Ex Parte McFarland

Patent Trial and Appeal BoardAug 9, 2017

13604805 (P.T.A.B. Aug. 9, 2017)

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. 13/604,805 09/06/2012 Greg McFarland P/1793-17 1536 2352 7590 08/11/2017 OSTROLENK FABER LLP 1180 AVENUE OF THE AMERICAS NEW YORK, NY 10036-8403 EXAMINER ROMANO, ASHLEY K ART UNIT PAPER NUMBER 3652 NOTIFICATION DATE DELIVERY MODE 08/11/2017 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): pat @ ostrolenk.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREG MCFARLAND Appeal 2015-006334 Application 13/604,805 Technology Center 3600 Before LYNNE H. BROWNE, THOMAS F. SMEGAL, and FRANCES L. IPPOLITO, Administrative Patent Judges. SMEGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Greg McFarland (Appellant)1 seeks our review under 35 U.S.C. § 134 of the Examiner’s rejections2 under 35 U.S.C. § 103(a) of claims 1—6, 11— 13, 17, 19, and 21 as unpatentable over Kaufman (US 3,674,164, iss. July 4, 1972) and Puig Salsas (US 2,584,918, iss. Feb. 5, 1952); of claims 7—10, 15, and 16 as unpatentable over Kaufman, Puig Salsas, Apter (US 4,335,990, iss. June 11, 1982), and Steffan (US 7,004,482 Bl, iss. Feb. 28, 2006); of claims 14 and 20 as unpatentable over Kaufman, Puig Salsas, and Nassaux (US 8,413,999 B2, iss. Apr. 9, 2013); and of claim 18 as unpatentable over 1 Appellant self-identifies as the real party in interest. Appeal Br. 1. 2 Appeal is taken from the adverse decision of the Examiner as set forth in the Final Office Action, dated June 30, 2014 (“Final Act.”). Appeal 2015-006334 Application 13/604,805 Kaufman, Puig Salsas, and Sari (US 2005/0081932 Al, pub. Apr. 21, 2005). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER Claims 1 and 21 are independent claims. Claim 1, reproduced below, illustrates the claimed subject matter, with disputed limitations emphasized. 1. A barrel truck for moving a barrel, the barrel having a bottom surface that is provided to be disposed adjacent the ground or other support surface, the barrel truck comprising: a handle structure; a wheeled support fixedly coupled to the handle structure, wheels of the support being structured and spaced apart on the support such that the wheels can roll beneath and under the bottom surface of the barrel to be lifted by the barrel truck when the barrel is pivoted in a direction away from the barrel truck; a cradling member pivotally coupled at a pivot to the wheeled support for engaging with a portion of the perimeter of the barrel but not extending past the center line of the barrel; and an upright structure coupled to the cradling member and having a gripping mechanism for gripping the barrel at the top of the barrel, the gripping mechanism adapted to have a force applied thereto to exert an upward force on the barrel to pivot the barrel off the ground or other support surface in the direction away from the barrel truck when a downward force is applied to the handle structure, causing the wheeled support to move forward and pivot about the pivot with respect to the cradling member, allowing the wheels on the wheeled support to move underneath the bottom surface of the barrel, with further force on the handle structure lifting the barrel off the ground or other support surface balanced over the wheels. 2 Appeal 2015-006334 Application 13/604,805 ANALYSIS Obviousness of Claims 1—6, 11—13, 17, 19, and 21 over Kaufman and Puig Salsas We are persuaded by Appellant’s arguments that the Examiner erred in rejecting claims 1—6, 11—13, 17, 19, and 21 over Kaufman and Puig Salsas. See Appeal Br. 4—7; Reply Br. 1—8. In rejecting claim 1, the Examiner finds that Kaufman discloses a barrel truck with substantially all the elements of claim 1, but “does not disclose that the wheels can roll beneath and under the bottom surface of the barrel when the barrel is pivoted away from the barrel truck.” Final Act. 2— 3. However, the Examiner reasons that “[tjhis type of pivoting on hand trucks is well known in the art,” observing that Puig Salsas teaches a hand truck in which wheels of the support being structured and spaced apart on the support such that the wheels can roll beneath and under the bottom surface of a barrel (B) to be lifted when the barrel is pivoted in a direction away from the barrel truck. Id. at 3 (citing Puig Salsas, Fig. 4). Based on the foregoing, the Examiner determines that it would have been obvious “to allow the wheels [of Kaufman] to roll beneath the bottom of the barrel when the barrel is pivoted away from the barrel truck, in view of Puig Salsas, in order to allow for pivoting and moving of a barrel in a small space.” Id. In contesting the Examiner’s rejection of claim 1 as obvious over Kaufman and Puig Salsas, Appellant argues that “Puig Salsas does not disclose that the wheels roll beneath and under the bottom surface of the 3 Appeal 2015-006334 Application 13/604,805 barrel,” as recited by the claim.3 Appeal Br. 4. More specifically, Appellant explains that “[a]ll that Puig Salas shows is that the wheels can be disposed at a level below the barrel alongside the barrel, not beneath the bottom surface of the barrel as specifically claimed.” Id. at 5. In response, the Examiner contends “[t]he broadest reasonable interpretation of beneath and under is to be at a lower position, or at a lower elevation than,” and that “[a]s can best be seen in Figure 4 of Puig Salsas, the wheels can roll at a lower position, or at a lower elevation than, the bottom surface of the barrel,” but that “[njeither beneath nor under require that the wheels be directly under a circumference of the bottom of the barrel, as suggested by Appellant.” Ans. 2—3. However, we agree with Appellant that Figure 4 of Puig Salsas does not illustrate that the wheels roll beneath and under the bottom surface of the barrel. Although the Examiner is directed to give a claim term its broadest reasonable interpretation, the interpretation must be consistent with: (1) the ordinary and customary meaning of the term (unless the term has been given a special definition in the specification); (2) the use of the claim term in the specification and drawings; and (3) the interpretation that those skilled in the art would reach. See In re Cortright, 165 F.3d 1353, 1359 (Fed. Cir. 1999). We disagree with the Examiner that it is reasonable to interpret the term “beneath and under the bottom surface” broadly enough to include the location of the wheels as illustrated in Figure 4 of Puig Salsas. We, therefore, find that the Examiner’s legal conclusion of obviousness is not supported by evidence and, thus, cannot stand. See In re Warner, 379 F.2d 3 The Specification at paragraph 27 explains that “the legs clear the bottom of the barrel and enable the wheels to move underneath the barrel.” 4 Appeal 2015-006334 Application 13/604,805 1011, 1017 (CCPA 1967) (holding that “[t]he legal conclusion of obviousness must be supported by facts. Where the legal conclusion is not supported by facts it cannot stand.”). For the foregoing reasons, we do not sustain the Examiner’s rejection of claims 1—6, 11—13, 17, 19, and 21 over Kaufman and Puig Salsas. Obviousness of Claims 7—10, 15, and 16 over Kaufman, Puig Salsas, Apter, and Steffan; of Claims 14 and 20 over Kaufman, Puig Salsas, and Nassaux; and of Claim 18 over Kaufman, Puig Salsas, and Sari The rejections of claims 7—10, 15, and 16 over Kaufman, Puig Salsas, Apter, and Steffan; of Claims 14 and 20 over Kaufman, Puig Salsas, and Nassaux; and of Claim 18 over Kaufman, Puig Salsas, and Sari are based on the same unsupported findings discussed above with respect to Puig Salsas and must be reversed for similar reasons. DECISION We REVERSE the Examiner’s rejections. REVERSED 5