Ex Parte Wallinder

Patent Trial and Appeal Board

Jun 23, 2017

13882074 (P.T.A.B. Jun. 23, 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.
13/882,074 04/26/2013 Jonas Wallinder 125527-348195 2489
26694 7590 06/27/2017
VENABLE LLP
P.O. BOX 34385
WASHINGTON, DC 20043-9998
EXAMINER
CHU, KATHERINE J
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
06/27/2017 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):
PTOMail@Venable.com
cavanhouten@venable.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONAS WALLINDER1
Appeal 2016-004007
Application 13/882,074
Technology Center 3600
Before ALLEN R. MacDONALD, CARL W. WHITEHEAD JR., and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.
BAUMEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—10, which constitute all the claims pending in
this application. App. Br. 2—3.2 We have jurisdiction under 35 U.S.C.
§ 6(b).
We reverse.
1EDEVA AB is stated as being the real party in interest (App. Br. 2).
2 Rather than repeat the Examiner’s positions and Appellant’s arguments in
their entirety, we refer to the following documents for their respective
details: the Final Action mailed February 9, 2015 (“Final Act.”); the Appeal
Brief filed July 6, 2015 (“App. Br.”); and the Examiner’s Answer mailed
September 30, 2015 (“Ans.”).
Appeal 2016-004007
Application 13/882,074
STATEMENT OF THE CASE
Appellant describes the present invention as follows:
A road module for regulating a passability of vehicles on
a roadway. The road module includes an elongated container
immersed across the roadway and having an upper plane being
essentially at level with the roadway. A lid is pivotally arranged
and hinged along an edge of the container. The edge extends
along a longitudinal side of the container facing vehicles
approaching the road module. The lid forms at least a part of the
upper plane of the container. An eccentrically mounted
cylindrical roller is configured to support the lid at an opposite
longitudinal side of the container. The roller is rotatable between
an upper or a lower position. An actuator is configured to rotate
the roller to lower and raise the lid, thereby forming a downward
ramp in a passing direction of the vehicles when the roller is in
the lower position.
Abstract.
Independent claim 1, reproduced below, is the sole independent claim
on appeal and is illustrative of the appealed claims:
1. A road module for regulating a passability of vehicles on
a roadway, the road module comprising:
an elongated container immersed across the roadway and
having an upper plane being essentially at level with the
roadway,
a lid pivotally arranged and hinged along an edge of the
container, and said edge extending along a longitudinal side of
the container facing vehicles approaching the road module,
wherein the lid forms at least a part of the upper plane of the
container,
an eccentrically mounted cylindrical roller comprising a
shell configured to support the lid at an opposite longitudinal side
of the container, such that the lid contacts and rests on the shell
of the roller, wherein the roller is rotatable between an upper or
a lower position, such that in the upper position and in the lower
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Appeal 2016-004007
Application 13/882,074
position a longitudinal axis and an axis of rotation of the
eccentrically mounted cylinder roller are vertically aligned, and
an actuator configured to rotate the roller to lower and
raise the lid, thereby forming a downward ramp in a passing
direction of the vehicles when the roller is in the lower position,
such that the lid and the eccentrically mounted cylindrical roller
are subjected to vertical forces of a weight of a vehicle when the
lid is lowered or raised, wherein dynamic loads are transferred to
the container when the lid is lowered.
Claims 1—10 stand rejected under 35 U.S.C. § 103(a) as obvious over
Harvey (GB 2 333 114 A; published July 14, 1999), Gelfand
(US 2007/0237577 Al; published Oct. 11, 2007), and Official Notice.3
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
I.
Finding and Contentions
The Examiner finds that Harvey teaches a road module for regulating
passability of vehicles, the module including, inter alia, an elongated
container, a lid pivotally arranged and hinged along an edge of the container,
and wherein the lid forms at least a part of the upper plane of the container
and forms a downward ramp in a passing direction when the lid is lowered.
3 The statement of the rejection sets forth that the rejection is over the
combination of only Harvey and Gelfand (Final Act. 2), but the body of the
rejection indicates that the Examiner additionally relies upon official notice
in formulating the rejection (id. (stating that “the Examiner takes Official
Notice that [eccentrically mounted rollers, while not disclosed by the cited
prior art,] are old and well-known”)).
3
Appeal 2016-004007
Application 13/882,074
Final Act. 2 (citing Harvey 3:1; Figs 3a, 3c). The Examiner finds “Harvey
fails to show an eccentrically mounted roller that is rotatable between an
upper or a lower position,” but that “Gelfand teaches a vehicle barrier
system with a raising and lowering mechanism and shows that an eccentric
roller can be used to change the position of element 2 from a lower position
to an upper position.” Id. (citing Gelfand Figs. 1A, IB). The Examiner
concludes that it would have been obvious “to modify Harvey’s apparatus
with Gelfand’s teaching of using an eccentric roller as a substitute way of
moving an element up.” Id.
The Examiner further finds that Gelfand does not indicate whether
Gelfand’s roller is solid or a hollow shell, but takes official notice that “both
types of rollers [were] old and well known” art recognized equivalent
structures. Id. The Examiner further concludes that
The resulting combination includes an actuator configured to
rotate the roller, [because] in order for the cam/eccentrically
mounted cylindrical roller to be rotated, there has to be an
actuator. The actuator in the combination will make the
cam/eccentrically mounted cylindrical roller rotate to raise and
lower the lid. It would be obvious to provide the lid to be
contacting and resting on the shell of the roller, since that would
be the simplest way of moving the lid. The resulting combination
further includes the lid and the eccentrically mounted cylindrical
roller being subjected to vertical forces of a weight of a vehicle
when the lid is lowered or raised, wherein dynamic loads are
transferred to the container when the lid is lowered, and such that
in the upper position and in the lower position a longitudinal axis
and an axis of rotation of the eccentrically mounted cylinder
roller are vertically aligned.
Id. at 3.
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Application 13/882,074
Appellant contends, inter alia, that the proposed combination is a
product of impermissible hindsight carried out in view of the claimed
invention. App. Br. 10. Towards this end, Appellant argues
As can be seen in Figs, la—Id of Harvey, no supporting
structure is arranged under the contact plate when it is driven
upon. Thus, the contact plate is subjected to considerable forces
as a vehicle drives over it. If Harvey were modified to include
the cam mechanism suggested by Gelfand et al., the forces
endured by the contact plate, base plate and protrusion would be
transferred through the various arm elements to the cam
mechanism, thereby subjecting the cam mechanism to the
significant forces.
App. Br. 14—15.
Analysis
We understand the Examiner’s proposed combination to be based
upon the concept that Gelfand’s cam, as incorporated into Harvey,
(1) applies an upward biasing force when the cam’s axis is positioned
opposite Harvey’s contact plate (in the raised position), to position the
contact plate level with the road surface, and (2) supports Harvey’s contact
plate at a lower position when the cam’s axis is positioned adjacent the plate
(in the lowered position), so that the contact plate rests on the cam below the
level of the road surface. See, e.g., Final Act. 6 (reproducing Gelfand’s
Figures 1A and IB to depict how Gelfand’s cam would bias and support
Harvey’s contact plate). We nonetheless find Appellant’s arguments
persuasive.
Harvey’s latch 7 supports the weight of the contact plate when in the
actuated position and, as such, receives the load of a vehicle passing over the
contact plate. See, e.g., Harvey Fig. 3A. However, Harvey’s latch rests on
the lower surface of the speed bump body 11 (inconsistently labeled as 12).
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Application 13/882,074
See, e.g., id. It follows, then, the vehicle’s weight would be transmitted to
the speed bump body 11/12 via the latch 7. That is, Harvey’s latch pivot 8
does not appear to support the entire vehicle load solely by itself, and, as
such, Harvey’s pivot-mounting mechanism (not depicted) would not need to
be designed to support, solely by itself, such a substantial vertical load
either.
Within the Harvey-Gelfand combination, the same only could be said
about the loads on Gelfand’s eccentric cam at best when that cam is in the
lowered position. That is, Gelfand’s cam potentially could be supported by
the lower surface of Harvey’s body 11/12 when the cam is positioned in the
lowered position. When Gelfand’s cam is rotated to the raised position to
cause the contact plate to be level with the road surface, though, all of the
vehicle load would be transmitted to the cam, and, therefore, all of the load,
in turn, also would be transmitted to the cam pivot-mounting assembly.
Nothing in Gelfand reasonably indicates that Gelfand’s cams or cam
pivot-mounting assemblies are intended or designed to support the
substantial load of vehicle traffic passing thereover. Gelfand’s cams are,
instead, merely designed to support the weight of the bars 4, which are
raised and lowered. See generally Gelfand. The Examiner has provided
insufficient evidence to show it was known at the time of the invention to
construct a cam pivot-mounting assembly for heavy-load applications
according to the cited combination of Harvey and Gelfand. As such, the
Examiner has not provided sufficient evidence for the conclusion (Final Act.
5) that the proposed substitution of Gelfand’s cams for Harvey’s latch would
have constituted combining prior art elements to yield predictable results.
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Application 13/882,074
Nor has the Examiner established that Gelfand’s arm-supporting cams are
used in the same field as Harvey’s vehicle-load supporting latch. Id.
Moreover, even if we were to assume that it would have been obvious
to substitute an eccentrically mounted cylindrical roller cam, as claimed, for
Harvey’s latch, the Examiner has provided insufficient evidence that hollow
(shell) and solid eccentrically mounted cylindrical roller cams were art
recognized functional equivalent structures. Final Act. 2 (wherein the
Examiner takes official notices that such hollow and solid cams were both
“old and well known”). Nor does the Examiner provide sufficient evidence
that such cams were art recognized equivalent structures for performing the
specific function of supporting a contact plate over which vehicle traffic
passes.
The proposed combination of Harvey and Gelfand, instead, indicates
that the Examiner fell into the trap of impermissible hindsight reasoning
based upon knowledge gleaned only from Appellant’s disclosure. In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
II.
Contentions
Appellant also argues that Harvey does not disclose the claimed “lid
pivotally arranged and hinged along an edge of the container.” App. Br. 9.
According to Appellant, “[Harvey’s] lid is not pivotally arranged and hinged
along an edge of the container .... Harvey must pivotally mount the
contact plate at a location away from an edge of the container.” Id. at 8—9.
The Examiner does not dispute that Harvey’s contact plate 1 is
mounted by a pivot 5 that is disposed midway along the length of the contact
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Application 13/882,074
plate, forward of the counterweight 6. See Ans. 2. Nor does the Examiner
dispute that Harvey’s pivot 5 is disposed within the body of the speed bump.
See id. The Examiner reasons, though, that Harvey is found to teach the
disputed claim language as a result of the Examiner interpreting the top
surface of Harvey’s speed bump container or body as constituting a “top
edge.” Id.
Analysis
The Examiner has not cited to Appellant’s Specification for any
express definition of the claim term “edge.” See generally Final Act.; see
also Ans. Nor has the Examiner cited any extrinsic evidence, such as a
dictionary definition, to support such a broad interpretation. Id. We find the
Examiner’s unsupported interpretation to be unreasonably broad.4
CONCLUSION
For the foregoing reasons, Appellant has persuaded us of error in the
Examiner’s anticipation rejection of independent claim 1. Accordingly, we
do not sustain the Examiner’s rejection of that claim or of claims 2—10,
which depend from claim 1.
DECISION
The Examiner’s decision rejecting claims 1—10 is reversed.
REVERSED
4 We reach no opinions as to whether it would have been obvious to modify
Harvey’s contact plate so as to design it to be pivotally arranged and hinged
along an edge of the body of Harvey’s speed bump.
8