Ex Parte Kraimer et al

Patent Trial and Appeal BoardSep 23, 2014

12730290 (P.T.A.B. Sep. 23, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JAMES V. KRAIMER, MARKUS GRAF, and JAY G. POLLACK ____________ Appeal 2012-007840 Application 12/730,2901 Technology Center 3600 ____________ Before HUBERT C. LORIN, MICHAEL C. ASTORINO, and BRUCE T. WIEDER, Administrative Patent Judges. WIEDER, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134 from the Examiner’s rejection of claims 1–10, 12–20, 22, and 24.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER Appellants’ claimed invention relates to a materials handling vehicle having a moveable step. (Spec. 1.) 1 According to Appellants, the real party in interest is Crown Equipment Corporation. (Appeal Br. 3.) 2 These are the rejected claims after entry of the Amendment After Final Rejection. (Answer 3.) Appeal 2012-007840 Application 12/730,290 2 Claims 1 and 12 are the only independent claims. Claim 1 is illustrative and is reproduced below: 1. A materials handling vehicle comprising: a frame comprising an operator compartment having at least one entrance and a floorboard; and at least one step capable of being positioned across said entrance a spaced distance from said floorboard such that an operator may stand on said step when said step is positioned across said entrance to gain access to an elevated storage location; and wherein said step extends across the entire extent of said entrance when in a deployed position and is shaped so as to have a length extending in a longitudinal direction of the vehicle, a width and a height, wherein said width has a dimension greater than a dimension of said height. REJECTION3 i. Claims 1–4, 7, 12, 14, 15, and 20 are rejected under 35 U.S.C. § 103(a)4 as being unpatentable over Miiller (US 2004/0099461 A1, pub. May 27, 2004) and Roberts (US 6,827,405 B1, iss. Dec. 7, 2004). ii. Claims 6 and 17 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Miiller, Roberts, and Kim (US 5,050,700, iss. Sept. 24, 1991). 3 Although the claims in groups ii.–v. all depend from either independent claim 1 or independent claim 12, the Examiner does not include Roberts (one of the references used to reject both claim 1 and claim 12) in rejecting these dependent claims. (Answer 8–13.) This appears to be an oversight related to the entry of the Amendment After Final Rejection. We agree with Appellants (Appeal Br. 9 n.3) that the Examiner is relying on at least the prior art combination of Miiller and Roberts in rejecting these dependent claims. 4 Now 35 U.S.C. § 103. Appeal 2012-007840 Application 12/730,290 3 iii. Claims 8–10, 13, 18, and 19 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Miiller and Roberts. iv. Claims 5 and 16 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Miiller, Roberts, and Black (US 526,214, iss. Sept. 18, 1894). v. Claims 22 and 24 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Miiller, Roberts, and Lowder (US 4,986,721, iss. Jan. 22, 1991). ANALYSIS Claim 1 recites “at least one step capable of being positioned across said entrance . . . wherein said step . . . [has] a length . . . , a width and a height, wherein said width has a dimension greater than a dimension of said height.” Claim 12 contains a similar limitation. The Examiner states that “Miiller teaches . . . at least one step (52) capable of being positioned across said entrance . . .” and “Roberts discloses wherein the step (12) is shaped as to have a length . . . , a width . . . and a height . . . , wherein said width has a dimension greater than a dimension of said height . . . .” (Answer 5.) Appellants argue that “the restraint bar 52 of Miiller is not a step and does not function as a step.” (Appeal Br. 13.) Appellants further argue that “[t]here is no reason to modify Miiller to include . . . the portable armrest 10 as disclosed in Roberts.” (Appeal Br. 14.) The Examiner asserts that “it would have been obvious . . . to modify the step of Miiller to be more comfortable when used as an armrest.” (Answer 15.) Miiller does not describe element 52 as a “step.” Miiller refers to element 52 variously as a “restraint bar” or “restraint bar pipe.” (Miiller Appeal 2012-007840 Application 12/730,290 4 ¶¶ 26 & 33.) It is not clear why one would attempt to use the restraint bar/pipe 52 shown in Miiller as a step. Nor is it clear why one of ordinary skill in the art would have modified the armrest portion (52A) of Miiller using Roberts to make a step-like armrest or how one would attach Robert’s armrest to Miiller’s restraint bar/pipe. (See Appeal Br. 14–15.) The Examiner asserts that “[t]he restraint bar of Miiller is capable of being used as a step and meets the structural requirements of a step.” (Answer 14.) But the Examiner later modifies this assertion by stating only that “it is reasonable to assume that the restraint bar would be able to support the vertical load of an operator . . . .” (Answer 15.) Miiller does not indicate that the restraint bar/pipe would support the vertical load of an operator standing on it. Nor is it clear why one of ordinary skill in the art would have modified the restraint bar/pipe to support a vertical load when its stated purpose is to “block[] the outward movement from the space ahead of the operator’s seat” and “to interfere with any lateral movement of the outer foot and leg 32 of the operator 25 toward the outside” of the vehicle, i.e., to provide restraint against a horizontal load. (Miiller ¶ 26.) Thus, we agree with Appellants that the Examiner has not presented a prima facie case of obviousness. We reverse the rejection of claim 1. The remaining rejections, based on Miiller and Roberts in combination with Kim, Black, or Lowder, rely on the same erroneous finding as discussed above. Therefore, for the same reason, we reverse the rejection of claims 2– 10, 12–20, 22, and 24. Appeal 2012-007840 Application 12/730,290 5 DECISION The Examiner’s rejection of claims 1–10, 12–20, 22, and 24 under 35 U.S.C. § 103(a) is reversed. REVERSED mls