12453004 (P.T.A.B. Sep. 27, 2017)

Ex Parte Ponce et al

Patent Trial and Appeal BoardSep 27, 2017

12453004 (P.T.A.B. Sep. 27, 2017)

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. 12/453,004 04/27/2009 Norberto Ponce 30309.01 3760 7590 09/28/2017 Noberto Ponce 35001 Pelican Pointe Drive Rio Hondo, TX 78583 EXAMINER BATTISTI, DEREK J ART UNIT PAPER NUMBER 3782 MAIL DATE DELIVERY MODE 09/28/2017 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 NORBERTO PONCE and JOSE B. GARCIA ________________ Appeal 2016-004727 Application 12/453,004 Technology Center 3700 ________________ Before STEVEN D.A. McCARTHY, ANNETTE R. REIMERS and JEFFREY A. STEPHENS, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE 1 2 The Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s 3 decision finally rejecting claims 1, 3 and 11–22 under pre-AIA 35 U.S.C. 4 § 103(a) as being unpatentable over Thom (US 6,401,996 B1, issued June 5 11, 2002), Stall (US 5,417,353, issued May 23, 1995) and Hershey (US 6 3,642,240, issued Feb. 15, 1972); and claims 2 and 6–10 under § 103(a) as 7 being unpatentable over Thom, Stall, Hershey and Butler (US 7,077,238 B2, 8 1 The named inventors do not identify any real party in interest other than themselves. Appeal 2016-004727 Application 12/453,004 2 issued July 18, 2006). Claims 4 and 5 are cancelled. We have jurisdiction 1 under 35 U.S.C. § 6(b). 2 We REVERSE. 3 The claims are directed to “a lawnmower caddy that provides a tool 4 and paraphernalia tray adapted for removable attachment to a push 5 lawnmower.” (Spec, para. 2). Claims 1, 7 and 14 are independent. Claim 1 6 recites: 7 1. A lawn mower caddy, comprising: 8 a platform including a surface, a proximal end, a distal end, and 9 an undersurface, the surface having a plurality of openings 10 formed therethrough for containing items therein; 11 lawn mower attachment members mounted on the platform 12 adjacent the distal end, the lawn mower attachment 13 members adapted to attach to a horizontal bar of a lawn 14 mower push assembly; 15 a support bar mounted to the platform adjacent the distal end 16 such that the support bar is oriented in a first direction 17 substantially parallel to the horizontal bar of the lawn 18 mower push assembly, and the support bar extends from 19 the distal end away from the platform in a second direction 20 towards the lawn mower push assembly to engage two 21 angled bars of the lawn mower push assembly by resting 22 against an underside of the two angled bars simultaneously 23 while not being attached to the lawn mower push assembly 24 such that the surface is in a substantially horizontal plane 25 to allow the items to remain in the openings when the lawn 26 mower caddy is attached to a lawn mower push assembly, 27 wherein the support bar extends from the distal end in the 28 second direction farther from the distal end than the lawn 29 mower attachment members extend. 30 31 Appeal 2016-004727 Application 12/453,004 3 Claim 7 similarly recites a lawn mower caddy in which: 1 the support bar extends from the distal end away from the 2 platform in a first direction substantially parallel to the 3 substantially horizontal bar to engage an underside of an angled 4 bar of a lawn mower push assembly by resting against the 5 underside of the angled bar while not being attached to the lawn 6 mower push assembly. 7 Claim 14 recites a lawn mower caddy including “a support bar extending 8 from the distal end of the platform in the first direction to rest against at least 9 one angled bar of the lawn mower push assembly while not being attached to 10 the lawn mower push assembly.” 11 Thom describes an article carrier 40 for attachment to a walker. The 12 article carrier 40 has a box-like structure including side panels 50, 50A and a 13 base panel 150. (See Thom, col. 4, ll. 3–9 & Fig. 2A). Each side panel 50, 14 50A includes an attachment member in the form of a hook-like handle 82 for 15 fitting over and engaging a horizontal frame member 34 of a walker. (See 16 Thom, col. 4, ll. 17–26; col. 5, ll. 22–25 & 33–39; & Figs. 2A, 2B & 5). The 17 article carrier 40 also includes slidably extendable arms 180. As depicted in 18 Figures 2A, 9 and 12, these extendable arms 180 have resilient, C-shaped 19 ends 184 for clipping onto forward, vertical legs 24, 24A to stabilize the 20 carrier 40 on the walker. (See Thom, col. 4, ll. 9–13; col. 5, ll. 55–62; & col. 21 6, ll. 2–8). The Examiner finds that Thom’s carrier or caddy 40 does not 22 include a support bar engaging vertical frame members of a walker assembly 23 by resting against an underside of the vertical frame members without being 24 attached to the frame members. (See Final Office Action, mailed Dec. 9, 25 2014, at 3). 26 Hershey describes a portable storage box 10 for attachment to a 27 ladder. The storage box 10 has a box-like structure including vertical 28 Appeal 2016-004727 Application 12/453,004 4 sidewalls 12, 14. (See Hershey, col. 1, ll. 69–73 & Fig. 1). Each sidewall 1 12, 14 includes a hook-like slot or notch 26 for fitting over and engaging a 2 rung R of a ladder L. (See Hershey, col. 2, ll. 13–17 & Fig. 1). The storage 3 box 10 also includes arms 28, each pivotally mounted on the exterior of one 4 of a corresponding one of the sidewalls 12, 14. The lower end of each arm 5 28 has grooves 34 for receiving a lower rung of the ladder L to stabilize the 6 storage box 10 level with the ground. A brace 32 extends between the arms 7 28 to prevent the arms from pivoting rearwardly or downwardly when out of 8 contact with a ladder. (See Hershey, col. 2, ll. 18–36 & Figs. 1–3). 9 As depicted in Figures 1–3 of Hershey, the brace 32 is positioned 10 between the arms 28. The Appellants correctly point out that the arms 28, 11 and therefore the brace 32, are positioned between the vertical or angled 12 frame members of the ladder L when the storage box 10 is attached to the 13 ladder. (See “Brief for Appellant,” dated Sept. 9, 2015 (“App. Br.”), at 8). 14 Hershey’s storage box 10 does not include a support bar engaging the 15 vertical frame members of the ladder L by resting against an underside of the 16 vertical frame members without being attached to the frame members. As 17 such, it would not have provided one of ordinary skill in the art reason to 18 modify Thom’s article carrier 40 or the like to include such structure. The 19 Examiner’s finding that the “support bar of [Hershey] could very well rest 20 against . . . angled bar[s] of a lawn mower [if] the bar[s are] close together” 21 (Examiner’s Answer, mailed Feb. 1, 2016, at 3) does not establish that one 22 of ordinary skill in the art would have had reason to modify Thom’s article 23 carrier 40 or the like to include a support bar engaging the vertical frame 24 members of the ladder L by resting against an underside of the vertical frame 25 Appeal 2016-004727 Application 12/453,004 5 members without being attached to the frame members, as recited in each of 1 the independent claims on appeal. 2 Stall does not remedy this deficiency in the teachings of Thom and 3 Hershey. Stall describes a lawn mower caddy secured to a lawn mower push 4 assembly by straps. (See Stall, col. 2, ll. 1–5). The Examiner cites Stall as 5 disclosing “a caddy with a plurality of openings.” (Final Act. 3). Stall does 6 not teach or suggest a support bar extending from the distal end of the 7 platform in the first direction to rest against at least one angled bar of the 8 lawn mower push assembly while not being attached to the lawn mower 9 push assembly. We do not sustain the rejection of claims 1, 3 and 11–22 10 under § 103(a) as being unpatentable over Thom, Stall and Hershey. 11 Butler does not remedy the deficiency in the combined teachings of 12 Thom, Stall and Hershey. Butler describes a ladder caddy secured to a 13 ladder by the engagement of concave surface features with rungs of the 14 ladder. (See Butler, col. 4, ll. 1–11; & Figs. 4 & 5). The Examiner cites 15 Butler for its disclosure of a caddy that is fabricated from durable plastic and 16 includes a paper towel holder. (Final Act. 5). Butler does not teach or 17 suggest a support bar extending from the distal end of the platform in the 18 first direction to rest against at least one angled bar of the lawn mower push 19 assembly while not being attached to the lawn mower push assembly. We 20 do not sustain the rejection of claims 2 and 6–10 under § 103(a) as being 21 unpatentable over Thom, Stall, Hershey and Butler. 22 23 Appeal 2016-004727 Application 12/453,004 6 DECISION 1 We REVERSE the Examiner’s decision rejecting claims 1–3 and 6–2 22. 3 4 REVERSED 5 6