Ex Parte Tucker et al

Patent Trial and Appeal Board

Oct 22, 2012

11676496 (P.T.A.B. Oct. 22, 2012)

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.
11/676,496 02/19/2007 Aaron J. Tucker 8293
51702 7590 10/22/2012
CLYDE I. COUGHENOUR
16607 SUTTON PLACE
WOODBRIDGE, VA 22191
EXAMINER
JUNGE, KRISTINA N S
ART UNIT PAPER NUMBER
3611
MAIL DATE DELIVERY MODE
10/22/2012 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 AARON J. TUCKER
and KHADIJAH NASHID-TUCKER
____________

Appeal 2010-009520
Application 11/676,496
Technology Center 3600
____________

Before PHILLIP J. KAUFFMAN, JAMES P. CALVE, and
HYUN J. JUNG, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of claims
1-3, 5, 8-11, 13, 14, 16, and 21-28. App. Br. 7. Claims 4, 6, 7, 12, 15, and
17-20 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal 2010-009520
Application 11/676,496

2
CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the claimed subject matter on appeal:
1. A bus stop sign and signal device comprising:
a vertical support;
a first sign on said vertical support;
a battery housing on said vertical support for housing a
battery;
a battery in said battery housing;
a first illumination means in a housing supported by said
vertical support above said first sign;
said first illumination means having a first light in said
housing for illuminating said first sign and a second light in
said same housing for notifying an approaching bus driver to
stop at the bus stop;
a switch for activating said first illumination means;
said vertical support is a post;
said first illuminating means is in a housing positioned at
an upper end of said post and-said housing is in the form of a
hood;
said hood is adjustable to aline the direction said first
illumination means is pointed in for both illumination of said
first sign and notification to said bus driver to stop.

REJECTIONS1
Claims 1 and 8 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Langlois (US 2006/0120068 A1; pub. Jun. 8, 2006) and Warshawsky
(US 4,449,170; iss. May 15, 1984).
Claims 10, 11, 14, and 16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Langlois and Jones (US 6,522,263 B2; iss. Feb. 18, 2003).
Claims 2, 5, 13, and 23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Langlois, Jones, and Warshawsky.

1 The Examiner withdrew the rejection of claim 9 under 35 U.S.C. § 112,
second paragraph as being indefinite. Ans. 3.
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Application 11/676,496

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Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Langlois, Warshawsky, and Palmquist (US 2,432,928; iss. Dec. 16, 1947).
Claims 22 and 28 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Langlois, Jones, and Palmquist.
Claims 3, 21, and 24-27 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Langlois, Jones, Warshawsky, and Palmquist.
ANALYSIS
Claims 1 and 8 as unpatentable over Langlois and Warshawsky
Claim 1
The Examiner found that Langlois discloses a bus stop sign and signal
comprising a first sign (bus schedule assembly 200, Fig. 1) on a vertical
support (post, Fig. 1) and a first illumination means with a first light (LED
lights 4, Fig. 2) for illuminating the first sign and a second light (LED light
2, Fig. 2). Ans. 4. The Examiner also found that the first and second lights
(referred to as “illuminations means,” LED lights 4, 2 in Fig. 2) are capable
of illuminating the sign to a certain degree. Ans. 16.
Appellants argue that Langlois does not disclose a first light for
illuminating the first sign because LED lights 4 are “used for security and
convenience lighting to provide enhanced security for waiting passengers.”
App. Br. 20. Appellants also argue that the first sign (bus schedule 200) is
illuminated by a self-contained light module 32. Id. (citing fig. 4). These
arguments do not persuade us of error in the Examiner’s finding that LED
lights 4 are capable of illuminating the bus schedule 200. The Examiner had
a sound basis for this finding because LED lights 4 are positioned directly
above bus schedule assembly 200 (Fig. 1) and illuminate the area around the
bus stop, which the Examiner reasonably found includes the bus schedule
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Application 11/676,496

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assembly 200. Appellants have not shown that claim 1 is structurally
distinguishable from Langlois or that Langlois’ structure is not capable of
performing this function.2 See In re Schreiber, 128 F.3d 1473, 1478 (Fed.
Cir. 1997) (where the PTO has reason to believe that a functional limitation
is an inherent characteristic of the prior art, appellant has the burden to show
that the prior art structure does not inherently possess the functional feature).
The use of LED lights 32 to backlight bus schedule 200 does not prevent
LED lights 4 from illuminating bus schedule 200 as called for in claim 1.
Appellants also argue that the “lighting of Langlois is not within a
hood, it is under a head 20 supporting a solar panel 22 (Fig. 3) both of which
are stationary.” App. Br. 20-21. This argument is not persuasive because
claim 1 requires the first illumination means, which has the first and second
lights, to be in a housing in the form of a hood and Appellants do not point
to any features in claim 1 that distinguish the claimed hood from the head
assembly 100 of Langlois (Figs. 1, 2).3 A reference does not have to satisfy
an ipsissimis verbis test to disclose a claimed feature.
Appellants assert that claim 1 requires the first and second light to be
in the same housing and Langlois teaches a light 32 for illuminating the bus
schedule 200 that is in a different housing than the second light (LED 2) that
is in the upper housing 10. App. Br. 21. This argument does not persuade
us of error in the Examiner’s finding that Langlois discloses first and second
lights (LED lights 4, 2, not edge-light module 32) in the same housing (head
assembly 100) as shown in Figs. 1-3 as discussed supra. Ans. 4, 16.

2 Appellants disclose a light 13 positioned above a bus schedule 3. Fig. 1.
3 Appellants disclose that the hood 6 can be made of galvanized sheet metal
and have a length of 4-6 inches, height of 2-4 inches and weight of about 5
ounces. Spec. 6, ll. 11-12; fig. 1.
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Appellants assert that claim 1 requires the hood to be adjustable and
the “hood” of Langlois is designed to be integral and stationary. App. Br.
20-21. Appellants also contend that it “would not have been obvious to
substitute the Warshawsky lamp adjustment because there is no teaching to
do so and because Langlois does not want his illumination assembly to be
anything other than stationary.” App. Br. 21-22. These arguments do not
persuade us of error in the Examiner’s findings that Warshawsky teaches an
adjustable hood used to align the direction of an illumination means and
determination that it would have been obvious to incorporate such a hood
into Langlois to provide an efficient and effective light source to illuminate
and signal in appropriate directions. Ans. 4-5 (citing Warshawsky, col. 4, ll.
38-46), 16-17. Nor does this argument apprise us of any disclosure in
Langlois that criticizes, discredits, or discourages the use of an adjustable
hood with Langlois’ bus stop. Appellants’ argument that “Warshawsky does
not illuminate a sign” (App. Br. 21) is not persuasive because the Examiner
relied on Langlois to disclose this feature. Accordingly, we sustain the
rejection of claim 1.
Claim 8
Claim 8 depends from claim 1 and calls for the hood to be elevated on
a pipe that is vertically adjustable and rotatable in the vertical support and
also “includes a universal joint for independent adjustment.” The Examiner
found that Warshawsky discloses a hood (cylindrical shade 14) on a pipe
(light source 12) that is vertically adjustable and rotatable and includes a
universal joint (clutch 44). Ans. 5 (citing col. 4, ll. 21-25 and 38-46; figs. 1,
2). The Examiner also found that Appellants disclose a universal joint 28
(Fig. 1) that allows movement up and down and rotates, which is the same
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Application 11/676,496

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movement that Warshawsky discloses. Ans. 19-20. Appellants argue that
Warshawsky discloses that element 44 is a clutch assembly 44, not a
universal joint. App. Br. 22 (citing col. 3, ll. 36-43). We agree. A skilled
artisan would not consider a clutch to be a universal joint. The Examiner’s
finding that the clutch assembly 44 corresponds to a universal joint is not
consistent with claim 8, which recites that the pipe is vertically adjustable
and rotatable in the vertical support, and also includes a universal joint for
independent adjustment. Appellants disclose that swivel hood 6 can be
raised/lowered 62 or rotated 61 on a pipe 19. Spec. 3, ll. 10-13; fig. 1. A
universal joint 28 also is provided in the pipe to allow the hood to be aligned
with oncoming traffic when removed from the pole 2. Spec. 5, ll. 5-6; see
Reply Br. 4. The Examiner has not adequately explained how the clutch
assembly 44, which may allow vertical movement and rotation, also is a
universal joint “for independent adjustment.”4 We cannot sustain the
rejection of claim 8.
Claims 10, 11, 14, and 16 as unpatentable over Langlois and Jones
Independent claim 10 recites a bus stop sign and signal device with
first and second signs, a first and second illumination means for the first and
second signs respectively, and a manually operated switch for activating the
first and second illumination means. The Examiner found that Langlois
discloses all elements except a second sign on the vertical support with a
second illumination means. Ans. 9-10. The Examiner found that Jones

4 An ordinary, customary meaning of “universal joint” includes “[a] geared
joint placed between two shafts that allows the shafts to turn or swivel at an
angle.” See ACADEMIC PRESS DICTIONARY OF SCIENCE AND TECHNOLOGY
(1996) (http://www.credoreference.com/entry/apdst/universal_joint (last
visited Oct. 12, 2012)).
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teaches a stop sign and signaling device with a first and second sign (pair of
brackets 326), each sign having an illumination means including a white
light in a shield (light 328) to illuminate the sign. Ans. 10 (citing Fig. 15).
Appellants argue that neither Langlois nor Jones teaches a manually
operated switch that activates a first and second light of a first illumination
means and a first light of a second illuminating means. App. Br. 23. We
agree. Langlois uses separate buttons 300 to activate lights of bus schedule
assembly 200 and LED lights 2, 4 of head assembly 100. Paras. [0049]-
[0050]. Jones uses switches 128, 130, 132 to activate center light housing
24 and outer light housings 26. Col. 8, ll. 42-55; fig. 8. The Examiner has
not adequately explained how the combined teachings of Jones and Langlois
would yield a manual switch that activates the first and second lights of first
illuminating means and a first light of second illuminating means.5 We
cannot sustain the rejection of claim 10 or dependent claims 11, 14, and 16.
Claims 2, 5, 13, and 23 as unpatentable over Langlois, Jones, Warshawsky
Claims 2 and 5
Claim 2 calls for a second sign, a second illumination means, and a
switch to activate first and second illumination means. The Examiner found
that Jones discloses first and second signs (bracket 326, fig. 15) each with
illuminating means (light 328, fig. 15). Ans. 6. We agree with Appellants
that the references do not disclose a switch that activates all three lights of
the first and second illumination means as discussed supra for claim 10. We
cannot sustain the rejection of claim 2 or its dependent claim 5.

5 Although the term “a” can mean one or more, Appellants disclose the use
of a single manually operated switch 8 for activating the hood lights 13, 14,
15, and white lights 17, 18. Spec. 7, ll. 7-18; figs. 1, 3.
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Claim 13
The Examiner’s reliance on Warshawsky to disclose a hood that is
mounted on a pipe that is vertically adjustable and rotatable in the vertical
support and includes a universal joint, as called for in claim 13, does not
remedy the deficiencies of Langlois and Jones as to claim 10 from which
claim 13 depends. App. Br. 25. We cannot sustain the rejection of claim 13.
Claim 23
Claim 23 depends from claim 1 and calls for a solar panel adjustably
attached to the vertical support. The Examiner relied on Jones to disclose
this feature. Ans. 7. Appellants argue that Langlois “precludes the
modification by specifically teaching that the solar panel to be used is to be
integral and stationary and on the top so as to not be visible from the street.”
App. Br. 26 (citing para. [0054]). This argument is not persuasive because
Langlois discloses that the solar panel 22 is incorporated into the head
assembly and connected to one or more batteries that are integral to the head
assembly. Langlois does not state that solar panel 22 must not be visible
from the street or otherwise criticize, discredit, or discourage the use of an
adjustable solar panel. We sustain the rejection of claim 23.
Claim 9 as unpatentable over Langlois, Warshawsky, and Palmquist
The Examiner found that Palmquist discloses reflective tape 10 on a
first sign 16 that is illuminated by light from a first illumination means as
called for in claim 9. Ans. 7 (citing col. 4, ll. 41-44; col. 5, ll. 31-37; fig. 3).
Appellants argue that Palmquist teaches a reflector sheet 10 over a metal
sheet 15 having raised lettering enameled 16 and the enameled lettering is
over the reflector sheet 10. App. Br. 27. Appellants also argue that Langlois
teaches a reflector under and behind the indicia so that placing Palmquist’s
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Application 11/676,496

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reflective tape over the sign of Langlois would cover up and obscure the sign
28, 30. App. Br. 27; Reply Br. 5.
We agree with the Examiner that Palmquist discloses reflective tape
(transparent sheet 10) on a first sign (raised lettering 16). Ans. 19 (citing
Fig. 4); Palmquist, col. 4, ll. 32-34; figs. 3, 4. We also agree that a skilled
artisan would understand how to incorporate Palmquist’s reflective tape
(transparent sheet 10) into the first sign of Langlois (bus schedule assembly
200) so that the tape is illuminated by first illumination means (Langlois’
LED lights 4) and oncoming traffic. Ans. 19. Palmquist discloses that the
reflective tape 10 is transparent. Col. 4, ll. 32-40. The test for obviousness
is what the combined teachings of the references would have suggested to a
skilled artisan and not whether the features of a secondary reference may be
bodily incorporated into, or physically combined with, a primary reference.
As such, we sustain the rejection of claim 9.
Claims 22 and 28 as unpatentable over Langlois, Jones, and Palmquist
Independent claim 28 recites a bus stop sign and signal device with a
vertical support that is a “u” shaped post, and a first sign, battery housing,
and a first illumination means supported on the vertical support. The
Examiner found that Langlois discloses the claimed device except for wiring
extending from a battery, which Jones discloses, and reflective tape, which
Palmquist discloses (fig. 3). Ans. 13-14 (citing Jones, col. 7, ll. 1-4). We
agree with Appellants that Langlois does not disclose a vertical support that
is a post in a u-shape. App. Br. 25, 27-28. Although Langlois discloses a u-
shaped element (back piece 24) with a recessed area enclosed by reflecting
panel (back material 28) (Ans. 11, 13), this element is part of bus schedule
assembly 200 (Fig. 4). It forms no part of the vertical support (post 8).
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Instead, u-shape element/back piece 24 “is used to secure the module to the
bus stop post.” Para. [0057]. Therefore, it is not a u-shaped vertical support
and does not support a battery housing or first illumination means. We
cannot sustain the rejection of claim 28 or its dependent claim 22.
Claims 3, 21, and 24-27 as unpatentable over Langlois, Jones, Warshawsky,
and Palmquist
Appellants argue that claims 3 and 21 are not obvious because they
depend from claim 28, claim 24 is not obvious because it depends from
claim 23, and claim 25 is not obvious because it depends from claim 2.
App. Br. 28-29. These arguments are persuasive as to claims 3, 21, and 25-
27 because we do not sustain the rejection of claims 28 and 2, but are not
persuasive as to claim 24 because we sustain the rejection of claim 23.
Appellants’ argument that claim 24 is not obvious because it recites a
reflective tape is not persuasive for the reasons set forth supra for claim 9.
As such, we sustain the rejection of claim 24 but cannot sustain the rejection
of claims 3, 21, and 25-27.
DECISION
We AFFIRM the rejection of claims 1, 9, 23, and 24 and REVERSE
the rejections of claims 2, 3, 5, 8, 10, 11, 13, 14, 16, 21, 22, and 25-28.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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