Ex Parte WatsonDownload PDFPatent Trial and Appeal BoardDec 6, 201211256231 (P.T.A.B. Dec. 6, 2012) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte GARY E. WATSON ________________ Appeal 2010-011378 Application 11/256,231 Technology Center 3600 ________________ Before MURRIEL E. CRAWFORD, NINA L. MEDLOCK, and JAMES A. TARTAL, Administrative Patent Judges. TARTAL, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-011378 Application 11/256,231 2 STATEMENT OF THE CASE Gary E. Watson (Appellant) seeks our review under 35 U.S.C § 134 of the Examiner’s decision rejecting claims 15-40. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.1 THE INVENTION Appellant’s claimed invention relates to a vehicle mounted plow having one or more plow blade wings. Spec. 1, ll. 2-4. Claim 15, reproduced below, is illustrative of the subject matter on appeal. 15. A plow assembly comprising: a blade, structure attached to said blade and adapted to be attached to a vehicle for mounting said blade to and supporting said blade from the vehicle, and a wing attached to an end of said blade, said wing having a first portion mounted for rolling movement along said blade to and between a retracted position and an extended position, and a second portion mounted to said first portion at an angle relative thereto. THE REJECTIONS The Examiner relies upon the following evidence: Austin US 2,123,925 July 19, 1938 Maura US 4,275,514 June 30, 1981 Nickels US 5,411,102 May 2, 1995 1 Our decision will make reference to the Appellant’s Appeal Brief (“App. Br.,” filed Nov. 3, 2009) and Reply Brief (“Reply Br.,” filed Jun. 24, 2010), and the Examiner’s Answer (“Ans.,” mailed May 11, 2010). Appeal 2010-011378 Application 11/256,231 3 Appellant seeks review of the following rejections: 1. Claims 15-19, 21-28, and 33-40 under 35 U.S.C. § 103(a) as being unpatentable over Maura and Austin. 2. Claims 20, 21, and 29-32 under 35 U.S.C. § 103(a) as being unpatentable over Maura, Austin, and Nickels. ISSUE The primary issue is whether the Examiner supported the rejection of claims 15-40 under 35 U.S.C. § 103(a) by articulating reasoning with some rational underpinning to combine known elements from Maura and Nickels with Austin. FINDINGS OF FACT We find that the findings of fact, which may appear in the Analysis below, are supported by at least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). ANALYSIS Claims 15-19 and 21-28 Appellant argues claims 15-19 and 21-28 as a group (App. Br. 11-16, Reply Br. 2-9). We select claim 15 as the representative claim for this group, and the remaining claims 16-19 and 21-28 stand or fall with claim 15. 37 C.F.R. § 41.37(c)(1)(vii). Claim 15 calls for “a wing attached to an end of said blade, said wing having a first portion mounted for rolling movement along said blade to and Appeal 2010-011378 Application 11/256,231 4 between a retracted position and an extended position, and a second portion mounted to said first portion at an angle relative thereto.” App. Br. 14. The Examiner found, and Appellant does not dispute, that Maura shows the relevant claim elements other than “mounted for rolling movement.” Ans. 4, App. Br. 11, 14-16. Likewise, Appellant does not dispute the Examiner’s finding that Austin shows a plow assembly with a blade and a wing mounted for roller movement relative to the blade. Ans. 4, App. Br. 12, 14-16. Appellant first argues that Austin does not show a wing attached to the end of a blade. App. Br. 14. Next, Appellant argues that Austin shows a wing mounted for roller movement across a blade, not “along” a blade as claimed. App. Br. 14. Appellant also argues that Austin does not address the problem identified by Appellant because the blade in Austin is not configurable to and between a longer extended length and a shorter retracted length. App. Br. 15. Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In the instant case, the Examiner relies on Maura for teaching a wing attached to the end of a blade, the wing having a first portion mounted for movement along the front of the blade, to and between a retracted position and an extended position. Ans. 4, App. Br. 11. Thus, it is immaterial to the obviousness determination whether Austin also shows claimed elements taught by Maura where the rejection is based on both Austin and Maura in combination. Appellant’s additional argument that the respective teachings of Maura and Austin counsel against their combination because Maura teaches Appeal 2010-011378 Application 11/256,231 5 adjusting the width of a plow whereas Austin teaches adjusting the height of a plow, is unpersuasive. We find that the Examiner has articulated reasoning with some rational underpinning to combine known elements from Maura and Austin by stating that the plow wing of Maura would also benefit from the use of rollers disclosed in Austin to reduce friction and prevent jamming of the plow wing. Ans. 8. For the foregoing reasons, Appellant has not persuaded us of error in the Examiner’s obviousness rejection of representative claim 15. Accordingly, we will sustain the Examiner’s rejection of that claim and claims 16-19 and 21-28 which fall with claim 15 on the same grounds. Claims 33-40 We likewise sustain the Examiner's obviousness rejection of claims 33-40 over Maura in view of Austin. Appellant merely reiterates the same arguments that are set forth in relation to claim 15. App. Br. 16. Accordingly, we will sustain the Examiner’s rejection of claims 33-40 which fall on the same grounds as claim 15 discussed above. Claims 20, 21, and 29-32 We also sustain the Examiner's obviousness rejection of claims 20, 21, and 29-32 over Maura in view of Austin and Nickels. Appellant has not particularly pointed out errors in the Examiner’s reasoning regarding the additional teachings of Nickels, but merely reiterates the same arguments that are set forth in relation to claim 15. App. Br. 17. Appellant’s contention that Nickels “is no more properly combinable with Austin than is Maura,” (App. Br. 18) for the same reasons Appellant previously raised is Appeal 2010-011378 Application 11/256,231 6 not persuasive. Accordingly, we will sustain the Examiner’s rejection of claims 20, 21, and 29-32. DECISION We AFFIRM the decision of the Examiner to reject claims 15-40. 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) (2010). AFFIRMED mls Copy with citationCopy as parenthetical citation