Ex Parte MEURET et al

Patent Trial and Appeal Board

Nov 30, 2018

12732120 (P.T.A.B. Nov. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/732, 120 03/25/2010
97242 7590 12/04/2018
Kutak Rock LLP
2300 Main Street, Suite 800
Kansas City, MO 64108
FIRST NAMED INVENTOR
MARK J. MEURET
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
156211-19.1 2478
EXAMINER
DAZ, MUHAMMAD
ART UNIT PAPER NUMBER
3631
NOTIFICATION DATE DELIVERY MODE
12/04/2018 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):
patents@kutakrock.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK J. MEURET and ERIC L. MCKINNEY
Appeal2018-003449
Application 12/732,120 1
Technology Center 3600
Before ANTON W. PETTING, MICHAEL C. ASTORINO, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner's decision rejecting claims 1-6, 8, 9, and 11-34. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 According to the Appellants, "[ t ]he real party in interest in the present
appeal is Brunson Instrument Company, the assignee of record." Appeal
Br. 2.
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Application 12/732, 120
STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellants' "invention relates to a light-weight, rigid tripod for
measuring equipment and to a method of stabilizing a stand (such as a
tripod) for measuring equipment." Spec. ,r 2.
Claims 1, 2 7, and 3 0 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A tripod comprising:
a base;
three legs spaced apart generally equally and pivotally
connected to said base, each leg being moveable
between a generally collapsed position and an open
pivotal position;
a stop associated with each of said legs, said stop being
configured to prevent said legs from rotating
beyond said open pivotal position, thereby defining
a maximum outward angle for each of said legs in
said open pivotal position; and
a leg spreader associated with each of said legs;
wherein urging said leg spreader towards said base causes
said leg spreader to urge said legs towards said open
pivotal position when said leg spreader is in an
engaged configuration, and
wherein urging said legs towards said open pivotal
position by said leg spreader when said legs are
already in said open pivotal position causes said
legs to be secured in said open pivotal position.
Rejections
The following rejections are taken from the Final Office Action,
mailed March 22, 2016, and are before us for review. We have set forth the
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rejections in a different order than the order presented in the Final Office
Action.
I. Claim 21 stands rejected under 35 U.S.C. § 112 (pre-AIA),
second paragraph, as indefinite.
II. Claims 1-6, 8, 24, 27, 30, 33, and 34 stand rejected under
35 U.S.C. § 102(b) as anticipated by Mooney '093 (US 2,919,093, issued
Dec. 29, 1959).
III. Claims 11-13 and 28 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Mooney '093 in view of Teeple (US 5,865,406, issued
Feb. 2, 1999).
IV. Claims 15-19, 25, 29, and 31 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Mooney '093 in view of Schnepp
(US 4,832,296, issued May 23, 1989).
V. Claims 20, 22, 23, and 32 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Mooney '093 in view of Schnepp and
Engelhart (US 2,802,635, issued Aug. 13, 1957).
VI. Claim 26 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Mooney '093 in view of Schnepp, Engelhart, and
Nakatani (US 4,596,484, issued June 24, 1986).
VII. Claims 1, 8, 27, 28, 30, and 34 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Teeple in view of Mooney '606
(US 2,143,606, issued Jan. 10, 1939).
VIII. Claims 11-14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Teeple in view of Mooney '606 and Mooney '093.
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IX. Claims 1--4, 8, 9, and 11 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over McLeod (US 821,052, issued May 22, 1906)
in view of Mooney '606.
ANALYSIS
Rejection/
The Appellants acknowledge, yet do not contest, the Examiner's
rejection of claim 21 under 35 U.S.C. § 112 (pre-AIA), second paragraph, as
indefinite. See Appeal Br. 8. The Appellants only point out that "the Office
indicated that [ c ]laim 21 would be allowable if rewritten in independent
form in such a way as to overcome the 112 rejection." Id.; see Final Act. 22.
Thus, we summarily sustain the Examiner's rejection of claim 21 as
indefinite.
Rejections II-VI
The Examiner rejects independent claims 1, 27, and 30 under
35 U.S.C. § 102(b) as anticipated by Mooney '093 ("Rejection II"). We will
address each of the independent claims separately. Thereafter, we will
address the rejections of dependent claims 2---6, 8, 11-13, 15-20, 22-26, 28,
29, and 31-34 under 35 U.S.C. §§ 102(b) and 103(a) (Rejections II-VI).
Independent Claim 1
Claim 1 calls for a tripod including a base, three legs, a stop, and a leg
spreader, wherein urging the leg spreader towards the base causes the leg
spreader to urge the legs towards the open pivotal position when the leg
spreader is in an engaged configuration ("wherein clause"). See Appeal Br.,
Claims App.
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The Examiner finds that Mooney '093's base 12, legs 10, concave
depressions 28 and/or skirt 36, and plate 40 correspond to the base, three
legs, stop, and leg spreader of claim 1, respectively. Final Act. 4. The
Examiner also finds that Mooney '093 reads on the aforementioned
"wherein clause" of claim 1. Id. More particularly, the Examiner finds that
plate 40 includes a tapered surface that is capable of urging legs 10 towards
an open pivotal position by "providing distributed forces in various
directions that are generally perpendicular to the respective portion of the
surface." 2 Ans. 4.
The Appellants point out that the tapered surface of plate 40 applies a
perpendicular force (i.e., a normal force) to leg lO's ball shaped member 52,
which necessarily extends through a center of ball shaped member 52.
Reply Br. 2. The Appellants argue that this normal force urges ball shaped
member 52 towards concave depression 28 and inhibits rotation of leg 10
towards an open pivotal position through friction. See id.; Appeal Br. 9--10.
The Appellants' argument is persuasive.
Mooney '093 ball and socket joint includes ball-shaped member 52,
which is located at the end of leg 10, and socket 48, which is defined by base
12's concave depressions 28 and plate 40's spherical-shaped depression 45.
Mooney '093, col. 2, 11. 12-16, 32-37, 40-43, Figs. 3-5. Applying a force
perpendicular to ball shaped member 52 does not urge leg 10 in an open
2 The Examiner's reference to a tapered surface of plate 40 appears to be
directed to "semi-cylindrical projections 44 having depressions in the shape
of spherical sections 45 at the upper inner portions of each projection."
Mooney '093, col. 2, 11. 32-35 (emphasis omitted).
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pivotal position as called for by claim 1. Instead, it urges ball shaped
member 52 deeper in the socket, i.e., concave depression 28.
Thus, we do not sustain the Examiner's rejection of claim 1
(Rejection II).
Independent Claim 2 7
Claim 27 calls for a tripod for supporting an object above a surface,
including a base, three legs, a stop associated with each of the legs, the stop
being configured to prevent the legs from rotating beyond an open pivotal
position when the legs are engaged with the surface, and a spreader means
for applying a load upon the legs to force the legs against the stop regardless
of whether the legs are engaged with the surface. See Appeal Br., Claims
App.
Similar to the rejection of claim 1, the Examiner finds that
Mooney '093's base 12, legs 10, concave depressions 28 and/or skirt 36, and
plate 40 correspond to the base, three legs, stop, and spreader means of
claim 27, respectively. Final Act. 6.
The Appellants argue that Mooney '093 fails to disclose the stop and
spreader means of claim 2 7 for reasons similar to those advanced for the
rejection of claim 1. See Appeal Br. 10. The Appellants' argument is
persuasive.
As for concave depression 28 corresponding to the claimed stop, the
Examiner finds that concave depression 28 act as a "stop for the legs by
stopping the vertical movement of the legs" and "by gripping the balls (52)
to inhibit the rotation when enough pressure from the element (40)." Ans. 5.
However, the claimed stop is configured to prevent the legs from rotating
beyond an open pivotal position when the legs are engaged with the surface.
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The Examiner fails to adequately explain and we fail to understand how
concave depression 28' s ability to stop the vertical movement of legs 10
would be able to prevent legs 10 from rotating beyond an open pivotal
position when legs 10 are engaged with the surface. Similarly, the Examiner
fails to adequately explain how Mooney '093 's plate 40 - by use of its
tapered surfaces or otherwise - is able to create enough pressure to prevent
legs 10 from rotating beyond an open pivotal position. And, it is unclear
why Mooney '093 's ball and socket joint, which is designed to allow
movement between a spherical part fitting into a spherical socket, would be
designed to create enough pressure to prevent legs 10 from rotating beyond
an open pivotal position.
As for skirt 36 corresponding to the claimed stop, the Examiner finds
that skirt 36 acts "as stop by setting the maximum extent of the legs to
spread." Ans. 5. We agree. However, claim 27 also requires a spreader
means for applying a load upon the legs to force the legs against the stop
regardless of whether the legs are engaged with the surface. The Examiner
fails to adequately explain how plate 40 - by use of its tapered surfaces or
otherwise - is able to apply a load upon legs 10, including its ball shaped
member 52, to force legs 10 against skirt 36 regardless of whether the legs
are engaged with the surface.
As for the combination of concave depression 28 and skirt 36
corresponding to the claimed stop, the Examiner fails to adequately explain
why these two separate structures may be combined to act as a stop as
required by the claim.
Thus, we do not sustain the Examiner's rejection of claim 27
(Rejection II).
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Independent Claim 3 0
Claim 30 recites:
A method of stabilizing a collapsible stand for supporting
measuring equipment above a surface, the stand including at least
three legs pivotally connected to a base, said method comprising:
pivoting the legs to an open pivotal position into
engagement with a stop;
applying a load upon said legs to force said legs against
said stop; and
maintaining said load upon said legs so as to prevent said
legs from moving away from said stop regardless of whether said
stand is positioned on the surface.
Appeal Br., Claims App.
In the Final Office Action, the Examiner provides little explanation of
how Mooney '093's structures are able to perform the steps of independent
method claim 30. See Final Act. 6-7. The Examiner merely cites to
Mooney '093's Figures 1-5 and base 12, legs 10, and concave depressions
28 and/or skirt 36 as corresponding the structures required by method claim
30, i.e., the stand's base, three legs, and stop. Id. The Appellants rely on
arguments advanced for the rejections of claims 1 and 27 to argue that
Mooney '093 does not disclose the applying and maintain steps of claim 30.
Appeal Br. 10-11. We determine that the Appellants' arguments are
persuasive for reasons similar to those discussed above. Thus, we do not
sustain the Examiner's rejection of claim 30 (Rejection II).
Dependent claims 2-6, 8, 11-13, 15-20, 22-26, 28, 29, and 31-34
Claims 2-6, 8, 11-13, 15-20, 22-26, 28, 29, and 31-34 depend either
directly or indirectly from one of independent claims 1, 27, and 30. Appeal
Br., Claims App. These dependent claims are rejected under either
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35 U.S.C. §§ 102(b) and 103(a) (Rejections II-VI). On this record the
Examiner fails to include additional findings and/or reasoning to adequately
support the rejection of these claims. Thus, we do not sustain the
Examiner's rejections of claims 2-6, 8, 11-13, 15-20, 22-26, 28, 29, and
31-34 (Rejections II-VI).
Rejections VII & VIII
The Examiner rejects claims 1, 8, 27, 28, 30, and 34 under 35 U.S.C.
§ 103(a) as unpatentable over Teeple in view of Mooney '606 (Rejection
VII) and claims 11-14 under 35 U.S.C. § 103(a) as unpatentable over Teeple
in view of Mooney '606 and Mooney '093 (Rejection VIII). We will
address the rejection of independent claims 1, 27, and 30, then rejections of
dependent claims 8, 11-14, 28, and 34.
Independent Claim 1
Claim 1 calls for a tripod including a leg spreader associated with
each of the three legs of the tripod where the legs are spaced apart generally
equally and pivotally connected to a base. Appeal Br., Claims App.
Additionally, claim 1 calls for the leg spreader to be able to urge each of the
three legs towards an open pivotal position when the leg spreader is in an
engaged configuration. Id.
The Examiner finds that Teeple's tripod has three legs 2 that
correspond the claimed "legs." See Final Act. 8; Teeple, Fig. 1. The
Examiner also finds that Teeple's elements 3, 4 (i.e., collar 3, column 4)
corresponds to the claimed "base" and leg spread bracket 7 4 corresponds to
the claimed "leg spreader." See Final Act. 8-9 (citing Teeple, Fig. 14,
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col. 7, 11. 1-14). The Examiner relies on Mooney '606 to teach a stop. Id. at
8.
The Appellants point out that leg spreader 7 4 "selectively engages
with any two of the standard legs of the Teeple tripod." Reply Br. 3.
Indeed, Teeple teaches "additional leg 12 and a pair of the plurality of legs 2
act together to support the tripod 1 in a generally horizontal position."
Teeple, col. 4, 11. 45--48 ( emphasis omitted). Accordingly, we disagree with
the Examiner that leg spreader 7 4 corresponds to the leg spreader of claim 1;
i.e., a leg spreader able to urge each of the three legs towards an open pivotal
position when the leg spreader is in an engaged configuration.
Thus, we do not sustain the Examiner's rejection of claim 1
(Rejection VII).
Independent Claims 2 7 and 3 0
Claims 27 and 30, respectively, call for the ability of a spreader means
to apply and the application of a load upon each of the three legs in an open
pivotal position regardless of whether the three legs are engaged with the
surface below a stand ( e.g., a tripod). See Appeal Br., Claims App. Similar
to the rejection of claim 1, the Examiner finds that Teeple's three legs 2
correspond to the claimed three legs. Final Act. 9, 10. However, when
Teeple's tripod 1 is placed horizontally on the ground, per its design, only
two legs 2 would be subject to a load from leg spread bracket 74; the load
keeps only those two legs 2 in an open pivotal position. See Teeple, col. 4,
11. 45--48, col. 7, 11. 1-14, Figs. 1, 14; Reply Br. 3. Accordingly, one of
legs 2 would not be supported by leg spread bracket 7 4. The Examiner fails
to adequately explain how the leg that is not supported by leg spread bracket
7 4 would stay in an open pivotal position regardless of whether it is engaged
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with the surface below a stand. In other words, the Examiner fails to
identify the application of a load that would be applied to the leg that is
unsupported by leg spread bracket 74. Thus, we do not sustain the
Examiner's rejection of claims 27 and 30 (Rejection VII).
Dependent claims 8, 11-14, 28, and 34
Claims 8, 11-14, 28, and 34 depend either directly or indirectly from
one of independent claims 1, 27, and 30. Appeal Br., Claims App. These
dependent claims are rejected under 35 U.S.C. § 103(a). On this record the
Examiner fails to include additional findings and/or reasoning to adequately
support the rejection of these claims. Thus, we do not sustain the
Examiner's rejections of claims 8, 11-14, 28, and 34 (Rejections VII &
VIII).
Rejection IX
The Examiner rejects independent claim 1 and claims 2--4, 8, 9, and
11, which depend either directly or indirectly from claim 1, under 35 U.S.C.
§ 103(a) as unpatentable over McLeod in view of Mooney '606.
Independent claim 1 requires a tripod including a base, three legs, and
a leg spreader, wherein urging the leg spreader towards the base causes the
leg spreader to urge the legs towards the open pivotal position when the leg
spreader is in an engaged configuration. See Appeal Br., Claims App.
The Examiner finds that McLeod's plates A, B, B1, B2 and elements g,
g' correspond to the claimed "base" and "leg spreaders," respectively. 3
3 McLeod's elements g, g' are links in a modified arrangement (i.e., a
separate embodiment) as shown in Figures 5 and 6. McLeod 1, 11. 35-37,
73-76.
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Final Act. 13. The Examiner explains that links g, g' have a relationship to
the legs of McLeod's tripod by way of rectangular plates B, B1 and pin h
that "broadly and reasonably" correspond to the "leg spreader" as required
by claim 1. See Ans. 10. The Examiner relies on Mooney '606 to teach a
stop. Final Act. 13.
The Appellants argue that McLeod's links g, g' are completely
independent from the legs of the tripod and do not correspond to the "leg
spreader" as required by claim 1. Appeal Br. 13. The Appellants point out
that links g, g' substitute for locking plate C in the embodiment shown in
Figures 1--4. Id.; McLeod 1, 11. 73-76. The Appellants' argument is
persuasive. To the extent there is a relationship between links g, g' and the
legs of McLeod's tripod, the Examiner fails to adequately support a finding
that urging links g, g' towards plates A, B, B1, B2 cause links g, g' to urge
the legs of McLeod's tripod towards an open pivotal position when links g,
g' are in an engaged configuration.
Thus, we do not sustain the Examiner's rejection of independent
claim 1 as unpatentable over McLeod in view of Mooney '606. The
Examiner's findings with respect to the dependent claims do not compensate
for the above-discussed shortcoming, so we also do not sustain the
Examiner's rejections of dependent claims 2--4, 8, 9, and 11.
DECISION
We SUMMARILY AFFIRM the Examiner's decision rejecting
claim 21 under 35 U.S.C. § 112 (pre-AIA), second paragraph, as indefinite
(Rejection I).
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We REVERSE the Examiner's decision rejecting claims 1---6, 8, 9,
and 11-34 under 35 U.S.C. §§ 102(b) and 103(a) (Rejections II-IX).
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)(l )(iv).
AFFIRMED-IN-PART
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