Ex Parte Wyse

Board of Patent Appeals and Interferences

Oct 18, 2010

11031698 (B.P.A.I. Oct. 18, 2010)

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.
11/031,698 01/07/2005 Gene Wyse 1-16889 1492
1678 7590 10/18/2010
MARSHALL & MELHORN, LLC
FOUR SEAGATE - EIGHTH FLOOR
TOLEDO, OH 43604
EXAMINER
MEYER, KATY E
ART UNIT PAPER NUMBER
3618
MAIL DATE DELIVERY MODE
10/18/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GENE WYSE
____________

Appeal 2009-008440
Application 11/031,698
Technology Center 3600
____________

Before: LINDA E. HORNER, JENNIFER D. BAHR, and
STEVEN D.A. MCCARTHY, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-008440
Application 11/031,698
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STATEMENT OF THE CASE
Gene Wyse (Appellant) seeks our review under 35 U.S.C. § 134 of the
Examiner’s decision rejecting claims 1-13, which are all of the pending
claims. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
THE INVENTION
Appellant’s claimed invention relates to a hand cart with a rotatable
handle for use in dislodging the load of the hand cart. Spec. 1, para. [0002].
Claim 1, reproduced below, is representative of the subject matter on appeal.
1. A method of dislodging a load from a load bearing member
of a hand cart, wherein the cart comprises a body which
comprises an upright structure with a load bearing member
extending from a lower portion of the upright structure, first
and second wheels rotatably connected to the body, a fixed
handle and a rotatable handle to assist a user in unloading the
cart, the rotatable handle being rotatably connected to the
upright structure of the cart and being configured to be operated
by a user’s hand, the rotatable handle being located between the
fixed handle and the load bearing member, the method
comprising:
rotating the rotatably mounted handle and applying force
to the rotatably mounted handle in a first direction; and
applying force to the fixed handle in a second direction
generally opposite said first direction to tilt the cart to dislodge
the load from the load bearing member, wherein the upright
structure is displaced to a non-perpendicular position relative to
the ground.
THE REJECTION
Appellant seeks review of the Examiner’s rejection of claims 1-13
under 35 U.S.C. § 103(a) as unpatentable over Gottinger (US 3,486,651,
issued Dec. 30, 1969) and Hill (US 4,226,434, issued Oct. 7, 1980).

Appeal 2009-008440
Application 11/031,698
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ISSUES
The issues presented by this appeal are:
1. Would the proposed combination of Gottinger and either the knowledge
of an artisan or Hill have led a person of ordinary skill in the art to the
subject matter of independent claim 1?
2. Is the rejection of claim 2 based upon a sufficient reason with a rational
underpinning to explain why a person of ordinary skill in the art would have
modified Gottinger’s method to include tilting the cart so that at least a
portion of the load bearing member loses contact with the ground, as taught
by the knowledge of an artisan or Hill?
3. Would Gottinger’s pushing roller assembly preclude tilting the cart so
that at least a portion of the load bearing member loses contact with the
ground?
ANALYSIS
Claims 1 and 12
Appellant argues claims 1 and 12 as a group. Br. 11-14. We select
independent claim 1 as the representative claim, and claim 12 stands or falls
with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
Independent claim 1 is a method of dislodging a load from a load
bearing member of a hand cart. The method is comprised of the steps of:
(1) rotating the rotatably mounted handle and applying force to the handle in
a first direction; and (2) applying force to the fixed handle in a second
direction generally opposite the first direction, thus tilting the cart to
dislodge the load from the load bearing member so that the upright structure
of the cart body is displaced to a non-perpendicular position relative to the
ground. Similarly, Appellant’s Specification describes that to unload cart
10, a user places one hand on fixed handle 20 and the other hand on
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rotatable handle 22, and then presses handle 20 forward (direction D1) while
pulling rotatable handle 22 backward (direction D2), which forces the top of
cart 10 forward, and causes the load to slide forward from the load bearing
member 14 (direction D3). Spec. 5, para. [0017]; fig. 2.
The Examiner found that Gottinger discloses the method as claimed,
except that Gottinger does not explicitly disclose tilting the cart to dislodge
the load from the load bearing member so that the upright structure of the
cart body is displaced to a non-perpendicular position relative to the ground.
Ans. 3-4. The Examiner found that the practice of tilting a hand cart
forward by applying a force to an upper portion of the cart to dislodge the
load from the load bearing member so that the upright structure of the cart
body is displaced to a non-perpendicular position relative to the ground was
both well known in the art and disclosed by Hill. Ans. 5. The Examiner
concluded it would have been obvious to modify Gottinger’s method to
include tilting the cart to dislodge the load from the load bearing member so
that the upright structure of the cart body is displaced to a non-perpendicular
position relative to the ground in order to provide assistance in unloading the
cart. Ans. 5-6.
Appellant contends that Hill does not cure Gottinger’s lack of
disclosure of the method of claim 1 because: (1) Hill’s only reference to
unloading the hand cart is the indication in the summary of the invention that
the cart may be pivoted forwards or backwards to unload the cart, and
(2) there “is no indication in Hill to use a second handle to provide
mechanical assistance to pivot the cart.” Br. 12-13.
We find that Hill’s reference to dislodging a load from a hand cart by
pivoting the frame forward by applying force to the upper fixed handle (see
Hill, col. 2, ll. 10-14) supports the Examiner’s finding that Hill discloses it
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Application 11/031,698
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was desirable in the art to dislodge a load from a hand cart by pivoting the
frame of the hand cart forward by applying force to an upper fixed handle 12
(Ans. 5). Hill’s lack of disclosure of use of a second handle is irrelevant
because the rejection relies upon Gottinger for this disclosure. Ans. 3.
Appellant also does not contest the Examiner’s finding that the
practice of tilting the cart to dislodge the load from the load bearing member
so that the upright structure of the cart body is displaced to a non-
perpendicular position relative to the ground was well known in the art.
Thus, we accept the Examiner’s finding as to the knowledge of a person of
ordinary skill in the art at the time of Appellant’s invention. Ex Parte Frye,
94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (citing to Hyatt v.
Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir. 2008) for the proposition that the
Board may treat arguments appellant failed to make as waived).
Appellant contends a person of ordinary skill in the art would not
“look beyond the Gottinger reference to unload the cart, when the Gottinger
reference already includes means (the rollers) and a method of using them to
unload the cart.” Br. 13. Given our findings, supra, that tilting the cart to
dislodge the load from the load bearing member so that the upright structure
of the cart body is displaced to a non-perpendicular position relative to the
ground was well known in the art and is disclosed by Hill, the Examiner’s
conclusion (Ans. 5-6) that it would have been obvious to modify Gottinger’s
method to include such tilting of the cart in order to further facilitate
unloading the cart is reasonable. Appellant has not provided a convincing
explanation of why a person of ordinary skill would be led away from using
the tilting technique to improve Gottinger’s method.
For these reasons, we affirm the rejection of claim 1, and claim 12
falls with claim 1.
Appeal 2009-008440
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Claims 2-6
Appellant argues claims 2-6 as a group. Br. 14-15. We select claim 2
as the representative claim, and claims 3-6 stand or fall with claim 2. See 37
C.F.R. § 41.37(c)(1)(vii).
Independent claim 2 is similar to independent claim 1 in that it is a
method of dislodging a load from a load bearing member of a hand cart.
With regard to the limitation at issue, claim 2 differs from claim 1 in that
claim 1 calls for tilting the cart to a non-perpendicular position relative to the
ground, while claim 2 calls for at least a portion of the load bearing member
to lose contact with the ground.
We found in the analysis of claim 1, supra, that the practice of tilting
the cart to dislodge the load from the load bearing member so that the
upright structure of the cart body is displaced to a non-perpendicular
position relative to the ground was both well known in the art and disclosed
by Hill. See Ans. 5. Appellant admits that such tilting of the cart results in
at least a portion of the load bearing member losing contact with the ground.
Br. 8. Thus, we find that the knowledge of an artisan and the disclosure of
Hill each disclose that tilting the cart to a non-perpendicular position relative
to the ground results in at least a portion of the load bearing member losing
contact with the ground for dislodging a load from a load bearing member.
Appellant argues that nothing in Gottinger or Hill suggests their
combination. Br. 14-15. This contention fails to address the Examiner’s
conclusion (Ans. 3-6) that the subject matter of claim 2 would have been
obvious in view of Gottinger and the knowledge of a person of ordinary skill
in the art. Further, Appellant has not addressed the Examiner’s rationale for
the proposed combination of Gottinger and Hill, namely that it would have
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Application 11/031,698
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been obvious to modify Gottinger’s method to include tilting the cart as
taught by Hill in order to further facilitate unloading the cart. Ans. 5-6.
Appellant’s argument that Gottinger does not suggest that any part of
the load bearing member loses contact with the ground (Br. 14) is
unconvincing in that the rejection relies upon either Hill, or the knowledge
of a person of ordinary skill in the art for this limitation (Ans. 5).
Appellant contends that the pushing roller assembly of Gottinger
would preclude any portion of the load bearing member losing contact with
the ground. Br. 14. We are unpersuaded by this assertion. Appellant
provides no supporting citation to the reference and fails to explain how
Gottinger’s device precludes such motion. The force applied to Gottinger’s
lever 20 will produce torque that tends to resist tilting the cart forward of
perpendicular. However, if greater torque is produced by a forward force
applied to a second portion of the handcart (handle portion 17) in order to tilt
the cart, as taught by the knowledge of an artisan and Hill, such force would
tend to tilt the cart forward of perpendicular, and thus cause at least a portion
of the load bearing member (horizontally extending platform 12) to lose
contact with the ground. We fail to see, and Appellant has failed to
adequately articulate, how any feature of Gottinger’s pushing rolling
assembly (rollers 30 at the end of each leg member 26 of U-shaped lever 20)
would preclude the load bearing member (horizontally extending platform
12), from losing contact with the ground when such a tilting force is applied.
See Gottinger, col. 2, ll. 14-15, 17-18, 22, 32-33.
Appellant contends that the proposed combination is not obvious
because the references have been known for a significant period of time. Br.
15. We agree with the Examiner (Ans. 7), that the passage of time, without
more, fails to demonstrate the non-obviousness of the claimed invention.
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See In re Wright, 569 F. 2d 1124, 1127 ( CCPA 1977) (Establishing non-
obviousness from the failure of others to invent the claimed subject matter
requires “evidence that, notwithstanding knowledge of the references, the art
tried and failed to solve the problem.” (citations omitted)); see also, In re
Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (“‘Absent a showing of long-felt
need or the failure of others, the mere passage of time without the claimed
invention is not evidence of nonobviousness.’” (quoting Iron Grip Barbell
Co. v. USA Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir. 2004))).
Given this, we sustain the rejection of claim 2. Claims 3-6 fall with
claim 2.
Claims 7-11 and 13
Appellant argues claims 7-11 and 13 as a group. Br. 15-16. We
select claim 7 as the representative claim, and claims 8-11 and 13 stand or
fall with claim 7. See 37 C.F.R. § 41.37(c)(1)(vii).
Similar to independent claim 1, independent claim 7 is also directed to
a method of dislodging a load from a load bearing member of a hand cart.
Claim 7 differs from claim 1 in that claim 7 includes the limitation to “pull
the load bearing member of the hand cart away from the load, thus
dislodging the load from the hand cart.”
The Examiner concluded that the subject matter of claim 7 would
have been obvious in view of Gottinger and either the knowledge of a person
of ordinary skill in the art or Hill. Ans. 4, 7.
Appellant repeats the argument against the rejection of claim 1 that
Gottinger removes the load with pushing rollers, “thus preventing any
suggestion to rotate the upright structure away from parallel.” Br. 16. We
find nothing in claim 7 warranting deviation from our analysis of this
argument in the rejection of claim 1, supra.
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Application 11/031,698
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Appellant argues that “nothing in Gottinger suggests rotating the
upright structure away from perpendicular to the ground.” Br. 16. This
contention is unpersuasive because the rejection relies upon either the
disclosure of Hill or the knowledge of an artisan for disclosing tilting the
upright structure of the cart (Ans. 5).
Appellant repeats the argument that the proposed combination is not
obvious because the references have been known for a significant period of
time. Br. 16. For the reasons explained in the analysis of independent claim
2, supra, that argument is unconvincing here as well.
We affirm the rejection of claim 7. Claims 8-11 and 13 fall with
claim 7.
CONCLUSIONS
The proposed combination of Gottinger and either the knowledge of
an artisan or Hill would have led a person of ordinary skill in the art to the
subject matter of independent claim 1.
The rejection of claim 2 is based upon a sufficient reason with a
rational underpinning to explain why a person of ordinary skill in the art
would have modified Gottinger’s method to include tilting the cart so that at
least a portion of the load bearing member loses contact with the ground, as
taught by the knowledge of an artisan or Hill.
Gottinger’s pushing roller assembly would not preclude tilting the cart
so that at least a portion of the load bearing member loses contact with the
ground, as taught by the knowledge of an artisan or Hill.
DECISION
We AFFIRM the Examiner’s decision to reject claims 1-13.

Appeal 2009-008440
Application 11/031,698
10
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).

AFFIRMED

nlk

MARSHALL & MELHORN, LLC
FOUR SEAGATE - EIGHTH FLOOR
TOLEDO OH 43604