John Olson

Patent Trials and Appeals Board

Mar 16, 2022

2021005282 (P.T.A.B. Mar. 16, 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. 15/441,435 02/24/2017 John Walter Olson O31.2P-16826-US02 4929 490 7590 03/16/2022 VIDAS, ARRETT & STEINKRAUS, P.A. Richard A. Arrett 8050 Washington Ave. S. SUITE 100 Eden Prairie, MN 55344 EXAMINER TRAVERS, MATTHEW P ART UNIT PAPER NUMBER 3726 NOTIFICATION DATE DELIVERY MODE 03/16/2022 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): mail@vaslaw.com rarrett@vaslaw.com rleaf@vaslaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN WALTER OLSON Appeal 2021-005282 Application 15/441,435 Technology Center 3700 Before JEREMY M. PLENZLER, MICHAEL L. WOODS, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, 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 1-9. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies John Walter Olson as the real party in interest. Appeal Br. 3. Appeal 2021-005282 Application 15/441,435 2 CLAIMED SUBJECT MATTER Appellant’s disclosure is directed to “machines, such as skid loaders which have a quick attach to allow the skid loader to pick up implements, and more specifically to retrofitting the machine and implement so that after the machine has picked up the implement, the hydraulics do not need to be manually connected.” Spec. ¶ 1. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A method of retrofitting a machine with a quick attach which required manually hooking up hydraulics to an implement to an improved quick attach which automatically couples hydraulic connections of a skid loader to the hydraulic connections of the implement, comprising the steps of: removing an original quick attach from the machine by removing hydraulic hoses and pivot pins on machine hydraulic loader arms and hydraulic cylinders; attaching the improved quick attach by attaching the pivot pins on the machine hydraulic loader arms and the hydraulic cylinders to the improved quick attach and attaching the hydraulic hoses; connecting auxiliary hydraulic hoses by to [sic] auxiliary connectors on the machine; the improved quick attach having a hydraulic coupling block on a top side of the improved quick attach; attaching machine hydraulic hoses to the hydraulic coupling block; connecting implement hydraulics, which are positioned to mate with hydraulic connections of the improved quick attach, whereby the machine can quick attach the implement and automatically make hydraulic connections without manually connecting the hydraulics. Appeal Br. 9 (Claims App.). Appeal 2021-005282 Application 15/441,435 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Albright2 US 7,290,977 B2 Nov. 6, 2007 Cahill US 2008/0202778 A1 Aug. 28, 2008 EverythingAttachment, “How to Convert Pin On Style Loader to Universal Quick Attach,” YouTube video, https://www.youtube.com/watch?v=6ug3tmqQ09I (Feb. 8, 2010) REJECTIONS I. Claims 1-5 are rejected under 35 U.S.C. § 112(b) as indefinite. II. Claims 6-9 are rejected under 35 U.S.C. § 102(a)(1) as anticipated by Albright. III. Claims 1-5 are rejected under 35 U.S.C. § 103 as unpatentable over Applicant’s Admitted Prior Art (“AAPA”), Albright, EverythingAttachment, and Cahill. OPINION Rejection I (Indefiniteness) The Examiner determines that the word “required” in the preamble of claim 1 renders this claim indefinite because “it is not clear whether the quick attach in question currently requires manual hooking up of hydraulics or merely did at some point in the past.” Final Act. 3. 2 The heading of the rejection points out that this reference is “equivalent to WO2006098850 cited in [Appellant’s] IDS.” Final Act. 4. Appeal 2021-005282 Application 15/441,435 4 Appellant presents no arguments contesting the rejection of claims 1- 5 as indefinite. 3 See Appeal Br. 7-11. Only those arguments actually made by the Appellant have been considered in this decision. Arguments that the Appellant could have made but chose not to make have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv); In re Jung, 637 F.3d 1356, 1365-66 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI 2010 (precedential)). “When the appellant fails to contest a ground of rejection to the Board . . . the PTO may affirm the rejection of the group of claims that the examiner rejected on that ground without considering the merits of those rejections.” Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008). Accordingly, we sustain this rejection. Rejection II (Anticipation by Albright) Independent claim 6 recites: A kit for retrofitting an existing machine and implement so hydraulic connections no longer have to be manually connected, comprising: an improved machine quick attach which is connected to the machine in place of the original quick attach and which has a hydraulic connector block connected to hydraulics of the existing machine; an improved implement quick attach which is connected to the implement and which has a mating hydraulic connector block connected to hydraulics of the existing implement and which is designed to automatically mate with the machine quick 3 Appellant filed an Amendment to claim 1 on the same day the Appeal Brief was filed, but this Amendment was refused entry by the Examiner. See Amendment 3 (filed March 5, 2020); Advisory Act. 2 (mailed March 10, 2020). Appeal 2021-005282 Application 15/441,435 5 attach hydraulic connector block when the machine is attached to the implement. Appeal Br. 10 (Claims App.). The Examiner finds Albright discloses all the elements of claim 6, but, with respect to preamble, states, “the intent to use the claimed invention as a ‘kit’ for the purpose of retrofitting an existing machine and implement constitutes intended use and does not necessarily limit the structure of the claim.” Final Act. 4 (citing Albright 2:48-50, 53-64, 4:1-20, 31-41, 5:32- 42, Fig. 4). Appellant’s entire argument contesting Rejection II is as follows: Albright does not disclose a kit for retrofitting an existing skid steer and an existing implement, but rather includes a replacement mounting plate which is then compatible with a new appropriately constructed implement (see Col. 5, lines 21-23). Applicant’s invention involves making a modification to the existing machine and making a modification to the existing implement, and is therefore significantly cheaper than the replacement equipment of Albright. Albright does not meet the limitations of claims 6-9 because it requires an entirely new implement. There is no teaching in Albright of selling its invention in kit form, which has a well-defined meaning in patent law. Appeal Br. 7. The Examiner responds that “[e]ven though the Albright reference may not represent a retrofitted machine and implement per se, the examiner submits that a properly retrofitted machine and implement could be structurally indistinct from a new machine and implement having the improvement already included.” Ans. 4. Additionally, the Examiner finds, “[i]f nothing else, one could simply remove the quick attach components Appeal 2021-005282 Application 15/441,435 6 from the machine and implement and retrofit them to another machine and implement.” Id. As for the reference to a “kit” in claim 6, the Examiner determines that the claim “suggests that the machine and implement quick attach components are actually connected respectively to the machine and implement.” Ans. 4. According to the Examiner, “Albright clearly discloses machine and implement quick attach components having connector blocks connected to a respective machine and implement via hydraulics as claimed.” Id. The Examiner has the better position. First, regarding whether Albright discloses the installation of its device on a machine as a retrofit, we agree with the Examiner’s conclusion that claim 6 does not impose any structural limitation on the machine such that installation on “existing” machines and implements is different from installation on “entirely new” machines and implements. The Examiner’s finding that the relevant components disclosed by Albright could be removed from a given machine and attached to another machine and implement (see Ans. 4) is uncontested by Appellant. Accordingly, Appellant does not identify Examiner error with respect to the “retrofit” aspect of claim 6. As for whether Albright discloses a kit, we agree with the Examiner that claim 6 recites the machine quick attach and implement quick attach in their installed state, i.e., these components are not required to be separate from the machine/vehicle and implement for which they are designed. For example, claim 6 recites, “an improved machine quick attach which is connected to the machine in place of the original quick attach.” See Appeal Appeal 2021-005282 Application 15/441,435 7 Br. 10 (Claims App.). Thus, Appellant’s reference to selling the invention in “kit form” does relates to limitations not recited in claim 1. We also agree with the Examiner that Albright discloses all the structural elements recited in the kit of claim 6. Indeed, Appellant does not attempt to identify any structural differences between the kit of claim 6 and the components disclosed by Albright. See Appeal Br. 7. We sustain the rejection of claim 6, and claims 7-9 depending therefrom, as anticipated by Albright. Rejection III (Unpatentability over AAPA, Albright, EverythingAttachment, and Cahill) The Examiner finds that AAPA discloses a prior art machine having a quick attach. Final Act. 5 (citing Spec. ¶ 35). The Examiner finds Albright discloses an improved quick attach along with the associated structural details recited in claim 1. Id. (citing Albright 4:1-20, 31-41, 5:32-42, Figs. 1, 2, 4). The Examiner finds “AAPA and Albright do not teach retrofitting the original machine (as in AAPA) with a new quick attach (as in Albright),” but that EverythingAttachment and Cahill remedy this deficiency. Id. at 6 (citing Cahill ¶¶ 36, 46-47). In proposing to modify the prior art machine disclosed by AAPA, the Examiner reasons: it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have retrofitted an existing machine having an original quick attach (e.g. of the type established in AAPA) with an improved quick attach (e.g. of the type taught by Albright) since there is motivation in the art to upgrade existing machines with improved quick attach technology for the purpose of increasing efficiency. A quick attach system as taught by Albright would have readily been seen as an improvement to older quick attach designs lacking the features of Albright. Further, in light of the known Appeal 2021-005282 Application 15/441,435 8 existing hydraulic and pin connections on both the original and new systems as noted above, steps such as removal and reattachment of pins and hoses, as well as teeing into existing hydraulic connectors (as taught by Cahill) would have been trivial and obvious provisions for retrofitting to a newer system. Id. at 6. Thus, the Examiner finds that there is a reason in the prior art to improve or upgrade existing machines, Albright discloses such an improvement, and retrofitting existing machines in order to incorporate improvements is taught by Cahill and EverythingAttachment. Appellant’s entire argument contesting Rejection III is as follows: Applicant respectfully traverses the rejection of claims 1- 5 as being based on impermissible hindsight, viewing the claimed invention through the lens of applicant’s own teachings. A person of ordinary skill in the art, without applicant’s own teachings, would not be motivated based on the cited combination to invent claims 1-5, without impermissible hindsight based on applicant’s own teachings. AAPA (applicant’s admitted prior art) does not admit that modifying old machines and old implements is old, but simply teaches that new machines are built to work with new implements with quick connect attachments. It is not old to modify the older style machine to work with old implements to adapt them to become quick connect attachable without having to buy a new machine and compatible new implements. Therefore, applicant believes that the AAPA itself is impermissible hindsight, because the examiner is viewing machines such as Albright, which are not retrofitted older machines, as if they were retrofitted based on the teachings of applicant’s own disclosure. This is improper, and forms a strained combination based on impermissible hindsight. The rejection of claims 1-5 should be reversed and claims 1-5 allowed. Appeal 2021-005282 Application 15/441,435 9 Appeal Br. 7-8 (italicization added). Thus, Appellant asserts that the Examiner is relying on Appellant’s own disclosure to support the reasoning for modifying AAPA. In response, the Examiner points out that Appellant’s argument does not address the Examiner’s findings of fact with respect to EverythingAttachment and Cahill and the motivation for retrofitting machines. Ans. 5-6. The Examiner also states that AAPA was used in the rejection only as a base reference device being modified, and was not relied upon as supporting the stated reasoning for making the proposed modification. See id. “The presence or absence of a motivation to combine references in an obviousness determination is a pure question of fact.” Alza Corp. v. Mylan Labs., 464 F.3d 1286 (Fed. Cir. 2006). We agree with the Examiner that EverythingAttachment and Cahill rationally underpin the Examiner’s reasoning for retrofitting AAPA. In any event, as the Examiner pointed out, Appellant does not challenge the Examiner’s findings of fact regarding EverythingAttachment and Cahill. See Appeal Br. 7-8; Ans. 5-6. To the extent Appellant’s arguments directly address a finding of fact, it is to attack AAPA as not disclosing “that modifying old machines and old implements is old[ and instead teaching] that new machines are built to work with new implements with quick connect attachments.” Appeal Br. 7-8. This argument does not address the rejection as presented by the Examiner, which relies on AAPA merely to disclose prior art machines which required manual attachment of hydraulics to an implement. See Final Act. 5. Accordingly, Appellant’s arguments alleging the Examiner’s reliance on impermissible hindsight do not identify Examiner error. Appeal 2021-005282 Application 15/441,435 10 CONCLUSION The Examiner’s rejections are sustained. DECISION SUMMARY Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1-5 112(b) Indefiniteness 1-5 6-9 102(a)(1) Albright 6-9 1-5 103 AAPA, Albright, EverythingAttachment, Cahill 1-5 Overall Outcome 1-9 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED