Ex Parte Zaragoza et al

Patent Trial and Appeal Board

Jun 25, 2013

11623471 (P.T.A.B. Jun. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DAVID ZARAGOZA, PEDRO ROMERO, PATRICE WALLER,
JOSH STUART, and MICHAEL PEREZ CABEZAS
____________________

Appeal 2011-006823
Application 11/623,471
Technology Center 3600
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Before EDWARD A. BROWN, MICHAEL L. HOELTER, and
MITCHELL G. WEATHERLY, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-006823
Application 11/623,471

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STATEMENT OF THE CASE
David Zaragoza et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner’s rejection of claim 13 under 35 U.S.C. § 103(a) as being
unpatentable over McFarland (US 4,685,860; iss. Aug. 11, 1987) and King
(US 5,395,020; iss. Mar. 7, 1995).1 Br. 9. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We affirm.

CLAIMED SUBJECT MATTER
Claim 13 is the sole independent claim on appeal and reads:
13. An apparatus for loading a wheelchair into a
vehicle having cargo space, comprising:
a carriage including a ramp, a lower support
wall to which said ramp is hingedly connected, and
a main support wall disposed normal to said lower
support wall;
a base securely positioned in said cargo
space;
said carriage connected to said base;
said carriage having an extended
configuration relative to said base and a retracted
configuration relative to said base;

1 Appellants do not request review of: the rejection of claims 14-17 under 35
U.S.C. § 103(a) as unpatentable over McFarland and King; the rejection of
claim 18 under 35 U.S.C. § 103(a) as unpatentable over McFarland, King,
and Avakian (US 5,242,257; iss. Sep. 7, 1993); or the rejection of claim 19
under 35 U.S.C. § 103(a) as unpatentable over McFarland, King, Avakian,
and Nelson (US 5,090,580; iss. Feb. 25, 1992). As Appellants have not
presented any argument for claims 14-19, Appellants have authorized the
Examiner’s cancellation of these claims prior to any further prosecution of
the present application. See Ex Parte Ghuman, 88 USPQ 1478 (BPAI May
1, 2008) (precedential).
Appeal 2011-006823
Application 11/623,471

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said carriage having a first, upright,
extended position where said lower support wall is
parallel to and spaced upwardly from a support
surface that supports said vehicle and where said
main support wall is disposed in a substantially
vertical plane;
said carriage having a second, horizontal,
extended position where said lower support wall is
substantially normal to and spaced upwardly from
said support surface and where said main support
wall is disposed in a substantially horizontal plane;
said ramp having a first, inclined position
when said carriage is in said first, upright,
extended position, where a lower end of said ramp
is in abutting contact with said support surface and
an upper end of said ramp is hingedly secured to a
preselected end of said lower support wall;
said ramp adapted to support a wheelchair as
said wheelchair is manually pushed up said ramp
from said support surface to said lower support
surface of said carriage when said carriage is in
said first, upright, extended position;
said ramp having a second, stored
configuration where it is disposed normal to said
main support wall and normal to said lower
support wall when said carriage is in said first,
upright, extended position;
said carriage having a third, horizontal,
retracted position where said lower support wall is
substantially normal to and spaced upwardly from
said support surface, where said main support wall
is disposed in a substantially horizontal plane; and
where said main support wall is in substantially
parallel, closely spaced, overlying registration with
said base so that said main support wall is disposed
within said cargo space of said vehicle.

Appeal 2011-006823
Application 11/623,471

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ANALYSIS
Regarding claim 13, the Examiner found that McFarland discloses a
device for loading a wheelchair into a vehicle, comprising a base (chassis
18) mounted in a vehicle cargo space, and a carriage (chair rack 34). Ans. 4
(see also McFarland, col. 4, ll. 39-62; figs. 1-4). The Examiner found that
McFarland does not disclose a ramp, as claimed. Id. The Examiner also
found that King discloses a device for transporting a wheelchair comprising
a horizontal support floor (bottom wall 24) and a ramp (side wall 16)
connected to the floor. Id. (see also King, col. 3, ll. 40-47; fig. 5). The
Examiner concluded that it would have been obvious to one of ordinary skill
in the art to provide McFarland’s device with a ramp as taught by King “to
allow a wheelchair to be rolled onto the carriage if it is unable to be placed
directly on the ground.” Id. at 4-5.
Appellants contend that McFarland’s device must begin the lifting and
pivoting process from ground level, and a wheelchair is placed atop the
device when the wheelchair-supporting part is on the ground. Br. 10.
Appellants contend that because McFarland begins lifting from ground level,
it would make no sense to add a ramp to McFarland’s device. Id. In
response, the Examiner stated that there is no way to ensure that
McFarland’s device will be used only on unobstructed areas of the ground.
Ans. 7. The Examiner reasoned that obstructions may be present, or the
ground may be so uneven that the scope of the device’s self-adjustment will
not allow one end to touch the ground, and in that case an ordinary mechanic
would add a ramp to access the support not positioned adjacent the ground.
Id. Appellants do not apprise us of any error in these findings or reasoning.
Appeal 2011-006823
Application 11/623,471

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Appellants also contend that McFarland’s device requires a complex
linkage system that its structure eliminates by providing the ramp. Br. 10.
In response, the Examiner correctly stated that claim 13 does not recite any
particular linkage, and merely recites that the carriage is connected to the
base, which is taught by McFarland. Accordingly, Appellants’ contention is
not persuasive.
Appellants also contend that McFarland teaches away from use of a
ramp and instead teaches a height adjustment means to keep the base of the
carriage at ground level. Id. at 10-11 (citing McFarland, col. 5, ll. 44-52; see
also McFarland, fig. 10). We note that McFarland discloses height
adjustment means for the rack 34 of device 10 to compensate for variations
in the height of lower surface 20 or vehicle rear compartment 14 above the
ground, and for variations in the surface of the ground. See McFarland, col.
5, ll. 44-52; fig. 10; see also McFarland, fig. 1.
In response to Appellants’ contention, the Examiner stated that
McFarland does not disparage use of a ramp, and merely because McFarland
does not teach use of a ramp does not preclude an ordinary mechanic from
adding one, especially in view of King’s teaching of using a ramp for raising
a wheelchair from ground level to a raised support. Ans. 7. We agree.
McFarland merely omits the disputed ramp. In order to “teach away” a
reference must “criticize, discredit, or otherwise discourage the solution
claimed . . . .” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)); Para-
Ordnance Manufacturing v. SGS Importers International Inc., 73 F.3d 1085,
1090 (Fed Cir. 1995) (a warning against use of an element, rather than
omission of mention of the element, is required to find teaching away).
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Thus, Appellants’ contention that McFarland “teaches away” is
unpersuasive.
The Examiner also stated that Figure 10 of McFarland shows the
support structure (main wheel rail 50 and front wheel rail 52) off the ground
in areas where a wheelchair would be rolled onto the device, and that a ramp
placed on the end of the supports would allow easier movement of a
wheelchair onto the device. Ans. 8 (see also, McFarland, col. 5, ll. 6-10).
The Examiner also stated that the distance shown in Figure 10 may be large
for a disabled person with limited mobility or strength, and a ramp would
allow that person to move the wheelchair to the elevated position on the
support. Id. Appellants have not apprised us of any error in the Examiner’s
findings or reasoning. Adding a ramp to McFarland’s device would also
appear to be advantageous in other situations, such as where the uneven
surface shown in Figure 10 is above a lower surface (e.g., slopes downward
to the lower surface) and the disabled person seeks to move the wheelchair
between these surfaces.
Appellants also contend that McFarland teaches away from a ramp
that is hingedly mounted to a lower support floor of a carriage, as claimed,
so that the ramp may be deployed and then pivoted upwardly and secured to
a main support wall, as claimed. Br. 11. As discussed supra, McFarland
does not disparage use of a ramp. In addition, claim 13 does not recite that
the ramp is secured to the main support wall, or that “the only mechanical
linkage between the carriage and the base is a simple pivot point on each
longitudinally-extending edge of the carriage,” as Appellants contend. Id.
Accordingly, these contentions are not commensurate with the scope of the
claim language, and thus, are not persuasive.
Appeal 2011-006823
Application 11/623,471

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Appellants also contend that King teaches that the wheelchair should
be housed outside the vehicle at all times, while McFarland teaches that the
wheelchair should be stored internal to the vehicle, and that the Examiner
has unfairly found that King teaches a ramp, but not the external mounting
of the wheelchair. Br. 12. In response, the Examiner explained that Figure
10 of McFarland shows that the support has an elevated portion where the
wheelchair is placed, and King is relied on only for teaching an elevated
support and a ramp used to access it. Ans. 8-9. Appellants’ contention that
the Examiner’s reliance on King “cherry picks” its teachings is not
persuasive. The Examiner has articulated adequate reasoning with rational
underpinning as to why it would have been desirable to combine King’s
wheelchair ramp with McFarland’s device. Appellants have not apprised us
of any error in this reasoning.
In view of the above, we sustain the rejection of claim 13 as
unpatentable over McFarland and King.

DECISION
The Examiner's decision rejecting claim 13 is AFFIRMED.
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

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