Ex Parte Zechbauer

Board of Patent Appeals and Interferences

Nov 21, 2003

09828102 (B.P.A.I. Nov. 21, 2003)

1 Claims 19, 20, 25, 26 and 30 through 32 have been amended
subsequent to final rejection.
The opinion in support of the decision being
entered today was not written for publication
and is not binding precedent of the Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte CARL A. ZECHBAUER
____________
Appeal No. 2003-1653
Application No. 09/828,102
____________
ON BRIEF
____________
Before FRANKFORT, MCQUADE and NASE, Administrative Patent Judges.
MCQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Carl A. Zechbauer appeals from the final rejection of claims
19 through 34.1 Claims 35 through 38, the only other claims
pending in the application, stand withdrawn from consideration
pursuant to 37 CFR § 1.142(b).
THE INVENTION
The invention relates to “a trailer hitch guide that
effectively elevates and guides a forward end of a trailer tongue
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Application No. 09/828,102
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into coupling engagement with a receiver hitch of a towing
vehicle” (specification, page 1). Representative claim 19 reads
as follows:
19. A trailer hitch guide assembly for aligning and
coupling a vehicle hitch to a trailer hitch, comprising:
(a) a ramp;
(b) a support arm; and
(c) a frame;
wherein, (1) said ramp and said support arm are
independently pivotable between a support position in which said
ramp and said support arm supportably engage each other and a
rest position in which said ramp and said support arm are
disengaged, and (2) said ramp, said support arm, and said frame
are configured and arranged, when said ramp and said support arm
are attached to the vehicle hitch and said frame is attached to
the trailer hitch, such that said frame and trailer hitch lose
contact with said ramp prior to pivoting of said ramp and said
support arm from said support position to said rest position.
THE PRIOR ART
The references relied on by the examiner to support the
final rejection are:
Allard 2,791,443 May 7, 1957
Schrum, III (Schrum) 4,903,978 Feb. 27, 1990
THE REJECTIONS
Claims 19 through 34 stand rejected under 35 U.S.C. § 112,
first paragraph, as being based on a specification that fails to
comply with the written description requirement.
Appeal No. 2003-1653
Application No. 09/828,102
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Claims 19 through 31 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Schrum.
Claims 32 through 34 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Schrum in view of Allard.
Attention is directed to the appellant’s brief (Paper No.
14) and to the final rejection and examiner’s answer (Paper Nos.
9 and 15) for the respective positions of the appellant and the
examiner regarding the merits of these rejections.
DISCUSSION
I. The 35 U.S.C. § 112, first paragraph (written description
requirement), rejection of claims 19 through 34
The test for determining compliance with the written
description requirement of § 112, ¶ 2, is whether the disclosure
of the application as originally filed reasonably conveys to the
artisan that the inventor had possession at that time of the
later claimed subject matter, rather than the presence or absence
of literal support in the specification for the claim language.
In re Kaslow, 707 F.2d 1366, 1375, 217 USPQ 1089, 1096 (Fed. Cir.
1983). The content of the drawings may also be considered in
determining compliance with the written description requirement.
Id.
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Application No. 09/828,102
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The rejection before us rests on the examiner’s
determination (see pages 3 and 4 in the final rejection and pages
5 through 7 in the answer) that the appellant’s specification
lacks written descriptive support for the following limitations
in the appealed claims:
a) “said frame and trailer hitch lose contact with said ramp
prior to pivoting of said ramp and said support arm from said
support position to said rest position” (claim 19);
b) “said frame and trailer hitch rest upon a vehicle hitch
prior to pivoting of said ramp and said support arm from said
support position to said rest position” (claim 25);
c) “said frame rests upon a ball component of the vehicle
hitch to which said ramp and said support arm are attached prior
to pivoting of said ramp and said support arm from said support
position to said rest position” (claim 30);
d) “the trailer hitch rests upon a ball component of the
vehicle hitch to which said ramp and said support arm are
attached prior to pivoting of said ramp and said support arm from
said support position to said rest position” (claim 31); and
e) “pivoting of said support arm from a rest position to a
support position causes said support arm to contact said ramp and
move said ramp from a rest position to a support position” (claim
32).
Implicitly conceding that these limitations lack literal
support in the specification, the appellant counters that they
are inherently depicted in the configuration and proportions of
the guide assembly shown in Figures 3 through 5 (see pages 5 and
6 in the brief). A careful review of these drawings, however,
and the underlying specification, shows that there is nothing
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therein which indicates, expressly or inherently, that the frame
32 having wheels 18 loses contact with the ramp 14 prior to
pivoting of the ramp 14 and support arm 16 from the support
position to the rest position, that the trailer hitch 22 is ever
in contact with the ramp 14, that the frame 32 and/or trailer
hitch 22 rest upon the vehicle hitch prior to the pivoting of the
ramp 14 and support arm 16 from the support position to the rest
position, that the frame 32 ever rests on the vehicle hitch, that
the frame 32 rests upon the ball component 30 of the vehicle
hitch prior to the pivoting of the ramp 14 and support arm 16
from the support position to the rest position, that the frame 32
ever rests upon the ball component 30 of the vehicle hitch, that
the trailer hitch 22 rests upon the ball component 30 prior to
pivoting of the ramp 14 and support arm 16 from the support
position to the rest position, or that pivoting the support arm
16 from the rest position to the support position causes it to
contact the ramp 14 and move it from the rest position to the
support position. Thus, the disclosure of the application as
originally filed would not reasonably convey to the artisan that
the appellant had possession at that time of the subject matter
now recited in independent claims 19, 25 and 32, and dependent
claims 20 through 24, 26 through 31, 33 and 34.
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Accordingly, we shall sustain the standing 35 U.S.C. § 112,
first paragraph, rejection of claims 19 through 34.
II. The 35 U.S.C. § 103(a) rejections of claims 19 through 34
Schrum discloses a self-aligning trailer hitch system
comprising a towing vehicle hitch assembly 10 and a towed trailer
hitch assembly 40. As shown in Figures 1 and 2, the towing
vehicle hitch assembly 10 includes a hitch bracket 12 welded to
the frame of the towing vehicle, a ball support element 14 welded
to the hitch bracket, a ball 16 affixed to the ball support
element, a back plate 22 welded to the hitch bracket, a release
arm 24 rotatably mounted to the back plate, and a flat base plate
32 having right and left guide plates 30 and 31 rotatably mounted
to the ball support element. In a support position, “[r]elease
arm 24 maintains plate 32 in an inclined plane with respect to a
top surface of support element 14” (column 2, lines 53 through
55). As shown in Figures 3 through 5, the towed vehicle hitch
assembly 40, which is mounted to a tow bar 38 and ball socket 46
attached to the frame of the trailer, includes a frame 48 and
four roller bearings 50. In use, and as best illustrated in
Figure 6,
during engagement of the first 10 and second 40 hitch
assembly the trailer remains in a fixed position with
its hitch roller assembly 40 stationary on the trailer
tow bar 38. The towing vehicle backs towards the
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roller assembly 40 so that the rollers 40 are struck by
plate 32. As the rollers 40 move up the inclined plane
of plate 32, they are maintained from deviating either
to the right or to the left by guide plates 30 and 31.
. . . As the towing vehicle moves closer to the roller
assembly, the roller assembly 40 is struck by edge 28
of the release arm 24 causing the release arm 24 to
disengage from plate 32 and allow plate 32 to fall
downwardly. . . . Meanwhile, the trailer roller
assembly 40, on plate 32, is positioned so that socket
46 is directly above ball 16. The entire roller
assembly 40 then falls by gravity over ball 16 [column
3, lines 6 through 27].
The examiner’s finding of general correspondence between the
flat base plate 32, release arm 24 and frame 48 disclosed by
Schrum and the ramp, support arm and frame recited in the
appealed claims is reasonable on its face and has not been
specifically disputed by the appellant.
With regard to independent claim 19, the examiner
acknowledges that Schrum’s flat base plate 32, release arm 24 and
frame 48 are not expressly responsive to the claim limitation
requiring the ramp, support arm and frame to be configured and
arranged such that the frame and trailer hitch lose contact with
the ramp prior to pivoting of the ramp and support arm from the
support position to the rest position. The examiner concludes,
however, that
[i]t would have been obvious to one of ordinary skill
in the art at the time of the invention to modify
Schrum III to have the frame and trailer hitch lose
contact with said ramp prior to pivoting of said ramp
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and said support arm from said support position to said
rest position, as the Examiner takes Official Notice it
was well known in the art of trailer hitches that when
a vehicle with an associated hitch backs toward a
trailer hitch, the driver often first attempts to “tap”
the trailer hitch (causing momentary contact and then
losing contact) in order to ensure alignment before
backing further to fully engage the hitch [final
rejection, pages 5 and 6].
As appears to be appreciated by the examiner, Schrum alone
offers no teaching or suggestion that the flat base plate 32,
release arm 24 and frame 48 are configured and arranged such that
the frame and trailer hitch lose contact with the base plate
prior to pivoting of the base plate and release arm from the
support position to the rest position. The examiner’s reliance
on the purported prior art practice of “tapping” to overcome this
deficiency is not well taken. In short, the examiner has not
cogently explained, and it is not apparent, how or why this
practice would have led the artisan to “modify” the Schrum system
such that the flat base plate 32, release arm 24 and frame 48
would be configured and arranged such that the frame and trailer
hitch lose contact with the base plate prior to pivoting of the
base plate and release arm from the support position to the rest
position.
As for independent claim 25, the examiner urges that,
contrary to the position taken by the appellant, Schrum’s
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structure does meet the claim limitation requiring the ramp,
support arm and frame to be configured and arranged such that the
frame and trailer hitch rest upon the vehicle hitch prior to
pivoting of the ramp and support arm from the support position to
the rest position, “at least indirectly through the hitch guide
10” (final rejection, page 6). As persuasively argued by the
appellant, this finding rests on an unreasonable interpretation
of the claim language at issue.
In view of the foregoing, we shall not sustain the standing
35 U.S.C. § 103(a) rejection of independent claims 19 and 25, and
dependent claims 20 through 24 and 26 through 31, as being
unpatentable over Schrum.
With regard to independent claim 32, the examiner
acknowledges that Schrum does not meet the claim limitations
requiring the ramp and support arm to be configured and arranged
such that pivoting of the support arm from a rest position to a
support position causes the support arm to contact the ramp and
move the ramp from a rest position to a support position. To
overcome this deficiency, the examiner cites Allard.
Allard discloses a tractor-trailer hitching mechanism
comprising a ramp over which an eye-forming loop 13 on the
trailer rides to a position above a hook fitting 15 on the
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tractor. The ramp includes a flared apron 22 mounted to the
vehicle via a toggle arm arrangement 28, 29, having a lever 33
which, when contacted by a shoulder 14 adjacent the loop 13,
causes the toggle arm arrangement to move from an over-center
condition supporting the apron 22 in an upright inclined
orientation (see Figure 2) to a collapsed folded condition
allowing the apron to give way such that the loop 13 drops over
the hook fitting 15 (see Figure 3).
Likening Allard’s lever 33 to a support arm, the examiner
concludes that it would have been obvious in view of Allard to
modify the hitch structure disclosed by Schrum such that pivoting
of the support arm (release arm 24) from a rest position to a
support position causes the support arm to contact the ramp (flat
base plate 32) and move the ramp from a rest position to a
support position, “in order to provide a means to move the ramp
from its rest position to its support position in a single
maneuver” (final rejection, page 7). Allard’s lever 33, however,
has little, if any, practical relevance to Schrum’s release arm
24, and would not have furnished the artisan with any motivation
or suggestion, let alone the one advanced by the examiner, to
modify the Schrum system so as to arrive at an assembly meeting
the subject limitations in claim 32.
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Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejection of independent claim 32, and dependent claims
33 and 34, as being unpatentable over Schrum in view of Allard.
Finally, the examiner observes that the foregoing
limitations in independent claims 19, 25 and 32 which find no
response in the applied references lack written descriptive
support in the specification (see page 8 in the answer). While
this observation is well taken for the reasons discussed above in
connection with the 35 U.S.C. § 112, first paragraph, rejection,
it has no bearing on the 35 U.S.C. § 103(a) rejections since such
limitations must be considered and given weight in evaluating the
obviousness of the claimed subject matter (see MPEP § 2143.03 and
the cases cited therein).
SUMMARY
Since at least one rejection of claims 19 through 34 is
sustained, the decision of the examiner to reject these claims is
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).
AFFIRMED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN P. MCQUADE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
JPM/gjh
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