Ex Parte FritscheDownload PDFPatent Trial and Appeal BoardSep 30, 201412241460 (P.T.A.B. Sep. 30, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOEL L. FRITSCHE ____________ Appeal 2012-008225 Application 12/241,460 Technology Center 3600 ____________ Before ANNETTE R. REIMERS, BRANDON J. WARNER, and TIMOTHY J. GOODSON, Administrative Patent Judges. REIMERS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Joel L. Fritsche (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision to reject under 35 U.S.C. § 103(a): (1) claims 1–10, 12–17, 20, 22, and 23 as unpatentable over Spieldiener (US 4,543,886; iss. Oct. 1, 1985), Thorley (US 4,027,807; iss. June 7, 1977) and Rose (US 2009/0269175 A1; pub. Oct. 29, 2009); and (2) claim 11 as unpatentable over Spieldiener, Thorley, Rose, and Jarvis (US 2007/0144865 A1; pub. Appeal 2012-008225 Application 12/241,460 2 June 28, 2007). Claims 18, 19, and 21 have been indicated as allowed by the Examiner.1 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM and ENTER NEW GROUNDS OF REJECTION PURSUANT TO OUR AUTHORITY UNDER 37 C.F.R. § 41.50(b). CLAIMED SUBJECT MATTER The claimed subject matter “relates to a loading system for ride vehicles that facilitate both able bodied passengers and passengers in wheelchairs.” Spec. 1, para. 1, Fig. 1. Claims 1 and 22 are independent. Claim 1 is illustrative of the claimed subject matter and recites: 1. A ride loading interface system for allowing at least one rider to access a ride vehicle, said system comprising: a. a plurality of associated ride vehicles moving on a track at a rate greater than zero during loading of said plurality of associated ride vehicles, each ride vehicle including an opening, at least one ride vehicle including a tray extendable from and retractable into said at least one ride vehicle through said opening, said tray for receiving a wheelchair and for allowing a wheelchair to be positioned in said at least one ride vehicle; b. a loading deck positioned adjacent said track and said plurality of ride vehicles, said loading deck having a rate of motion greater than zero such that said portion of said loading deck adjacent said track is moving at about the same rate as said plurality of ride vehicles; c. at least one structure extending into said loading deck to allow a rider to transition from said structure to said loading deck with a small change in relative velocity of said rider to said loading deck. 1 See Advisory Action, mailed October 5, 2011; see also Br. 6. Appeal 2012-008225 Application 12/241,460 3 ANALYSIS Obviousness Rejection over Spieldiener, Thorley, and Rose Claims 1–10, 12–17, and 20 Appellant has not presented arguments for the patentability of claims 2–10, 12–17, and 20 apart from claim 1. Br. 18. Therefore, in accordance with 37 C.F.R. § 41.37(c)(1)(vii) (2011), we select claim 1 as the representative claim, with claims 2–10, 12–17, and 20 standing or falling with claim 1. Independent claim 1 calls for a ride loading interface system including “a plurality of associated ride vehicles moving on a track at a rate greater than zero during loading of said plurality of associated ride vehicles.” Br. 20, Clms. App. The Examiner found that Spieldiener discloses “[a] plurality of associated ride vehicles (12) moving on a track (18) at a rate greater than zero.” Ans. 4–5; see also id. at 7 (citing Spieldiener, col. 3, ll. 14–30). Appellant contends that “the raft [of Spieldiener] is not on the conveyor [18] during loading. Rather, as shown in Fig. 1 and as further described in [Spieldiener’s] [S]pecification, a raft 12 leaves the conveyor 18 for loading.” Br. 14 (citing Spieldiener, col. 2, l. 67–col. 3, l. 3). At the outset, as noted by Appellant, Spieldiener discloses that “[a]t the termination area 16 of the water course, a raft 12 is engaged by a conventional belt conveyor 18 which carries the raft up an incline 20 and over a barrier wall 22 into an upper level waterway 24 where passengers are unloaded and loaded.” Spieldiener, col. 2, l. 67–col. 3, l. 3; see Br. 14. We agree with Appellant that “the raft [12] is not on the conveyor [18] during loading.” Br. 14. Appeal 2012-008225 Application 12/241,460 4 Appellant further contends that “the instant application defines a track as including a ‘rail structure.’ A conveyor is not a rail structure.” Id. (footnote omitted). However, as correctly pointed out by the Examiner, neither [claim 1] nor the [S]pecification limit the “track” to a rail structure. In fact in paragraph 31 of [A]ppellant’s [S]pecification, a track is defined as: “It is contemplated that the track 110, as defined herein, may include a rail structure as defined below, or another guide structure for guiding the ride vehicles around or along a portion of a ride attraction. Other guide structures may include a channel structure in which the ride vehicles move, a water pathway in which the ride vehicles move, an overhead suspension structure supporting the ride vehicles from above, and electronic guidance systems, such as magnetic tape guidance or GPS guidance systems, or other automated guided vehicle technologies and other such structures and systems.” Ans. 7–8 (emphasis added); Spec. 6, para. 31. We note that Appellant acknowledges that “[i]n the upper waterway 24, the raft 12 floats and is moved by an arcuate conveyor vertically disposed and displaced from the outer edge of a rotating platform.” Br. 14 (citing Spieldiener, col. 1, ll. 54– 60). We further note that Appellant also acknowledges that passengers are unloaded and loaded at Spieldiener’s upper level waterway 24. See id.; see also Spieldiener, col. 3, ll. 2–3. Claims are to be given their broadest reasonable interpretation consistent with the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). As such, based on Appellant’s broad description of the claim term “track” and Spieldiener’s disclosure, we find that an ordinary skilled artisan applying the broadest reasonable Appeal 2012-008225 Application 12/241,460 5 interpretation consistent with Appellant’s Specification would reasonably find Spieldiener’s upper level waterway 24, where passengers are loaded and unloaded, to constitute the “track” called for in claim 1. Appellant contends that “Thorley does not disclose, teach or suggest vehicles moving on a track at a rate greater than zero during loading and therefore cannot overcome the deficiency of Spieldiener in this regard.” Br. 14. We agree with the Examiner that Appellant is arguing the references individually and not in combination. See Ans. 7. Nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The Examiner relied on Spieldiener for disclosure of vehicles moving on a track at a rate greater than zero during loading. See Ans. 7. Moreover, as discussed above, an ordinary skilled artisan under the broadest reasonable interpretation consistent with Appellant’s Specification would reasonably find Spieldiener’s upper level waterway 24, where passengers are loaded and unloaded, to constitute the “track” called for in claim 1. The Examiner relied on Thorley “to show an extendable tray from the vehicle so that wheelchairs can be loaded into a vehicle.” Id. Appellant contends that [t]he hypothetical modification of Spieldiener by Thorley would require a change a principle of operation of Spieldiener as it would require Spieldiener to be stopped for deployment of a tray. . . . Thorley requires that the vehicle in which its tray is implemented be stopped during loading and unloading. . . . This stands in stark contrast to Spieldiener which provides for continuous loading of passengers into a series of Appeal 2012-008225 Application 12/241,460 6 moving circular vehicles. Those skilled in the art would not consider it obvious to modify the raft of Spieldiener in view of Thorley so that the raft deploys a tray for receiving a wheelchair while the raft is moving and while attempting to load and unload the raft. This is clear when considering that deployment of a tray from a floating raft would create an instability possibly further complicating loading and unloading of the raft. Br. 15–16 (footnote omitted). Appellant’s argument is not persuasive. First, Appellant’s contention that deployment of a tray from a floating raft would create an instability, possibly further complicating loading and unloading of the raft, amounts to unsupported attorney argument and speculation, and thus is entitled to little, if any, weight. See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (arguments and conclusions unsupported by factual evidence carry no evidentiary weight). Second, to the extent that Appellant is arguing the references must be capable of bodily incorporation in order to combine their teachings, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of a primary reference. In re Keller, 642, F.2d 413, 425 (CCPA 1981). “Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” Id. (citations omitted). Here, the Examiner found that Spieldiener discloses the loading system set forth [in claim 1], but does not disclose at least one ride vehicle including a tray extendable from and retractable into said at least one ride vehicle through said opening, said tray for receiving a wheelchair and for allowing a wheelchair to be positioned in said at least one ride vehicle. Appeal 2012-008225 Application 12/241,460 7 Ans. 5. The Examiner relied upon Thorley for disclosure of “a tray that extends from a vehicle (see figure 2).” Id. The Examiner concluded that it would have been obvious to a person of ordinary skill in the art to provide the tray, as taught by Thorley, to the ride system of Spieldiener “so that wheelchairs can be loaded into a vehicle.” Id. at 7; see also id. at 5. The Examiner further found that “Spieldiener discloses the loading system set forth [in claim 1], but does not disclose at least one ride vehicle for receiving a wheelchair and for allowing a wheelchair to be positioned in said at least one ride vehicle.” Id. at 5. The Examiner relied on Rose for disclosure of “a vehicle that can accommodate a wheelchair.” Id. (citing Rose paras. 27 and 36); see also id. at 7. The Examiner further concluded that it would have been obvious to a person of ordinary skill in the art to provide a vehicle that can accommodate a wheelchair, as taught by Rose, to the ride system of Spieldiener “to provide access to the ride for disabled persons.” Id. Thus, the Examiner’s articulated reasoning for combining the reference teachings in the manner claimed is based upon rational underpinnings. Appellant has not shown that the Examiner’s reasons for combining the teachings of the prior art references are in error. Appellant contends that “Thorley teaches use of the lift device only while the vehicle is stopped, thereby teaching away from the present claims.” Br. 16. Appellant’s argument is not persuasive. First, as discussed above, obviousness does not require that all of the features of the secondary reference be bodily incorporated into the primary reference. Second, simply identifying that there are differences between two references is insufficient to establish that such references “teach away” from any combination thereof. Appeal 2012-008225 Application 12/241,460 8 See In re Beattie, 974 F.2d 1309, 1312–13 (Fed. Cir. 1992). In addition, to teach away, a reference must actually criticize, discredit, or otherwise discourage the claimed solution. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (prior art does not teach away from claimed subject matter merely by disclosing a different solution to a similar problem unless the prior art also criticizes, discredits, or otherwise discourages the solution claimed). Here, the Examiner relied on Thorley, “merely . . . to provide a teaching for a lift mechanism.” Ans. 7. A reference disclosure is not limited only to its preferred embodiments, but is available for all that it discloses and suggests to one of ordinary skill in the art. In re Lamberti, 545 F.2d 747, 750 (CCPA 1976). Moreover, Thorley in no way criticizes, discredits, or otherwise discourages the use of a vehicle lift mechanism in a ride system. See Thorley, col. 1, ll. 5–9, 39–49. To the contrary, Thorley discloses that “[the] invention relates to loading mechanisms, and, more particularly, to lift devices suitable for loading handicapped persons with or without wheel chairs into vehicles such as buses or other types of public conveyances.” Thorley, col. 1, ll. 5–9 (emphasis added). Thorley further discloses that “[t]he lift device can be incorporated into any doorway entrance of vehicles suitable for either public or private conveyance. . . . The various step elements change into a platform[,] which can be lowered, or raised, to any position between vehicle floor height and ground level.” Thorley, col. 1, ll. 39–49 (emphasis added). As such, we find that the disclosure of Thorley does not teach away from Appellant’s claimed invention. In conclusion, for the foregoing reasons, we sustain the rejection under 35 U.S.C. § 103(a) of claim 1, and of claims 2–10, 12–17, and 20 Appeal 2012-008225 Application 12/241,460 9 falling with claim 1, as unpatentable over Spieldiener, Thorley, and Rose. However, we denominate the affirmance of the rejection of claims 1–10, 12–17, and 20 as a NEW GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b), because our interpretation of how Spieldiener’s disclosure corresponds to Appellant’s claimed invention differs somewhat from that expressly stated by the Examiner in the rejection of record. Claims 22 and 23 Appellant has not presented arguments for the patentability of claim 23 apart from claim 22. Br. 18. Therefore, in accordance with 37 C.F.R. § 41.37(c)(1)(vii) (2011), we select claim 22 as the representative claim, with claim 23 standing or falling with claim 22. Claim 22 calls for a “method of loading a wheelchair-bound guest[] onto a ride attraction” including the step of “moving at least one ride vehicle on a track at approximately the same rate as a loading deck associated therewith during loading of said at least one ride vehicle.” Br. 23, Clms. App. Appellant presents arguments for independent claim 22 similar to those presented for independent claim 1. See Br. 16–18. As discussed above, these arguments are not persuasive.2 Similar to claim 1, claim 22 calls for moving at least one ride vehicle on a track during loading. See Br. 2 Appellant contends that “Rose is not properly combinable with Spieldiener to overcome the deficiencies of Spieldiener. In particular, there is no motivation, teaching or disclosure in the cited references that indicate why or how a floating raft would/could be modified to move on a track at a rate greater than zero during loading.” Br. 18. Because the cited combination does not rely on Rose for the teaching of this limitation, but instead finds that Spieldiener discloses this feature, this argument is not responsive to the rejection that has been made. See id. at 15; see also Ans. 4–5, 7. Appeal 2012-008225 Application 12/241,460 10 23, Clms. App. As previously discussed, we agree with Appellant that raft 12 of Spieldiener is not on the conveyor 18 during loading. See Br. 17; see also id. at 14. However, as also previously discussed, an ordinary skilled artisan under the broadest reasonable interpretation consistent with Appellant’s Specification would reasonably find Spieldiener’s upper level waterway 24, where passengers are loaded and unloaded, to constitute the “track” called for in claim 22. Moreover, the Examiner correctly found that Spieldiener discloses the moving step as recited in claim 22. See Ans. 5; see also Spieldiener col. 3, ll. 14–30 (“The inner arcuate contact portion of the conveyor 36 is operated at a speed equivalent to the extended diameter speed of the platform were it coincident with this portion of the conveyor. In this manner the rafts have the same angular velocity as the platform . . . and do not roll along the platform’s edge.”). In conclusion, for the foregoing reasons, we sustain the rejection under 35 U.S.C. § 103(a) of claim 22, and of claim 23 falling with claim 22, as unpatentable over Spieldiener, Thorley, and Rose. However, we again denominate the affirmance of the rejection of claims 22 and 23 as a NEW GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b), because our interpretation of how Spieldiener’s disclosure corresponds to Appellant’s claimed invention differs somewhat from that expressly stated by the Examiner in the rejection of record. Obviousness Rejection over Spieldiener, Thorley, Rose, and Jarvis Claim 11 Appellant contends that [c]laim 11 indirectly depends from claim 1 and is patentable for at least the same reasons as claim 1 as Jarvis does not overcome the deficiencies of Appeal 2012-008225 Application 12/241,460 11 Spieldiener, Thorley and Rose with respect to claim 1. In particular, Jarvis discloses a comb plate for a passenger conveyor. However, Jarvis does not disclose, teach or suggest, a plurality of associated ride vehicles moving on a track at a rate greater than zero during loading ... at least one ride vehicle including a tray extendable from and retractable into said at least one ride vehicle through said opening, said tray for receiving a wheelchair and for allowing a wheelchair to be positioned in said at least one ride vehicle. Br. 18. Appellant’s argument is not persuasive because Appellant is arguing the references individually and not in combination. The Examiner found that “Spieldiener discloses the loading system set forth [in claim 1], but does not disclose a comb.” Ans. 6. The Examiner relied on Jarvis merely for “[disclosure of] a comb (18).” Id. The Examiner concluded that it would have been obvious to a person of ordinary skill in the art to provide a comb, as taught by Jarvis, to the ride system of Spieldiener “so objects [do not] become entrapped where the walkway meshes with the transition area.” Id. Thus, the Examiner’s articulated reasoning for combining the reference teachings in the manner claimed is based upon rational underpinnings. Appellant has not shown that the Examiner’s reasons for combining the teachings of the prior art references are in error. Therefore, for the foregoing reasons, we likewise sustain the rejection of claim 11 over the combined teachings of Spieldiener, Thorley, Rose, and Jarvis. Because claim 11 depends from independent claim 1, for the reasons expressed above, we also denominate the affirmance of claim 11 as a NEW GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b). Appeal 2012-008225 Application 12/241,460 12 DECISION The Examiner’s decision to reject claims 1–10, 12–17, 20, 22, and 23 as unpatentable over Spieldiener, Thorley, and Rose is AFFIRMED. The Examiner’s decision to reject claim 11 as unpatentable over Spieldiener, Thorley, Rose, and Jarvis is AFFIRMED. For the reasons discussed above, we denominate our affirmances of the rejections of claims 1–17, 20, 22, and 23 as new grounds of rejection pursuant to 37 C.F.R. § 41.50(b). This decision contains new grounds of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that, TO AVOID TERMINATION OF THE APPEAL AS TO THE REJECTED CLAIMS, Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new grounds of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record. . . . No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED; 37 C.F.R. § 41.50(b) Appeal 2012-008225 Application 12/241,460 13 msc Copy with citationCopy as parenthetical citation