Ex Parte Suggate

Patent Trial and Appeal Board

Apr 11, 2013

10519546 (P.T.A.B. Apr. 11, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte TREVOR ROSS SUGGATE
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Appeal 2011-002345
Application 10/519,546
Technology Center 3600
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Before JOHN C. KERINS, WILLIAM A. CAPP and
NEIL T. POWELL, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-002345
Application 10/519,546
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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the final
rejection of claims 2-29. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
Appellant’s invention relates to modular platforms. Spec., p. 1.
Claim 2, reproduced below with paragraph indentations added, is illustrative
of the subject matter on appeal.
2. A deck support which is adjustable to support a deck
of a platform, walkway or ramp at a predetermined elevation,
the deck support comprising
a prefabricated moveable member and
a corresponding elongate member,
an engagement between the prefabricated moveable
member and the elongate member retaining the prefabricated
movable member to the elongate member while allowing
longitudinal movement of the prefabricated movable member
relative to the elongate member,
the prefabricated moveable member having an extension
arranged to directly support the deck laterally of the elongate
member by contact with an underneath surface of the deck and
wherein the prefabricated moveable member is locatable
at predetermined longitudinal positions relative to the elongate
member.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Richardson
Greenwood
Schomaker
US 3,788,016
US 3,808,757
US 6,701,563 B2
Jan. 29, 1974
May 7, 1974
May 9, 2004
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The following rejections are before us for review:
1. Claims 2-16, 19-22 and 24-29 are rejected under 35 U.S.C. §
103(a), as being unpatentable over Greenwood.
2. Claims 17 and 18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Greenwood and Richardson.
3. Claim 23 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Greenwood and Schomaker.
OPINION
Unpatentability of Claims 2, 9, 19-22 and 24-29 Over Greenwood
Appellant argues claims 2, 9, 19-22 and 24-29 as a group. App. Br.
13-21. We select claim 2 as representative. See 37 C.F.R. § 41.37(c)(1)(vii)
(2011).
The Examiner finds that Greenwood discloses all of the limitations of
claim 2 except that it does not specifically disclose that extension 56 and
plate 38 contact and support the deck. Ans. 3. The Examiner concludes that
it would have been obvious to a person of ordinary skill in the art at the time
of the invention to support the deck with the extension and plate. Ans. 3-4.
According to the Examiner, a person of ordinary skill in the art would be
motivated to achieve this because it would increase the load bearing capacity
of the deck. Ans. 4.
The Appellant traverses the Examiner’s rejection by first challenging
the Examiner’s finding that Greenwood element 44a is a movable member
and element 44b is an elongate member within the meaning of the claims.
App. Br. 16-17. Appellant argues that Greenwood element 44a should be
considered the elongate member and element 44b should be considered the
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moveable member. App. Br. 16-18. Appellant argues that Greenwood’s
elevated deck assembly 10, which includes element 44a, is a rigid structure
that remains fixed in space, while element 44b slides telescopically relative
to it. According to Appellant, when Greenwood elements 44a and 44b are
viewed in this fashion, what Appellant identifies as Greenwood’s moveable
member lacks an extension that contacts and supports the deck. Id.
Appellant supports this argument with an unsubstantiated assertion
that mobile homes, the principal product application for Greenwood, are all
elevated the same distance above the ground. App. Br. 17. Thus, according
to Appellant, telescopic adjustment of element 44b relative to 44a does not
adjust the height of the deck, but instead merely accounts for unlevel
ground. App. Br. 16. To further support this argument, Appellant advances
a number of unsupported assumptions as to how Greenwood is assembled so
that it can then be adjusted to account for unlevel ground. App. Br. 17.
The Examiner responds by stating that the overall length of element
44 defines the height of the deck 40 above the ground. Ans. 6. Therefore,
positioning elements 44a and 44b relative to each other adjusts the height.
Id. The Examiner disagrees with Appellant’s assertion that all mobile
homes have a set elevation and states that Greenwood is specifically
designed to accommodate different ground heights relative to the position of
mobile homes at different locations. Ans. 7. The Examiner states that a
person of ordinary skill in the art would adjust the height in any manner
desired as both 44a and 44b move relative to each other. Ans. 8.
Appellant replies to the Examiner by asserting, in effect, that
Greenwood is more difficult to assemble and adjust in height than
Appellant’s invention. Reply 2-4. Appellant posits that element 44a
becomes incorporated into a larger, pre-assembly structure that does not fit
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the definition of a “member” and, therefore, such pre-assembly structure
does not satisfy the claim limitation directed to a moveable member.
Reply 3.
Greenwood discloses an elevated deck assembly. Abstract. A step
assembly 12 allows someone to walk up a flight of steps to reach the
elevated deck from the ground. See Fig. 1. Each and every leg support for
the elevated deck has a telescopic adjustment feature to adjust the length of
the leg and hence the height of the deck above the ground. Id. In other
words, if all of the legs are adjusted to their shortest length, the deck, when
assembled, will have less overall height above the ground than if all of the
legs are extended to full length. Id. Consequently, the deck is capable of
residing at different heights above the ground. While the adjustable length
legs can also accommodate uneven ground, as noted by Appellant, that does
not detract from Greenwood’s capability to achieve differing elevations.
Thus, we agree with the Examiner that Greenwood satisfies the claim
limitations directed to an elongated member and to a movable member with
an extension.1
Next, Appellant argues that, even if Greenwood’s element 44a is a
movable member, its extension (strut) 56 does not directly support the deck
laterally by contact with an underneath surface of the deck. App. Br. 18-21.
Appellant argues that strut 56 and plate 38 do not support the deck as
claimed and, instead, merely serve the purpose of bracing and increasing the
rigidity of the assembled structure. App. Br. 19. Appellant also asserts that

1 The Examiner’s determination that Greenwood’s deck can achieve
differing elevations is corroborated, at least in part, by the disclosure in
Greenwood providing for height adjustment of the step assembly. See
Greenwood, Col. 4, ll. 11-16.
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connection 58 between element 44a and strut 56 does not appear to be of a
type suitable for allowing the struts to support the deck. App. Br. 19-21.
Finally, Appellant asserts that the Examiner’s proposed function for
Greenwood’s strut element 56 does not comport with the definition of
“strut.” App. Br. 20.
The Examiner responds by expressing an opinion that Greenwood’s
plate 38 is actually intended to support deck 40. Ans. 6. However, because
Greenwood is not sufficiently explicit in making such a disclosure, the
Examiner rejected the claim as obvious rather than anticipated. Ans. 6. The
Examiner interprets Figure 1 of Greenwood such that bracing elements 34a,
34b appear to be horizontally disposed along the bottom of the deck 40.
Ans. 8. According to the Examiner, this would dispose tie plate 38 directly
beneath deck 40. Id. The Examiner reiterates that it would have been
obvious to a person of ordinary skill in the art at the time the invention was
made to support the deck with the strut/plate combination (56, 38) in order
to increase the load bearing capacity of the deck. Ans. 6. After taking into
account the orientation and juxtaposition of elements 34a, 34b, 38, 40, 44
and 56, the Examiner reasons that bracing elements 34a, 34b abut and
support the deck in a manner like border frame 24, 26, 28 and 30. Ans. 8-9.
Clearly all of this bracing is designed to support the deck as
well as the frame and one skilled in the art would have
recognized this. To have made a deck supported only by a lip
of border frame (24, see Figure 2) without any regard for
support in an interior portion of the deck (40) would have been
unsafe. Because user safety and structural integrity are basic
considerations for one skilled in the art, it would have been
obvious to one of ordinary skill in the art at the time the
invention was made to have arranged the plate (38) supported
by strut (56) extending from leg (44) to directly support the
deck (40).
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Ans. 9.
Greenwood’s Figure 1 depicts diagonal bracing pieces 34a, 34b and
36a, 36b. The interior ends of these diagonal pieces are attached to the
center tie plate 38. Fig. 1, Col. 2, ll. 10-13. The outer ends are joined to the
border frame adjacent its corners through tie plates 32. Col. 2, ll. 13-15.
Thus, the outer ends of the diagonal bracing pieces reside at the same
elevation as the deck and deck frame. See Greenwood, Col. 1, l. 63 – Col. 2,
l. 21. Greenwood’s deck (or paneling) is composed of plywood, particle
board or other type of panels. Col. 2, ll. 16-21. Although Greenwood does
not disclose specific length and width dimensions for the deck, the deck is
obviously intended to accommodate and bear the weight of one or more
people.
Having considered all of the arguments and positions of both the
Appellant and the Examiner, we agree with the Examiner’s conclusion of
unpatentability. In particular, we are persuaded by the Examiner’s reasoning
and observation concerning the overall support for the deck of Greenwood.
Appellant’s invention provides aluminum tubes 52 to reinforce the deck and
prevent sagging under the weight of an occupant. See Figs. 8a and 8b; Spec.
p. 11, ll. 18-26. In contrast, Greenwood is silent as to structural
reinforcement of the plywood or particle board deck material. We are
persuaded that a person of ordinary skill in the art would have recognized
that unreinforced plywood or particle board would sag under the weight of
occupancy in Greenwood. We are also persuaded that a person of ordinary
skill in the art would have recognized the benefit of disposing Greenwood’s
tie plate 38 and diagonal pieces 34a, 34b, 36a and 36b immediately beneath
deck panel 40 to furnish structural support for the deck. Thus, to the extent
that Figure 1 of Greenwood does not fully and unambiguously teach
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supporting contact between a moveable member extension and the
underneath surface of the deck, it does convey sufficient information to a
person of ordinary skill in the art to render it obvious to do so.
In view of the foregoing discussion, we sustain the Examiner’s
rejection of claims 2-16, 19-22 and 24-29.
Unpatentability of Claims 17 and 18 Over Greenwood and Richardson
Claims 17 and 18 depend either directly or indirectly from claim 2.
Appellant offers no new arguments for patentability of claims 17 and 18
other than those previously advanced with respect to claim 2. Accordingly,
we sustain the Examiner’s rejection of claims 17 and 18 for the same reasons
that we sustain the rejection of claim 2.
Unpatentability of Claim 23 Over Greenwood and Schomaker
Claim 23 depends from independent claim 20, the rejection of which
we have sustained above. Appellant offers no new arguments for
patentability of claim 23 other than those previously advanced with respect
to claim 20. Accordingly, we sustain the Examiner’s rejection of claim 23
for the same reasons that we sustain the rejection of claim 20.

DECISION
The decision of the Examiner to reject claims 2-29 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED

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