant directs our attention to
Blanchard’s disclosure that two or more housings can be combined side-by-
side for riding units. Id. (citing Blanchard 7:18—21; Fig. 7). Further,
Appellant also argues that, “one having ordinary skill in the art would not
modify a heavy duty riding mower with multiple cutting decks to allow a
user to walk behind . . . [because the] weight of the LeBlanc mower would
make it impossible for the average user to operate such a machine.” Id.
A reference teaches away from a claimed invention if “a person of
ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction
divergent from the path that was taken by the applicant.” In re Kubin, 561
F.3d 1351, 1357 (Fed. Cir. 2009) (citing In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994)). Appellant merely argues that the references teach away
from the claimed invention without providing evidence in support of this
position. Although the portion of Blanchard cited by Appellant expressly
teaches providing multiple side-by-side specifically for riding units,
Appellant does not direct our attention to any teaching in Blanchard that
such multiple side-by-side housing configurations would be unsuitable for
walk-behind push mowers.
Appellant’s assertion that the weight of a heavy duty riding mower
would make it impossible for a user to push it from behind does not identify
error because it is not commensurate with the combination proposed by the
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Application 13/533,748
Examiner. The Examiner does not propose having a user push a riding
mower; rather, the Examiner’s rejection proposes to replace LeBlanc’s
riding configuration with a walk-behind push configuration. To the extent
that Appellant is asserting that the weight of a walk-behind, push mower
having multiple side-by-side mowing decks would be too great to permit a
user to push it from behind, Appellant proffers no evidence to support such
an assertion. Accordingly, we give it little weight. In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997).
Appellant contends that the modification of LeBlanc proposed by the
Examiner “is the result of impermissible hindsight bias.” Br. 7. The
Examiner’s articulated reason for combining the teachings of LeBlanc and
Blanchard is grounded in the teaching by Blanchard of riding and walk-
behind configurations as alternative means for moving a lawn mower. Final
Act. 6—7. Appellant does not point to any knowledge relied on by the
Examiner that was gleaned only from Appellant’s disclosure, and that was
not otherwise within the level of ordinary skill in the art at the time of the
invention, thereby failing to support Appellant’s hindsight assertion. See In
re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) (“Any judgment on
obviousness is in a sense necessarily a reconstruction based upon hindsight
reasoning, but so long as it takes into account only knowledge which was
within the level of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant's disclosure,
such a reconstruction is proper.”). Therefore, Appellant has not shown that
the Examiner’s rejection of the claims is predicated on impermissible
hindsight.
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For the above reasons, Appellant fails to apprise us of error in the
rejection of claim 1. Accordingly, we sustain the rejection of claim 1, as
well as claims 2—7, 13—15, and 17, for which Appellant presents no separate
argument for patentability and which, thus, fall with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv) (permitting the Board to select a single claim to decide the
appeal as to a single ground of rejection of a group of claims argued
together).
With respect to claim 8, Appellant argues that the combination does
not disclose “an upright non-operating position enabling a non-use
condition.” Br. 8. The Examiner states that LeBlanc teaches that the
secondary cutting decks can be placed in a “transport” position where they
are rotated upright and not in use. Final Act. 5. As the Examiner further
elaborates in the Examiner’s Answer, “LeBlanc also discloses multiple
reasons for pivoting the secondary cutting decks to an upright position, one
of them being for transport (see also column 1, lines 60-63). It is known in
the art that a transport position is a non-operational position for purposes of
safety and energy consumption.” Ans. 4. The secondary cutting decks
“will fold to legal width for road transport.” Le Banc 1:60-63. Further it is
noted that, “[t]he drive line includes independent manually operated clutches
for the mower and carriage.” Id. 2:43—46. Thus, power need not be
transmitted to the secondary cutting decks during transport so that they will
be in an upright non-operating position that provides a non-use condition.
As such, the Examiner’s position that LeBlanc’s upright “transport” position
is a “non-use condition” is well-founded. Appellant’s argument on this
grounds does not show error in the Examiner’s rejection.
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For the above reasons, Appellant fails to apprise us of error in the
rejection of claim 8. Accordingly, we sustain the rejection of claim 8.
In contesting the rejection of claim 16, which depends from claim 1,
as unpatentable over LeBlanc, Blanchard, and Oxley, Appellant relies solely
on the arguments presented for claim 1. Br. 10. For the reasons discussed
above, these arguments fail to apprise us of error in the rejection of claim 1
and, thus, likewise also fail to apprise us of error in the rejection of claim 16.
Accordingly, we sustain the rejection of claim 16.
DECISION
The Examiner’s decision to reject claims 1—15 and 17 under 35 U.S.C.
§ 103 is affirmed.
The Examiner’s decision to reject claim 16 under 35 U.S.C. § 103 is
affirmed.
AFFIRMED
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