Ex Parte Wood

Patent Trial and Appeal Board

Sep 21, 2012

10905171 (P.T.A.B. Sep. 21, 2012)

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.
10/905,171 12/20/2004 Steven Wood 23716-00001 2171
27144 7590 09/21/2012
FOSTER, SWIFT, COLLINS & SMITH, P.C.
313 SOUTH WASHINGTON SQUARE
LANSING, MI 48933
EXAMINER
LOWE, MICHAEL S
ART UNIT PAPER NUMBER
3652
MAIL DATE DELIVERY MODE
09/21/2012 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 STEVEN WOOD
____________________

Appeal 2010-008109
Application 10/905,171
Technology Center 3600
____________________

Before: STEFAN STAICOVICI, MICHAEL C. ASTORINO and
BRADFORD E. KILE, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Steven Wood (Appellant) appeals under 35 U.S.C. § 134(a) from a
final rejection of claims 1-5 and 7-14 under 35 U.S.C. § 103(a). Claims 6,
15, 16, and 18 have been canceled and claim 17 has been withdrawn. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal 2010-008109
Application 10/905,171

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CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is the sole independent claim, and is
representative of the subject matter on appeal.
1. A collapsible, lightweight mount to
support a cargo loading device, said mount being
adapted for mounting to a cargo box of a motor
truck, said cargo box having a floor, a forward
upstanding wall and upstanding side walls attached
to opposite ends of said forward wall, each of said
side walls having at least one stake receiving
opening in an upper surface thereof, said apparatus
comprising:
a combination wherein said mount includes
first and second fasteners for securing said mount
to said cargo box, said first fastener including at
least one vertical arm having an upper end adapted
to extend above said cargo box and to support a
cargo loading device at an elevation substantially
above said upstanding side and forward walls and
a lower end adapted to depend into said cargo box
and having means to removably attach said mount
to said cargo box or said forward wall at a location
adjacent to said floor of said cargo box;
said second fastener including a horizontal
arm attached to said vertical arm centrally of said
upper and lower ends with opposite ends of said
horizontal arm extending laterally from opposite
sides of said vertical arm; and
each of said ends having a depending peg
attached thereto for attaching the opposite ends of
said horizontal arm to said stake receiving
openings of said side walls.
Appeal 2010-008109
Application 10/905,171

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REJECTIONS
Claims 1-5, 7, and 9-13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Avila (US 3,978,989, iss. Sept. 7, 1976) in view of Loftus
(US 5,511,929, iss. Apr. 30, 1996) and Ellis (US 5,509,639, iss. Apr. 23,
1996).
Claims 8 and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Avila in view of Loftus and Ellis, and further in view of Buchmeier
(US 6,435,360 B1, iss. Aug. 20, 2002).

OPINION
The Examiner found that Avila discloses a collapsible, lightweight
mount, including a “first fastener including at least one vertical arm
(generally B) having means (generally C, 12) to adjustably attach a cargo
loading device (generally D or 48)” and a “second fastener [having] a
horizontal arm (generally G, J, etc.).” Ans. 3-4; see also fig. 1. The
Examiner also found that “Avila does not mention a cargo bed but is capable
of use with a cargo bed and teaches attaching to a forward/rearward wall.”
Ans. 4. The Examiner relies on Ellis to teach “attaching a vertical arm of a
cargo loading winch to a forward/rearward wall (generally 22) of a cargo
bed adjacent the bed floor to support the winch substantially above the
walls.” Id. In other words, the Examiner relies on Ellis to teach a floor
brace or “having means” as recited in claim 1. The Examiner relies on
Loftus to teach “two pegs (generally 54) adapted to engage with spaced
stake holes (generally 22) of a cargo bed side walls and means for attaching
said pegs to both ends of at least one horizontal arm (generally 40) in order
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Application 10/905,171

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to allow loading to or from a cargo bed.” Id. Based on these findings the
Examiner determines that:
It would have been obvious to one of ordinary skill
in the art at the time the invention was made to
have tried modifying Avila by the general teaching
of Ellis and Loftus to have the vertical arm
attached to a forward wall of the cargo bed and to
have two pegs adapted to engage with spaced stake
holes of a cargo bed side walls and means for
attaching said pegs to both ends of at least one
horizontal arm (which is centrally located) in order
to achieve the predictable results of allowing and
supporting loading to or from a cargo bed in a safe
and easy manner.
Id.
The Appellant contends that it would not have been obvious to
combine Avila’s teaching directed to a mount for a derrick to be used on a
rooftop with that of Loftus and Ellis, which are each directed to a mount for
a winch assembly for a cargo bed of a motor truck. See App. Br., passim.
The Appellant’s rebuttal argument asserts that Avila’s derrick and its
securing mechanisms, i.e., base A, bracket G, hooks J, back cable 58, and
sandbags 60, are particular for its purpose and function, i.e., hoisting loads L
from the ground to the roof 20, and not for a cargo bed of a motor truck. See
App. Br. 8-9. The Appellant asserts that the Examiner’s proffered
modification of Avila’s mount with the pegs of Loftus and floor brace of
Ellis would not be desirable; for example, after the proffered modification
Avila’s cable 58 would serve no purpose. See App. Br. 10-11.
In response, the Examiner’s reasoning is directed to the notion that
Avila’s derrick includes fastening arms and supports that are “capable of use
beyond a roof” and as discussed above “capable of use with a cargo bed and
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Application 10/905,171

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teaches attaching to a forward/rearward wall.” Ans. 4, 8. Additionally, the
Examiner determines that “it is clear that Avila shows supports connected to
surroundings (such as parapet H, etc., figure 1) that are similar to those of
the other references (Ellis's wall in figure 2, and Loftus's walls in figure 2)
and so would again be obvious to one of ordinary skill to make the
combination.” Ans. 8. Although we appreciate the Examiner’s position that
Avila’s derrick may be used with a truck cargo bed because each of Avila,
Ellis and Loftus discloses a lifting system, nonetheless, we find the
Examiner’s rejection insufficient to explain what in the prior art would have
prompted a person having ordinary skill in the art to do so. The reason
proffered by the Examiner, i.e., “allowing and supporting loading to or from
a cargo bed in a safe and easy manner,” appears to already be performed by
the loading systems of Ellis and Loftus. Moreover, the Examiner has not
provided any findings that Avila recognized a problem with using its derrick
on a roof or that either Ellis or Loftus recognized a problem with their
respective loading systems.
The Examiner has not provided any evidence that using Avila’s
derrick with a cargo bed would provide for loading and unloading to or from
a cargo bed in a safe and easy manner. See KSR Int'l Co. v. Teleflex, Inc.,
550 U.S. 398, 417 (2007). Without a persuasive articulated rationale based
on rational underpinning for modifying the reference as proposed, the
Examiner’s rejection appears to be the result of hindsight analysis.
See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on
obviousness grounds [require] some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness”) (cited with
approval in KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007)).
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Application 10/905,171

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Therefore, absent hindsight, we fail to see why one having ordinary skill in
the art would have been led to modify Avila by the teachings of Ellis and
Loftus, as the Examiner proposes. Thus, the rejection of claims 1-5, 7, and
9-13 as unpatentable over Avila in view of Loftus and Ellis is not sustained.
Turning to the rejection of claims 8 and 14, the Examiner does not
point out how the teachings of Buchmeier cure the deficiency in the
rejection of claim 1. Supra. For the reasons provided above, we also do not
sustain the rejection of dependent claims 8 and 14 under § 103(a) as
unpatentable over Avila in view of Loftus and Ellis, and further in view of
Buchmeier.

DECISION
We REVERSE the rejections of claims 1-5 and 7-14.

REVERSED

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