Ex Parte Svehlek

Patent Trial and Appeal Board

Aug 8, 2016

11962280 (P.T.A.B. Aug. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
111962,280
7590
John R. Svehlek
FILING DATE
12/21/2007
08/08/2016
19960 W. Hickory Trail
New Berlin, WI 53146
FIRST NAMED INVENTOR
John R. Svehlek
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
JRS-01 7801
EXAMINER
CAHN, DANIEL P
ART UNIT PAPER NUMBER
3634
MAILDATE DELIVERY MODE
08/08/2016 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 JOHN R. SVEHLEK
Appeal2014-006453
Application 11/962,280
Technology Center 3600
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1,
11-16, 19, and 20. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
CLAIMED SUBJECT MATTER
The claims are directed to a ladder security bracket and safety system.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
Appeal2014-006453
Application 11/962,280
1. A ladder security bracket consisting of:
a) a linear transverse member, about 1 to about 24 inches
in length, having a first end and an opposed second end;
b) a linear first lateral stop member, about 5 to about 13
inches in length, having a first end and an opposed second end
and connected at said first end to said transverse member first
end wherein an angle between said first lateral stop member and
said transverse member is about ninety degrees;
c) a linear second lateral stop member, of identical length
to said first lateral stop member, having a first end and an
opposed second end and connected at said first end to said
transverse member second end wherein said second lateral stop
member is parallel to said first lateral stop member and extends
in the same direction as said first lateral stop member from said
transverse member;
d) a linear first mounting member having one or more
apertures therein, said first mounting member being connected to
said first lateral stop member second end wherein said first
mounting member is parallel to said transverse member and
extends in an opposite direction as said transverse member from
said first lateral stop member; and
e) a linear second mounting member having one or more
apertures therein, said second mounting member being
connected to said second lateral stop member second end
wherein said second mounting member is parallel to said
transverse member and to said first mounting member and
extends in an opposite direction as said transverse member from
said second lateral stop member;
wherein said ladder security bracket can be placed over at
least one rail of a ladder when the ladder is leaning against a
structure such that said mounting members contact a vertical
surface of the structure and the at least one rail of the ladder is
positioned between the lateral stop members and between the
structure and the transverse member.
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Appeal2014-006453
Application 11/962,280
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Reed
Garrett
Robinson
us 2,307 ,543
us 2,607,553
us 4,185,421
REJECTIONS
Jan. 5, 1943
Aug. 19, 1952
Jan.29, 1980
Claims 1, 11-16, 19, and 20 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Reed and Garrett.
Claims 1, 11, 15, and 19 are rejected under 35 U.S.C. § 102(b) as
being anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as being
unpatentable over Robinson.
Claims 12-14, 16, and 20 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Robinson.
OPINION
Obviousness in view of Reed and Garrett
The Examiner finds that Reed discloses a substantial portion of the
subject matter recited in claim 1 except for "1) accounting for the limiting
phrase 'consisting of, 2) providing a linear first and second mounting
member as having one or more apertures therein." Non-Final Act. 4
(emphasis omitted); see also id. at 2, 3. With respect to items 1 and 2, the
Examiner finds that Garrett:
teaches a similar bracket (as depicted in Fig. 4 or 5) which
teaches 1) the elements corresponding to the limiting phrase
"consisting of' since it lacks the elements 18-21 with respect to
Reed and 2) provides the first and second mounting members (23
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Application 11/962,280
of Fig. 4 of Garret [sic]) with one or more apertures therein (22,
as depicted in Fig. 4).
Id. at 5. The Examiner concludes:
Id.
In this case, it would have been obvious to substitute the elements
18-21 with respect to the bracket of Reed with the apertures of
the bracket taught by Garrett since the apertures provide holes
for mounting screws which would perform the expected result of
allowing a user to affix the bracket to a structure (as oppose[d]
to hang it from a rung of the ladder in Reed) which would
predictably and similarly provide a stable structure for the ladder
and maintain its function as a ladder support.
Appellant argues:
the Reed bracket requires elements 13, 14, and 18 to slidably
engage the ladder (FIG. 2) and elements 19-23 to elevate or lower
the bracket (column 1 line 54 to column 2 line 23). Removal of
any of elements to account for the phrase "consisting of' of
Appellant's claimed invention would render the Reed bracket
inoperable for its intended task.
D- 1 ')
Ill. l.J.
We agree with Appellant. Indeed, removing clamping bar 18 from the
Reed device would render Reed's ladder support inoperable. That is,
clamping bar 18 cooperates with clamping bar 13 to "engage opposite sides
of the ladder uprights and firmly clamp the ladder, thereby firmly holding
the support to the ladder." See Reed, 1, col. 2, 11. 35-38. In other words,
without clamping bar 18, the Reed ladder support would pivot freely about
the ladder uprights and not clamp into a stable position to securely hold the
ladder on the roof. Given the proposed device would be inoperable, the
Examiner's reason for removing several elements of Reed in favor of adding
apertures to the linear mounting members, as taught by Garrett, lacks
rational underpinnings.
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Appeal2014-006453
Application 11/962,280
Appellant additionally asserts that the Examiner's proposed
substitution is the result of impermissible hindsight. See Br. 14. We agree.
Specifically, it appears that the Examiner is picking and choosing from the
known elements of Reed and Garrett-without regard to the purposes of
those elements-to determine which elements to include or remove to
generate a reproduction of the claimed invention. On the record before us,
the only reason to make the proposed modification appears to be to
reconstruct the claimed invention. It is improper to base a conclusion of
obviousness upon facts gleaned only through hindsight. "To draw on
hindsight knowledge of the patented invention, when the prior art does not
contain or suggest that knowledge, is to use the invention as a template for
its own reconstruction-an illogical and inappropriate process by which to
determine patentability." Sensonics Inc. v. Aerosonic Corp., 81F.3d1566,
1570 (Fed. Cir. 1996) (citing W.L. Gore & Assoc. v. Garlock, Inc., 721 F.2d
1540, 1553 (Fed. Cir. 1983)).
Accordingly, the Examiner has not established the unpatentability of
claim 1 and of those claims depending therefrom, based on Reed and
Garrett, and we cannot sustain the rejection of those claims based on Reed
and Garrett.
Anticipation by/Obviousness in view of Robinson
The Examiner finds that Robinson expressly discloses all of the
limitations of claim 1 except for the range dimensions, which the Examiner
finds are inherent in Robinson or are at least the product of obvious
optimizations of result effective variables. Non-Final Act. 9-12.
Claim 1 requires that the ladder security bracket include linear first
and second mounting members having one or more apertures therein. Br. 18,
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Appeal2014-006453
Application 11/962,280
Claims App .. The preamble of claim 1 concludes with the transitional term
"consisting of." The phrase "consisting of' is a "closed" transition phrase
that is "understood to exclude any elements, steps, or ingredients not
specified in the claim." AFG Indus., Inc. v. Cardinal JG Co., 239 F.3d 1239,
1244--45 (Fed. Cir. 2001). Robinson teaches openings 9 in stanchions 2,
which the Examiner relies on as the lateral stop members (see Non-Final
Act. 9-10) of claim 1. We agree with Appellant that Robinson's stanchions
include apertures therethrough. Br. 15; see also Robinson, Figs. 2, 3. The
Examiner asserts that "the section of the aperture within the mounting
member can still be reasonably interpreted broadly as an aperture of the
mounting member." Ans. 26; see also Non-Final Act. 10. However, even if
apertures are reasonably considered to be located in Robinson's foot means
8 or "mounting members" as well as stanchions or "lateral stop members" 2,
claim 1 does not recite the lateral stop members as having apertures. Thus,
Robinson teaches lateral stop members with apertures, rendering Robinson's
device outside the scope of claim 1, as that claim precludes additional
features not specified therein.
In addition, claim 1 requires that the first mounting member extend in
"an opposite direction as said transverse member from said first lateral stop
member" and that the second mounting member extend in "an opposite
direction as said transverse member from said second lateral stop member."
Br. 18, Claims App. (emphasis added). Robinson's foot means 8 are not
constructed in the manner of the recited "mounting member[ s]." More
particularly, as shown in Figures 1 and 4 of Robinson, each foot means 8
extends in two opposite directions from its respective lateral stop member
(stanchion 2). Because Robinson discloses that the foot means extends in an
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Appeal2014-006453
Application 11/962,280
additional direction from the lateral stop member, Robinson includes another
additional feature not specified in claim 1.
Accordingly, the Examiner's anticipation rejection based on Robinson
cannot be sustained on the record before us. In addition, the obviousness
rejection in reliance on Robinson also cannot stand as the Examiner has not
offered any reasons sufficient to overcome the deficiencies of Robinson as
discussed above.
Accordingly, the rejections of claims 1, 11, 15, and 19, as well as
claims 12-14, 16, and 20, based on Robinson cannot be sustained.
DECISION
The Examiner's rejections are reversed.
REVERSED
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