Ex Parte Fritsche

Patent Trial and Appeal Board

Sep 30, 2014

12241460 (P.T.A.B. Sep. 30, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOEL L. FRITSCHE
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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.
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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.
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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.
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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
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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
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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.
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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.
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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
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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.
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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
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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).

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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)
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