Charles M. Mettler

Patent Trials and Appeals Board

Nov 1, 2019

15090968 - (D) (P.T.A.B. Nov. 1, 2019)

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.
15/090,968 04/05/2016 Charles M. Mettler PSSIP0138US 1058
23908 7590 11/01/2019
RENNER OTTO BOISSELLE & SKLAR, LLP
1621 EUCLID AVENUE
NINETEENTH FLOOR
CLEVELAND, OH 44115
EXAMINER
SKURDAL, COREY NELSON
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
11/01/2019 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):
ipdocket@rennerotto.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES M. METTLER
Appeal 2018-008470
Application 15/090,968
Technology Center 3700
Before JENNIFER D. BAHR, MICHAEL J. FITZPATRICK, 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 1–8, 10, 11, and 20. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Plastic Safety
Systems, Inc. Appeal Br. 2.
Appeal 2018-008470
Application 15/090,968
2
CLAIMED SUBJECT MATTER
The claims are directed to a vehicle-mountable cargo carrier for
portable rumble strips. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A cargo carrier for portable rumble strips that is mountable
to a receiver of a hitch assembly mountable to a vehicle,
comprising:
a basket configured to receive and retain one or more
portable rumble strips for storage and transport, the basket
including a frame that defines a volume for receiving one or more
rumble strips, and the frame includes one or more frame elements
that define a bottom wall, a relatively long front wall, a relatively
long back wall, and relatively short laterally-spaced side walls
that connect the front wall and the back wall, where the front
wall, the back wall, and the side walls extend from respective
sides of the bottom wall in a common direction; and
a mounting assembly that includes a pintle bracket
connectable to the basket, the pintle bracket including a pintle
adapted to be received in a receiver of a hitch assembly
mountable to a vehicle;
where the basket further includes one or more rotating
elements at a top of at least one of the side walls to facilitate
drawing rumble strips lengthwise over the at least one side wall
into or out of the basket.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Mills
Haight
Fagan
Elvin-Jensen
Truan
Gunn
US 2006/0151555 A1
US 2,859,887
US 4,390,117
US 5,439,113
US 7,347,390 B2
US 7,806,308 B2
July 13, 2006
Nov. 11, 1958
June 28, 1983
Aug. 08, 1995
Mar. 25, 2008
Oct. 5, 2010

Appeal 2018-008470
Application 15/090,968
3
REJECTIONS
I. Claims 1–4, and 8 are rejected under 35 U.S.C. § 103 as
unpatentable over Mills in view of Haight. Final Act. 2.
II. Claim 5 is rejected under 35 U.S.C. § 103 as unpatentable over
Mills, Haight, and Fagan. Final Act. 4.
III. Claims 6 and 7 are rejected under 35 U.S.C. § 103 as
unpatentable over Mills, Haight, and Elvin–Jensen. Final Act. 4.
IV. Claim 10 is rejected under 35 U.S.C. § 103 as unpatentable
over Mills and Truan. Final Act. 5.2
V. Claim 11 is rejected under 35 U.S.C. § 103 as unpatentable
over Mills and Gunn. Final Act. 6.3
VI. Claim 20 is rejected under 35 U.S.C. § 103 as unpatentable
over Mills and Fagan. Final Act. 7.

OPINION
Rejection I—Claims 1–4 and 8
Claim 1
The Examiner finds that Mills discloses a cargo carrier that includes
many of the elements recited in claim 1, but does not disclose the claimed
one or more rotating elements. Final Act. 2–3 (citing Mills, Fig. 1). To
address this deficiency in Mills, the Examiner turns to Haight, which, the

2 Although the Examiner’s discussion of dependent claim 10 does not list
Haight as prior art, we understand the rejection of claim 10 to incorporate
the rejection of claim 1 (which relies on Haight) because claim 10 depends
from claim 1.
3 The heading for this rejection lists claim 9. Final Act. 6. However, claim
9 has been cancelled. See Appeal Br. 19 (Claims App.).
Appeal 2018-008470
Application 15/090,968
4
Examiner finds, discloses “a pair of rollers 37/38 or 39/40 at the top of each
side of a vehicle load carrier[4] in order to help slide a load onto the carrier.”
Id. at 3. The Examiner reasons that it would have been obvious to add
rollers in the location recited in claim 1 because this modification would
make it easier to load and remove items from the basket disclosed by Mills.
Appellant contests the Examiner’s finding that the proposed
modification to Mills would assist in loading and removing items from
Mills’s basket. Appeal Br. 9. Specifically, Appellant asserts that the reason
the rollers are used in Haight’s apparatus is not present in Mills’s cargo
carrier. According to Appellant, “the storage area inside of Mills’s cargo
carrier is readily accessible by the average person, particularly when the
cargo carrier is pivoted away from the vehicle.” Id. Thus, Appellant argues,
“there is no evidence that providing Haight’s rollers in Mills’s cargo carrier
would make loading Mills’s cargo carrier any easier.” Id.
The Examiner responds by finding that, even if the cargo carrier in
Mills is readily accessible, the loading of certain items may still be difficult
and may benefit from the addition of rotating elements (rollers). Ans. 2–3.
In reply, Appellant states that the Examiner’s response improperly
“ignores both how the ordinary skilled person would use a basket, and
Haight’s teaching of how and why the rollers are used.” Reply Br. 2.
The Examiner has the better position. We agree with the Examiner
that the addition of rotating elements, such as rollers, would improve the
ability to load and unload the cargo carrier disclosed by Mills. The fact that
loading the cargo carrier in Haight may be more difficult (and, therefore,

4 Haight discloses an attachment mountable to the roof of a vehicle, i.e., a
vehicle roof rack. See Haight, 1:15–25; Fig. 1.
Appeal 2018-008470
Application 15/090,968
5
benefit more from the use of rollers 37/38 and 39/40) than loading the cargo
carrier of Mills does not negate the fact that a person of ordinary skill in the
art would have expected the addition of these rollers to provide an
improvement in the usability of Mills’s cargo carrier. We are not apprised
of any special circumstance that would indicate that the teachings provided
by Haight regarding rollers would not be applicable to the cargo carrier
disclosed by Mills. Accordingly, we sustain the rejection of claim 1 as
unpatentable over Mills and Haight.
Claim 4
Claim 4 depends from claim 1 and recites that “the side walls include
relieved portions that facilitate reaching into the basket to grasp an end of a
rumble strip, and the relieved portions have a height that is less than a height
of the side walls.” Appeal Br. 18 (Claims App.).
The Examiner finds “the side walls and front wall of Mills discloses
relieved portions (openings between bars 36 form relieved portions to the
degree presently claimed) that facilitate reaching into the basket and
facilitate lifting items over the walls and into the basket.” Final Act. 3.
Appellant argues that Mills fails to disclose the relieved portions
recited in claim 4 because top railing 37 extends around the perimeter of the
cargo carrier, preventing lifting any items over the side walls of Mills’s
cargo carrier. Appeal Br. 10.
In response, the Examiner notes that claim 4 does not recite a
functional limitation related to lifting items over the side walls of the carrier.
Ans. 3. The Examiner reiterates the finding that the spaces between bars 36
in Mills’s cargo carrier satisfy the requirements of claim 4. Id.
In reply, Appellant asserts that, regardless of whether claim 4 recites
the functional requirement identified by the Examiner, the term “relieved” is
Appeal 2018-008470
Application 15/090,968
6
based on the word “relief,” which, Appellant contends, requires a reduction
in height. Reply Br. 5. Appellant takes the position that a space surrounded
by framework, such as the space between bars 36 and below top railing 37 in
Mills, does not constitute a “relieved portion” as recited in claim 4. Id.
Although we agree with the Examiner that no functional limitation
recited in claim 4 patentably distinguishes the recited structure from the
space between bars 36 in Mills, we do not sustain the rejection of claim 4
because the broadest reasonable interpretation of the term “relieved,” in light
of the Specification, requires a reduction in height. Appellant’s
Specification refers to front wall 46 as being “relieved” in a center section
52 and explains that this means that a portion of front wall 46 has a lower
height relative to other portions. Spec. 9:25–10:6, Fig. 5. As shown in
Appellant’s Figure 5, wall 46 also includes openings in various other
locations, and these openings, like the portion of Mills cited by the Examiner
for the “relieved portions” recited in claim 4, are surrounded by framework.
The Specification does not use the term “relieved portion” to describe any of
the openings in basket 24 that are surrounded by framework. The “relieved
portion” 54, in the side walls of Appellant’s basket 24, has a similar
structure to relieved portion 52 in front wall 46. In short, when Appellant’s
Specification refers to a “relieved portion,” it refers only to a structure that is
open on its upper end. Accordingly, the Examiner’s interpretation of the
term “relieved portion” in claim 4 as allowing for a completely enclosed
perimeter is inconsistent with Appellant’s use of this term in the
Specification and broader than the broadest reasonable interpretation in light
of the Specification. This overly broad interpretation led the Examiner to
find that the space between bars 36 in Mills qualifies as a relieved portion.
As the broadest reasonable interpretation of claim 4 excludes the structure in
Appeal 2018-008470
Application 15/090,968
7
Mills cited by the Examiner, we do not sustain the rejection of claim 4 as
unpatentable over Mills and Haight.
Claims 2, 3, and 8
Appellant does not make arguments for the patentability of claims 2,
3, and 8 aside from those discussed above regarding claim 1. Accordingly,
for the same reasons, we sustain the rejection of claims 2, 3, and 8.
Rejection II—Claim 5
Claim 5 depends from claim 1 and recites that “the basket further
includes a pair of spaced-apart guide wings positioned toward the front and
back walls, the guide wings extending above the adjacent side wall to help
guide rumble strips lengthwise over the side wall into or out of the basket.”
Appeal Br. 18 (Claims App.). The Summary of the Claimed Subject Matter
section of the Appeal Brief identifies guide wings 64 in Figures 5–7 as
corresponding to the recited structure. Appeal Br. 3.
The Examiner relies on Fagan to teach “a vehicle load carrier with
pairs of spaced apart guide wings 10/21 extending above the top most
portions of the carrier in order to help guide the load into the carrier
portion.” Final Act. 4. The Examiner reasons it would have been obvious to
modify the cargo carrier disclose by Mills to include guide wings as taught
by Fagan “in order to assist the user in guiding larger articles into [Mills’s]
basket.” Id.
Appellant argues “[t]here is nothing in the applied references that
suggests that Fagan’s frame 10, 21 provides a guiding function or that
Fagan’s frame 10, 21 would make it easier to load larger articles into Mills’s
cargo carrier.” Appeal Br. 12; see also Reply Br. 6. Additionally, Appellant
asserts the invention disclosed by Fagan addresses problems not present in
Mills, specifically, “[l]oading ladders or other items on the roof of a vehicle
Appeal 2018-008470
Application 15/090,968
8
[as disclosed in Fagan] presents different challenges as compared to loading
items into a hitch-mounted, pivoting cargo carrier such as that described in
Mills.” Id.
The Examiner responds by finding that a person of ordinary skill in
the art would understand frame members 21 to provide a guiding function in
Fagan’s apparatus, even if this function is not discussed in Fagan’s written
description. Ans. 4. The Examiner finds that Fagan’s frame members
would provide this benefit in the proposed combination with the cargo
carrier of Mills. Id. Additionally, the Examiner finds that, to the extent such
structure is specifically related to carrying ladders, as asserted by Appellant,
the proposed modification to Mills’s cargo carrier would aid in carrying
ladders on this device in the same way. Id. at 5.
A preponderance of the evidence supports the Examiner’s finding that
the frame structure in Fagan identified by the Examiner, frame 10/21, would
assist in guiding cargo onto a cargo carrier such as the one disclosed by
Mills. We reproduce Figure 1 of Fagan below.

Appeal 2018-008470
Application 15/090,968
9
Figure 1 of Fagan is a perspective view of a ladder rack (including
frame 10 and frame 21) for a vehicle roof in a position ready for loading.
Fagan, 1:31–33. Fagan teaches that the ladder rack is designed to hold two
ladders side-by-side. Fagan, 2:3–16. Based on the angles at which portions
of frames 10 and 21 are disposed and the relative positions of these frames
(see Figure 12), we agree with the Examiner that a person of ordinary skill in
the art would understand frames 10 and 21 to provide a guiding function.
Additionally, regardless of the ladder-focused function disclosed in Fagan,
we agree with the Examiner that providing frames 10 and 21 in combination
with the cargo carrier disclosed by Mills would be an improvement for some
types of cargo.5 Thus, the Examiner’s reasoning for the proposed
modification to the cargo carrier of Mills is supported by rational
underpinnings.
Rejection III—Claims 6 and 7
Claim 6 depends from claim 1 and recites, “the basket includes
features that facilitate stacking baskets for storage when not mounted
on a vehicle.” Appeal Br. 18 (Claims App.).
The Examiner finds “Elvin[-]Jensen teaches that it is known to
provide a container/basket with cylindrical feet 78 on a bottom wall of the
container and corresponding tubular elements 80 on a top side of the
container in order to enable multiple container[s] to be easily stacked.”
Final Act. 4. The Examiner reasons it would have been obvious “to provide
similar feet and corresponding elements on the bottom and top side of the

5 Appellant does not dispute that the proposed modification to the cargo
carrier of Mills would assist in loading ladders. See Reply Br. 6.
Appeal 2018-008470
Application 15/090,968
10
Mills basket in order to enable multiple baskets to be securely stacked when
not being used on the vehicle.” Id.
Appellant argues a person of ordinary skill in the art “would have no
reason to even consider Elvin-Jensen’s molded plastic container [because,
n]ot only is Elvin-Jensen not in the vehicle-mounted cargo carrier art, Elvin-
Jensen neither identifies a problem in the vehicle-mounted cargo carrier art
nor solves a problem in the cargo carrier art identified in Mills or Haight.”
Appeal Br. 14; see also Reply Br. 6–7.
In response, the Examiner states “[Elvin-]Jensen is in a related field of
cargo storage and discloses benefits of stacking that could be applied to the
Mills carrier for purposes of storing multiple containers in the same manner,
i.e. in order to safely locate plural carriers onto []one another, or to save
space.” Ans. 5.
To be analogous art and qualify as prior art in an obviousness
rejection, a reference “must satisfy one of the following conditions: (1) the
reference must be from the same field of endeavor; or (2) the reference must
be reasonably pertinent to the particular problem with which the inventor is
involved.” K-TEC, Inc. v. Vita-Mix Corp., 696 F.3d 1364, 1375 (Fed. Cir.
2012) (citation omitted). We agree with the Examiner that the relevant field
is cargo storage, not “vehicle-mounted cargo” carriers as asserted by
Appellant. Bulk container 10 of Elvin-Jensen falls within this field. (“This
invention relates to bulk containers of the type used to store and transport
large quantities of agricultural produce, and industrial and other products.”)
Elvin-Jensen, 1:11–13 (emphasis added). Furthermore, Elvin-Jensen is
reasonably pertinent to the problem of storing multiple vehicle cargo
carriers, and a person of ordinary skill in the art would naturally look to
other references addressing stacking in an attempt to make storage of cargo
Appeal 2018-008470
Application 15/090,968
11
carriers more efficient. See id. Accordingly, Appellant’s arguments on this
point are unavailing.
Appellant next argues “[t]here is simply nothing in the applied
references to suggest that stacking cargo carriers when not mounted on a
vehicle is desired or satisfies a need.” This argument does not apprise us of
Examiner error because the Examiner’s reasoning for modifying the cargo
carrier of Mills is supported by the teachings of Elvin-Jensen. See Final Act.
4; Elvin-Jensen, 1:42–45, 4:61–67. We sustain the Examiner’s rejection of
claim 6 as unpatentable over Mills, Haight, and Elvin-Jensen.
Appellant makes no separate arguments for the patentability of claim
7. See Appeal Br. 13–15. Accordingly, this claim falls with claim 6 from
which it depends.
Rejections IV and V—Claims 11 and 12
Appellant does not provide arguments specifically contesting either of
Rejections IV or V, and, thus, does not apprise us of error. See Appeal Br.
passim. Accordingly, we sustain the rejections of claims 10 and 11.
Rejection VI—Claim 20
Independent claim 20 requires, in pertinent part, a pair of spaced-apart
guide wings. Appeal Br. 20 (Claims App.). Similar to Rejection II, the
Examiner relies on Fagan to teach guide wings. See Final Act. 4, 7–8.
Appellant makes substantially the same arguments in support of claim 20 as
discussed above regarding Rejection II and claim 5. See Appeal Br. 11–13,
15–16. For the same reasons discussed above regarding the rejection of
claim 5, we sustain the rejection of claim 20.

Appeal 2018-008470
Application 15/090,968
12

CONCLUSION
The Examiner’s rejections are affirmed-in-part.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–4, 8 103 Mills, Haight 1–3, 8 4
5 103 Mills, Haight, Fagan 5
6, 7 103 Mills, Haight, Elvin-
Jensen
6, 7
10 103 Mills, Truan 10
11 103 Mills, Gunn 11
20 103 Mills, Fagan 20
Overall
Outcome
1–3, 5–8,
10, 11, 20
4

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED-IN-PART