Ex Parte 7214017 et al

Board of Patent Appeals and Interferences

May 7, 2012

95000326 (B.P.A.I. May. 7, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
95/000,326 12/04/2007 7214017 161613-0026 2317
22850 7590 05/08/2012
OBLON, SPIVAK, MCCLELLAND MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET
ALEXANDRIA, VA 22314
EXAMINER
FLANAGAN, BEVERLY MEINDL
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
05/08/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

RANDALL MFG.
Requester and Respondent

v.

FG PRODUCTS, INC.
Patent Owner and Appellant
____________

Appeal 2012-005371
Reexamination Control 95/000,326
Patent 7,214,017 B21
Technology Center 3900
____________

Before LINDA E. HORNER, DANIEL S. SONG, and JOSIAH C. COCKS,
Administrative Patent Judges.

COCKS, Administrative Patent Judge.

DECISION ON APPEAL

1 The patent undergoing reexamination (the “’017 Patent”) issued to Nelson
et al. on May 8, 2007 from Application No. 11/083,041 filed March 17,
2005.
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A. STATEMENT OF THE CASE
Summary
Patent Owner FG Products, Inc. (“FG Products”)2 appeals under 35
U.S.C. §§ 134(b) and 315(a) the Examiner’s decision to reject claims 1-4, 6,
7, 10-12, 38-40, 48-56, 75-79, and 83-91.3 Third-Party Requester Randall
Mfg. (“Randall”) urges that the Examiner’s decision must be affirmed.4 We
have jurisdiction under 35 U.S.C. §§ 134(b) and 315(a).
An oral hearing was conducted on April 18, 2012. A transcript of that
hearing will be made of record in due course.
We reverse the Examiner’s decision to reject claims 1-4, 6, 7, 10-12,
38-40, 48-56, 75-79, and 83-91.
The Invention
The ‘017 Patent characterizes its disclosed invention as “an improved
partition system in which at least two panels are independently attached to
one or more mounting assemblies such that each panel can be moved
independently.” (‘017 Patent 2:13-16.)

2 See Patent Assignment Abstract of Title, Reel 017454 Frame 0396, which
was entered into the record of this proceeding as “Title Report” on February
12, 2008.

3 See FG Products’ “Patent Owner’s Brief on Appeal” filed August 22,
2011(“PO App. Br.”) and “Patent Owner’s Rebuttal Brief” filed December
30, 2011 (“PO Reb. Br.”).

4 See Randall’s “Third-Party Requester’s Appeal Brief” filed September 22,
2011 (“Req. App. Br.”).

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Claim 1 is reproduced below (PO App. Br., pp. 27-28, Claims App’x.,
additional paragraphing and indentations added for clarity): 5
1. An apparatus for separating cargo areas in a trailer, comprising:

a trailer that includes a cargo space;

first and second panels, each panel extending in a direction
generally perpendicular to a longitudinal axis of the trailer, wherein
when in a first operative position the first and second panels abut one
another along adjacent peripheral edges of the panels and are arranged
in a side-by-side configuration to provide a full-width bulkhead that
extends between opposing sidewalls of the cargo space of the trailer;

fastening straps that releasably secure the first and second
panels together in the side-by-side configuration to form the full-
width bulkhead;

the first and second panels having seal members arranged along
the adjacent peripheral edges so that the first and second panels seal
together along the adjacent peripheral edges when the first and second

5 Randall objects to the claims appendix accompanying FG Products’
Appeal Brief as failing to comply with 37 C.F.R. § 1.530 and inconsistent
with MPEP § 2675 (Req. App. Br., pp. 1-2), each of which specify that
changes made to the claims during the reexamination proceeding should be
shown relative to the claims as they appear in the reexamined patent using
brackets for deletions and underlining for additions. We are cognizant of FG
Products’ failure to present the claims on appeal in a proper format and do
not condone that neglect in complying with proper formatting procedure.
However, we observe that there is no dispute as to the correctness of the
substantive content of the claims as they appear in the claims appendix of
FG Products’ Appeal Brief. Despite the procedural shortcomings, for
purposes of clarity in this opinion, we make reference to, and include
reproductions from, that claims appendix.

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panels are releasably secured together to form the full-width
bulkhead;

a mounting system that provides each of the first and second
panels with a first degree of freedom to convey the panels in a
longitudinal direction independently of one another and that provides
each of the first and second panels with a second degree of freedom to
raise the panels independently, the mounting system being attached to
at least one of a wall or a ceiling of the cargo space;

the mounting system comprising:

a first set of two trolleys and two longitudinal rails to guide
movement of the first panel,
each longitudinal rail of the first set receiving one of the
trolleys of the first set, wherein the two longitudinal rails of the first
set are mounted to at least one of a sidewall or the ceiling of the cargo
space, and

a second set of two trolleys and two longitudinal rails to guide
movement of the second panel, each longitudinal rail of the second set
receiving one of the trolleys of the second set, wherein the two
longitudinal rails of the second set are mounted to at least one of a
sidewall or the ceiling of the cargo space and the two longitudinal
rails of the second set are arranged laterally of the two longitudinal
rails of the first set;

a first lift mechanism to raise the first panel into a stowed
position proximate the ceiling of the cargo space of the trailer, at least
a portion of the first lift mechanism being mounted to a rail of the
mounting system, wherein the first lift mechanism comprises a
movable cam to engage a first strap or rope coupled to the first panel
proximate to a lower edge of the first panel; and

a second lift mechanism to raise the second panel into a stowed
position proximate the ceiling of the cargo space of the trailer, at least
a portion of the second lift mechanism being mounted to a rail of the
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mounting system, wherein the second lift mechanism comprises a
movable cam to engage a second strap or rope coupled to the
second panel proximate to a lower edge of the second panel.

The Prior Art
F.H. Gibbs (“Gibbs”) 1,193,254 Aug. 1, 1916
H.A. Aquino et al. (“Aquino”) 3,217,664 Nov. 16, 1965

Advertisement titled “The LoadMaker by ROM” dated February 1987
(“ROM-1”).

Advertisement titled “The LoadMaker™ with DuroSeal™ protection” dated
February 1997 (“ROM-2”).

The Rejection on Appeal
The Examiner rejected claims 1-4, 6, 7, 10-12, 38-40, 48-56, 75-79,
and 83-91 under 35 U.S.C. § 103(a) as unpatentable over the combination
of ROM-1, ROM-2, Aquino, and Gibbs.
B. ISSUES
1. Did the Examiner correctly determine that the combined
teachings of ROM-1, ROM-2, Aquino, and Gibbs renders obvious FG
Products’ claims directed to an apparatus for separating cargo areas in a
trailer and including first and second panels which are mounted so as to be
independently moved in a longitudinal direction of the trailer as well as
independently raised into a stowed position proximate the ceiling of the
trailer?
2. Did the Examiner correctly determine that the applied prior art
renders obvious those of FG Products’ claims requiring first and second
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panels that are mounted so as to be independently moved in a longitudinal
direction of the trailer and structured so as to be raised towards a trailer
ceiling by operation of lift mechanisms attached to straps or ropes associated
with the panels?
3. Did the Examiner correctly determine that the applied prior art
accounts for an apparatus for separating cargo areas in a trailer which
includes a “means for mounting” the separating means as recited in claim
10?
C. ANALYSIS
Of the rejected claims, claims 1, 10, 38, and 75 are independent
claims. Each of those claims is directed to an apparatus which is “for
separating cargo areas in a trailer” and includes either “first and second
panels” (claims 1, 38, and 75) or “first and second means for separating a
cargo space” (claim 10). (PO App. Br., Claims App’x.) Each of those
claims also requires a “mounting” component which provides mounting of
the panels or separating means such that they may move independently of
one another in a longitudinal direction of the trailer. (Id.) The mounting
arrangements are additionally configured so as to independently raise each
panel. It is the nature and extent of the raising of the panels that is at the
center of the dispute in this appeal. We observe that there is some variation
in the expression and scope in each of the claims 1, 10, 38, and 75 with
respect to that disputed issue.
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Claim 1
Claim 1 requires that the mounting system includes sets of trolleys
and rails that guide the longitudinal movement of the first and second panels.
That mounting system is also operable to “raise the panels independently,”
such that each of the first and second panels is raised “into a stowed position
proximate the ceiling of the cargo space of the trailer.” (PO App. Br., p. 27-
28, Claims App’x.)
In rejecting claim 1 based on the combination of ROM-1, ROM-2,
Aquino, and Gibbs, the Examiner takes the position that ROM-1 and ROM-2
disclose devices for separating cargo areas in a trailer but lack the features of
a mounting system configured to move first and second panels
independently in a longitudinal direction of the trailer or configured to
independently raise the panels. To make up for that deficiency, the
Examiner turns first to Aquino, stating that the reference (RAN, p. 11, l. 22 -
p. 12, l. 3): 6
demonstrates that mounting systems for panels in a cargo bulkhead
system where the mounting system comprises two sets of rails and
trolleys is well known in the art for the purpose of allowing
independent movement in a longitudinal direction and raising of the
panels.

6 The Examiner’s Answer mailed November 30, 2011 incorporates by
reference the Right of Appeal Notice (“RAN”) mailed May 21, 2011
including “all of the grounds of rejection…and explanations set forth in the
RAN.” (Ans., p. 2.) In referencing the rejections and explanations in
support thereof, this opinion makes reference to the RAN.

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Thus, the premise of the Examiner’s rejection is that Aquino itself
discloses partitioning panels that are mounted for each of longitudinal
movement and a “raising” operation. In accounting for the further
requirement of claim 1 that raising of the panels places them into a “stowed
position proximate the ceiling of the cargo trailer,” the Examiner relies on
Gibbs as generally disclosing bulkhead panels which may be secured
adjacent the ceiling of a compartment. (RAN. at p. 12, l. 13 – p. 13, l. 2.)
FG Products challenges the Examiner’s rejection on three underlying
theories: (1) that Aquino does not disclose that its panels are intended to be
raised; (2) that even if the panels are capable of limited raising, they cannot
be raised into a “stowed position proximate the ceiling” of a trailer; and (3)
that a person of ordinary skill in the art would not have modified Aquino for
stowing panels proximate the ceiling. (PO App. Br., p. 15.) In support of its
position, FG Products points to the declaration testimony of an expert
witness, inventor Chad Nelson.7 In urging that the Examiner’s rejections
should be upheld, Randall points to the declaration testimony of its own
expert witness, Gregory J. Boyer.8
We have considered the evidence of record, including the testimony
of the various expert witnesses and the content of the prior art relied upon in
rejecting FG Products’ claim 1. In light of our review, we are not persuaded

7 See “Declaration of Chad Nelson Under 37 C.F.R. 1.132” (“First
Nelson Decl.”) and “Second Declaration of Chad Nelson Under 37 C.F.R.
1.132” (“Second Nelson Decl.”) filed, respectively, as Exhibit F and Exhibit
E of FG Products’ Appeal Brief.

8 See “Declaration of Gregory J. Boyer” (“Boyer Decl.”) filed as exhibit
15 of Randall’s “Third-Party Requester’s Appeal Brief.”
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that the evidence adequately establishes that the subject matter of claim 1
would have been obvious.
Aquino discloses a partitioning device for freight vehicles with
multiple individual partition members which are adjustable along the length
of a vehicle for dividing it into multiple compartments. (Aquino, 1:12-17.)
Those partition members or “gates” are actively moved along the length of
the vehicle by operation of a carriage assembly and, once suitably
positioned, may be locked into place along the carriage assembly via locking
devices to create a desired dividing configuration. (Id. at 1:34-39; 5:43-70.)
Aquino’s assembly is also distinctly configured such that the gates may be
pivoted into “a stored position adjacent the side walls of the vehicle.” (Id. at
1:18-30; Figs. 10-15.) Thus, in Aquino, the intended storage position for the
panels is attained by rotating the gates about a vertical axis towards the sides
of the vehicle and not by raising the gates. Aquino does not disclose or
describe any alternative storing positions or configurations for its gates.
Gibbs discloses a railway car in which bulkheads or partitions 6 are
positioned within the railway car for forming separated compartments.
(Gibbs, 2:64-70.) Those partitions may be lifted or swung from a vertical
position to a raised horizontal position near the roof of the car. (Id. at 1:82-
99.) Gibbs does not disclose that the partitions engage in any other type of
movement, such as motion in a longitudinal direction along the length of the
car. We observe that the configuration and operation of Gibbs’s partition is
substantially distinct from that of Aquino’s gates and carriage assembly.
Aquino’s assembly is particularly configured for motion of the gates in a
longitudinal direction along a compartment and pivoting about a vertical
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axis to place the gates in storage positions along the side of the
compartment. The upward swinging of Gibbs’s partitions so as to be placed
in a horizontal position is not contemplated by Aquino. While that
horizontal position may represent a storage position attained using the
structure of Gibbs’s particular assembly, we do not discern why a skilled
artisan would have reasonably been inclined to augment Aquino’s disclosure
with respect to its own distinct partition storage positions, i.e., stored
adjacent the sides of the compartment.
Although Aquino’s panels may not be precluded from some degree of
raising, we conclude that a person of ordinary skill in the art would not
reasonably have appreciated from Gibbs’ disclosure that Aquino’s panels
would have been raised and stowed adjacent the ceiling of a compartment.
It simply does not follow from the teachings of Gibbs that the required
“stowed position proximate the ceiling of the cargo space of the trailer”
would have been contemplated for Aquino’s assembly for which there is no
need or intent for such a position. Aquino discloses a complete assembly in
which panels are distinctly configured for transition from an operating
position to a stowed position that is not the stowed position required by
claim 1. Randall’s and the Examiner’s view that the required “stowed
position” for Aquino’s panels would have been obvious from the teachings
of Gibbs is essentially premised on misuse of Aquino’s panels and is not, in
our view, correct.
Moreover, claim 1 also requires as a part of its mounting system, that
the transition of the panels to the “stowed” position be accomplished by first
and second lift mechanisms which engage straps or ropes on the lower edges
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of the panels. It is not apparent, and the Examiner does not explain, where
those required lift mechanisms and straps are present in Aquino. Evidently,
the Examiner’s assertion of obviousness additionally requires some
modification of Aquino’s mounting system, as applied to the ROM Ad
system, with Gibbs’s lift mechanism to account for the above-noted
components. The Examiner, however, does not articulate how or why any
such modification would have been obvious from the teachings of prior art
applied in rejecting claim 1.
In combining the teachings of multiple prior art references, there must
be some articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness. In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006). Here, we do not discern that the Examiner’s conclusion of
obviousness is adequately supported by suitable articulated reasoning.
Accordingly, for the foregoing reasons, we do not sustain the Examiner’s
rejection of claim 1 based on the combination of ROM-1, ROM-2, Aquino,
and Gibbs.
Claims 2-4, 6, and 7 are ultimately dependent on, and include all the
limitations of, claim 1. We also do not sustain the rejection of claims 2-4, 6,
and 7.
Claims 38 and 75
Claim 38 is directed to an apparatus for separating cargo areas in a
trailer and includes a mounting system for first and second panels configured
“to raise the panels independently.” (PO App. Br., p. 36, Claims App’x.)
Similar to claim 1, the mounting system of claim 38 requires first and
second lift mechanisms which operatively engage the first and second panels
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via straps or ropes and operate “to raise the lower edge” of each of the first
and second panels “toward the ceiling.” (Id. at p. 37.)
Claim 75 is also directed to an apparatus for separating cargo areas in
a trailer and, in analogous fashion to claim 1, includes a mounting system for
first and second panels which are raised “independently into stowed
positions in which lower edges of the first and second panels are retained
proximate to a ceiling of the cargo space at a rear of the trailer[.]” (PO App.
Br., p. 45, Claims App’x.)
For reasons similar to those discussed above in connection with claim
1, we are not persuaded that either claim 38 or 75, including the above-noted
features of those claims, would have been obvious in light of the prior art
relied upon by the Examiner. We do not sustain the rejection of claim 38 or
claim 75 as unpatentable over the combination of ROM-1, ROM-2, Aquino,
and Gibbs.
Claims 39, 40, 48-56 are dependent, either directly or indirectly, on
claim 38 and claims 76-79 and 83-91 ultimately depend on claim 75. We
also do not sustain the rejection of those dependent claims.
Claim 10
Claim 10, like the other independent claims on appeal, is also directed
to an apparatus for separating a cargo areas in a trailer and includes
recitation of first and second partitioning members termed specifically “first
and second means for separating a cargo space” and (PO App. Br., 30,
Claims App’x.):
a means for mounting the first and second separating means, the
mounting means being attached to at least one of a wall or a ceiling of
the cargo space, wherein the mounting means provides each of the
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first and second separating means with a first degree of freedom to be
moved independently in a longitudinal direction and provides each of
the first and second separating means with a second degree of
freedom to be raised independently.

The above-noted “means for separating” and “means for mounting”
are written in means-plus-function format and are not accompanied by
recitation of structure for performing the “separating” and “mounting”
functions. We are in agreement with FG Products (PO App. Br., pp. 6-7)
that those claim features invoke the provisions of 35 U.S.C. § 112, sixth
paragraph9. Pursuant to the requirements of that section, we consult the
specification of the ‘017 Patent to determine the corresponding structure and
equivalents thereof for performing the pertinent functions.
The ‘017 Patent describes panels 18, 20 which extend laterally from a
center partition 16 to the left and right walls of a trailer. (‘017 Patent 2:63-
64; Fig. 1.) Those lateral panels correspond to the “means for separating”
set forth in claim 10. With respect to mounting of the panels 18, 20, the
‘017 Patent describes that the panels are slidably attached, respectively, to
rails 22 and 23 via trolley assemblies 24. (Id. at 3:4-11.) Those trolley
assemblies each include trolleys 34, rollers 35, and a pair of hinge plates 36

9 Title 35 U.S.C. § 112, sixth paragraph, states:

An element in a claim for a combination may be expressed as a
means or step for performing a specified function without the
recital of structure, material, or acts in support thereof, and such
claim shall be construed to cover the corresponding structure,
material, or acts described in the specification and equivalents
thereof.

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with hinge rod 32. (Id. at 3:53-61; Fig. 3.) The ‘017 Patent explains that
“the trolley assemblies permit the panels 18, 20 to be moved in the fore and
aft direction and to be ‘raised’ like garage doors and secured to the ceiling
when not in use[.]” (Id. at 3:7-11; Fig. 7.) Thus, the mounting arrangement
in the ‘017 patent which corresponds to the “means for mounting” of claim
10 is structured in the above-noted manner so as to permit panels 18, 20 to
be moved in a fore and aft direction of a trailer and to be raised like garage
doors to the ceiling of the trailer.
In order for the prior art to account for those features presented in
mean-plus-function format, the structure of the prior art must be the same or
equivalent to the above-noted structure found in specification of the ‘017
Patent and perform the claimed function. See Valmont Industries, Inc. v.
Reinke Manufacturing Company, Inc., 983 F.2d 1039, 1042 (Fed. Cir. 1993).
We have evaluated the content of the references applied in rejecting claim
10, i.e., ROM-1, ROM-2, Aquino, and Gibbs. Although those references
disclose various partitioning panels for trailers or compartments, in our
view, it is not evident that those references, taken individually or
collectively, adequately disclose the mounting arrangement for first and
second panels set forth in the specification of the ‘017 Patent, or equivalents
thereof, which corresponds to the “means for mounting” requirement of
claim 10.
Accordingly, we do not sustain the rejection of claim 10 as
unpatentable over the combination of ROM-1, ROM-2, Aquino, and Gibbs.
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Claims 11 and 12
Claim 11 is dependent on claim 10 and claim 12 is dependent on
claim 11. Claim 11 is reproduced below from FG Products’ Appeal Brief
(PO App. Br., p. 31, Claims Appendix):
11. (Amended) The apparatus of claim 10[ claim 8], wherein the first
separating means comprises a first panel and the second separating
means comprises a second panel, wherein the fastening means
comprises one or more straps that releasably secured the first and
second panels together in a side-by-side configuration to provide a
full-width bulkhead that extends between opposing sidewalls of the
cargo space, and wherein the mounting means comprises a first set of
[a]two trolleys and [a]two longitudinal rails to guide movement of the
first panel and a second set of two trolleys and two longitudinal rails
to guide movement of the second panel, wherein the mounting means
provides each of the first and second panels with the second degree of
freedom to independently raise lower edges of the first and second
panels into stowed positions proximate the ceiling of the cargo space.

Thus, claim 11 sets forth particular structure in connection with the
mounting means including that it is configured to “independently raise lower
edges of the first and second panels into stowed positions proximate the
ceiling of the cargo space” (emphasis added). For reasons largely similar to
those discussed above in connection with claim 1, we are not persuaded that
the Examiner’s rejection has properly established the obviousness of claim
11 based on the teachings of ROM-1, ROM-2, Aquino, and Gibbs.
We do not sustain the rejection of claim 11 or claim 12 as
unpatentable over ROM-1, ROM-2, Aquino, and Gibbs.
D. CONCLUSION
1. The Examiner did not correctly determine that the combined
teachings of ROM-1, ROM-2, Aquino, and Gibbs renders obvious FG
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Products’ claims directed to an apparatus for separating cargo areas in a
trailer and including first and second panels which are mounted so as to be
independently moved in a longitudinal direction of the trailer as well as
independently raised into a stowed position proximate the ceiling of the
trailer.
2. The Examiner did not correctly determine that the applied prior
art renders obvious those of FG Products’ claims requiring first and second
panels that are mounted so as to be independently moved in a longitudinal
direction of the trailer and structured so as to be raised towards a trailer
ceiling by operation of lift mechanisms attached to straps or ropes associated
with the panels.
3. The Examiner did not correctly determine that the applied prior
art accounts for an apparatus for separating cargo areas in a trailer which
includes a “means for mounting” the separating means as recited in claim
10.
E. ORDER
The rejection of claims 1-4, 6, 7, 10-12, 38-40, 48-56, 75-79, and 83-
91 under 35 U.S.C. § 103(a) as unpatentable over ROM-1, ROM-2, Aquino,
and Gibbs is reversed.

In accordance with 37 C.F.R. § 41.79(a)(1), the “[p]arties to the
appeal may file a request for rehearing of the decision within one month of
the date of: . . . [t]he original decision of the Board under § 41.77(a).” A
request for rehearing must be in compliance with 37 C.F.R. § 41.79(b).
Comments in opposition to the request and additional requests for rehearing
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must be in accordance with 37 C.F.R. § 41.79(c) & (d), respectively. Under
37 C.F.R. § 41.79(e), the times for requesting rehearing under paragraph (a)
of this section, for requesting further rehearing under paragraph (d) of this
section, and for submitting comments under paragraph (c) of this section
may not be extended.
An appeal to the United States Court of Appeals for the Federal
Circuit under 35 U.S.C. §§ 141-144 and 315 and 37 C.F.R. § 1.983 for an
inter partes reexamination proceeding “commenced” on or after November
2, 2002 may not be taken “until all parties' rights to request rehearing have
been exhausted, at which time the decision of the Board is final and
appealable by any party to the appeal to the Board.” 37 C.F.R. § 41.81. See
also MPEP § 2682 (8th ed., Rev. 8, July 2010).

REVERSED

rvb

PATENT OWNER:

OBLON, SPIVAK, MCCLELLAND, MAIER & NEUSTADT, LLP
1940 DUKE STREET
ALEXANDRIA, VA 22314

THIRD-PARTY REQUESTER:

STEPTOE & JOHNSON
115 S. LASALLE STREET
Suite 3100
CHICAGO, IL 60603