11252478 (B.P.A.I. May. 22, 2012)

Ex Parte Apps

Board of Patent Appeals and InterferencesMay 22, 2012

11252478 (B.P.A.I. May. 22, 2012)

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. 11/252,478 10/17/2005 William P. Apps RPC 0527 PUSA 9169 33171 7590 05/23/2012 REHRIG PACIFIC 4010 E. 26TH STREET LOS ANGELES, CA 90058 EXAMINER CHEN, JOSE V ART UNIT PAPER NUMBER 3637 MAIL DATE DELIVERY MODE 05/23/2012 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 ________________ Ex parte WILLIAM P. APPS ________________ Appeal 2009-015153 Application 11/252,478 Technology Center 3600 ________________ Before STEVEN D.A. McCARTHY, CHARLES N. GREENHUT and MICHAEL C. ASTORINO, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner’s 1 final decision rejecting claims 22-33. Claims 1-21 and 34 are cancelled. 2 2 1 The Appellant identifies the real party in interest as Rehrig Pacific Company. 2 The Examiner indicates that, for purposes of appeal, the amendment to the claims filed November 2, 2007 would be entered. See Advisory Action Jan. 9, 2008. Appeal No. 2009-015153 Application No. 11/252,478 2 We have jurisdiction under 35 U.S.C. § 6(b). 1 The Examiner finally rejects claims 22-33 under the doctrine of 2 obviousness-type double patenting as being unpatentable over claims 1-50 of 3 Apps (US 6,955,128 B2, issued October 18, 2005). The Appellant does not 4 contest this rejection. Instead, the Appellant offers to file a terminal 5 disclaimer once the Examiner indicates that some claims are otherwise 6 allowable. (App. Br. 9). In view of the Appellant’s representation, we do 7 not address the rejection of claims 22-33 for obviousness-type double 8 patenting as being unpatentable over claims 1-50 of Apps. 9 We do not sustain the rejection of claims 22-33 under 35 U.S.C. 10 § 102(e) as being anticipated by Frankenberg (US 6,357,366 B1, issued Mar. 11 19, 2002). Frankenberg describes a pallet 10 including a deck 12, a lid 18 12 and foot straps 15. Frankenberg’s deck 12 includes feet 20, 22, 24, 26 which 13 protrude from a sheet portion of the deck 12. (Frankenberg, col. 2, l. 62 – 14 col. 3, l. 3 and fig. 6). Each of Frankenberg’s foot straps 15 include a 15 plurality of rib members 196, 198, 222, 240, 242 protruding from a surface 16 of the sheet portion or bottom 192 of the foot strap 15. (Frankenberg, col. 8, 17 ll. 5-14, 25-27 and 39-40). Each foot strap 15 also includes fasteners 184 18 extending through the sheet portion 192 of the foot strap 15 for connection 19 with the feet 20, 22, 24, 26 of the deck 12. The fasteners 184 protrude from 20 the same surface of the sheet portion 192 from which the rib members 196, 21 198, 222, 240, 242 protrude. (Frankenberg, col. 9, ll. 18-21 and figs. 2 and 22 23). Frankenberg does not appear to describe the fasteners 184 as protruding 23 from a surface of the sheet portion 192 opposite the surface from which the 24 rib members 196, 198, 222, 240, 242 protrude. (See Frankenberg, fig. 23). 25 Appeal No. 2009-015153 Application No. 11/252,478 3 Claims 22, 27 and 31 are independent. Claim 22 is illustrative of the 1 claims on appeal: 2 22. A reinforced pallet comprising: 3 a first deck portion having a first sheet 4 portion and a first plurality of rib members 5 extending therefrom; 6 a second deck portion having a second sheet 7 portion [and] a second plurality of rib members 8 extending therefrom, the second plurality of rib 9 members mating with corresponding first plurality 10 of rib members to form a first pallet deck, the 11 second portion including a plurality of first support 12 members protruding from the second sheet portion; 13 at least one elongate reinforcement member 14 disposed between the first and second deck 15 portions; and 16 a third deck portion having third sheet 17 portion with a first surface and an opposite second 18 surface, a plurality of second support members 19 protruding from the first surface of the third sheet 20 portion, a third plurality of rib members protruding 21 from the second surface of the third sheet portion, 22 the second support members connected to the first 23 support members to define columns spacing the 24 second deck portion from the third deck portion. 25 The Examiner appears to identify Frankenberg’s cover 18, deck 12 26 and foot strap 15 as corresponding to the first, second and third deck 27 portions, respectively. This Examiner indicates this identification in the 28 drawing figures reproduced on pages 5 and 7 of the Answer. The Examiner 29 also identifies Frankenberg’s feet 20, 22, 24, 26 as corresponding to the 30 plurality of first support members. (See Ans. 7). The Examiner appears to 31 identify Frankenberg’s fasteners 184 as the plurality of second support 32 Appeal No. 2009-015153 Application No. 11/252,478 4 members “connected to the first support members to define columns spacing 1 the second deck portion from the third deck portion.” (See Ans. 6). 2 The Examiner does not persuasively explain how Frankenberg’s 3 fasteners 184 protrude from a first surface (that is, side) of the sheet portion 4 or bottom 192 of a foot strap 15 opposite a second surface of the bottom 192 5 from which the rib members 196, 198, 222, 240, 242 protrude. (See App. 6 Br. 8; Ans. 8-9; Reply Br. 3). Since the Examiner provides no other 7 reasoning to explain how Frankenberg’s pallet 10 might include all 8 limitations of claim 22, we do not sustain the rejection of claims 22-26 under 9 § 102(e) as being anticipated by Frankenberg. 10 Claim 27 recites a reinforced pallet including “a second deck 11 having . . . a plurality of ribs extending from the sheet portion in a direction 12 opposite the second column portions.” Claim 31 recites a reinforced pallet 13 including a deck member having a deck planar member, “the deck member 14 further including a plurality of rib members extending from the deck planar 15 member in a direction opposite the plurality of second support members.” 16 As noted already, identifying one of the foot straps 15 as the recited “second 17 deck” or “deck member;” the bottom 192 of the foot strap 15 as the recited 18 “sheet portion” or “deck planar member;” and the fasteners 184 as the 19 “second column portions” or “second support members” does not satisfy 20 either of the quoted limitations. Since the Examiner provides no other 21 reasoning to explain how Frankenberg’s pallet 10 might include all 22 limitations of claim 27 or of claim 31, we do not sustain the rejection of 23 claims 27-33 under § 102(e) as being anticipated by Frankenberg. 24 25 Appeal No. 2009-015153 Application No. 11/252,478 5 DECISION 1 We REVERSE the Examiner’s decision rejecting claims 22-33. We 2 do not reach the Examiner’s rejection of claims 22-33 under the doctrine of 3 obviousness-type double patenting as being unpatentable over claims 1-50 of 4 Apps. 5 6 REVERSED 7 8 Klh 9