Ex Parte Nowling

Patent Trial and Appeal Board

Jun 19, 2017

14317618 (P.T.A.B. Jun. 19, 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.
14/317,618 06/27/2014 SHAWN NOWLING KASAA-14-01 4482
31083 7590 06/20/2017
THOMTE LAW OFFICE, L.L.C.
2120 S. 72ND STREET, SUITE 1111
OMAHA, NE 68124
EXAMINER
MATTEI, BRIAN DAVID
ART UNIT PAPER NUMBER
3633
MAIL DATE DELIVERY MODE
06/20/2017 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 SHAWN NOWLING
____________

Appeal 2016-004948
Application 14/317,618
Technology Center 3600
____________

Before ELENI MANTIS MERCADER, KRISTEN L. DROESCH, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

AMUNDSON, Administrative Patent Judge.

DECISION ON APPEAL

Appellant seeks our review under 35 U.S.C. § 134(a) from a final
rejection of claims 4–6, i.e., all pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
The Invention
According to the Specification, the invention “relates to a grain
storage structure and more particularly to a grain storage structure of the
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hoop style.” Spec. 1:8–9.1 The Specification explains that a grain storage
structure includes a circular upstanding support wall with an upstanding
support tower being centrally positioned within the support wall, a plurality
of curved and spaced-apart first roof trusses have their lower ends secured to
the upper end of the support wall and have their upper ends secured to the
upper end of the support tower, and a plurality of curved and spaced-apart
second roof trusses have their lower ends secured to the upper end of the
support wall between adjacent first roof trusses with the upper ends of the
second roof trusses connected to the first roof trusses below the upper ends
thereof. Abstract.
Exemplary Claim
Independent claim 4 exemplifies the subject matter of the claims
under consideration and reads as follows:
4. A grain storage structure, comprising:
a first semi-circular support wall having a first end, a
second end, a lower end and an upper end;
a first straight support wall having a first end, a second
end, a lower end and an upper end;
said first end of said first straight support wall being
connected to said first end of said first semi-circular support
wall;
a second semi-circular support wall having a first end, a
second end, a lower end and an upper end;

1 This decision uses the following abbreviations: “Spec.” for the
Specification, filed June 27, 2014; “Final Act.” for the Final Office Action,
mailed July 16, 2015; “Adv. Act.” for the Advisory Action, mailed
September 9, 2015; “App. Br.” for the Appeal Brief, filed November 11,
2015; “Ans.” for the Examiner’s Answer, mailed March 2, 2016; and
“Reply Br.” for the Reply Brief, filed April 5, 2016.
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said second end of said first straight support wall being
secured to said second end of said second semi-circular support
wall;
a second straight support wall has a first end, a second
end, a lower end and an upper end;
said first end of said second straight support wall being
secured to said second end of said first semi-circular support
wall;
said second end of said second straight support wall
being secured to said first end of said second semi-circular
support wall;
a first vertically disposed support tower, having upper
and lower ends, centrally positioned between said first and
second ends of said first semi-circular support wall;
a second vertically disposed support tower, having upper
and lower ends, centrally positioned between said first and
second ends of said second semi-circular support wall;
an elongated, horizontally disposed beam means secured
to and extending between said upper ends of said first and
second support towers;
a plurality of spaced-apart curved first roof trusses
having lower end [sic] upper ends;
said lower ends of said first roof trusses being secured to
said upper end of said first semi-circular support wall;
said upper ends of said first roof trusses being secured to
said upper end of said first support tower;
said first roof trusses extending upwardly and inwardly in
a constant unchanged curved arc manner for their entire lengths
from said first semi-circular support wall;
each of said first roof trusses having spaced-apart outer
and inner sides with the spacing therebetween being constant
for a majority of the lengths thereof;
a plurality of spaced-apart curved second roof trusses
having lower and upper ends;
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said lower ends of said second roof trusses being secured
to said upper end of said first semi-circular support wall
between adjacent first roof trusses;
said upper ends of said second roof trusses being
operatively interconnected to said first roof trusses below said
upper ends of said first roof trusses;
said second roof trusses extending upwardly and
inwardly in a constant unchanged curved arc manner for their
entire lengths from said second semi-circular support wall;
each of said second roof trusses having spaced-apart
outer and inner sides with the spacing therebetween being
constant for a majority of the lengths thereof;
a plurality of spaced-apart curved third roof trusses
having lower and upper ends;
said lower ends of said third roof trusses being secured to
said upper end of said first straight support wall;
said upper ends of said third roof trusses being secured to
said beam means;
said third roof trusses extending upwardly and inwardly
in a constant unchanged curved arc manner for their entire
lengths from said first straight support wall;
each of said third roof trusses having spaced-apart outer
and inner sides with the spacing therebetween being constant
for a majority of the lengths thereof;
a plurality of spaced-apart fourth curved roof trusses
having lower and upper ends;
said lower ends of said fourth roof trusses being secured
to said upper end of said second semi-circular support wall;
said upper ends of said fourth roof trusses being secured
to said upper end of said second support tower;
said fourth roof trusses extending upwardly and inwardly
in a constant unchanged curved arc manner for their entire
lengths from said second semi-circular support wall;
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each of said fourth roof trusses having spaced-apart outer
and inner sides with the spacing therebetween being constant
for a majority of the lengths thereof;
a plurality of spaced-apart and curved fifth roof trusses
having lower and upper ends;
said lower ends of said fifth roof trusses being secured to
said upper end of said second semi-circular support wall
between adjacent fourth roof trusses;
said upper ends of said fifth roof trusses being
operatively interconnected to said fourth roof trusses below said
upper ends of said fourth roof trusses;
said fifth roof trusses extending upwardly and inwardly
in a constant unchanged curved arc manner for their entire
lengths from said second semi-circular support wall;
each of said fifth roof trusses having spaced-apart outer
and inner sides with the spacing therebetween being constant
for a majority of the lengths thereof;
a plurality of spaced-apart curved sixth roof trusses
having lower and upper ends;
said lower ends of said sixth roof trusses being secured to
said upper end of said second straight support wall;
said upper ends of said sixth roof trusses being secured to
said beam means;
said sixth roof trusses extending upwardly and inwardly
in a constant unchanged curved arc manner from their entire
lengths from said second straight support wall;
each of said sixth roof trusses having spaced-apart outer
and inner sides with the spacing therebetween being constant
for a majority of the lengths thereof.
App. Br. 15–19 (Claims App.).
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The Prior Art Supporting the Rejections on Appeal
As evidence of unpatentability, the Examiner relies on the following
prior art:
The Rejections on Appeal
Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
DeGarie and Liu. Final Act. 2–5; App. Br. 8.
Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over DeGarie and Saito. Final Act. 5–7; App. Br. 8.

ANALYSIS
We have reviewed the rejections of claims 4–6 in light of Appellant’s
arguments that the Examiner erred. For the reasons explained below, we
disagree with Appellant’s assertions regarding error by the Examiner. We
adopt the Examiner’s findings in the Final Office Action (Final Act. 2–8),
Advisory Action (Adv. Act. 2), and Answer (Ans. 2–5). We add the
following to address and emphasize specific findings and arguments.
The Rejection of Claim 4 Under 35 U.S.C. § 103(a)
“FIRST VERTICALLY DISPOSED SUPPORT TOWER”
AND “SECOND VERTICALLY DISPOSED SUPPORT TOWER”
Appellant argues that the Examiner erred in rejecting independent
claim 4 because “the Examiner’s combination of references does not
disclose first and second support towers having the upper ends of the roof
trusses secured thereto.” App. Br. 10. Appellant also argues that the
Examiner wrongly relied on element 18 in Liu as a tower because Liu
Saito et al. (“Saito”) US 5,146,719 Sept. 15, 1992
Liu US 5,867,948 Feb. 9, 1999
DeGarie US 6,324,792 B1 Dec. 4, 2001
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describes element 18 as “a semi-circular multi-head bullet connector”
instead of a tower. App. Br. 10; Reply Br. 3. Appellant further argues that
“Liu does not teach or suggest any towers.” Reply Br. 3.
Appellant’s arguments do not persuade us of Examiner error. The
Examiner finds that (1) DeGarie discloses a circular structure with a
centrally located tower and (2) Liu teaches “an alternate shape consisting of
two semi-circular walls spaced apart with parallel spaced apart walls.”
Ans. 2; see Final Act. 2–4; see also DeGarie Figs. 1–2; Liu Figs 1–2. The
Examiner reasons that modifying DeGarie’s circular structure according to
Liu produces two semi-circular structures “with each semi-circle being
spaced apart by parallel walls as taught by Liu.” Ans. 2–3; see Final Act. 4–
5. The Examiner also reasons that DeGarie’s centrally located tower will be
“split as well in the center of each semi-circle” and “duplicated on the other
end of the straight segment and connected by [the] beam means” taught by
Liu. Ans. 3; Final Act. 5; see In re Harza, 274 F.2d 669, 671 (CCPA 1960)
(explaining that “the mere duplication of parts has no patentable significance
unless a new and unexpected result is produced”). The Examiner further
finds that the two towers “would be at the locations of elements 18 of Liu.”
Ans. 3. Liu Figure 2 discloses elements 18 centrally positioned between
diametrically opposite ends of semi-circular walls. See Liu Fig. 2.
Accordingly, the Examiner relies on the combination of disclosures
taken as a whole to teach or suggest a “first vertically disposed support
tower” and a “second vertically disposed support tower” as recited in
claim 4. Appellant’s arguments do not address the combination of
disclosures taken as a whole and, therefore, do not establish Examiner error.
See App. Br. 9–10; Reply Br. 2–3; see also Adv. Act. 2; Ans. 2.
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“FIRST ROOF TRUSSES” AND “THIRD ROOF TRUSSES”
Appellant argues that the Examiner erred in rejecting claim 4 because
the references do not disclose “first roof trusses” and “third roof trusses” as
recited in claim 4. App. Br. 10–11; Reply Br. 1–3. More specifically,
Appellant asserts that the references do not disclose trusses “extend[ing]
upwardly and inwardly in a constant unchanged curved arc manner for their
entire lengths” or trusses “hav[ing] spaced-apart outer and inner sides with
the spacing therebetween being constant for a majority of the lengths
thereof.” App. Br. 10–11; Reply Br. 1–3. Appellant also asserts that
DeGarie’s trusses initially extend “upwardly and inwardly” but after an
approximate midpoint extend “downwardly and inwardly” to the centrally
located tower. App. Br. 10–11; Reply Br. 1–2. Appellant concedes that
DeGarie Figure 20 depicts a truss 152 having an outer chord (outer side) 153
and an inner chord (inner side) 154 that “are curved and parallel for a
portion of their lengths.” Reply Br. 2. But Appellant contends that those
chords (sides) comprise part of the “upwardly and inwardly” extending
“outer trusses” rather than the “downwardly and inwardly” extending “inner
trusses.” Id.
Appellant’s arguments do not persuade us of Examiner error. The
Examiner finds that Liu teaches placing the center tower “at a higher height”
than the support wall. Adv. Act. 2 (citing Liu Figs. 3, 19); see Final Act. 5.
Liu Figures 1 and 3 show an arched framework with its topmost portion
substantially higher than its bottommost portion. Liu 7:50–54, 8:20–23,
Figs. 1, 3. To support the topmost portion of Liu’s framework, the height of
DeGarie’s tower would exceed the height of a support wall. The Examiner
reasons that in DeGarie’s structure as modified by Liu the “constant
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unchanged arc manner” of DeGarie’s trusses “will extend upwardly and
inwardly for their entire lengths” to achieve a suitable “height and shape”
and “attach to the taller tower structure” taught by Liu. Final Act. 5 (citing
Liu Figs. 3, 19); Ans. 3 (citing Liu Fig. 2). The Examiner further finds that
DeGarie Figure 20 “disclose[s] the outer and inner sides [of truss 152]
having spacing therebetween being constant.” Ans. 3. Figure 20 shows only
an “outer truss” 152. But Figures 1 and 2 show “inner trusses” that mirror
“outer trusses.” DeGarie Figs. 1–2. The Examiner finds that trusses
according to Figure 20 “extend to the center support in the same manner as
every other embodiment even though only the outer portion is seen in the
drawings.” Adv. Act. 2. Consequently, DeGarie teaches or suggests an
“inner truss” that mirrors the “outer truss” 152 and includes “outer and inner
sides having spacing therebetween being constant.” See Ans. 3; see also
Final Act. 4 (citing DeGarie 7:33–43, Fig. 21).
Accordingly, the Examiner relies on the combination of disclosures
taken as a whole to teach or suggest trusses “extending upwardly and
inwardly in a constant unchanged curved arc manner for their entire lengths”
and trusses “having spaced-apart outer and inner sides with the spacing
therebetween being constant for a majority of the lengths thereof.” See Final
Act. 4–5; Adv. Act. 2; Ans. 3. Appellant’s arguments do not address the
combination of disclosures taken as a whole and, therefore, do not establish
Examiner error. See App. Br. 10–11; Reply Br. 1–3; see also Adv. Act. 2;
Ans. 2.
Appellant contends that Liu “does not teach or suggest that the upper
and lower portions of the trusses are spaced therebetween in a constant
manner for a majority of their lengths.” Reply Br. 3. As noted above,
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however, the Examiner relies on DeGarie, not Liu, to teach or suggest that
feature. See Final Act. 2–4; Ans. 3.
SUMMARY FOR CLAIM 4
For the reasons discussed above, Appellant’s arguments have not
persuaded us that the Examiner erred in rejecting claim 4 for obviousness
based on DeGarie and Liu. Hence, we sustain the rejection of claim 4.
The Rejection of Claims 5 and 6 Under 35 U.S.C. § 103(a)
“SAID TOWER STRUCTURE HAVING A HEIGHT GREATER
THAN THE HEIGHT OF SAID CIRCULAR SUPPORT WALL”
Appellant argues that the Examiner erred in rejecting independent
claims 5 and 6 because DeGarie and Saito do not teach or suggest “said
tower structure having a height greater than the height of said circular
support wall” as recited in each claim. App. Br. 11–12, 13; see Reply Br. 2.
In particular, Appellant contends that (1) “DeGarie does not have a height
greater than the height of the circular support wall thereof” and (2) “Saito
does not teach a tower structure at all but merely shows a center post 7 of
a crane 10 which will be removed when the roof thereof has been
constructed.” App. Br. 12, 13; see Reply Br. 2.
Appellant’s contentions do not persuade us of Examiner error. The
Examiner finds that DeGarie teaches “the central column” or tower and
Saito teaches a “taller tower structure.” Adv. Act. 2 (citing Saito Fig. 8);
Ans. 4; see Final Act. 7 (citing Saito Fig. 8). Saito Figure 8 depicts a fully
elevated dome with its topmost portion substantially higher than its
bottommost portion. Saito 2:39–41, Fig. 8. To support the topmost portion
of Saito’s dome, the height of DeGarie’s tower would exceed the height of a
support wall. Hence, the combination of disclosures taken as a whole
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teaches or suggests “said tower structure having a height greater than the
height of said circular support wall.”
“FIRST ROOF TRUSSES” AND “THIRD ROOF TRUSSES”
Appellant argues that the Examiner erred in rejecting claims 5 and 6
because DeGarie and Saito do not disclose “first roof trusses” and “third
roof trusses” as recited in the claims. App. Br. 11–14; Reply Br. 1–3. More
specifically, Appellant asserts that the references do not disclose trusses
“having spaced-apart outer and inner sides” with the sides “extending
upwardly and inwardly in a constant unchanged curved arc manner for their
entire lengths” and the sides “being spaced-apart with the spacing
therebetween being constant for a majority of the lengths thereof.” App.
Br. 11–14. Appellant further asserts that (1) Saito’s trusses “do not extend
upwardly and inwardly in a constant unchanged curved arc manner” and
(2) the upper and lower sides of Saito’s trusses “are not spaced apart in a
constant manner for a majority of their lengths.” Reply Br. 2–3.
Appellant’s assertions do not persuade us of Examiner error because,
as the Examiner notes, those assertions address the references individually.
Ans. 4; see Final Act. 7–8. Where a rejection rests on a combination of
references, an appellant cannot establish nonobviousness by attacking the
references individually. See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986). The Examiner finds that “the combination of references
teaches the claim limitations” because: (1) DeGarie teaches trusses with a
“constant and unchanged” curve; (2) Saito teaches a “taller tower structure”;
and (3) the “constant unchanged arc manner of the trusses of DeGarie will
extend upwardly and inwardly for their entire lengths in order to attach to
the taller tower structure” taught by Saito. Final Act. 7–8 (citing DeGarie
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Figs. 2–3; Saito Fig. 8); Adv. Act. 2 (citing DeGarie 7:33–43, Fig. 2; Saito
Fig. 8); Ans. 4 (citing DeGarie Figs. 2–3; Saito Fig. 8). Moreover, as
discussed above for claim 4, the Examiner finds that DeGarie teaches trusses
having space-apart sides “with the spacing therebetween being constant for a
majority of the lengths thereof.” Ans. 5; see Final Act. 4, 6–7 (citing
DeGarie 7:33–43, Fig. 21); Adv. Act. 2; Ans. 3; see also DeGarie 4:19–23,
5:1–11, 7:33–43, Figs. 1–3, 20–21. In addition, Appellant’s assertions are
not commensurate in scope with claim 6 because claim 6 does not recite
“third roof trusses.” App. Br. 21–22 (Claims App.).
SUMMARY FOR CLAIMS 5 AND 6
For the reasons discussed above, Appellant’s arguments have not
persuaded us that the Examiner erred in rejecting claims 5 and 6 for
obviousness based on DeGarie and Saito. Hence, we sustain the rejection of
claims 5 and 6.

DECISION
We affirm the Examiner’s decision to reject claims 4–6.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED