JLG Industries, Inc.

Patent Trials and Appeals Board

Feb 2, 2022

2021003794 (P.T.A.B. Feb. 2, 2022)

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. 15/904,682 02/26/2018 Brian K. Mohlman AMK-3638-1691 8179 23117 7590 02/02/2022 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER GORDON, MATHEW FRANKLIN ART UNIT PAPER NUMBER 3665 NOTIFICATION DATE DELIVERY MODE 02/02/2022 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN K. MOHLMAN, MATTHEW I. GILBRIDE, DAVID W. LOMBARDO, and IGNACY PUSZKIEWICZ Appeal 2021-003794 Application 15/904,682 Technology Center 3600 Before EDWARD A. BROWN, CHARLES N. GREENHUT, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 2, 4-9, 11-13 and 15-17. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as JLG Industries, Inc. Appeal Br. 3. Appeal 2021-003794 Application 15/904,682 2 CLAIMED SUBJECT MATTER The claims are directed to an obstacle detection system for an aerial work platform. Claim 1, reproduced below, with emphasis added, is illustrative of the claimed subject matter: 1. A platform assembly comprising: a work platform including a platform floor and a safety rail extending from the platform floor to a rail height; and a primary sensor unit secured to the work platform and positioned adjacent the platform floor, the primary sensor unit being configured to singly monitor an area from the platform floor to a space above the rail height and forward and aft of the work platform. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Cummings US 2016/0098910 A1 Apr. 7, 2016 Davis US 2017/0233232 A1 Aug. 17, 2017 REJECTION Claims 1, 2, 4-9, 11-13, and 15-17 are rejected under 35 U.S.C. § 103 as being unpatentable over Davis and Cummings. Final Act. 3. OPINION In order to address the limitation in claim 1 emphasized above, a version of which is present in each of the independent claims before us (claims 1, 8, and 13), the Examiner theorizes that the sensor elements 112 arranged near the floor of Davis’s basket 52 are directed diagonally upwards. See Ans. 4, 6 (annotating Davis Fig. 2). Appeal 2021-003794 Application 15/904,682 3 The Examiner bears the burden of proving unpatentability. In re Warner 379 F.2d 1011, 1016 (CCPA 1967). Subject matter clearly illustrated in figures without any further discussion typically may be relied upon in a prior-art rejection. See, e.g., In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972). Here, however, Davis’s figures do not make clear the direction monitored by the sensors, and the Examiner offers no further evidence or technical explanation to demonstrate that Davis’s lower sensor elements 112 would be understood or expected to monitor areas diagonally upward as indicated by the Examiner’s annotations of Figure 2 of Davis. Ans. 3-6. It would seem just as likely, if not more likely, that the sensors proximate each corner of Davis’s basket 52 would monitor areas outward of their respective corners when the concern is obstacle avoidance. “[L]egal determinations of obviousness, as with such determinations generally, should be based on evidence rather than on mere speculation or conjecture.” Alza Corp. v. Mylan Laboratories, Inc., 464 F. 3d 1286, 1290 (Fed. Cir. 2006). As the Examiner’s speculative assumptions with respect to Davis’s disclosure form the basis for the rejection before us, the Examiner’s rejection cannot be sustained on the record presently before us. CONCLUSION The Examiner’s rejection is REVERSED. Appeal 2021-003794 Application 15/904,682 4 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4-9, 11-13, 15- 17 103 Davis, Cummings 1, 2, 4-9, 11-13, 15- 17 REVERSED