Ex Parte 6283044 et al

Patent Trial and Appeal Board

Jun 27, 2014

90006283 (P.T.A.B. Jun. 27, 2014)

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.
90/006,283 05/09/2002 6283044 432 P 172 4751
26096 7590 06/27/2014
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
ENGLISH, PETER C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
06/27/2014 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 REHRIG PACIFIC COMPANY
Appellant and Patent Owner
____________

Appeal 2014-004548
Reexamination Control 90/006,283
Patent 6,283,044
Technology Center 3900
____________

Before RICHARD M. LEBOVITZ, DANIEL S. SONG, and
KEN B. BARRETT, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on the appeal by the Patent Owner of U.S. Patent
No. 6,283,044 from the Patent Examiner’s rejections of claims 25-35, 41-46,
53-56, 58-62, and 64-86 in this ex parte reexamination. The Board’s
jurisdiction for this appeal is under 35 U.S.C. §§ 6(b), 134, and 306. The
Examiner’s rejections are affirmed.

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I. STATEMENT OF CASE
This reexamination was previously appealed to the Board. See
Appeal 2009-013985 (“the 13985 Decision”). The Board affirmed the
Examiner’s rejections, but on appeal to the Federal Circuit, the decision was
reversed and the case remanded to the Office. In re Rehrig Pacific Co., 461
F. App’x 942 (Fed. Cir. 2012). Patent Owner subsequently added claims 63-
72 (June 26, 2012) and amended, inter alia, claims 25, 26, 29, and 35 (June
21, 2013).
Claims 1-56, 58-62, and 64-86 are subject to reexamination. Claims
1-24, 36-39, and 47-51 were determined by the Examiner to be patentable
and/or confirmed. Final Rej. 1 (cover page; Jul. 3, 2013). Claims 25-35, 41-
46, 53-56, 58-62, and 64-86 are rejected. Id. Claims 57 and 63 are
canceled. Id.
The claims on appeal are all directed to a top frame assembly adapted
for use with a pallet, where the top frame assembly and the pallet have at
least one layer of objects positioned therebetween. In the previous appeal,
the claims were rejected as anticipated by Konig1 and obvious over Konig
combined with other publications. 13985 Decision 3. Konig describes a
pallet, but the rejections were affirmed by the Board based on the
determination that the pallet described in Konig met all the features of the
claimed top frame assembly. Id. at 9-11. The Federal Circuit reversed the
13985 Decision because Konig’s pallet had not been used as a top frame
placed on top of goods. In reaching this decision, the court rejected the
Board’s interpretation that a “top frame” is “a structure ‘capable of being

1 Konig et al., DE 32 05 910 A1, published Nov. 24, 1983.
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used’ on top of a pallet of goods to stabilize them.” Rehrig, 461 F. App’x at
945 (quoting from Decision on Rehearing 3 (October 18, 2010)). Rather, the
Federal Circuit held that “the broadest reasonable construction of top frame
is that it is a structure placed on top of goods.” Rehrig, 461 F. App’x. at
946. Based on this construction, the court found that “Konig contains no
teaching that pallets could be placed on top of goods to stabilize them.” Id.
In other words, Konig’s pallet had not been used on top of goods.

A. Claims
Claims 25 and 26 are representative and read as follows (underlining
shows the claim amendments made subsequent to the Federal Circuit
decision):
25. A top frame assembly adapted for use with a pallet,
wherein the top frame assembly and the pallet have at least one
layer of objects positioned therebetween, the top frame
assembly comprising:
first and second top frame members each having an outer
rail defining at least one opening through the top frame
member, the first top frame member having a first plurality of
cross-ribs extending downwardly therefrom, the second top
frame member having a second plurality of cross-ribs extending
upwardly therefrom for mating with the first plurality of ribs,
the first and second plurality of ribs fastened to each other to
form a plurality of complete box beam sections between the
first top frame member and the second top frame member, the
first and second top frame members fastened together such that
the top frame assembly does not include columns creating
forklift openings.

26. A top frame adapted for use with a pallet having at least
one layer of objects to be transported positioned between the
top frame and the pallet, the top frame comprising:
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a first top frame member having a plurality of
downstanding multi-directional rib members extending
therefrom defining a first plurality of partial box-beam sections
thereon, the first top frame member having at least one large
opening therethrough, the at least one large opening through the
first top frame member being a majority of the first top frame
member by area; and
a second top frame member having a corresponding
plurality of upstanding multidirectional rib members extending
therefrom defining a second plurality of partial box-beam
sections thereon, the downstanding rib members and the
corresponding upstanding rib members attached to each other to
form a plurality of box beam sections between the first top
frame member and the second top frame member.

B. Remand to Examiner
Upon remand to the Examiner, the Examiner set forth new rejections
primarily based on teachings by Konig (Non-Final Rej. 5, March 22, 2013),
Nishitani2 (id. at 12) or Weichenrieder3 (id. at 16) of a “top frame”
comprising the “cross-ribs” and “rib members” recited in the claims together
with Flum4 for its teaching of:
[A] pallet assembly comprising: a base pallet 232 that supports
a plurality of layers of objects (see Fig. 1); a top pallet 234 (or
“top frame”) placed on top of the plurality of layers of objects;
and straps 236 securing the base pallet 232 to the top pallet 234,
with the objects secured therebetween. See column 3, line 62 to
column 4, line 23.
Id. at 5 (emphasis added.)

2 Nishitani et al., US 3,938,448, patented Feb. 17, 1976.
3 Weichenrieder, Sr. et al., US 5,806,436, patented Sept. 15, 1998.
4 Flum et al., US 4,801,024, issued Jan. 31, 1989.
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The Examiner reasoned it would have been obvious to one of ordinary
skill in the art
[T]o modify [Konig, Nishitani, or Weichenrieder] by using the
pallet as a top pallet (or “top frame”) secured to a base pallet by
straps with objects secured therebetween because this use of the
pallet provides a pallet assembly with strength and stability and
also makes it possible to stack plural pallet assemblies. See
Flum et al., column 4, lines 5-10.
Non-Final Rej. 6. Thus, the Examiner addressed the Federal Circuit’s
concern that Konig did not show a pallet being used on top of goods to
stabilize them by introducing evidence that pallets could be, and are, used as
top frames. Nishitani and Weichenrieder were cited by the Examiner for the
same teachings as in Konig.
Eleven different grounds of rejection are set forth by the Examiner.
Answer 3, 4, 6, 7, 9, 10, 13, 15, 16, 18, and 19. Grounds 1-5 involve the
combination of Konig and Flum alone or combined with the additional
publications of Pigott ’951,5 Pigott ’029,6 and/or Jordan.7 Grounds 6 and 7
involve the combination of Weichenrieder and Flum combined with the
additional publications of Pigott ’951, Pigott ’029, and/or Jordan. Grounds
9-11 involve the combination of Nishitani and Flum combined with the
additional publications of Pigott ’951, Pigott ’029, Jordan, and/or Handbook
of Plastics Joining.8 Ground 8 involves alternative rejections involving
Konig, Weichenrieder, or Nishitani.

5 Pigott ’951 et al., US 5,097,951, patented Mar. 24, 1992.
6 Pigott ’029 et al., US 5,160,029, patented Nov. 3, 1992.
7 Jordan et al., US 5,638,760, patented June 17, 1997.
8 HANDBOOK OF PLASTICS JOINING A PRACTICAL GUIDE, Chapter 1: Heated
Tool Welding. Plastics Design Library, 1-8 (1997).
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Patent Owner did not address any of the 11 rejections separately. On
pages 8 and 9 of the Appeal Brief (November 8, 2013), Patent Owner
identifies the general basis of the 11 rejections, but does not discuss them
separately. Accordingly, we shall address all the rejections together.

II. CLAIM 25
Amended claim 25 recites the negative limitation “the first and second
top frame members fastened together such that the top frame assembly does
not include columns creating forklift openings.”
Figure 3 of Konig is reproduced below:

As shown in Figure 3 of Konig reproduced above, columns or “skids”
11 form a space for a forklift to lift the pallet. Konig at 5:21-27 & 9:1-6.
Elements 4, 5, and 7 correspond to the “cross-ribs” or “rib members” of
instant claims 25 and 26. The ribs are said by Konig to create “a very stable
and load-bearing upper part, having relatively little weight.” Id. at 8:20-30.
The Examiner reasoned that it would have been obvious to have
eliminated the forklift openings from Konig because “modification would
reduce the size and weight of the pallet, thereby making it easier to lift and
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manipulate the pallet when it is used as a ‘top frame’.” Answer 4. The same
reasoning was applied to Weichenrieder (id. at 12) and Nishitani (id. at 17).
Patent Owner contends that the Examiner’s modification is not
reasonable. Patent Owner states that the “main purpose of a pallet is to
support goods above the floor to create openings for the tines of a forklift or
lift-jack.” Appeal Br. 9. Patent Owner also states the Flum and the other
reference of record “confirm that pallets must have forklift openings.” Id.
Based on these statements, Patent Owner argues:
Modifying a pallet such that it no longer includes forklift
openings would render the pallet incapable of being moved by a
forklift in the intended manner. Accordingly, the suggested
modification renders the Konig pallet unsatisfactory for its
intended purpose.
Id.
Patent Owner’s argument is not persuasive. In reversing the 13985
Decision, the Federal Circuit did not rely on any asserted inherent structural
distinction between pallets and top frames,9 but rather, required that the top
frame be “a structure placed on top of goods,” evidence of which was
missing in Konig. Rehrig, 461 F. App’x. at 946. As now established by the
Examiner in the present reexamination, “the prior art, taken as a whole,
establishes that pallets are used to serve as both (a) a lower support for
objects stacked thereon, and (b) a top frame secured on top of objects that
are stacked on a lower pallet support.” Answer 20-21. The Examiner

9 In this regard, the Federal Circuit stated “[w]e agree with the PTO that the
'044 specification does not clearly disavow top frames that included features
common to pallets, such as openings for forklift tines.” Rehrig, 461 F.
App’x. at 946. Hence, the Federal Circuit did not consider mere recitation
of "top frames" as necessarily excluding structural features of pallets.
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specifically identified Flum, Pigott ’951, Pigott ’029, and Jordan as teaching
such a “dual function.” Id. at 21. This is illustrated, for example, in Fig. 1
of Flum, reproduced below:

Fig. 1 of Flum shows:
[The] base shelf member 134 is positioned on the pallet 232 and
layers of products with similar shelf members positioned on
each layer, such as the members 156, are stacked thereabove. A
top shelf member 156 is also positioned on the top layer of
products. The second or upper pallet 234 or any other relatively
rigid, nonyieldable member or structure is positioned
thereabove to add additional strength and stability to the overall
arrangement 230 and to allow for stackability of the
arrangement during storage.
Flum, col. 4, ll. 1-10 (emphasis added).
In view of this evidence, the Examiner reasonably concluded that
eliminating the forklift openings from Konig, Weichenrieder, and Nishitani
“would specifically tailor the pallets for use as top frames by reducing the
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size and weight of the pallets, thereby making it easier to lift and manipulate
the pallets when used as a ‘top frame.’” Answer 21. In other words,
eliminating the openings from the pallet would not “render the pallets of
these references unsatisfactory for their intended purpose” because pallets
are used as top frames as shown in Flum (see pallet 234), and the
additionally cited publications, and do not require forklift openings when
used for this purpose.
The Examiner gave a specific reason to use the pallet structure (i.e.,
the “cross-ribs” described in Konig, Weichenrieder, and Nishitani) in a top
frame: “because this use of the pallet provides a pallet assembly with
strength and stability and also makes it possible to stack plural pallet
assemblies. See Flum et al., column 4, lines 5-10.” Non-Final Rej. 6;
Answer 3, 8, and 12. Konig indicates that the ribs result in a load-bearing
upper part which is lightweight and have enhanced load-bearing capacity.
Konig at 4:13-32; see discussion of Konig’s Fig. 3 above. The use of ribs
and cross-members in a top frame is also disclosed in Pigott ’029, which is
discussed in more detail below. See Fig. 2 of Pigott ’029 referenced by the
Examiner. Answer 4-5. Because ribs are disclosed in both top frames and
pallets (Answer 5: 10-12), the Examiner reasonably found it obvious to have
used the ribbed pallets of Konig, Weichenrieder, and Nishitani as top
frames.
With respect to the Examiner’s statement that pallets have a “dual
function” in serving as both pallets and top frames, Patent Owner contends
that this argument “undermines the rejection” because it “converts the
pallets into a top frame, which is not suitable to serve the ‘dual functions’ of
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a pallet. Therefore, the Examiner has destroyed the very ‘dual functionality’
he admits are found in pallets.” Appeal Br. 10.
The Examiner’s finding that pallets have a dual function was simply
recognizing that the prior art teaches pallets can also be used as a top frames.
See, e.g., Flum, pallet 234, reproduced above. When used as a top frame,
the Examiner gave an adequate reason as to why the space for forklift tines
would be unnecessary. Patent Owner did not identify a flaw in this
reasoning other than to say it would destroy the pallet’s function as a pallet.
For the foregoing reasons, we conclude that a preponderance of the
evidence supports the Examiner’s determination that claim 25 is obvious in
view of Konig and Flum, Weichenrieder and Flum, Nishitani and Flum, and
the additionally cited publications.

III. CLAIM 26
Claim 26 does not have the negative limitation that forklift openings
are absent. Claim 26, as amended, recites that the first top frame member
“having at least one large opening therethrough, the at least one large
opening through the first top frame member being a majority of the first top
frame member by area.” The Examiner found that Konig showed “frames 2,
3 are formed with numerous openings 10 of varying sizes (see Figs. 3-5).”
Answer 4. The Examiner provided a reason to modify the openings to meet
the claim limitation:
[I]t would have been obvious to modify Konig et al. by
increasing the size or number of the openings 10 such that the
total area of the openings 10 constitutes a majority of the total
area of the pallet. Further, one of ordinary skill in the art would
recognize that such a modification would (a) reduce the amount
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of material used in making the pallet, thereby reducing its cost,
and (b) reduce the weight of the pallet, thereby making it easier
to lift and manipulate the pallet when it is used as a “top
frame”.
Answer 4.
Patent Owner contends that one of ordinary skill in the art would not
have modified a pallet to include “large openings” because “[d]oing so
would render the deck of the pallet less capable (if not altogether incapable)
of supporting the goods stacked thereon. The claimed top frame, on the
other hand, would not have goods stacked thereon.” Appeal Br. 10. Patent
Owner further argues that the modification would make the pallet
unsatisfactory for its intended purpose because it could not later be used as a
pallet since it would “incapable of supporting goods.” Id. at 10-11.
This argument is not persuasive. As established by the Examiner,
“Pigott et al. [’]029 specifically teaches four large openings in the top pallet
10 [referred to as “frame 10” by Pigott ’029] such that the total area of the
four large openings constitutes a majority of the total area of the pallet.”
Answer 22; Pigott ’029, Fig. 1. Patent Owner does not dispute this finding.
Pigott ’029 teaches that the top frames 10 can be stacked
(“[p]referably the pad extends below the supporting rib 54 so that when the
frame 10 is placed on top of either another frame 10 (as in FIG. 6) or the
rows of goods G, the pad, and not the frame 10, contacts the other frame or
goods.”). Pigott ’029, col. 5, ll. 4-8. Thus, Patent Owner’s argument that
goods could not be stacked on a top frame with large openings is
contradicted by the explicit teaching in Pigott ’029 of a stackable top frame
10 with four large openings. The Examiner further provided a logical
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reason, supra at 10, as to why to use large holes in pallet used on top of
goods (i.e., as a top frame) as taught by Flum.
Furthermore, the Examiner referenced Figure 2 of Pigott ’029.
Answer 5. Figure 2 is reproduced below:

As indicated by the Examiner, Figure 2 of Pigott ’029 shows a top
frame which “includes outer rail side members 13, outer rail end members
14, and cross members 15, 16 extending between the side and end members
13, 14 to define four large openings in the top pallet 10. See Figs. 1 and 2;
column 4, lines 9-22.” Answer 5-6. Figure 2 shows one such opening of
four. The cross members 15 and 16 have longitudinal and traverse ribs (col.
4, ll. 23-30), together which correspond to the claimed ribs and the ribs
described in each of Konig, Weichenrieder, and Nishitani for pallets. Thus,
the same cross members and rib structures for added strength are present in
both top frames and bottom pallets.
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For the foregoing reasons, we conclude that a preponderance of the
evidence supports the Examiner’s determination that claim 26 is obvious in
view of Konig and Flum, Weichenrieder and Flum, Nishitani and Flum, and
the additionally cited publications.

IV. SUMMARY
We affirm the rejections of claims 25 and 26 based on grounds 1-11
as set forth in the Examiner’s Answer. Claims 27-35, 41-46, 53-56, 58-62,
and 64-86 were not argued separately and fall with claims 25 and 26. See
37 C.F.R. § 41.37(c)(vii).

TIME PERIOD FOR RESPONSE
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

cdc

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Patent Owner

CARLSON, GASKEY & OLDS, P.C.
400 West Maple Road
Suite 350
Birmingham, MI 48009

Third Party Requester

RICHARD C. HIMELHOCH
UNGARETTI & HARRIS LLP
70 W. Madison Street, Suite 3500
Chicago, Il 60602