Ex Parte Frick et al

Patent Trials and Appeals BoardJan 31, 2019

13856853 - (D) (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/856,853 04/04/2013 32116 7590 02/04/2019 WOOD, PHILLIPS, KATZ, CLARK & MORTIMER 500 W. MADISON STREET SUITE 1130 CHICAGO, IL 60661 Rory Frick 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 ATTORNEY DOCKET NO. CONFIRMATION NO. FRI10464P00051US 8153 EXAMINER BRADFORD, CANDACE L ART UNIT PAPER NUMBER 3634 NOTIFICATION DATE DELIVERY MODE 02/04/2019 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): docketing@woodphillips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RORY FRICK and KIRK NELSON Appeal2018-005557 Application 13/856,853 1 Technology Center 3600 Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and TARA L. HUTCHINGS, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. Â§ 134(a), the Appellants appeal from the Examiner's decision rejecting claims 1-14. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We REVERSE. 1 "Inventor Rory Frick listed in the application is a real part[y] in interest in the pending appeal. Inventor Kirk Nelson has assigned his interest to Assignee Universal Ladder, LLC, which also has an interest in the appeal." Appeal Br. 1 (filed Oct. 4, 2017). Appeal2018-005557 Application 13/856,853 STATEMENT OF THE CASE Subject Matter on Appeal The Appellants' "invention relates to the field of ladders and scaffolding, particularly ladders with platform steps and accessories that attach thereto." Spec. ,r 1. Claims 1 and 7 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A ladder to allow a user to access heavy equipment from the ground, the ladder convertible from a ladder configuration to a storage configuration, including: A first and second ladder frame, each having a first end and a second end, each ladder frame including two rails connected by a plurality of support rods, A plurality of steps, each step rotatably connected to a first support rod selected from the plurality of support rods on the first ladder frame and to a second support rod selected from the plurality of support rods on the second ladder frame, each step having a length perpendicular to the first support rod, the distance between the first and second support rods connected by each step being substantially equal to the length of each step, The first end of the second ladder frame being pivotably connected to the heavy equipment, The first and second ladder frames maintaining a parallel relationship as the ladder is converted from the ladder configuration to the storage configuration. Rejections I. Claims 1 and 7 are rejected under 35 U.S.C. Â§ 112(b) or 35 U.S.C. Â§ 112 (pre-AIA), second paragraph, as being indefinite. 2 Final Act. 4--5. 2 The Examiner has withdrawn the rejection of independent claims 1 and 7 as indefinite for reasons particular to claim 1 's and 7 's recitation, "the distance between the first and second support rods connected by each step 2 Appeal2018-005557 Application 13/856,853 II. Claims 1-14 are rejected under (pre-AIA) 35 U.S.C. Â§ I03(a) as being unpatentable over Howlett (GB 2426029A, pub. Nov. 15, 2006), Loix (US 4,053,028, iss. Oct. 11, 1977), and Fuqua et al. (WO 2009/025642 Al, pub. Feb. 26, 2009) (hereinafter "Fuqua"). Final Act. 5-10. ANALYSIS Rejection I The Examiner rejects independent claims 1 and 7 because it is unclear if"[ a] first and second ladder frame, each having a first end and a second end, each ladder frame including two rails connected by a plurality of support rods," as recited in the claims, calls for a lateral pair or a fore/ aft pair of rails. See Final Act. 5. The Appellants argue that the foregoing recitation of claims 1 and 7 are definite. See Appeal Br. 5-7; Reply Br. 1-2. The Appellants contend that 'just because the invention as claimed is broad and may cover more than one possible construction does not make it indefinite." Appeal Br. 7. We agree with the Appellants. In this case, the Examiner's concern is directed to a matter of breadth, not indefiniteness. See In re Gardner, 427 F.2d 786, 788 (CCPA 1970). Thus, we do not sustain the Examiner's rejection of claims 1 and 7 as indefinite. Rejection II The Examiner's rejection of independent claims 1 and 7 relies on a finding that Howlett's angle brackets 20, 22 correspond to the claimed being substantially equal to the length of each step." See Ans. 3; see also Final Act. 4 (rejecting claims 1 and 7 because "the distance" lacks sufficient antecedent basis and "the distance ... connected" is unclear.). 3 Appeal2018-005557 Application 13/856,853 "plurality of support rods." See Final Act. 6, 8; see also Howlett 8 ("Each tread is attached at each end to an angle bracket 20, 22 best seen in Fig 7."). We also note that the Examiner's rejection does not rely on either Loix or Fuqua to teach a support rod. The Appellants argue that Howlett's angle brackets 20, 22 are not "support rods." Appeal Br. 9. Appellants contend that Howlett's angle brackets 20, 22 "are commonly known as angles or angle irons" and "[a]ngles are not rods under any reasonable interpretation of the claim language." Id. In response, the Examiner offers a dictionary definition of the term "rod," i.e., "a thin straight piece of bar or metal." Ans. 5, 7 ( citing www.freedictionary.com). The Examiner determines that this definition reads on Howlett's angle brackets 20, 22. See id. at 4--5, 7. We agree with the Appellants. We appreciate that the Examiner provided a definition for the term "rod." In this case, however, we view the term "angle bracket" as a term of art and determine that one of ordinary skill in the art would understand that Howlett's angle brackets 20, 22 do not correspond to the claimed "plurality of support rods." See also Appeal Br. 9; Reply Br. 4. Thus, we do not sustain the Examiner's rejection of independent claims 1 and 7, and dependent claims 2---6 and 8-14, as unpatentable over Howlett, Loix, and Fuqua. DECISION We REVERSE the Examiner's decision rejecting claims 1-14. REVERSED 4