Ex Parte Wyse

Patent Trial and Appeal Board

May 4, 2015

12971805 (P.T.A.B. May. 4, 2015)

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.
12/971,805 12/17/2010 Gene Wyse 1-21037 8696
1678 7590 05/04/2015
MARSHALL & MELHORN, LLC
FOUR SEAGATE - EIGHTH FLOOR
TOLEDO, OH 43604
EXAMINER
EBNER, KATY MEYER
ART UNIT PAPER NUMBER
3618
MAIL DATE DELIVERY MODE
05/04/2015 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 GENE WYSE
____________

Appeal 2013-004929
Application 12/971,805
Technology Center 3600
____________

Before JENNIFER D. BAHR, JILL D. HILL, and ERIC C. JESCHKE,
Administrative Patent Judges.

JESCHKE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1–16. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The disclosed subject matter “relates to a hand operated system for
assisting in unloading a hand cart.” Spec. 1, ¶ 2. Independent claim 1,
shown below with emphasis added, is illustrative of the claims on appeal:
1. A hand cart for moving objects, said cart
comprising:
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a body comprising an upright structure with
a load-bearing member extending from a lower
portion of said upright structure, said load bearing
member being held in fixed position relative to
said upright member;
first and second wheels rotatably connected
to said body;
a rotatable handle to assist a user in
unloading the cart, said rotatable handle being
rotatably connected to the upright structure of the
cart, forming an axis of rotation where said handle
is connected to said upright structure;
said rotatable handle being configured to be
operated by a user's hand; and
said rotatable handle comprising a spring
assist mechanism,
wherein said rotatable handle is configured
to be urged by said spring mechanism into
substantial alignment with said upright structure of
said body, and
said rotatable handle is configured so that a
user can apply force to the upright structure with
one hand and apply force, in a substantially
opposing direction, to the rotatable handle with the
other hand to dislodge the load bearing member
from beneath a load, wherein said upright member
pivots away from the user about said axis of
rotation.

EVIDENCE RELIED ON BY THE EXAMINER
Gottinger US 3,486,651 Dec. 30, 1969
Hill US 4,226,434 Oct. 7, 1980
Layne US 5,599,156 Feb. 4, 1997

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REJECTIONS ON APPEAL
1. Claims 1–11 are rejected under 35 U.S.C. § 102(b) as
anticipated by Layne.
2. Claims 12–16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gottinger and Hill.

ANALYSIS
Rejection 1 – The rejection of claims
1–11 under 35 U.S.C. § 102(b)
A. Independent Claim 1
Appellant argues independent claim 1, stating that dependent claims
2–9 stand or fall together with claim 1. Appeal Br. 13.1
First, Appellant contends that, in Layne, “the upright portion and the
load bearing member are not fixed relative to each other” as recited in the
first clause of claim 1 (shown with emphasis above). Id. at 14. According
to Appellant, “when unloading, the load bearing member of Layne stays in a
relatively fixed position relative to the ground, wherein the upright member
is displaced to use the push plate to push the load off of the load bearing
member.” Id. Appellant argues that, in Layne, “a pivoting action of the
upright portion relative to the load bearing member is required to displace
the load.” Id.

1 Appellant states that “[c]laims 1–9 and 12 stand or fall together and
will be argued collectively herein, in particular with regard to independent
claim 1” and also that “[c]laims 12–16 stand or fall together and will be
argued collectively herein, in particular with regard to independent claim
12.” Appeal Br. 13. Because claim 12 is, like claim 1, an independent
claim, we view as a typographical error the inclusion of claim 12 in the first
of these two sentences.
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The Examiner responds that, in the arguments above, Appellant
appears to refer to rotatable handle 12 of Layne as if it had been identified as
the recited “upright member.” Ans. 2.2 The Examiner states that “the
upright member (102) disclosed by Layne . . . is fixed to the load bearing
member (column 4, lines 16–21).” Id.
We are not persuaded by Appellant’s first argument because it is not
commensurate in scope with the rejection. The Examiner has consistently
identified upright frame 102 in Layne as the “upright member” recited in the
limitation at issue. See Ans. 2; Final Act. 2 (mailed Dec. 15, 2011). In
addition, the Examiner has consistently identified Layne’s load-carrying
platform 112 as the “load bearing member” recited in the limitation at issue.
See Ans. 2; Final Act. 2. In contrast, here, Appellant demonstrates why U-
shaped handle 12 and platform 112 are not “held in fixed position relative
to” each other. Because Appellant does not address the rejection as made,
we find no error in the Examiner’s findings or conclusions as to this
limitation.
Second, Appellant argues that the present invention and the device in
Layne are used differently because the present invention requires “that the
upright portion is pivoted away from the user.” Appeal Br. 14.3 Appellant
argues that, in the present invention, “moving the upright portion results in
displacement of the load bearing member from beneath the load” whereas, in

2 The Examiner notes that claim 1 recites both “upright member” and
“upright structure.” Ans. 2; see also Appeal Br. 20 (Claims App.). Like the
Examiner, we consider these terms to refer to the same element.
3 Although Appellant does not expressly set forth the claim language
at issue, we understand Appellant’s statement to relate to the last phrase in
the final clause of claim 1, shown with emphasis above.
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Layne, the motion of handle 12 “towards the operator allows the push plate
to push the load from the load bearing member.” Id.
The Examiner responds that because Layne “disclose[s] a handcart
structure which is identical to the claimed structure, the structure disclosed
by Layne . . . is inherently capable of being used as claimed.” Ans. 3. The
Examiner finds that Layne teaches applying force to the handgrip on the
upright member and to the rotatable handle. Id. (citing Layne, col. 3, ll. 31–
34; id., col. 4, ll. 25–27).
We are not persuaded by Appellant’s second argument for the reasons
set forth by the Examiner. Here, Appellant has not demonstrated error in the
Examiner’s findings regarding Layne.
For the reasons set forth above, we sustain the decision to reject
independent claim 1, and claims 2–8 falling with claim 1, as unpatentable
over the combined teachings of the prior art relied upon by the Examiner.
B. Independent Claim 10
Appellant argues independent claim 10, stating that dependent claim
11 stands or falls together with claim 10. Appeal Br. 13. Specifically,
Appellants repeats a portion of the same arguments set forth with regard to
claim 1. Compare Appeal Br. 15–16 (claim 10) with id. at 14 (claim 1).
The Examiner relies on the same responses above.
We are not apprised of error in the rejection of claim 10 for the same
reasons discussed above with regard to claim 1. Accordingly, we sustain the
decision to reject independent claim 10, and claim 11 falling with claim 10,
as unpatentable over the combined teachings of the prior art relied upon by
the Examiner.

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Rejection 2 – The rejection of claims
12–16 under 35 U.S.C. § 103(a)
A. Appellant’s Positions
Appellant argues independent claim 12, stating that dependent claims
13–16 stand or fall together with claim 12. Appeal Br. 13.
First, Appellant argues that the claim 12 requires that “the rotation of
the handles results in the load bearing member being displaced from beneath
the load” whereas both of the cited references “cause the load to be
displaced from the load bearing member.” Appeal Br. 17.4
In response, the Examiner states that “it is maintained that using the
handcart disclosed by Gottinger in the manner disclosed by Hill . . . would
be obvious to one of ordinary skill in the art.” Ans. 3. According to the
Examiner, “[t]ilting a handcart forward, as taught by Hill . . . (column 2, ll.
9–15) is the conventional method of dislodging a load from the handcart”
and “[s]aid tilting would result in the upright structure being rotated about an
axis of rotation to a non-perpendicular position relative to the ground.” Ans.
3–4. The Examiner states that “one of ordinary skill in the art would have
predicted that tilting the cart by rotating the upright member [as disclosed in
Hill] would provide further assistance in dislodging a load to that provided
by the pusher mechanism [disclosed in Gottinger].” Id. at 4.
We are not apprised of error in the rejection based on Appellant’s first
argument generally for the reasons set forth by the Examiner, with some

4 Although Appellant does not expressly set forth the claim language
at issue, we understand Appellant’s statement to relate to the last phrase in
the final clause of claim 12, which recites “wherein the upright structure
rotates about an axis of rotation, thus displacing the load bearing member
from underneath the load.” See Appeal Br. 23 (Claims App.).
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additional comments. We note, as does the Examiner (Ans. 4), that
Gottinger specifically teaches that “[i]f the load is heavy . . . the force
exerted on the load causes the truck to slide out from the position below the
load, which in most cases remains stationary.” Gottinger, col. 2, ll. 48–52.
This, in addition to Hill’s teachings regarding tilting a handcart forward to
dislodge a load (see Ans. 3), demonstrate that the art satisfies the limitation
at issue.
Second, Appellant argues that “there is strong demand for this feature
on carts by the applicant.” Appeal Br. 17. Appellant states that “[u]pon
request, declarations can be provided establishing the commercial success of
the present invention.” Id. at 17–18. Further, Appellant notes that Gottinger
issued in 1969, and argues that “[i]t would not have been obvious to have
combined these features since it has not been done in this extensive period of
time.” Id. at 18.
The Examiner responds that “contentions that the reference patents
are old are not impressive absent a showing that the art tried and failed to
solve the same problem notwithstanding its presumed knowledge of the
references.” Ans. 4 (citing In re Wright, 569 F.2d 1124 (CCPA 1977)).
We are not apprised of error based on Appellant’s second set of
arguments generally for the reasons set forth by the Examiner, with some
additional comments. Here, Appellant has not provided evidence of
commercial success that could show error in the conclusion of obviousness.
See In re Huang, 100 F.3d 135, 139–40 (Fed. Cir. 1996) (discussing why
“the PTO must rely upon the applicant to provide hard evidence of
commercial success”). Although Appellant states that such evidence could
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have been provided, Appellant had the burden of producing such evidence in
these proceedings to support the contentions set forth in the briefing.
For the reasons set forth above, we sustain the decision to reject
independent claim 12, and claims 13–16 falling with claim 12, as
unpatentable over the combined teachings of the prior art relied upon by the
Examiner.

CONCLUSION
For the reasons set forth above, we AFFIRM the decision to reject
claims 1–16 under 35 U.S.C. § 103(a).
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

JRG