Ex Parte Woller

Board of Patent Appeals and Interferences

Jul 24, 2006

10426550 (B.P.A.I. Jul. 24, 2006)

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1The opinion in support of the decision being entered today was not written for publication and is not binding
precedent of the Board

UNITED STATES PATENT AND TRADEMARK OFFICE

_______________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

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Ex parte RONALD R. WOLLER

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Appeal No. 2006-0903
Application 10/426,550
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ON BRIEF
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Before OWENS, CRAWFORD and FETTING, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal is from a rejection of claims 1-19, which are all of the pending claims.
THE INVENTION
The appellant claims a modular ladder for climbing trees or poles. Claim 1 is
illustrative:
A modular ladder for mounting to a tree or pole, comprising:
a plurality of separate sections adapted to be mounted to the tree or pole,
each of the plurality of separate sections including a first step, a second step, a frame
extending between the first and second steps and spacing the first and
second steps apart from on another, and a flexible mounting element for securing the frame
to the tree or pole, and wherein the steps project radially outwardly from the tree or pole
when mounted thereto.
Appeal No. 2006-0903
Application 10/426,550

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THE REFERENCES

Grimes 5,277,273 Jan. 11, 1994
Jenkins, Jr. 5,816,362 Oct. 6, 1998 Morris 6,138,792
Oct. 31, 2000
Dech 6,170,609 Jan. 9, 2001
THE REJECTIONS
The claims stand rejected as follows: claims 1-5, 12-14 and 18 under 35
U.S.C. § 102(b) as anticipated by Morris; claims 1, 2, 4 and 5 under 35 U.S.C. § 102(b) as
anticipated by Jenkins, Jr.; claims 6-10, 15-17 and 19 under 35 U.S.C. § 103 as obvious
over Morris; and claim 11 under 35 U.S.C. § 103 as obvious over either Morris in view of
Grimes, or Jenkins, Jr. in view of Dech.1
OPINION
Rejection of claims 1-5, 12-14 and 18
under 35 U.S.C. § 102(b) over Morris

1 A rejection of claims 1-11 and 13 under 35 U.S.C. § 112, second paragraph,
in the final rejection (page 2) is not included in the examiner’s answer. We
consider this rejection to be withdrawn.
Morris discloses a modular tree ladder comprising longitudinal
members (1A, 1B) connected to transverse members (3) that comprise
rung and transverse portions and preferably have “pi” shaped cross
sections (col. 1, lines 6-8; col. 3, lines 29-31 and 60-61; col. 4,
lines 59-62). The transverse portions (3A, 3B) “extend in a
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Application 10/426,550

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substantially perpendicular direction from the rung portion and the
longitudinal member” (col. 4, lines 18-19), and are “adapted to
contact the tree or other object to be climbed, and should extend a
sufficient distance from the rung portion and longitudinal member to
provide enough clearance between the segment and the tree to allow
for the front of a climber’s boot to extend towards the tree beyond
the rung portion” (col. 4, lines 20-25).
Regarding claim 1 the appellant argues: “Morris does not
disclose, teach or suggest a modular ladder having steps that
project radially outward from the tree or pole when mounted thereto.
Instead, Morris teaches steps that are horizontal rungs that have
separate transverse members that extend toward the tree to space the
ladder from the tree” (brief, page 6). The appellant argues as
though Morris’ horizontal rungs are the steps and the transverse
portions are separate from the steps. Actually, Morris’ transverse
members (3) are one piece comprising rung and transverse portions
(col. 4, lines 15-19; figure 8). The transverse members correspond
to the appellant’s steps, and the transverse portions of the
transverse members project radially outwardly from the tree (figure
1).
We therefore find that the modular ladder claimed in claim 1 is
anticipated by Morris. Accordingly, we affirm the rejection under
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Application 10/426,550

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35 U.S.C. § 102(b) over Morris of that claim and its dependent
claims 2-5 that are not separately argued (brief, page 6).
Claim 12 requires that “the steps each have a slot permitting
the nesting of the sections for storage and transport.”
The appellant argues: “Morris does not disclose, teach, or
suggest steps that each have a slot therein for permitting nesting
of the sections for storage and transport. Rather, Morris teaches
that the rungs, together with transverse members 3, form a channel
for nesting separate sections of the ladder” (brief, page 7).
Morris’ rungs are part of transverse members 3, which also include
transverse portions (3A, 3B) (col. 4, lines 15-19; figure 8).
Between the transverse portions is an opening, which reasonably can
be called a slot, that permits the sections of the modular ladder to
be nested (col. 7, lines 52-53; figure 8).
Hence, we affirm the rejection under 35 U.S.C. § 102(b) over
Morris of claim 12 and its dependent claims 13, 14 and 18 that are
not separately argued (brief, page 7).
Rejection of claims 1, 2, 4 and 5
under 35 U.S.C. § 102(b) over Jenkins, Jr.
Jenkins, Jr. discloses a modular ladder comprising a support
member (2) attached to steps (3, 5) having standoff members 15 (col.
3, lines 54-55; col. 4, lines 9-13; figure 1). The standoff members
“serve to space the ladder module 1 away from the tree to allow the
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Application 10/426,550

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climber to place the arch of his boot directly over the steps 3,4,5”
(col. 4, lines 16-19).
The appellant argues: “Jenkins does not disclose, teach, or
suggest a modular ladder having steps that project radially
outwardly from the tree or pole when mounted thereto. Instead,
Jenkins teaches steps that are horizontal rungs with separate
standoff members 15 that extend toward the tree” (brief, page 8).
Morris’s standoff members (15) are part of the steps and extend
radially outwardly from the tree (col. 3, line 66 – col. 4, line 16;
figure 8).
We therefore affirm the rejection under 35 U.S.C. § 102(b) over
Jenkins, Jr. of claim 1 and its dependent claims 2, 4 and 5 that are
not separately argued (brief, page 8).
Rejection of claims 6-10, 15-17 and 19
under 35 U.S.C. § 103 over Morris
The appellant does not separately argue claims 6-10, which
depend from claim 1, or claims 15-17 and 19, which depend from claim
12 (brief, page 9). Consequently, we affirm the rejection of those
claims over Morris for the reasons given above regarding the

rejection of claims 1 and 12 over that reference.
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Rejection of claim 11 under 35 U.S.C. § 103
over Morris in view of Grimes
Claim 11 requires that “the frame includes at least one loop
securely mounted thereto for attaching the flexible mounting
element.
Grimes discloses a tree climbing ladder having, affixed to
longitudinal members (12, 14), eyelets (44) for attaching a flexible
device such as a rope, cable or chain to the ladder to hold it
against a tree (col. 4, lines 47-56).
The appellant argues: “Grimes merely shows a loop of rope
attached at either a hook or an eyelet; Grimes does not disclose,
teach, or suggest a loop securely mounted thereto” (brief, pages 10-
11). Grimes’ eyelet (44) is a loop, and is mounted to the ladder’s
frame (col. 4, lines 47-55; figure 2). Grimes’ disclosure that the
eyelet is for tightly holding the ladder to a tree, see id., at
least would have fairly suggested, to one of ordinary skill in the
art, mounting the eyelet to the frame securely so that the ladder
does not come loose from the tree.
Accordingly, we affirm the rejection of claim 11 under
35 U.S.C. § 103 over Morris in view of Grimes.
Rejection of claim 11 under 35 U.S.C. § 103
over Jenkins, Jr. in view of Dech
Dech discloses a ladder (86) having at least one vertically
extending bar (88) with eyelets to which a strap (182) is removably
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Application 10/426,550

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attached to hold the bar against a tree (col. 5, lines 63-64; col.
7, lines 22-26; figure 7).
The appellant argues: “Dech does not show a loop securely
mounted to the frame, but rather Dech merely shows a triangular
fastener attached at the ends of a flexible member for attaching the
flexible mounting member to the frame. Dech does not disclose,
teach, or suggest a loop securely mounted thereto” (brief, page 11).
Dech’s disclosure of an eyelet attached to a vertically extending
bar of a ladder for holding the ladder to a tree at least would have
fairly suggested, to one of ordinary skill in the art, securely
mounting the eyelet to the bar so that the ladder does not come
loose from the tree.
Therefore, we affirm the rejection of claim 11 under
35 U.S.C. § 103 over Jenkins, Jr. in view of Dech.
DECISION
The rejections of claims 1-5, 12-14 and 18 under
35 U.S.C. § 102(b) over Morris, claims 1, 2, 4 and 5 under
35 U.S.C. § 102(b) over Jenkins, Jr., claims 6-10, 15-17 and 19
under 35 U.S.C. § 103 over Morris, claim 11 under 35 U.S.C. § 103
over Morris in view of Grimes, and claim 11 under 35 U.S.C. § 103
over Jenkins, Jr. in view of Dech, are affirmed.

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No time period for taking any subsequent action in connection
with this appeal may be extended under 37 CFR § 1.136(a)(1)iv).
AFFIRMED

TERRY J. OWENS ) Administrative Patent
Judge )
)
)
)
MURRIEL E. CRAWFORD ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS
) AND
) INTERFERENCES
)
ANTON W. FETTING )
Administrative Patent Judge )

TJO/lg

Appeal No. 2006-0903
Application 10/426,550

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