Kozyra, David M.

Patent Trials and Appeals Board

Aug 26, 2019

15196604 - (D) (P.T.A.B. Aug. 26, 2019)

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.
15/196,604 06/29/2016 David M. Kozyra 14042-217 4897
80711 7590 08/26/2019
BGL/Ann Arbor
524 South Main Street
Suite 200
Ann Arbor, MI 48104
EXAMINER
MARSH, STEVEN M
ART UNIT PAPER NUMBER
3632
MAIL DATE DELIVERY MODE
08/26/2019 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 DAVID M. KOZYRA
____________

Appeal 2019-0018861
Application 15/196,6042
Technology Center 3600
____________

Before JOSEPH A. FISCHETTI, KENNETH G. SCHOPFER, and
AMEE A. SHAH, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1–12. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Our decision references the Appeal Brief (“Appeal Br.,” filed June 4,
2018), the Reply Brief (“Reply Br.,” filed Jan. 2, 2019), the Examiner’s
Answer (“Ans.,” mailed Nov. 2, 2018), and the Final Office Action (“Final
Act.,” mailed Nov. 1, 2017).
2 According to Appellant, the real party in interest is “HERITAGE
RESEARCH GROUP.” Appeal Br. 1.
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BACKGROUND
The Specification discloses that “[t]he present invention relates
generally to guardrail systems for construction sites and more particularly to
guardrail systems for use in the construction of mechanical stabilized earth
(MSE) walls.” Spec. ¶ 2.
ILLUSTRATIVE CLAIM
Claim 1 is the only independent claim on appeal and recites:
1. A guardrail support bracket for use when constructing
MSE wall systems which comprises:
a clamping portion having a crosspiece and front and rear
legs which clamping portion is configured to straddle opposite
sides of a MSE wall panel and fasten thereon;
a vertical support post that coupled to the clamping portion
so as to be selectively fixed to the clamping portion with a major
length of the vertical support post extending above the clamping
portion or below the clamping portion as desired; and
at least one guardrail support coupled to the vertical
support post,
wherein
the clamping portion includes a structure that can be
manually manipulated to secure the guardrail support bracket to
a MSE wall panel so as to fasten the clamping portion onto the
wall panel, the structure that can be manually manipulated is
coupled to one of the front and rear legs and is spaced apart from
the crosspiece and the one of the front and rear legs which is
coupled to the structure that can be manually manipulated is
directly attached to the crosspiece in a fixed position,
the vertical support extends downward into one of the
front and rear legs of the clamping portion, and
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the position of the vertical support post is adjustable so
that a lower end of the vertical support post can extend below the
crosspiece of the clamping portion.
Appeal Br. 16.
REJECTIONS
1. The Examiner rejects claims 1–3 and 5–9 under 35 U.S.C. § 103(a) as
unpatentable over McLaughlin3 in view of Murray.4
2. The Examiner rejects claim 4 under 35 U.S.C. § 103(a) as unpatentable
over McLaughlin in view of Murray and Allenbaugh.5
3. The Examiner rejects claims 10 and 116 under 35 U.S.C. § 103(a) as
unpatentable over McLaughlin in view of Murray and Kettelkamp.7
4. The Examiner rejects claim 12 under 35 U.S.C. § 103(a) as unpatentable
over McLaughlin in view of Murray, Kettelkamp, and Zilincar.8
DISCUSSION
Appellant only presents arguments with respect to claim 1. See
Appeal Br. 4–13. Thus, we only discuss claim 1 below, and claims 2–12
stand or fall with claim 1. See 37 C.F.R. §41.37(c)(1)(iv).
With respect to claim 1, the Examiner finds that McLaughlin discloses
a guardrail support bracket including a clamping portion with a crosspiece

3 McLaughlin et al., US 3,995,833, iss. Dec. 7, 1976.
4 Murray, US 6,585,080 B2, iss. July 1, 2003.
5 Allenbaugh, US 6,679,482 B2, iss. Jan. 20, 2004.
6 We note that the heading for this rejection does not include claim 11. See
Final Act. 5. However, claim 11 depends from claim 10, and the Examiner
provides a discussion of claim 11 directly after claim 10 without providing a
new rejection heading for claim 11.
7 Kettelkamp, Sr. et al., US 4,666,131, iss. May 19, 1987.
8 Zilincar, III, US 5,657,884, iss. Aug. 19, 1997.
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and front and rear legs such that the clamping portion is configured to
straddle sides of an MSE wall panel; a vertical post coupled to the clamping
portion as claimed; and at least one guardrail support. Final Act. 2–3. The
Examiner also finds that McLaughlin’s clamping portion includes a structure
that can be manipulated to engage an MSE wall panel and that
McLaughlin’s vertical support is adjustable and extends downward into a
side portion of the clamping portion. Id. at 3 (citing McLaughlin Fig. 7).
The Examiner acknowledges that “McLaughlin does not disclose a
structure that is manually manipulatable coupled to one of the front and rear
legs and spaced apart from the crosspiece.” Id. However, the Examiner
finds that “McLaughlin does disclose the one of the front and rear legs that
is coupled to the structure that can be manually manipulated is directly
attached to the crosspiece in a fixed position (58a is fixed with respect to
crosspiece 30).” Id. The Examiner also finds that Murray discloses a
support bracket including a clamping portion as claimed. Id. The Examiner
concludes:
It would have been obvious to one of ordinary skill in the art at
the effective filing date of the present invention to have provided
a manually manipulatable structure on a leg of McLaughlin (for
example, leg 58a), to provide a means for further
securing/fastening the clamping portion on a panel as taught by
Murray. One of ordinary skill in the art would know that
providing a manually manipulatable clamp would allow one to
provide a more secure clamping arrangement between the clamp
and a panel to which it is fastened.
Id. The Examiner provides additional findings in the Answer. Specifically,
the Examiner finds that Murray discloses a clamping portion that includes a
structure 30 that provides for the ability to finely adjust the clamping
portion. Ans. 4 (citing Murray col. 3, ll. 18–21). The Examiner also finds
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that Murray’s clamping portion allows for clamping to surfaces of varying
shaped, i.e., surfaces that lack right angles, and thus, one of ordinary skill in
the art would have found it obvious to use Murray’s clamping mechanism in
McLaughlin’s device so that it “can be used to secure the guardrail support
to surface that lack right angles.” Id. at 5 (citing Murray Fig. 4). Thus, the
Examiner concludes that it would have been obvious to replace
McLaughlin’s clamping mechanism with Murray’s to allow for clamping to
surfaces that lack right angles. Id.
We agree with and adopt the Examiner findings and conclusions with
respect to the rejection of claim 1. See Final Act. 2–3, 7; see also Ans. 3–5;
8–9. As discussed below, we are not persuaded of reversible error by
Appellant’s arguments.
Appellant first argues that McLaughlin provides for a clamping
structure and tightening mechanism such that there is no need for a further
mechanism, such as Murray’s clamping portion. Appeal Br. 5. Appellant
asserts that incorporating Murray’s clamping mechanism into McLaughlin’s
device “would require excessive elements and costs without providing any
foreseeable benefit.” Id. at 5–6. Appellant further asserts that McLaughlin
“already has a threaded-rod clamping mechanism that functions in the same
manner to provide sufficient and suitable clamping.” Id. at 9. Thus,
Appellant argues that this would amount to a superfluous modification. Id.
at 8.
We disagree with Appellant and agree with the Examiner that Murray
discloses a clamping mechanism that has added functionality to that
disclosed by McLaughlin such that one of ordinary skill would have found it
beneficial to either use Murray’s clamping mechanism in place of
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McLaughlin’s or to use Murray’s clamping mechanism in addition to
McLaughlin. As noted by Appellant, McLaughlin discloses a “rotating nut
44 [that] causes the threaded screw 40 within the first and second tubes 24
and 30 to pull the second tube 30 into the first tube.” Appeal Br. 8.
McLaughlin discloses that turning the screw allows for adjusting “the
spacing between clamp members 54 and 64” and that the nut 44 may be
turned to “tighten[] the clamp.” McLaughlin col. 4 ll. 62–66; col. 5, ll. 5–6.
However, McLaughlin’s clamp members do not allow for adjustment of the
clamping angle because they are attached at right angles to the tubes 30
and 34. See e.g., McLaughlin Fig. 2.
In contrast, Murray discloses a clamping mechanism including an
“adjustable jaw 26 [that] is mounted by a ball and socket connection 28 to a
threaded adjustment rod 30” that is turned by a turning handle 34 to provide
“fine adjustment of jaw-to-jaw distance.” Murray col. 3, ll. 11–24. Thus,
one of ordinary skill in the art would understand that Murray’s clamping
mechanism provides for fine adjustment of clamping force and that the ball
and socket connection 28 provides for secure clamping to surfaces at
different angles.
We determine that the added functionality provided by Murray’s
clamping mechanism, i.e., the ability to clamp at different angles, provides
support for the Examiner conclusion regarding obviousness. In particular,
one of ordinary skill in the art would have found it obvious to provide a
clamping mechanism, as disclosed by Murray, in McLaughlin’s device to
provide a means for further securing the device to surfaces at different
angles.
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We acknowledge that the Examiner provides somewhat different
proposals in the Final Action and the Answer regarding the combination of
art. The Examiner first indicates that the Murray’s clamping mechanism
would be provided in addition to the mechanism already present in
McLaughlin. See Final Act. 3. The Examiner then indicates that Murray’s
clamping mechanism would be used in place of McLaughlin’s. See Ans. 8.
However, Appellant does not persuade us of error in either statement of the
rejection because the Examiner’s reasoning, as discussed, provides a suitable
basis for rejecting the claims under either combination.
Based on the foregoing, we sustain the rejection of claim 1. As noted
above, Appellant does not raise arguments with respect to any of the
dependent claims. Accordingly, we also sustain the rejections of claims 2–
12 for the reasons discussed.

CONCLUSION
We AFFIRM the rejections of claims 1–12.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED