Ex Parte 6283044 et al

Patent Trial and Appeal Board

Apr 30, 2015

90006283 (P.T.A.B. Apr. 30, 2015)

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.
90/006,283 05/09/2002 6283044 432 P 172 4751
26096 7590 05/01/2015
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
ENGLISH, PETER C
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
05/01/2015 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 REHRIG PACIFIC COMPANY
Appellant and Patent Owner
____________

Appeal 2014-004548
Reexamination Control 90/006,283
Patent 6,283,044
Technology Center 3900
____________

Before RICHARD M. LEBOVITZ, DANIEL S. SONG, and
KEN B. BARRETT, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON REHEARING
This is a Request for Rehearing (“Req. Reh’g”) by Patent Owner
under § 41.52 of the Decision of the Patent Trial and Appeal Board (“the
Board”) dated June 27, 2014 (“Dec. App.”) which affirmed the Examiner’s
rejections of claims 25–35, 41–46, 53–56, 58–62, and 64–86 as obvious
under 35 U.S.C. § 103(a) over cited prior art publications. Dec. App. 13.
The Request for Rehearing is denied.
We address Patent Owner’s arguments below.

Appeal 2014-004548
Reexamination Control 90/006,283
Patent 6,283,044

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Claim 25
Independent claim 25 is directed to top frame assembly adapted for
use with a pallet, where the top frame assembly and the pallet have at least
one layer of objects positioned between them. The top frame comprises first
and second top frame members, each member having ribs and cross-ribs.
The claim recites that “the first and second top frame members fastened
together such that the top frame assembly does not include columns creating
forklift openings.” The absence of forklift opening is the issue in the
rejection.
The Board affirmed the rejection of claim 25 based on teachings in
each of Konig, Nishitani, and Weichenrieder of a “top frame” comprising
the claimed “cross-ribs” and “rib members” and in Flum of a bottom pallet
that can serve as a top pallet. Dec. App. 4–5, 10. Although forklift openings
are described in the bottom pallets of Konig, Nishitani, and Weichenrieder,
the Examiner reasoned it would have been obvious to have eliminated the
forklift openings because “modification would reduce the size and weight of
the pallet, thereby making it easier to lift and manipulate the pallet when it is
used as a ‘top frame’.” Answer 4 (quoted in Dec. App. 6–7); see also Dec.
App. 9. The Board adopted the Examiner’s reasoning, and affirmed the
rejection.
Patent Owner contends that Board erred because eliminating the
forklift openings from Konig, Nishitani, and Weichenrieder would render
them unsatisfactory for their intended purpose as bottom pallets. Req. Reh’g
3. To support this argument, Patent Owner cites In re Gordon, 733 F.2d
900, 902 (Fed. Cir. 1984), which Patent Owner contends holds that a
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modification which would make a reference “inoperable for its intended
purpose” does not establish obviousness of the claimed invention. Req.
Reh’g 3-4.
Gordon was an appeal to the Federal Circuit of a Board decision
involving a claim to a blood filter with an inlet and outlet on the bottom.
Gordon, 733 F.2d at 901. The Board had affirmed the Examiner’s rejection
of the claim over a single prior art publication, French, which taught a
gasoline filter with the inlet and outlet on the top. Id. at 902. The Board had
concluded that “it would have been obvious to turn the French device upside
down to have both the inlet and outlet at the bottom, rather than at the top.”
Id. The Federal Circuit reversed the Board, stating:
French teaches a liquid strainer which relies, at least in part,
upon the assistance of gravity to separate undesired dirt and
water from gasoline and other light oils. Therefore, it is not
seen that French would have provided any motivation to one of
ordinary skill in the art to employ the French apparatus in an
upside down orientation.
Id.
This case is distinguishable from Gordon. Unlike Gordon, two
publications are cited in the rejection in this appeal. In Gordon, the Federal
Circuit found the motivation to modify the single publication, French,
lacking. However, in this case, the second publication, Flum, provides the
reason to have modified the pallet of Konig, Nishitani, and Weichenrieder.
Dec. App. 7–9. Specifically, the Examiner found that Flum teaches that a
pallet can be used as a top frame. Id. at 9. Patent Owner did not identify a
defect in this finding. The Examiner further found a reason to have
eliminated the forklift openings in a pallet when used as a top frame as
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Patent 6,283,044

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taught by Flum. Id. at 8–9. Again, Patent Owner did not identify a flaw in
the Examiner’s reason, but rather simply said the skilled worker would not
have made the modification because it would make the pallet inoperable as a
pallet, i.e., forklift opening were necessary for the function of a pallet. What
the Patent Owner ignored was the Examiner’s finding that pallets were used
as top frames, and, when put to such use, it would have been obvious to have
eliminated the unnecessary forklift openings while retaining the ribs and
cross-ribs for strength. In contrast to Gordon where the modified gasoline
filter would be inoperable for its intended purpose, Flum teaches that a pallet
could also be used as a top frame; thus, the purpose of the pallet of Konig,
Nishitani, and Weichenrieder would not be destroyed by elimination of the
forklift openings because, as established by Flum, pallets are useful as top
frames.

Cross-ribs
The Decision also stated that ribs and cross-ribs are found in the top
frame of Pigott ’029. Dec. App. 9. It was stated:
The use of ribs and cross-members in a top frame is also
disclosed in Pigott ’029, which is discussed in more detail
below. See Fig. 2 of Pigott ’029 referenced by the Examiner.
Answer 4-5. Because ribs are disclosed in both top frames and
pallets (Answer 5: 10-12), the Examiner reasonably found it
obvious to have used the ribbed pallets of Konig,
Weichenrieder, and Nishitani as top frames.
Id. See also id. at 12 stating Pigott’s “cross members 15 and 16 have
longitudinal and traverse ribs (col. 4, ll. 23–30), together which correspond
to the claimed ribs and the ribs described in each of Konig, Weichenrieder,
and Nishitani for pallets.” Thus, Pigott’s teaching about ribs and cross-ribs
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in a top frame provided further evidence of the obviousness of incorporating
this feature into a pallet when used as a top frame as taught by Flum.
Patent Owner contends this is a “red herring” which “is not relevant to
the question of whether it would have been obvious to destroy the primary,
intended functionality of pallets.” Req. Reh’g 4.
We do not agree. Pigott ’029 provides further evidence of a reason to
have ribs and cross-ribs in a top pallet, independent of the teachings in
Konig, Weichenrieder, and Nishitani.

Claims 26 and 35
Claims 26 and 35 requires at least one large opening through the top
frame member that is “a majority of the first top member by area.” Patent
Owner argues that modifying a bottom pallet with large openings would
make it less capable, if not incapable of supporting goods stacked on it.
Req. Reh’g 5. We already addressed this argument in the Decision on
Appeal, and Patent Owner did not identify a defect in our reasoning.
Pigott ’029 teaches that the top frames 10 can be stacked
(“[p]referably the pad extends below the supporting rib 54 so
that when the frame 10 is placed on top of either another frame
10 (as in FIG. 6) or the rows of goods G, the pad, and not the
frame 10, contacts the other frame or goods.”). Pigott ’029, col.
5, ll. 4-8. Thus, Patent Owner’s argument that goods could not
be stacked on a top frame with large openings is contradicted
by the explicit teaching in Pigott ’029 of a stackable top frame
10 with four large openings.
Dec. App. 11.

DENIED
Appeal 2014-004548
Reexamination Control 90/006,283
Patent 6,283,044

6

ack

Patent Owner

CARLSON, GASKEY & OLDS, P.C.
400 West Maple Road
Suite 350
Birmingham, MI 48009

Third Party Requester

RICHARD C. HIMELHOCH
UNGARETTI & HARRIS LLP
70 W. Madison Street, Suite 3500
Chicago, Il 60602