Ex Parte Tufte

Board of Patent Appeals and Interferences

Aug 28, 2007

10905818 (B.P.A.I. Aug. 28, 2007)

The opinion in support of the decision being entered today is not binding precedent
of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BRIAN N. TUFTE
____________

Appeal 2007-2031
Application 10/905,818
Technology Center 3600
____________

Decided: August 28, 2007
____________

Before LINDA E. HORNER, ANTON W. FETTING, and DAVID B. WALKER,
Administrative Patent Judges.

WALKER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s final
rejection of claims 17-26. We have jurisdiction under 35 U.S.C. § 6(b) (2002).
We affirm.
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THE INVENTION
Appellant claims a boat cover system that may provide some level of
protection to the interior of the boat when the boat is not in use, and also some
level of protection to the occupants of the boat from the sun, rain and/or other
elements when the boat is in use (Specification 2, Para 6). Claims 17 and 21,
reproduced below, are representative of the subject matter on appeal.
17. A pontoon boat comprising:
a platform;
one or more side walls extending up from the
platform around a perimeter of a protected area, wherein
the side walls are adapted to prevent or substantially
prevent windswept rain from passing through the side
walls and into the protected area from a lateral direction;
a cover; and
two or more support members for supporting the
cover above the platform, the two or more support
members being adapted to allow the cover to be moved
between a raised position and a lowered position,
wherein, in the lowered position, a perimeter of the cover
extends laterally out to at least the side walls of the
pontoon boat to provide a cover for all or substantially all
of the protected area, and in the raised position, the cover
is suspended above the platform sufficiently far so that
occupants of the pontoon boat can move about there
under.

21. A pontoon boat comprising:
a platform;
one or more side walls extending up from the
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platform around a perimeter of a protected area, wherein
the side walls are adapted to prevent or substantially
prevent windswept rain from passing through the side
walls and into the protected area from a lateral direction;
a cover; and
moving mechanism for moving the cover between
a first position and second position,wherein in the second
position, the cover provides a cover for all or
substantially all of the protected area, and wherein in the
first position, the cover allows occupants of the pontoon
boat to move about the protected area.

THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Butler US 3,805,724 Apr. 23, 1974
Oehler US 5,016,558 May 21, 1991
Pepper US 5,044,298 Sep. 3, 1991
Faber US 5,058,946 Oct. 22, 1991
Heckman US 2003/0217683 A1 Nov. 27, 2003

The following rejections are before us for review.
1. Claims 17, 20, 21, 24, and 26 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Heckman in view of Pepper.
2. Claims 18 and 19 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Heckman in view of Pepper and further in view of Faber.
3. Claims 22 and 23 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Heckman in view of Pepper and further in view of Butler.
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4. Claim 25 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Heckman in view of Pepper and further in view of Oehler.

ISSUE
The issue before us is whether Appellant has shown that the Examiner erred
in rejecting the following claims under 35 U.S.C. § 103(a): (1) claims 17, 20, 21,
24, and 26 as unpatentable over Heckman in view of Pepper; (2) claims 18 and 19
as unpatentable over Heckman in view of Pepper and further in view of Faber; (3)
claims 22 and 23 as unpatentable over Heckman in view of Pepper and further in
view of Butler; and (4) claim 25 as unpatentable over Heckman in view of Pepper
and further in view of Oehler. The correctness of the above rejections turns on
whether the references properly may be combined and whether, when combined,
they yield the claimed invention.
Rather than repeat the arguments of Appellant and the Examiner, we make
reference to the Briefs and the Answer for their respective details. Only those
arguments actually made by Appellant have been considered in this decision.
Arguments which Appellant could have made but chose not to make in the Briefs
have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2004).

FINDINGS OF FACT
We find the following enumerated findings to be supported by at least a
preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427, 7
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USPQ2d 1152, 1156 (Fed. Cir. 1988) (explaining the general evidentiary standard
for proceedings before the Office).

1. Heckman discloses a pontoon boat comprising a platform (referred to as
an inside deck area), a railing system 15 extending up from the platform
to enclose a perimeter of a protected area, a cover 50, and two or more
support members 40 for supporting the cover above the platform
(Heckman, 2:[0033-0034]). When supported in a raised position, the
cover is supported sufficiently far above the platform so that occupants of
the boat can move about under the cover (Heckman, Fig. 1). Figure 2
shows that, when supported in a lowered position, a perimeter of the
cover extends out to at least the side railings of the pontoon boat to
provide a cover for all or substantially all of the protected area (the area
inside the railings) (Heckman, Fig. 2).
2. Heckman teaches the use of telescoping support members that are
extended and retracted pneumatically (Heckman, 2:[0035]).
3. Heckman does not disclose side walls that are adapted to prevent or
substantially prevent windswept rain from passing through the side walls
and into the protected area from a lateral direction (Heckman, passim).
4. Pepper teaches that a pontoon boat with one or more side walls extending
up from deck around a protected area is conventional (Pepper, col. 2, ll.
48-50). Because the side walls are shown as solid, they are capable of
preventing or substantially preventing windswept rain from passing
through the side walls and into the protected area (Pepper, Fig. 1).
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5. Pepper teaches a moving means for moving a canopy cover for the
pontoon boat, which includes a hydraulic assembly 94 (including a piston
cylinder arrangement) on each side of the boat connected to a hydraulic
circuit 118 (which includes a reversible pump) (Pepper, col. 4, ll. 11-14
and 30-38). Each of the hydraulic assemblies is attached at one end to
the side wall 34 and at the other to a support member 90 for a canopy
cover 38 (Pepper, col. 4, ll. 14-18).
6. Faber teaches a hinged trailer and boat cover which include a pair of jack
assemblies 80 mounted between the trailer body and boat cover (Faber,
col. 4, ll. 46-54). The jack assemblies include piston and cylinder units
that can be either pneumatic or hydraulic (Faber, col. 4, ll. 55-56). Faber
also teaches the use of alternate linear actuators, including linear
actuators with screw-threaded rods actuated by electric motors or various
hand-powered actuating units (Faber, col. 4, ll. 56-62).
7. Butler teaches a sailboat canopy apparatus adapted to provide a water-
tight cover for the upper portion of an access opening to an interior cabin
(Butler, abstract). “The downward peripheral edge 44 of canopy 42 is
adapted to be in contact with the ledge 40 and substantially cover the
upper portion 34 of the access opening 26” (Butler, col. 2, ll. 44-47).
Figure 6 shows that the perimeter of canopy thus extends past and
overlaps in a vertical direction with ledge 40 (Butler, Fig. 6).
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8. Oehler teaches a boat with a retractable roof that can be raised and
lowered by human power, facilitated by assist or counter-balance means
42 (Oehler, col. 2, ll. 30-33).

PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences between the
subject matter sought to be patented and the prior art are such that the subject
matter as a whole would have been obvious at the time the invention was made to a
person having ordinary skill in the art to which said subject matter pertains.’” KSR
Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1734, 82 USPQ2d 1385, 1391 (2007).
The question of obviousness is resolved on the basis of underlying factual
determinations including (1) the scope and content of the prior art, (2) any
differences between the claimed subject matter and the prior art, (3) the level of
ordinary skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459,
467 (1966). See also KSR, 127 S.Ct. at 1734, 82 USPQ2d at 1391 (“While the
sequence of these questions might be reordered in any particular case, the
[Graham] factors continue to define the inquiry that controls.”)
In KSR, the Supreme Court emphasized “the need for caution in granting a
patent based on the combination of elements found in the prior art,” id. at 1739, 82
USPQ2d at 1395, and discussed circumstances in which a patent might be
determined to be obvious. In particular, the Supreme Court emphasized that “the
principles laid down in Graham reaffirmed the ‘functional approach’ of Hotchkiss,
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11 How. 248.” KSR, 127 S.Ct. at 1739, 82 USPQ2d at 1395 (citing Graham, 383
U.S. at 12, 148 USPQ at 464 (emphasis added)), and reaffirmed principles based
on its precedent that “[t]he combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.” Id. The Court explained:
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 1740, 82 USPQ2d at 1396. The operative question in this “functional
approach” is thus “whether the improvement is more than the predictable use of
prior art elements according to their established functions.” Id.
The Supreme Court stated that there are “[t]hree cases decided after Graham
[that] illustrate the application of this doctrine.” Id. at 1739, 82 USPQ2d at 1395.
“In United States v. Adams, … [t]he Court recognized that when a patent claims a
structure already known in the prior art that is altered by the mere substitution of
one element for another known in the field, the combination must do more than
yield a predictable result.” Id. at 1739-40, 82 USPQ2d at 1395. “Sakraida and
Anderson’s-Black Rock are illustrative – a court must ask whether the
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improvement is more than the predictable use of prior art elements according to
their established function.” Id. at 1740, 82 USPQ2d at 1395.
The Supreme Court stated that
[f]ollowing these principles may be more difficult in
other cases than it is here because the claimed subject
matter may involve more than the simple substitution of
one known element for another or the mere application of
a known technique to a piece of prior art ready for the
improvement.
Id. The Court explained,
[o]ften, it will be necessary for a court to look to
interrelated teachings of multiple patents; the effects of
demands known to the design community or present in
the marketplace; and the background knowledge
possessed by a person having ordinary skill in the art, all
in order to determine whether there was an apparent
reason to combine the known elements in the fashion
claimed by the patent at issue.
Id. at 1740-41, 82 USPQ2d at 1396. The Court noted that “[t]o facilitate review,
this analysis should be made explicit.” Id. (citing In re Kahn, 441 F.3d 977, 988,
78 USPQ2d 1329, 1336 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds
cannot be sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness”)). However, “the analysis 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.” Id.
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The Supreme Court also addressed the breadth of problems that one of
ordinary skill in the art might consider as reasons for combining elements from
different sources in the prior art.
The first error of the Court of Appeals in this case was to
foreclose this reasoning by holding that courts and patent
examiners should look only to the problem the patentee
was trying to solve. 119 Fed.Appx., at 288. The Court
of Appeals failed to recognize that the problem
motivating the patentee may be only one of many
addressed by the patent's subject matter. The question is
not whether the combination was obvious to the patentee
but whether the combination was obvious to a person
with ordinary skill in the art. Under the correct analysis,
any need or problem known in the field of endeavor at
the time of invention and addressed by the patent can
provide a reason for combining the elements in the
manner claimed.
The second error of the Court of Appeals lay in its
assumption that a person of ordinary skill attempting to
solve a problem will be led only to those elements of
prior art designed to solve the same problem.
KSR, 127 S.Ct. at 1742, 82 USPQ2d at 1397. It is thus appropriate for the
Examiner to consider problems outside those considered by the patentee in
addressing whether it would have been obvious to one of ordinary skill in the art at
the time the invention was made to combine elements from different sources in the
prior art.

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ANALYSIS
A. Rejection of claims 17, 20, 21, 24, and 26 under 35 U.S.C. § 103(a) as
unpatentable over Heckman in view of Pepper.
The Examiner correctly found that Heckman discloses all of the claim
limitations of these claims except for 1) one or more side walls extending up from
the platform around a perimeter of a protected area, wherein the side walls are
adapted to prevent or substantially prevent windswept rain from passing through
the side walls and into the protected area from a lateral direction as required by
claims 17 and 21 (Heckman teaches side rails rather than walls); and 2) that the
moving means discloses a motor, a power source for the motor, and a pump and
one or more hydraulic cylinders as required in various combinations by claims 20,
24, and 26 (Answer 4-5, Finding of Fact 1-3). Pepper supplies the missing
limitations (Findings of Fact 4-5).
In the pre-KSR Briefs, the Appellant’s arguments in opposition to this
rejection boil down to 1) to an extensive discussion in favor of a strict application
of the teaching, suggestion, motivation test and challenging the Examiner’s stated
motivation (Answer 6) for replacing the side rails with side walls of preventing a
small child from falling through the rails of Heckman (Br. 13-22); and 2) an
argument that neither Heckman nor Pepper recognized the problem or solution
addressed by the present invention (Br. 22-25). Neither argument is persuasive.
First, KSR forecloses Appellant’s argument that a specific teaching is required for a
finding of obviousness. KSR, 127 S.Ct. at 1741, 82 USPQ2d at 1396. Second,
KSR makes clear that it is not necessary for the prior art to recognize the same
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problem and solution as the Appellant. KSR, 127 S.Ct. at 1742, 82 USPQ2d at
1397 (“Under the correct analysis, any need or problem known in the field of
endeavor at the time of invention and addressed by the patent can provide a reason
for combining the elements in the manner claimed”).
One of ordinary skill in the art would have been able to replace the side rails
of Heckman with the conventional side walls of Pepper using methods known in
the art at the time the invention was made. Moreover, each of the elements of
Heckman and Pepper combined by the Examiner performs the same function when
combined as it does in the prior art. Thus, such a combination would have yielded
predictable results. See Sakraida, 425 U.S. at 282, 189 USPQ at 453.
Claim 17 is a combination which only unites old elements with no change in
their respective functions and which yields predictable results. Thus, the claimed
subject matter likely would have been obvious under KSR. In addition, neither
Appellant’s Specification nor Appellant’s arguments present any evidence that the
replacement of side rails with side walls is uniquely challenging or difficult for one
of ordinary skill in the art. Moreover, the side walls of Pepper are a technique that
has been used to improve one device (the pontoon boat of Pepper), and one of
ordinary skill in the art would recognize that it would improve similar devices in
the same manner.
Because Appellant has not shown that the application of the Pepper side
walls to the pontoon boat of Heckman would have been beyond the skill of one of
ordinary skill in the art, we find using the technique would have been obvious.
Under those circumstances, the Examiner did not err in holding that it would have
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been obvious to one having ordinary skill in the art at the time the invention was
made to replace the side rails of Heckman with the side walls of Pepper to prevent
a small child from falling through the side rails (Answer 6). Because this is a case
where the improvement is no more than the predictable use of prior art elements
according to their established functions, no further analysis was required by the
Examiner. KSR, 127 S.Ct. at 1740, 82 USPQ2d at 1396. Claims 20, 21, 24, and
26 were not argued separately, and fall with claim 17. See 37 C.F.R.
§ 41.37(c)(1)(vii). See also In re Young, 927 F.2d 588, 590, 18 USPQ2d 1089,
1091 (Fed. Cir. 1991).
B. Rejection of claims 18 and 19 under 35 U.S.C. § 103(a) as unpatentable
over Heckman in view of Pepper and further in view of Faber.
The Examiner found that Heckman does not disclose the use of screw drive
motors to raise and lower the cover assembly (Answer 7). Faber supplies the
missing limitation (Finding of Fact 6).
Appellant argues that because Heckman teaches the advantages of using a
pneumatic lift to reduce the risk of releasing contaminating pollutants, one of
ordinary skill in the art would not be motivated to replace the pneumatic lift of
Heckman with the screw drive motors of Faber (Br. 26). This argument is not
persuasive. Appellant provides no reason why a screw drive motor would be more
likely than a pneumatic lift to release contaminating pollutants and we find none.
One of ordinary skill in the art would have been able to replace the
pneumatic actuators of Heckman with the screw drive motors of Faber using
methods known in the art at the time the invention was made. Moreover, each of
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the elements of Heckman, Pepper, and Faber combined by the Examiner performs
the same function when combined as it does in the prior art. Thus, such a
combination would have yielded predictable results. See Sakraida, 425 U.S. at
282, 189 USPQ at 453.
Claim 19 is a combination which only unites old elements with no change in
their respective functions and which yields predictable results. Thus, the claimed
subject matter likely would have been obvious under KSR. In addition, neither
Appellant’s Specification nor Appellant’s arguments present any evidence that the
substitution of screw drive motors for pneumatic actuators is uniquely challenging
or difficult for one of ordinary skill in the art. In fact, Faber teaches screw drive
motors as one possible alternative for a linear actuator that might be substituted for
either a hydraulic or pneumatic actuator (Finding of Fact 7). Moreover, the screw
drive motors of Faber are a technique that has been used to improve one device
(the lift mechanism of Faber), and one of ordinary skill in the art would recognize
that it would improve similar devices in the same manner.
Because Appellant has not shown that the application of the Faber screw
motors to the cover moving mechanism of Heckman would have been beyond the
skill of one of ordinary skill in the art, we find using the technique would have
been obvious. Under those circumstances, the Examiner did not err in holding that
it would have been obvious to one having ordinary skill in the art at the time the
invention was made to replace the pneumatic actuators of Heckman with the screw
drive motors of Faber to avoid the need of pneumatic circuits and switch means for
them, which may leak leading to inoperativeness of the device (Answer 7),
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particularly where the Examiner noted the interchangeability of the two types of
actuators taught by Faber (Answer 40). Because this is a case where the
improvement is no more than the predictable use of prior art elements according to
their established functions, no further analysis was required by the Examiner.
KSR, 127 S.Ct. at 1740, 82 USPQ2d at 1396. Claim 18 was not argued separately,
and falls with claim 19. See 37 C.F.R. § 41.37(c)(1)(vii). See also In re Young,
927 F.2d 588, 590, 18 USPQ2d 1089, 1091 (Fed. Cir. 1991).
C. Rejection of claims 22 and 23 under 35 U.S.C. § 103(a) as unpatentable
over Heckman in view of Pepper and further in view of Butler.
The Examiner found that Heckman does not disclose that the cover assembly
extends laterally out past the sidewalls and overlaps in a vertical direction a top
portion of one or more of the side walls (Answer 7). Butler teaches a sailboat
canopy apparatus adapted to provide a water-tight cover for the upper portion of an
access opening to an interior cabin, wherein the perimeter of the canopy extends
past and overlaps in a vertical direction with ledge 40 on the outer edge of the
access opening (Finding of Fact 7).
Appellant argues that the canopy of Butler only appears to cover part of the
access opening, and the upper portion of the access opening that it does cover does
not appear to extend laterally out to at least or laterally out past the side walls of
the sail boat (Br. 28-29). However, the Examiner relies on Heckman for a cover
that is coextensive with the side walls and only looks to Butler for the teaching to
extend a cover past and overlap in a vertical direction with the side walls, which is
analogous to the ledge on the outer edge of the access opening of Butler.
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One of ordinary skill in the art would have been able to extend the cover of
Heckman laterally out past the sidewalls and to overlap it in a vertical direction
with a top portion of one or more of the side walls as taught by Butler using
methods known in the art at the time the invention was made. Moreover, each of
the elements of Heckman, Pepper, and Butler combined by the Examiner performs
the same function when combined as it does in the prior art. Thus, such a
combination would have yielded predictable results. See Sakraida, 425 U.S. at
282, 189 USPQ at 453.
Claims 22 and 23 are combinations which only unite old elements with no
change in their respective functions and which yield predictable results. Thus, the
claimed subject matter likely would have been obvious under KSR. In addition,
neither Appellant’s Specification nor Appellant’s arguments present any evidence
that extending the cover of Heckman laterally out past the sidewalls (claims 22 and
23) and to overlap it in a vertical direction with a top portion of one or more of the
side walls (claim 23) is uniquely challenging or difficult for one of ordinary skill in
the art. Moreover, the canopy of Butler is a technique that has been used to
improve one device (the sailboat of Butler), and one of ordinary skill in the art
would recognize that it would improve similar devices in the same manner.
Because Appellant has not shown that extending the cover of Heckman
laterally out past the sidewalls and to overlap it in a vertical direction with a top
portion of one or more of the side walls would have been beyond the skill of one of
ordinary skill in the art, we find using the technique would have been obvious.
Under those circumstances, the Examiner did not err in holding that it would have
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been obvious to one having ordinary skill in the art at the time the invention was
made to do so to have the cover sit more securely on the side walls (Answer 7).
Because this is a case where the improvement is no more than the predictable use
of prior art elements according to their established functions, no further analysis
was required by the Examiner. KSR, 127 S.Ct. at 1740, 82 USPQ2d at 1396.
D. Rejection of claim 25 under 35 U.S.C. § 103(a) as unpatentable over
Heckman in view of Pepper and further in view of Oehler.
The Examiner found that Heckman does not teach that the moving means is
human powered (Answer 8). Oehler teaches a boat with a retractable roof that can
be raised and lowered by human power, facilitated by assist or counter-balance
means (Finding of Fact 8).
Appellant repeats the arguments made against the combination of Heckman
and Pepper with Faber, which are equally unpersuasive here. Appellant also
argues against the combination of Oehler and Heckman because they are
“substantially different systems” and it is difficult to see how the counter balance
means of Oehler could be applied to the cover of Heckman and still achieve the
straight up and down movement of Heckman (Br. 33). Because straight up and
down movement is not a limitation of claim 25, this argument is not persuasive.
For the same reasons as cited for the substitution of the screw drive motors
of Faber for the pneumatic actuators of Heckman, we find that the Examiner did
not err in holding that it would have been obvious to one having ordinary skill in
the art at the time the invention was made to replace the pneumatic actuators of
Heckman with the human-powered lifting mechanism of Oehler to save cost by not
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providing powered apparatus to raise and lower the cover and to provide springs to
assist raising the cover by manual power (Answer 8). We also note that Faber, not
relied on in this rejection but relevant to the knowledge of one of ordinary skill in
the art at the time the invention was made, teaches the interchangeability of various
hand-powered actuating units for either hydraulic or pneumatic actuators (Finding
of Fact 6). Because this is a case where the improvement is no more than the
predictable use of prior art elements according to their established functions, no
further analysis was required by the Examiner. KSR, 127 S.Ct. at 1740, 82
USPQ2d at 1396.

CONCLUSIONS
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 17-26 under 35 U.S.C. § 103(a).

DECISION
The decision of the Examiner to reject claims 17-26 under 35 U.S.C.
§ 103(a) is affirmed.
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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) (2006).

AFFIRMED

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