Ex Parte Whiteside

Board of Patent Appeals and Interferences

Dec 15, 2006

09780603 (B.P.A.I. Dec. 15, 2006)

The opinion in support of the decision being entered today was not written
for publication in and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
___________

Ex parte KIRT E. WHITESIDE
___________

Appeal No. 2006-1059
Application No. 09/780,603
Technology Center 3600
___________

ON BRIEF
___________

Before FRANKFORT, BAHR, and LEVY, Administrative Patent Judges.
FRANKFORT, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal from the examiner's final

rejection of claims 1 through 5. Claims 7 through 13 and 16

through 19, the only other claims remaining in the application,

stand allowed. Claims 6, 14 and 15 have been cancelled.

Appellant’s invention relates to mechanic’s creepers and,
more specifically, to a mechanic’s creeper having improved
Appeal Number: 2006-1059
Application Number: 09/780,603

mobility due to a unique wheel design that decreases friction
between the wheels and the work surface on which the creeper
is used. Claim 1, the sole independent claim on appeal, is
representative of the subject matter on appeal and a copy of
that claim can be found in the Claims Appendix of appellant’s
brief.

The prior art references relied upon by the examiner in
rejecting the appealed claims are:
Block 4,034,434 July 12, 1977
Bonzer et al. (Bonzer) 4,559,669 Dec. 24, 1985
Doyle et al. (Doyle) 4,707,880 Nov. 24, 1987
Miles et al. (Miles) 5,895,062 Apr. 20, 1999

Claims 1 through 3 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Miles in view of Bonzer and Block.

Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Miles in view of Bonzer and Block, as
applied above, and further in view of Doyle.

Rather than reiterate the examiner's statement of the
above-noted rejections and the conflicting viewpoints advanced
by the examiner and appellant regarding those rejections, we
make reference to the answer (mailed April 20, 2005) for the
examiner's reasoning in support of the rejections, and to
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Appeal Number: 2006-1059
Application Number: 09/780,603

appellant’s brief (filed February 2, 2005) and reply brief
(filed June 10, 2005) for the arguments thereagainst.

OPINION

In reaching our decision in this appeal, we have given
careful consideration to appellant’s specification and claims,
to the applied prior art references, and to the respective
positions articulated by appellant and the examiner. As a
consequence of our review, we have made the determination that
the obviousness rejections put forth by the examiner will not be
sustained. Our reasons follow.

Appellant’s principal argument is that the combination of
Miles, Bonzer and Block applied by the examiner against claims 1
through 3 does not teach or suggest a creeper including wheels
having a wheel body with a hemispherical or semi-elliptical
cross-section wherein the wheel body is formed of a material
having a hardness ranging from about 65 to 85 on the Shore D
durometer scale, thereby providing a hardness level such that,
when used on a work surface, the shape of said wheel body
remains substantially unchanged. We agree with appellant.

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Appeal Number: 2006-1059
Application Number: 09/780,603

Miles teaches a foldable mechanic’s creeper having the
basic structure set forth in claim 1 on appeal including a
plurality of casters (8-11) affixed to the frame of the creeper,
with each of said casters including a wheel. However, as
recognized by the examiner, Miles does not disclose wheels of
the particular configuration claimed or formed of a material
having a hardness level like that set forth in the claims on
appeal.

Bonzer addresses a shock resistant caster for use in
moving highly sensitive pieces of equipment, such as a delicate
computer or other similar electronic or electrical device
(col. 1, lines 34-39). Each of the casters in Bonzer includes
a cushioning block (19) that resists deflection of the movable
wheel carrying part (17) and a wheel (18) for engaging a floor
surface (12). As can be seen in Figure 2, the wheel (18) has an
annular peripheral tire portion (69) formed of a resiliently
deformable elastomeric material, e.g., neoprene rubber, and an
inner core portion (80) formed of a rigid material containing
and bonded to a rigid tubular bearing element (45). See column
3, lines 47-53 of Bonzer. In column 5, lines 15-17, it is noted
that the material of the cushioning block (19) is desirably
“substantially harder than the material of portion 69 of the
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Appeal Number: 2006-1059
Application Number: 09/780,603

wheel.” Bonzer goes on to note (col. 5, lines 24-27) that the
Shore hardness of wheel portion (69) is preferably between about
50 and 70 on the A scale, while the hardness of cushion block
(19) is preferably between about 70 and 95 on the A scale. The
examiner has taken the position that Bonzer discloses a caster
wheel body (Fig. 2) having a hemispherical or semi-elliptical
cross-section.

The examiner has further urged that it would have been
obvious to one of ordinary skill in the art at the time of
appellant’s invention to provide the creeper of Miles with the
caster assembly of Bonzer, and appellant has not challenged that
combination with any reasonable degree of specificity. The
examiner then recognizes that such a combination of Miles and
Bonzer still does not address appellant’s claim 1 requirement
regarding the hardness of the wheel body, and turns to Block for
such a teaching (answer, page 4).

Block discloses a roller-type dust seal (40) on the rear of
a dust receiving bin (22) of a brush-type sweeper (10). As
noted in column 2, lines 54-57, and shown in Figures 2 and 3,
the roller seal (40) includes a plurality of hollow, generally
cylindrical roller segments (42) rotatably supported in an
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Appeal Number: 2006-1059
Application Number: 09/780,603

abutting relationship on a transversely extending axle (44). As
noted in column 3, lines 33+, each roller segment is formed in
two concentric portions, a soft outer portion (64) and a hard
inner portion (66), which portions provide a relatively hard,
friction reducing surface at each roller segment’s inner
periphery contacting the base (46) of axle (44) and a relatively
soft surface at its outer periphery that increases frictional
contact between the roller and the surface to be cleaned so as
to ensure rolling action of each segment of the dust seal when
polished floors are swept. Block goes on to note that the inner
core portion (66) is formed of a rigid vinyl material having a
Shore D hardness of 65-75, while the outer portion (64) is
formed of a softer vinyl material having a Shore A hardness of
40-50 (col. 3, lines 64-68).

From the teachings of Block, the examiner contends that it
would have been obvious to one of ordinary skill in the art at
the time of appellant’s invention to have designed the wheel
assemblies on the creeper of Miles, as modified by Bonzer, with
a hardness of 65-75 Shore D, as taught by Block, in order to
prevent wear.

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Appeal Number: 2006-1059
Application Number: 09/780,603

For the reasons set forth on pages 6-8 of the brief and in
the reply brief, we agree with appellant that the patents to
Miles, Bonzer and Block, whether considered individually or
collectively, do not teach or suggest a creeper assembly like
that defined in claim 1 on appeal. Miles makes no comment
concerning the construction of the caster wheels therein. Both
Bonzer and Block teach having wheels or rollers that have a
soft, resiliently deformable outer portion and a rigid inner
portion. Nothing in the applied prior art teaches a caster
wheel having a wheel body with a floor contacting portion having
a hemispherical or semi-elliptical cross-section wherein the
wheel body is formed of a material having a hardness ranging
from about 65 to 85 on the Shore D scale, thereby providing a
hardness level such that, when used on a work surface, the shape
of said wheel body remains substantially unchanged, as required
in appellant’s claim 1.

For the above reasons, we find that the examiner has failed
to establish a prima facie case of obviousness. Thus, the
rejection of claims 1 through 3 under 35 U.S.C. 103(a) will not
be sustained.

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Appeal Number: 2006-1059
Application Number: 09/780,603

As for the rejection of claims 4 and 5 under 35 U.S.C.
103(a) based on Miles in view of Bonzer and Block, taken further
in view of Doyle, we agree with appellant’s assessment set forth
in the brief (pages 8-9). Simply stated, there is nothing in
Doyle that provides for or otherwise overcomes the deficiencies
noted above in the basic combination to Miles, Bonzer and Block.
Thus, we will not sustain the examiner’s rejection of dependent
claims 4 and 5 under 35 U.S.C. § 103(a).
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Appeal Number: 2006-1059
Application Number: 09/780,603

Since we have refused to sustain either of the rejections
on appeal, it follows that the decision of the examiner is
reversed.
REVERSED

CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JENNIFER D. BAHR ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
STUART S. LEVY )
Administrative Patent Judge )

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Appeal Number: 2006-1059
Application Number: 09/780,603
Edward G. Greive
Renner, Kenner, Greive, Bobak, Taylor & Weber
Fourth Floor
First National Tower
Akron, OH 44308-1456

AWF/jrg

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