Ex Parte Taylor et al

Patent Trial and Appeal Board

Mar 19, 2018

14845345 (P.T.A.B. Mar. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/845,345 09/04/2015
27885 7590 03/19/2018
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
FIRST NAMED INVENTOR
Curtis Taylor
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.
LIFT 200004US02 6742
EXAMINER
TRAN,DIEMM
Cleveland, OH 44115 ART UNIT PAPER NUMBER
3654
MAILDATE DELIVERY MODE
03/19/2018 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 CURTIS TAYLOR and AARON MISENER 1
Appeal2017-005284
Application 14/845,345
Technology Center 3600
Before JENNIFERD. BAHR, JAMES P. CALVE, and
SEAN P. O'HANLON, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 21-32. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM-IN-PART.
1 Appellant is the Applicant, LIFT2SELL, LLC, which the Appeal Brief
identifies as the real party in interest. Appeal Br. 1.
Appeal2017-005284
Application 14/845,345
THE CLAIMED SUBJECT MATTER
Claim 21, reproduced below, is illustrative of the claimed subject
matter.
21. A pallet lifter for raising and lowering a pallet, the pallet
lifter including a pallet platform, a lifting frame that supports the
pallet platform, and a movement mechanism that controllably
causes the pallet platform to raise and lower, the pallet
platform including a top surface configured to support the pallet,
a front end, a back end, two side walls and a back wall, the two
side walls and back wall are configured to facilitate in
positioning and maintaining the pallet on the top surface of the
pallet platform and between the two side walls, the back wall
positioned at the back end of the pallet platform and preventing
the pallet to extend beyond the back wall when the pallet is
loaded on the top surface of the pallet platform, the two side
walls and the back wall extending upwardly from the top surface
of the platform, the two side walls connected to the back wall,
the lifting frame including first and second sets of legs, each of
said first and second sets oflegs including a first leg and a second
leg that are connected together and which each of said first and
second sets of legs can move relative to one another, a first end
portion of each of said first and second sets of legs moveable
along a longitudinal axis of the pallet platform as the pallet
platform is raised and lowered, a second end portion of the first
leg of each of said first and second sets oflegs immoveable along
the longitudinal axis of the pallet platform as the pallet platform
is raised and lowered, a first end portion of the second leg of each
of said first and second sets of legs moveable along the
longitudinal axis of the pallet platform as the pallet platform is
raised and lowered, a second end portion of the second leg of
each of said first and second sets of legs immoveable along the
longitudinal axis of the pallet platform as the pallet platform is
raised and lowered, the second end portion of the second leg of
each of said first and second sets of legs pivotally connected to a
rear frame, the second end portion of the first leg of each of said
first and second sets of legs is connected to a top frame structure
of the lifting frame so as to prevent movement of the second end
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Application 14/845,345
portion of the first leg along the longitudinal axis of the pallet
platform as the pallet platform raises and lowers, the first end
portion of the second leg of each of said first and second sets of
legs is movably connected to the top frame structure of the lifting
frame so as allow movement of the first end portion of the second
leg along the longitudinal axis of the pallet platform as the pallet
platform raises and lowers, the top frame structure is connected
to the pallet platform, the top frame structure including a guide
that at least partially receives the first end portion of the second
leg of each of said first and second sets of legs, the first end
portion of the second leg of each of said first and second sets of
legs includes a wheel member, the guide to allow the
wheel member of the first end portion to roll and move along a
longitudinal axis of the guide as the pallet platform raises and
lowers, the first end portion of the first leg of each of said first
and second sets of legs includes a wheel member that rolls and
moves on a floor surface and independent of a guide arrangement
as the pallet platform raises and lowers, the movement
mechanism includes a movement frame that is connected to the
rear frame, the movement frame is connected to a
battery housing that includes a battery, a battery powered electric
motor and a single threaded rod, the battery powered electric
motor configured to rotate the threaded rod in a clockwise
and counterclockwise direction, the electric motor is powered by
the battery, the rotation of the threaded rod configured to cause
the pallet platform to raise and lower, the threaded rod oriented
to be non-parallel to the longitudinal axis of the pallet platform,
the threaded rod, the battery and the battery powered electric
motor are located rearwardly of the back end of the pallet
platform and said threaded rod is not in contact with the pallet
platform.
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Application 14/845,345
REJECTIONS2
I. Claims 21, 23, 25, and 27 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Kingswood (GB 607,146, pub. Aug. 26,
1948), Kojima (JP 06-127298, pub. May 10, 1994), 3 and Lam
(US 2008/0169158 Al, pub. July 17, 2008).
II. Claims 22, 24, 26, and 28 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Kingswood, Kojima, Lam, and Larsen
(US 2,692,177, iss. Oct. 19, 1954).
III. Claims 29 and 30 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Kingswood, Kojima, Lam, and Wilson
(US 2008/0000393 Al, pub. Jan. 3, 2008).
IV. Claim 31 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Kingswood, Kojima, and Larsen.
V. Claim 32 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Kingswood, Kojima, Larsen, and Wilson.
DISCUSSION
Rejection I-Obviousness: Kingswood, Kojima, and Lam
The issue raised in contesting the rejection of claim 21 is whether it
would have been obvious to modify Kingswood by using an electric motor
and battery supply as taught by Lam to rotate rod 35 as an alternative power
source (i.e., an alternative to Kingswood's engine unit 17), as proposed by
the Examiner. Appeal Br. 18-20; Final Act. 6. "Appellant submits that the
2 The Examiner withdrew obviousness-type double patenting rejections of
claims 21, 22, 31, and 32. Ans. 2.
3 The Examiner attached an English language translation of this document to
the Answer.
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mechanism disclosed in Kingswood to cause the platform to be raised and
lowered is very different from the movement mechanism defined in
independent claim 21." Appeal Br. 19. More specifically, Appellant points
out that Lam uses two screws to raise and lower the platform, in contrast to
claim 21, which recites a movement mechanism having only a single screw.
Id. Appellant also submits that Lam's mechanism for raising and lowering
the platform "is fundamentally different from" Kingswood's mechanism for
raising and lowering the platform. Id. at 20. Thus, Appellant submits that
there is no reason, other than hindsight, to modify Kingswood's mechanism
with that of Lam to create a movement mechanism as recited in independent
claim 21. Id. In particular, Appellant contends that Kingswood's clutch
arrangement would have to be removed and replaced with a modified
version of the motor and belt arrangement of Lam to arrive at the limitations
of the movement mechanism recited in independent claim 21. Id.
Appellant's arguments presume and attack a bodily incorporation of
Lam's drive motor, belt and pulley arrangement, and dual vertical screw
arrangement. As such, Appellant's arguments do not address the rejection
articulated by the Examiner, which proposes merely to use an electric motor,
as taught by Lam, as an alternative to the engine, to provide the drive force
to rotate Kingwood's screw 35. Such a modification would not require
removal of Kingswood's clutch or the incorporation of the particular belt,
pulley, and dual vertical screw arrangement of Lam. Obviousness does not
require that all of the features of the secondary reference be bodily
incorporated into the primary reference. See In re Keller, 642 F.2d 413, 425
(CCPA 1981). Moreover, even if modification ofKingswood by using an
electric motor to drive screw 3 5 would permit (or even require) the removal
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of Kingswood's clutch arrangement, it is not apparent why this would have
dissuaded one of ordinary skill in the art from making the modification.
Appellant's hindsight argument is unavailing because Appellant does
not identify any flaw in the Examiner's reasoning or point to any knowledge
relied on by the Examiner that was gleaned only from Appellant's disclosure
and that was not otherwise within the level of ordinary skill in the art at the
time of the invention, thereby failing to support Appellant's hindsight
assertion. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) ("Any
judgment on obviousness is in a sense necessarily a reconstruction based
upon hindsight reasoning, but so long as it takes into account only
knowledge which was within the level of ordinary skill at the time the
claimed invention was made and does not include knowledge gleaned only
from applicant's disclosure, such a reconstruction is proper."). In this case,
the modification proposed by the Examiner is nothing more than the simple
substitution of one known drive element (a battery-powered electric motor)
for another (an engine). See KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,
416 (2007) ("[W]hen a patent claims a structure already known in the prior
art that is altered by the mere substitution of one element for another known
in the field, the combination must do more than yield a predictable result.").
Thus, Appellant's arguments do not apprise us of error in the
Examiner's determination that it would have been obvious to modify
Kingswood by using an electric motor and battery supply as taught by Lam
to rotate rod 35 as an alternative power source. Accordingly, we sustain the
rejection of independent claim 21, as well as dependent claims 23 and 25,
for which Appellant presents no separate arguments for patentability apart
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from their dependence from claim 21 (Appeal Br. 21 ), as unpatentable over
Kingswood, Kojima, and Lam.
Claim 27 depends from claim 21 and further recites, in pertinent part,
that "the electric motor [is] positioned at least partially under the threaded
rod." Id. at 35 (Claims App.). Appellant contends that "Kingswood,
Kojima[,] and Lam are absent teachings regarding such limitation" and that
the Examiner does not address this limitation in the Final Action. Id. at 21.
Further, Appellant adds that "Lam, the only reference that discloses any type
of motor positioned near a threaded rod, discloses that the motor is
positioned off to the side of the top portion of the threaded rod." Id. In
response, the Examiner states that "paragraph 0023 of Lam teaches that the
motor is indirectly connected to the second vertical screw by a locked
linkage assembly passing across the base of the vertical lift." Ans. 3. The
Examiner's statement does not address the claim limitation in question,
namely, "the electric motor positioned at least partially under the threaded
rod." Appeal Br. 35 (Claims App.). Accordingly, we do not sustain the
rejection of claim 27 as unpatentable over Kingswood, Kojima, and Lam.
Rejection JJ-Obviousness: Kingswood, Kojima, Lam, and Larsen
Claim 22 depends from claim 21 and further recites, in pertinent part,
"a display panel positioned fully about the lifting frame" and "including a
plurality of L-shape display connectors that are each received in a respective
slot of a respective panel connector." Appeal Br. 34 (Claims App.). Claims
24, 26, and 28 depend from claim 22 and, thus, incorporate these limitations.
Id. at 34--35 (Claims App.). The Examiner determines it would have been
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Application 14/845,345
obvious to use the display panels as taught by Larsen in Kingswood's pallet
lift for displaying commercial advertisements. Final Act. 7.
Appellant argues, inter alia, that Larsen's display panel does not
include a plurality of L-shape display connectors each received in a
respective slot of a respective panel connector, as called for in claim 22.
Appeal Br. 23. In response, the Examiner states that Larsen teaches a
plurality of panel connectors (projections 54, 56) and a plurality of display
connectors (vertical guide channels 51) that have an L-shape cross-section.
Ans. 3.
Larsen's projections 54, 56 extend from the top frame structure
(platform 20) and engage vertical guide channels 51. Larsen 2:46-51. The
projections and guide channels are not associated with the display panels
(advertising literature 52), and neither projection 54, 56 nor guide channel
51 is an L-shape display connector. Moreover, vertical channels 51 (on
which the Examiner reads the claimed "L-shape display connectors") are not
received in slots of projections 54, 56 (on which the Examiner reads the
claimed "panel connector"). Thus, the structure relied on by the Examiner
does not satisfy the claimed features asserted by Appellant to be lacking in
the combination, namely, the display panel including a plurality of L-shape
display connectors each received in a respective slot of a respective panel
connector. Accordingly, we do not sustain the rejection of claims 22, 24, 26,
and 28 as unpatentable over Kingswood, Kojima, Lam, and Larsen.
Rejection III-Obviousness: Kingswood, Kojima, Lam, and Wilson
Claims 29 and 30 recite, in pertinent part, a sensor "connected to the
rear frame or to the movement frame, at least a portion of the sensor is
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always positioned above a top surface of the pallet platform." Appeal Br.
35-36 (Claims App.). Further, claim 21, from which claims 29 and 30
depend, recites that the "rear frame" is a structure to which the second end
portion of the second leg of each set of legs is pivoted, and the movement
frame "is connected to the rear frame" and "to a battery housing that
includes a battery, battery powered electric motor[,] and a single threaded
rod." Appeal Br. 32-33 (Claims App.).
The Examiner finds that Kingswood does not disclose a sensor as
recited in claims 29 and 30. Final Act. 8. The Examiner finds, however,
that Wilson teaches a pallet lift including a height sensor comprising light
source 16 and light receiver 17. Id. (citing Wilson i-f 22, Fig. 2). Further, the
Examiner considers Wilson's open bin 12, to the top of which light source
16 and light receiver 1 7 are connected, to be "a rear frame or a movement
frame." Id.; see Ans. 4 (emphasizing that the Final Action "defines the
movement frame of Wilson as the entire assembly of Fig. 2, ref. 12").
Appellant argues that "Wilson does not disclose that the sensor is
connected to the rear frame or to the movement frame as required in
dependent claims 29 and 30." Appeal Br. 25. More specifically, Appellant
submits that Wilson's sensors "are positioned on the top edge of side walls
that encircle and are spaced from the lifting mechanism" and contends that
the Examiner's interpretation of Wilson's side walls as part of the lifting
arrangement is not supported by Wilson's teachings. Reply Br. 3.
Wilson's sensors 16, 17 are mounted on top edges 14 of opposing
walls 13a, 13c of open bin 12 near third wall 13d. Wilson i-f 18. Ends (at
pivot members 30) of legs (support members 28b ), threaded rod (screw 36),
motor 38, and battery 40 are also connected to Wilson's open bin 12.
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Application 14/845,345
Wilson, Fig. 2, i-fi-120-22. In other words, the walls of open bin 12 are
connected to structure corresponding to a rear wall and a battery housing as
recited in claim 21. As such, Wilson supports the Examiner's finding that
open bin 12 is a "movement frame" as defined in the claim, and Appellant
does not explain with any specificity why this is not the case.
Appellant also argues that Wilson does not teach "that at least a
portion of the sensor is always positioned above a top surface of the pallet
platform." Appeal Br. 25. The Examiner responds that light source 16 and
light receiver 17 "are always positioned vertically above a top surface of a
platform, ref. 24." Ans. 4. In this regard, Wilson teaches that controller 42
activates motor 3 8 to raise shelf 24 until either light from light source 16 is
obstructed by one or more goods in the pile of goods 18 on shelf 24 from
reaching light receiver 1 7 or the shelf reaches a predetermined maximum
height. Wilson i122. Further, Figure 4 shows shelf 24 in its highest
position, which is below light source 16 and light receiver 17. Id. i123. This
disclosed control arrangement supports the Examiner's finding that light
source 16 and light receiver 17 are always positioned vertically above shelf
24.
For the above reasons, Appellant does not apprise us of error in the
rejection of claims 29 and 30 as unpatentable over Kingswood, Kojima,
Lam, and Wilson, which we thus sustain.
Rejection IV--Obviousness: Kingswood, Kojima, and Larsen
Claim 3 1 requires, in pertinent part, a lifting frame that supports a
pallet platform having two side walls and a back wall, a movement frame
connected to a motor, and a display panel positioned at least partially about
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the lifting frame and connected to a top frame structure including a plurality
of panel connectors each defining a slot, wherein the display panel includes
a plurality of display connectors each received in a respective slot of a
respective panel connector so as to be slidably engaged such that the display
panel remains connected to the top frame structure as the pallet platform is
raised and lowered without the display panel itself being raised or lowered
with the pallet platform. Appeal Br. 36-37 (Claims App.). In rejecting
claim 31, the Examiner acknowledges that Kingswood does not disclose two
side walls, a back wall, or a motor. Final Act. 10. The Examiner relies on
Kojima for these features. Id. The Examiner also finds that "Kingswood in
view of Kojima does not teach a display panel." Id. The Examiner relies on
Larsen for the features of the display panel. Id. at 10-11. In particular, the
Examiner finds that Larsen's projections 54, 56 correspond to the claimed
"panel connectors" and that Larsen's vertical guide channels 51 correspond
to the claimed "display connectors." Id. at 10.
Appellant contends, inter alia, that Larsen does not teach the display
panel connected to the top frame structure and including a plurality of
display connectors each received in a respective slot of a respective panel
connector so as to be slidably engaged such that the display panel remains
connected to the top frame structure as the pallet platform is raised and
lowered without the display panel itself being raised or lowered with the
pallet platform. Appeal Br. 27.
Larsen's projections 54, 56 (on which the Examiner reads the claimed
"panel connectors") do not include or define a slot and, thus, do not satisfy
the limitations of the "panel connectors" recited in claim 31. Further,
although Larsen's projections 54, 56 are received in what might reasonably
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be considered a "slot" in vertical guide channels 51, projections 54, 56
extend from platform frame 20, and, thus, are not part of the display panel.
Larsen's projections 54, 56, therefore, do not satisfy the limitations of the
claimed "display connectors."
For the above reasons, Appellant's argument apprises us of error in
the rejection of claim 31. Accordingly, we do not sustain the rejection of
claim 31 as unpatentable over Kingswood, Kojima, and Larsen.
Rejection v_:-Kingswood, Kojima, Larsen, and Wilson
The aforementioned deficiency in the rejection of claim 31 also
pervades the rejection of claim 32, which depends from claim 31 (Appeal
Br. 37 (Claims App.)). See Final Act. 11-12. Accordingly, we do not
sustain the rejection of claim 32 as unpatentable over Kingswood, Kojima,
Larsen, and Wilson.
DECISION
We AFFIRM the Examiner's decision rejecting claims 21, 23, and 25
under 35 U.S.C. § 103(a) as unpatentable over Kingswood, Kojima, and
Lam.
We REVERSE the Examiner's decision rejecting claim 27 under
35 U.S.C. § 103(a) as unpatentable over Kingswood, Kojima, and Lam.
We REVERSE the Examiner's decision rejecting claims 22, 24, 26,
and 28 under 35 U.S.C. § 103(a) as unpatentable over Kingswood, Kojima,
Lam, and Larsen.
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We AFFIRM the Examiner's decision rejecting claims 29 and 30
under 35 U.S.C. § 103(a) as unpatentable over Kingswood, Kojima, Lam,
and Wilson.
We REVERSE the Examiner's decision rejecting claim 31 under
35 U.S.C. § 103(a) as unpatentable over Kingswood, Kojima, and Larsen.
We REVERSE the Examiner's decision rejecting claim 32 under
35 U.S.C. § 103(a) as unpatentable over Kingswood, Kojima, Larsen, and
Wilson.
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)(l )(iv).
AFFIRMED-IN-PART
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