Ex Parte SuggateDownload PDFPatent Trial and Appeal BoardApr 11, 201310519546 (P.T.A.B. Apr. 11, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte TREVOR ROSS SUGGATE ____________ Appeal 2011-002345 Application 10/519,546 Technology Center 3600 ____________ 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 - 2 - 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 Appeal 2011-002345 Application 10/519,546 - 3 - 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 Appeal 2011-002345 Application 10/519,546 - 4 - 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 Appeal 2011-002345 Application 10/519,546 - 5 - 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. Appeal 2011-002345 Application 10/519,546 - 6 - 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). Appeal 2011-002345 Application 10/519,546 - 7 - 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 Appeal 2011-002345 Application 10/519,546 - 8 - 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 hh Copy with citationCopy as parenthetical citation