Kozyra, David M.Download PDFPatent Trials and Appeals BoardAug 26, 201915196604 - (D) (P.T.A.B. Aug. 26, 2019) Copy Citation 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. Appeal 2019-001886 Application 15/196,604 2 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 Appeal 2019-001886 Application 15/196,604 3 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. Appeal 2019-001886 Application 15/196,604 4 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 Appeal 2019-001886 Application 15/196,604 5 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 Appeal 2019-001886 Application 15/196,604 6 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. Appeal 2019-001886 Application 15/196,604 7 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 Copy with citationCopy as parenthetical citation