Henderson Products, Inc.

Patent Trials and Appeals Board

Dec 16, 2020

2019006502 (P.T.A.B. Dec. 16, 2020)

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.
14/993,824 01/12/2016 Timothy J. Ketels 723015 3177
23460 7590 12/16/2020
LEYDIG VOIT & MAYER, LTD
TWO PRUDENTIAL PLAZA, SUITE 4900
180 NORTH STETSON AVENUE
CHICAGO, IL 60601-6731
EXAMINER
SNELTING, JONATHAN D
ART UNIT PAPER NUMBER
3652
NOTIFICATION DATE DELIVERY MODE
12/16/2020 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
Chgpatent@leydig.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TIMOTHY J. KETELS, MARK S. HOLLINRAKE,
DANIEL J. BANYAS, GLENN L. UNGERER, and MART E. WARD
____________

Appeal 2019-006502
Application 14/993,824
Technology Center 3600
____________

Before MICHELLE R. OSINSKI, ANNETTE R. REIMERS, and
SUSAN L. C. MITCHELL, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–3 and 6–9 under 35 U.S.C. § 102(b) as
anticipated by Hagemeyer (US 5,890,867; issued Apr. 6, 1999).2 We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Henderson Products,
Inc. Appeal Br. 1.
2 Claims 4, 5, and 10–28 are cancelled. Appeal Br. 9 (Claims App’x.).
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THE CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below.
l. A vehicle comprising:
a chassis;
a body mounted to the chassis, the body having a front end,
an open rear end in longitudinal spaced relationship to the front
end, first and second side walls in lateral spaced relationship to
each other and extending longitudinally between the front end
and the open rear end, and a floor defining an opening, the body
including a rear body superstructure comprising a C-shaped
structural beam extending around the rear end such that the
structural beam is in overlapping relationship with the first and
second side walls;
a conveyor assembly adapted to selectively convey
material from the body, the conveyor assembly including an
endless conveyor disposed between the side walls in the opening
in the floor and extending longitudinally from the front end to
the rear end of the body;
wherein the C-shaped structural beam includes a floor
support beam and a pair of upright bolsters, the floor support
beam including a center reinforcing section and a pair of body
support sections in flanking relationship to the center reinforcing
section, the floor support beam having a pair of ends and
extending between the first and second sidewalls across the
opening in the floor of the body that accommodates the endless
conveyor, and the upright bolsters respectively extending from
ends of the floor support beam along the first and second
sidewalls, and the center reinforcing section disposed below the
opening in the floor of the body and adapted to support a load
from the first and second sidewalls.

OPINION
The Examiner finds that Hagemeyer discloses all of the limitations of
independent claim 1, including, among other things, a “C-shaped structural
beam [that] includes a floor support beam . . . including a center reinforcing
section (44, 56) . . . [and also] having a pair of ends extending between the
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first and second sidewalls across the opening in the floor of the body that
accommodates the endless conveyor, . . . the center reinforcing section . . .
adapted to support a load from the first and second sidewalls (the center
reinforcing section structurally connects the sidewalls, see figs. 1 and 3).”
Final Act. 2–3 (citing Hagemeyer Figs. 1–3).
Appellant argues that “the Hagemeyer dump truck 10 does not include
a C-shaped structural beam with a center reinforcing section as recited in
claim 1.” Appeal Br. 4. Appellant further argues that “the claimed center
reinforcing section is quite different from the structural elements relied upon
in the Office Action (44 and 56) as constituting the claimed center
reinforcing section.” Id.
More specifically, with respect to Hagemeyer’s rear sprocket shaft 44,
identified by the Examiner as part of the claimed center reinforcing section
of the floor support beam (Final Act. 2–3), Appellant argues that
(i) “Hagemeyer does not disclose that the rear sprocket shaft 44 is part of a
‘floor support beam’ that extends ‘between the first and second sidewalls
across the opening in the floor of the body,” but instead “is merely fitted into
shaft holes 48”; and (ii) “if Hagemeyer’s rear sprocket shaft 44 bore . . . a
load [from the first and second sidewalls], it would likely impede its ability
to rotate and to satisfy its intended function in Hagemeyer’s conveyor
system 40.” Appeal Br. 5.
Although Appellant is correct that Hagemeyer’s rear sprocket shaft 44
fits into shaft holes 48, Appellant has not explained adequately why this
precludes rear sprocket shaft 44 from being a center reinforcing section of a
floor support beam that extends between the first and second sidewalls,
especially when taking into account that the Examiner has considered the
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components on both sides of the rear sprocket shaft 44 to comprise the
“flanking body support sections” of the floor support beam such that the
Examiner-identified floor support beam extends between the first and second
sidewalls. See Examiner-annotated version of Hagemeyer’s Figure 1 on
page 3 of Final Action. As to Appellant’s argument that Hagemeyer’s rear
sprocket shaft’s ability to rotate would be impeded if Hagemeyer’s rear
sprocket shaft bore a load from the first and second sidewalls, we agree with
the Examiner that “[t]he claim recites neither the magnitude nor the direction
of the load that the center reinforcing section must support” and that
“Hagemeyer’s rear sprocket shaft 44 is capable of supporting a load from the
sidewalls, such as a small bending moment at its fitting point with shaft hole
48.” Ans. 3. Appellant does not offer any evidence or technical reasoning
to support the position that Hagemeyer’s rear sprocket shaft 44 would be
unable to rotate and drive the conveyor belt when supporting “a small
bending moment” in accordance with the Examiner’s finding. See id.
Appellant’s assertion amounts to attorney argument unsupported by
evidence, and thus, is entitled to little, if any, weight. In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) (An attorney’s arguments in a brief cannot take the place
of evidence.). In sum, Appellant does not respond with sufficient
particularity to the specific findings made by the Examiner so as to persuade
us of error by the Examiner in the rejection.3

3 As Appellant has not filed a Reply Brief, Appellant has waived any
arguments against the Examiner’s findings. See Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (“Informative”) (“[A]rguments that could
be made in the reply brief, but are not, are waived.”).
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With respect to Hagemeyer’s back flow shield 56, also identified by
the Examiner as part of the claimed center reinforcing section of the floor
support beam (Final Act. 2–3), Appellant argues that “Hagemeyer fails to
teach or suggest that the back flow shield and blade provide structural
support to the body” and it is “prefer[red] that such structure is ‘flexible.’”
Appeal Br. 6. Again, the Examiner takes the position that “[t]he claim
recites neither the magnitude nor the direction of the load that the center
reinforcing section must support” and “Hagemeyer’s backflow shield 56 is
capable of supporting a load from the sidewalls, such as a small tensile load
from its mounting points with the truck,” especially when considering the
Examiner’s finding that “the portion of back flow shield 56 which mounts to
the truck is understood by one skilled in the art as being rigid.” Ans. 3.
Again, Appellant does not respond with sufficient particularity to the
specific findings made by the Examiner so as to persuade us of error by the
Examiner in the rejection.
For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s findings that Hagemeyer discloses all of the limitations of
independent claim 1. Accordingly, we sustain the rejection of claim 1, and
claims 2, 3, and 6–9, for which Appellant relies on the same arguments and
reasoning (Appeal Br. 6–7), under 35 U.S.C. § 102(b) as anticipated by
Hagemeyer.
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–3, 6–9 102(b) Hagemeyer 1–3, 6–9

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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