Ex Parte Louthan

Patent Trial and Appeal BoardAug 29, 2018

14610053 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/610,053 01/30/2015 49578 7590 SIMMONS PATENTS P.O. BOX 1560 LENOIR, NC 28645 08/29/2018 FIRST NAMED INVENTOR Robert Barnes Louthan JR. 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. ROL-P-1 1081 EXAMINER ADAMOS, THEODORE V ART UNIT PAPER NUMBER 3635 MAIL DATE DELIVERY MODE 08/29/2018 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 ROBERT BARNES LOUTHAN, JR. Appeal2017-010783 Application 14/610,053 Technology Center 3600 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Robert Barnes Louthan, Jr. ("Appellant"), appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1-14, 19, and 20. 1 We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Claims 15-18 are withdrawn. Br. 35-36 (Claims App.). Appeal2017-010783 Application 14/610,053 THE CLAIMED SUBJECT MATTER Claims 1 and 19 are independent. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A support structure for supporting rigging devices to be stored, said support structure comprising: a base portion defining a bottom portion wherein said base portion defines a center point and is configured to be supported by a support surface; an extension member mechanically associated with said bottom portion and extending perpendicularly away from said bottom portion to an extension member distal end wherein said distal end defines an extension interface; and at least one rigging cradle mechanically associated with said extension interface wherein said rigging cradle defines a plurality of rigging receivers each configured for receiving a rigging item comprising a hoist element so that said hoist element may be engaged by a lifting device while said rigging item is associated with one of said rigging receivers. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Crandall us 977,071 Nov. 29, 1910 Simko us 3,291,318 Dec. 13, 1966 Brace us 4,688,685 Aug.25, 1987 Baughman us 5,676,261 Oct. 14, 1997 Beilenhoff US 2007 /0224879 Al Sept. 27, 2007 Volk US 2012/0318761 Al Dec. 20, 2012 Yatscoff US 2013/0168342 Al July 4, 2013 2 Appeal2017-010783 Application 14/610,053 REJECTIONS I. Claim 14 stands rejected under 35 U.S.C. Â§ 112(b) as indefinite. Final Act. 3. II. Claims 1, 2, 5-8, and 14 stand rejected under 35 U.S.C. Â§ 102(a)(l) as anticipated by Crandall. Id. at 4--7. III. Claims 9 and 10 stand rejected under 35 U.S.C. Â§ 102(a)(l) as anticipated by Crandall, or, in the alternative, under 35 U.S.C. Â§ 103 as unpatentable over Crandall and Volk. Id. at 10-11. IV. Claim 3 stands rejected under 35 U.S.C. Â§ 103 as unpatentable over Crandall and Beilenhoff. Id. at 12. V. Claims 4 and 19 stand rejected under 35 U.S.C. Â§ 103 as unpatentable over Crandall and Yatscoff. Id. at 12-15. VI. Claims 11 and 12 stand rejected under 35 U.S.C. Â§ 103 as unpatentable over Crandall, Baughman, and Brace. Id. at 15-17. VII. Claim 13 stands rejected under 35 U.S.C. Â§ 103 as unpatentable over Crandall and Volk. Id. at 1 7. VIII. Claim 20 stands rejected under 35 U.S.C. Â§ 103 as unpatentable over Crandall, Yatscoff, and Beilenhoff. Id. at 18. IX. Claims 1, 5, and 14 stand rejected under 35 U.S.C. Â§ 102(a)(l) as anticipated by, or, in the alternative, under 35 U.S.C. Â§ 103 as unpatentable over, Simko. Id. at 8-10. OPINION Rejection I Claim 14 recites, in relevant part, that the "at least one base lifting interface is suitably configured for receiving the lifting elements of a lifting device." Br. 35, Claims App. The Examiner determines that this language "renders the claimed invention indefinite because a person of ordinary skill 3 Appeal2017-010783 Application 14/610,053 in the art would not know what scope is covered by the term 'suitably configured' and Applicant's specification does not further define such a scope." Final Act. 3. In particular, the Examiner determines that "[ o ]ne of ordinary skill in the art would not know whether the term 'suitably' requires some type of structure or formation more limiting than any type of formation or structure which allows for receipt of the lifting elements of a lifting device." Ans. 19. We disagree with the Examiner that the inclusion of the word "suitably" renders the claim language indefinite in that we view an element that is "configured for" a certain application as necessarily being "suitably configured for" that application. We find no deficiency in the Examiner's interpretation that "a lifting interface which is capable of receiving any lifting elements of any lifting device is considered to meet such limitations" (id. at 20), even taking into account that the claim includes the word "suitably." For these reasons, we do not sustain the rejection of claim 14 under 35 U.S.C. Â§ 112(b) as indefinite. Rejection II Claims 1 and 5---8 In rejecting independent claim 1, the Examiner finds that Crandall teaches a support structure including, inter alia, at least one rigging cradle (#12) mechanically associated with said extension interface ( see figure 1) wherein said rigging cradle defines a plurality of rigging receivers each configured for receiving a rigging item comprising a hoist element so that said hoist element may be engaged by a lifting device while said rigging item is associated with one of said rigging receivers (The rigging receivers can be considered to comprise of elements # 19 and #23 which are configured to receive hoist elements #20 and #24 which can be engaged by a lifting device, such as a person's hand. Alternatively, the rigging receivers can be considered to comprise of elements #19, #20, #23 and #24, where the rigging 4 Appeal2017-010783 Application 14/610,053 item configured to be received can be considered a bunch of bananas, which can be engaged by a lifting device, such as a person's hand.). Final Act. 5. The Examiner explains that "rigging receivers # 19 and #23 of Crandall are configured to receive hoist elements #20 and #24," and "hoist elements #20 and #24 comprise of hooks and where hooks are highly well known in the art to be used to lift other objects and are configured to be lifted by a lifting device, such as a rope and pulley system or a crane or other lifting object." Ans. 21. Appellant argues that Crandall "neither teaches nor discloses anything close to meeting the requirements of the Applicant's 'rigging cradle' comprising 'rigging receivers."' Br. 1 7. Appellant asserts that [ r Jigging devices are generally heavy and expensive ( and thus, stored and reused) and Applicant's [S]pecification clearly teaches and claims a rigging storage device for storing heavy rigging elements that are moved using a tool/machine such as a crane and hook by associating same with the master link ( for example) of such rigging element. ... A device ( such as a bag or net) used to hold and suspend fruit from a Crandall hook cannot be reasonably considered a "rigging device" as claimed by the Applicant. Id. at 20. According to Appellant, the claimed "rigging cradle" holds the master link of a rigging device so that nothing extends through the master link so that a lifting device ( such as a hook associated with a crane) can be used to remove the heavy rigging device from the rigging cradle. Such cannot be done with the Crandall device as there would be a hook in the master link. Id. at 21. These arguments are unpersuasive because they are not commensurate with the scope of claim 1. As stated by our reviewing court in In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998), "the name of the game is the claim." It is well 5 Appeal2017-010783 Application 14/610,053 established that limitations not appearing in the claim cannot be relied upon forpatentability. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Here, claim 1 only recites, in relevant part, that the "rigging cradle defines a plurality of rigging receivers each configured for receiving a rigging item comprising a hoist element so that said hoist element may be engaged by a lifting device while said rigging item is associated with one of said rigging receivers." Br. 32 (Claims App.) ( emphasis added). The claim does not positively recite the rigging items as structural elements in combination with the support structure comprising a rigging cradle that defines rigging receivers. Rather, the claim recites only that the rigging receivers of the rigging cradle must be configured for receiving rigging items. Id. Appellant does not point to, nor do we find, any language in claim 1 specifying that the rigging receivers of the rigging cradle are configured to hold, in particular, a master link of a rigging item such that no hook extends through the master link. Although the Specification describes that "many rigging items define features such as a ring ('master link') that is configured for receiving lifting elements of a lifting device such as a hook associated with a crane," and "[t]he rigging receivers are preferably configured to receive the rigging items so that such ring is in a position to allow one to easily use the hook of a crane (for example) to remove the rigging item from the rigging receiver" (Spec. 5), such disclosure in the Specification does not impart any structural limitations to the claimed system. 5'ee In re Van Geuns, 98 8 F .2d 1191, 1184 (Fed. Cir. 1993) ( Although the claims are interpreted in light of the Specification, limitations from the Specification are not read into the claims.). Similarly, Appellant's arguments regarding the claimed "lifting device" (Br. 19--22) are not persuasive both because the lifting device is not 6 Appeal2017-010783 Application 14/610,053 positively recited and because Appellant has not persuasively explained why the Specification requires the lifting device to be limited to a specific tool. As to the claimed "rigging cradle" and "rigging receivers," Appellant's arguments (Id. at 16-17) do not adequately explain why the Examiner's reliance on Crandall's arms 12, pulley blocks 19, 23, and hooks 20, 24 is in error. Appellant has not pointed us to an explicit definition of the terms "rigging cradle" or "rigging receivers" in the Specification nor otherwise adequately explained why the Specification precludes an interpretation that encompasses the elements of Crandall identified by the Examiner. Appellant also argues that "Crandall teaches away from Applicant's cradle configuration" (id. at 19), and Crandall is non-analogous art (id. at 21 ). These arguments are not convincing because arguments directed to the issues of teaching away and non-analogous art are irrelevant to the analysis of an anticipation rejection. See Celeritas Techs., Ltd. v. Rockwell Int 'l Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998) ("[T]he question whether a reference 'teaches away' from the invention is inapplicable to an anticipation analysis."); see also In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) ("[T]he question whether a reference is analogous art is irrelevant to whether that reference anticipates.") For the above reasons, Appellant fails to apprise us of error in the Examiner's finding that Crandall discloses all of the limitations of claim 1. Accordingly, we sustain the rejection of claim 1, and its dependent claims 5- 8, for which Appellant relies on the same arguments (Br. 24), under 35 U.S.C. Â§ 102(a)(l) as anticipated by Crandall. Claim 2 Claim 2 recites "an extension accessory that is one of (a) mechanically associated with said extension interface, (b) defined by said 7 Appeal2017-010783 Application 14/610,053 rigging cradle, and ( c) mechanically associated with said rigging cradle." Br. 32-33 (Claims App.). The Examiner finds that Crandall's "[p]ulleys #14 can be considered an extension accessory which is mechanically associated with the rigging cradles #12." Final Act. 5. Appellant points to Figure 5 and page 16 of the Specification and asserts that "Crandall provides ZERO teachings regarding an extension accessory." Br. 24. Appellant appears to insist upon an overly-narrow reading of the language in claim 2. Although the Specification describes that an "[ e ]xemplary extension accessary (13) is a ring element defining a hoist point (21, Fig. 5) configured for receiving a lifting element such as crane hook (17, Fig. 2) so that support structure (10) may be lifted by said extension interface (16) and moved" (Spec. 16), such disclosure in the Specification does not impart any stn1ctura11imitations to the claimed support structure. See Van Geuns, 988 F.2d at 1184; see also SuperGuide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) ("Though understanding the claim language may be aided by the explanations contained in the written description, it is important not to import into a claim limitations that are not a pmi of the claim. For example, a particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment."). Appellant does not identify error in the Examiner's position that Crandall's pulleys 14 constitute extension accessories that are mechanically associated with rigging cradles (arms 2). Final Act. 5. For the foregoing reasons, Appellant does not apprise us of error in the Examiner's finding that Crandall discloses aH of the limitations of claim 2. Accordingly, we sustain the rejection of claim 2 under 35 U.S.C. Â§ 102( a)( 1) as anticipated by Crandall. 8 Appeal2017-010783 Application 14/610,053 Claim 14 The Examiner finds that Crandall discloses at least one base lifting interface comprising ( d) lift ports (inner walls #9 and outer wall of the base # 1 are considered to comprise of a base lifting interface) wherein said at least one base lifting interface is suitably configured for receiving the lifting elements of the lifting device ( see figure 1, where the storage areas between walls #9 are capable of receiving lifting elements). Final Act. 7. Appellant argues that "[t]he Crandall reference provides ZERO teachings related to a lifting interface." Br. 25. Appellant asserts that "Crandall teach[ es] supporting the Crandall device on wheels so that it can be pushed when one desires to move the Crandall device." Id. We are not persuaded by this argument because it is not responsive to the Examiner's findings presented in the rejection. As discussed supra, the Examiner explains that Crandall's inner and outer walls of base 1 constitute lift ports of a base lifting interface that are capable of receiving lifting elements. Final Act. 7. In this regard, Appellant does not specifically address or identify error in the Examiner's position. Thus, Appellant does not apprise us of error in the rejection of claim 14 under 35 U.S.C. Â§ 102(a)(l) as anticipated by Crandall, which we sustain. Re} ection III In contesting the rejection of claims 9 and 10, Appellant argues that Crandall "does not teach all limitations as argued above," including, in particular, that Crandall does not teach the claimed rigging cradle. Br. 29. For the reasons discussed above, Appellant's arguments do not apprise us of error in the Examiner's finding that Crandall discloses all of the limitations of claim 1, from which claims 9 and 10 indirectly depend. Thus, Appellant 9 Appeal2017-010783 Application 14/610,053 does not apprise us of error in the rejection of claims 9 and 10 under 35 U.S.C. Â§ 102(a)(l) as anticipated by Crandall, or, in the alternative, under 35 U.S.C. Â§ 103 as unpatentable over Crandall and Volk. Rejections IV-VIII In contesting the rejections of claims 3, 4, 11-13, 19, and 20, which depend from claim 1, Appellant argues that the additional cited references do not teach the features of claim 1 argued by Appellant to be lacking in Crandall. Id. at 31. Because we have found no deficiencies in Crandall for the reasons discussed above, Appellant's arguments do not apprise us of error with respect to the rejections of claims 3, 4, 11-13, 19, and 20. Appellant further asserts that the additional cited "references are non- analogous art." Id. This argument is not persuasive of error. As the Examiner correctly notes, "a prior art reference must either be in the field of Appellant's endeavor or, if not, then be reasonably pertinent to the particular problem with which the Appellant was concerned, in order to be relied upon as a basis for rejection of the claimed invention." Ans. 31 (citing In re Oetiker, 977 F.2d 1443 (Fed. Cir. 1992)). The Examiner finds that "each secondary reference can be considered reasonably pertinent to the particular problem which Appellant is concerned or within Appellant's field of endeavor." Id. In this regard, Appellant does not specifically address the Examiner's position or explain why it would be deficient. For the above reasons, Appellant does not apprise us of error in the Examiner's conclusion that the subject matter of claims 3, 4, 11-13, 19, and 20 would have been obvious. Accordingly, we sustain the rejections, under 35 U.S.C. Â§ 103, of: claim 3 as unpatentable over Crandall and Beilenhoff; claims 4 and 19 as unpatentable over Crandall and Yatscoff; claims 11 and 12 as unpatentable over Crandall, Baughman, and Brace; claim 13 as 10 Appeal2017-010783 Application 14/610,053 unpatentable over Crandall and Volk; and claim 20 as unpatentable over Crandall, Y atscoff, and Beilenhoff. Re} ection IX In this rejection of independent claim 1, the Examiner finds that Simko discloses, inter alia, an extension member ( the member comprising of both posts # 14) mechanically associated with said bottom portion and extending perpendicularly away from said bottom portion to an extension member distal end ( figure 4 depicts the extension member extending perpendicularly from the base #4, where the two elements are mechanically associated to one another through a weld) wherein said distal end defines an extension interface (#16); and at least one rigging cradle (#20) mechanically associated with said extension interface (see figure 1) wherein said rigging cradle defines a plurality of rigging receivers (the assembly comprises of two rigging receivers #22, and is thus considered to comprise of a plurality of rigging receivers) each configured for receiving a rigging item comprising a hoist element (C) so that said hoist element may be engaged by a lifting device ( the crane which is attached to hook D can be considered the lifting device) while said rigging item is associated with one of said rigging receiver (see figure 1 ). Final Act. 8-9. Alternatively, the Examiner determines that, if Simko is interpreted as lacking a plurality of rigging receivers, then it would have been obvious to a person of ordinary skill in the art at the time the invention was filed to have constructed the support structure of Simko to comprise of more than a single pair of rigging receivers #22 in order to allow more than one hoist element to be supported by the structure and thus allow for quicker switching between different hoist elements and also since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. In re Harza, 124 USPQ 378 (CCPA 1960). Id. at 9. 11 Appeal2017-010783 Application 14/610,053 Appellant argues that "Simko clearly does not teach an extension member defining a distal end and certainly does not teach one defining [an] extension interface configured for being associate[d] with Applicant's rigging cradle." Br. 27. This argument is unpersuasive because it does not specifically address the Examiner's findings as to the disclosure of Simko articulated in the rejection. As discussed supra, the Examiner finds that Simko' s braces 14 constitute an extension member having a distal end that defines an extension interface (i.e., arms 16). Final Act. 8. In this regard, Appellant does not offer any factual evidence or persuasive technical reasoning to explain why the Examiner's findings are in error. Appellant argues that Simko teaches a bull ring support that "does not anticipate Applicant's rigging cradle comprising rigging receivers as there is no rigging cradle nor rigging cradle interface." Br. 28 (citing Spec., Fig. 12). Appellant asserts that "Simko at best shows one feature similar to a rigging receiver and does not teach or make obvious how to modify the Simko device to comprise a plurality of rigging receivers." Id. at 29. According to Appellant, Simko "cannot be modified to have a plurality of rigging receivers without substantial redesign[]." Id. We are not persuaded by these arguments because they are not responsive to the Examiner's specific findings and reasoning presented in the rejection. Namely, Appellant does not address or identify error in the Examiner's finding that Simko's "assembly comprises of two rigging receivers #22, and is thus considered to comprise of a plurality of rigging receivers." Final Act. 8. Appellant also does not persuasively refute the Examiner's alternative position that, even if Simko failed to disclose a plurality of rigging receivers, it would have been obvious to modify Simko to include a plurality of rigging receivers. Id. at 9. Appellant does not address the Examiner's articulated 12 Appeal2017-010783 Application 14/610,053 reasoning (id.) or explain why this reasoning lacks rational underpinnings. Moreover, even assuming arguendo that modifying Simko to include a plurality of receivers would require "substantial redesign[]" (Br. 29), Appellant does not offer persuasive argument or factual evidence that such redesign so as to duplicate rigging receivers would change the basic principles under which Simko was designed to operate or would somehow have been beyond the level of ordinary skill in the mi. See in re Ratti, 270 F.2d 810, 813 (CCPA 1959) (holding, under its paiiicular facts, that the "suggested combination of references would require a substantial reconstruction and redesign of the elements shown in [the primary reference] as well as a change in the basic principles under which the [prirnary reference] construction was designed to operate" (emphasis added), and that such combination was therefore nonobvious) and KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398,421 (2007) ("A person of ordinary skill is also a person of ordinary creativity, not an automaton."). For the above reasons, Appellant fails to apprise us of error in the Examiner's findings or reasoning presented in the rejection based on Simko. Accordingly, we sustain the rejection of claim 1, and its dependent claims 5 and 14, for which Appellant relies on the same arguments (Br. 29), under 35 U.S.C. Â§ 102(a)(l) as anticipated by, or, in the alternative, under 35 U.S.C. Â§ 103 as unpatentable over, Simko. DECISION The Examiner's decision to reject claim 14 under 35 U.S.C. Â§ 112(b) as indefinite is reversed. 13 Appeal2017-010783 Application 14/610,053 The Examiner's decision to reject claims 1, 2, 5-8, and 14 under 35 U.S.C. Â§ 102(a)(l) as anticipated by Crandall is affirmed. The Examiner's decision to reject claims 9 and 10 under 35 U.S.C. Â§ 102(a)(l) as anticipated by Crandall, or, in the alternative, under 35 U.S.C. Â§ 103 as unpatentable over, Crandall and Volk is affirmed. The Examiner's decision to reject claim 3 under 35 U.S.C. Â§ 103 as unpatentable over Crandall and Beilenhoff is affirmed. The Examiner's decision to reject claims 4 and 19 under 35 U.S.C. Â§ 103 as unpatentable over Crandall and Y atscoff is affirmed. The Examiner's decision to reject claims 11 and 12 under 35 U.S.C. Â§ 103 as unpatentable over Crandall, Baughman, and Brace is affirmed. The Examiner's decision to reject claim 13 under 35 U.S.C. Â§ 103 as unpatentable over Crandall and Volk is affirmed. The Examiner's decision to reject claim 20 under 35 U.S.C. Â§ 103 as unpatentable over Crandall, Y atscoff, and Beilenhoff is affirmed. The Examiner's decision to reject claims 1, 5, and 14 under 35 U.S.C. Â§ 102(a)(l) as anticipated by, or, in the alternative, under 35 U.S.C. Â§ 103 as unpatentable over, Simko is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 14