Ex Parte Ayers

Patent Trial and Appeal Board

Sep 1, 2017

12283629 (P.T.A.B. Sep. 1, 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.
12/283,629 09/15/2008 Bradley V. Ayers 4476 CIP 8043
45295 7590 09/01/2017
CAROTHERS AND CAROTHERS
FORT PITT COMMONS, SUITE 140
445 FORT PITT BLVD.
PITTSBURGH, PA 15219
EXAMINER
MCNURLEN, SCOTT THOMAS
ART UNIT PAPER NUMBER
3782
MAIL DATE DELIVERY MODE
09/01/2017 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 BRADLEY V. AYERS
____________________

Appeal 2015-007884
Application 12/283,629
Technology Center 3700
____________________

Before JAMES P. CALVE, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.

PESLAK, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–7 and 9–151. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 Claim 8 is cancelled. Appeal Br. (Claims App. 2).
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THE CLAIMED SUBJECT MATTER
Appellant’s invention is directed to “a vehicle hitch assembly for
suspension support of an accessory from the rear of a vehicle.” Spec. ¶ 2.
Claim 1, the only independent claim, is reproduced below.
1. A vehicle hitch assembly for suspension support of an
accessory from the rear of a vehicle having a rear bumper and a single
rearwardly extending arm providing a trailer hitch receiver located on a
longitudinal centerline of said vehicle and fixedly secured in a rigid non-
hingable manner to a frame of the vehicle in a horizontal direction of
extension under said bumper, said hitch assembly comprising;
a horizontally extending rigid trailer hitch receiver insert for insertion
and retention in said vehicle trailer hitch receiver;
a rigid support arm having one end detachably securable to said
vehicle rear bumper and another end thereof securable to said trailer hitch
receiver insert;
securing means vertically rigidly tying and retaining said support arm
and said trailer hitch receiver insert together; and
means for securing an accessory support to said hitch assembly
whereby said support is supported therefrom in suspension.

REJECTIONS
1) Claims 1–4, 7, 9, and 10 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Jacobs (US 4,084,736, issued Apr. 18, 1978) and
Hymer (US 5,462,398, issued Oct. 31, 1995).
2) Claims 5 and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Jacobs, Hymer, and Chown (US 4,593,840,
issued June 10, 1986).
3) Claims 6 and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Jacobs, Hymer, and Schoenberger (US
3,528,578, issued Sept. 15, 1970).
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DISCUSSION
Rejection 1
The Examiner finds that Jacobs discloses the limitations of claim 1
except the hitch assembly “having a single extending arm providing the
trailer hitch receiver on a longitudinal centerline of the vehicle.” Final Act.
2–3. The Examiner finds that Hymer discloses a trailer hitch receiver 420
on a longitudinal centerline of a vehicle. Id. at 3 (citing Hymer, Figs. 1 and
2). The Examiner concludes that it would have been obvious to modify
Jacobs’ carrier to utilize only one of Jacob’s carrying members so the
carrying member, attached to Jacob’s hitch receiver 36, is located at the
center of the vehicle “to allow the carrier to be utilized with a vehicle that
only has one hitch receiver.” Id.
Appellant first contends that Jacobs’ two elongated arms 30 and 32 do
not correspond to the “single rearwardly extending arm providing a trailer
hitch receiver located on a longitudinal center line of said vehicle” required
in claim 1. Appeal Br. 4. The Examiner responds that the rejection relies on
Hymer’s single arm 400 for disclosure of this limitation. Ans. 5; Final Act.
3. This contention is not persuasive because it is not responsive to the
rejection and amounts to an attack on the references individually when the
rejection is based on the combined teachings of Jacobs and Hymer. See In
re Keller, 642 F.2d 413, 425 (CCPA 1981)(One cannot show
nonobviousenss by attacking references individually when the rejection is
based on a combination of references.)
Appellant next contends that “Jacobs’ elongated dual support
members 30 and 32 are hingeably secured far under the vehicle frame at 34.”
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Appeal Br. 5. Based on this, Appellant argues that Jacobs’ trailer hitch
receiver is not “fixedly secured in a rigid non-hingeable manner to the frame
of the vehicle in a horizontal direction of extension under said bumper” as
required by claim 1. Id. Appellant argues that the hitch receiver in the
claimed invention “is provided directly under the bumper.” Id. at 6. The
Examiner responds that the rejection is based on Jacobs’ element 36 as the
hitch receiver. Ans. 5; Final Act. 2. Jacobs discloses that socket member
36 is “[p]ermanently affixed to the underbody of the carrying vehicle.”
Jacobs, 2:34–36, Fig. 1. Based on Figure 1 of Jacobs, one of ordinary skill
in the art would discern that socket member 36 is located in a horizontal
direction of extension under the rear bumper. Appellant’s contention that
the claimed hitch receiver is located directly under the bumper is not
commensurate with the scope of claim 1. For the foregoing reasons,
Appellant’s contention is not persuasive. See In re Hiniker Co., 150 F.3d
1362, 1369 (Fed. Cir. 1998) (“the name of the game is the claim.”)
Appellant next contends that the Examiner’s combination of Jacobs
and Hymer does not suggest the claimed invention because “Jacobs informs
the artisan of ordinary skill that one does not want to use a single
conventional hitch receiver as shown in Hymer as one must be able to hinge
the support arms under the vehicle.” Appeal Br. 7. Appellant also argues
that the rejection is based on impermissible hindsight. Id. Appellant does
not provide persuasive argument or evidence why Jacobs hinged arms could
not be used with a single hitch receiver located on a longitudinal centerline
of the vehicle. We note that, based on Figures 1 and 2 of Jacobs, there are
no obstructions below the rear bumper that would preclude placement of
Jacobs’ arm 32 at the longitudinal centerline of the vehicle. See Jacobs,
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Figs. 1 and 2. Appellant, thus, fails to persuasively apprise us of error in the
Examiner’s factual findings or rationale, quoted above, for the combination
of Jacobs and Hymer, which we determine to be reasonable and supported
by rational underpinnings. See KSR Intern. Co. v Teleflex Inc., 550 U.S.
398, 416 (2007) (“[t]he combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.”). Appellant’s argument that the rejection is based on
impermissible hindsight is fully addressed where the Examiner states a
reason supported by a rational underpinning for the rejection. See In re
Cree, 818 F.3d 694, 702 n.3 (Fed. Cir. 2016). We, therefore, sustain the
rejection of claim 1.
Claim 2, which depends from claim 1, recites “wherein said another
end of said support arm is adjustably securable in a vertical direction to said
receiver insert.” Appeal Br. (Claims App. 1). The Examiner finds that
Jacobs’ support arms are vertically adjustable “via ratchets on 58.” Final
Act. 3. Appellant does not dispute the Examiner’s finding but argues claim
2 is patentable when combined with the features of claim 1. Appeal Br. 8.
We sustain the rejection of claim 2 because Appellant does not provide
persuasive argument as to why claim 2 is patentable over the combination of
Jacobs and Hymer.
Claim 3, which depends from claim 2, recites “wherein said receiver
insert is adjustably securable in a horizontal direction in said hitch receiver.”
Appeal Br. (Claims App. 1). The Examiner finds that Jacobs’ receiver insert
“is adjustable in that it is moved horizontally through slots 40/42.” Final
Act. 3. Appellant argues that pins 52 and 54 on Jacobs’ support members 30
and 32 are inserted into slots 40 and 42 and then rotated in vertical slots 46
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and 48. Appeal Br. 8 (citing Jacobs, 2:38–43, 50–51, 59, Figs. 1 and 4).
Appellant continues that support arms 30 and 32 are consequently “secure[d]
in place so that they do not come back out via the horizontal slots. This is
not a horizontal adjustment.” Id. The Examiner maintains the rejection and
asserts that “rotation of [Jacobs’] receiver insert” does not change the
finding that the receiver insert is adjustably securable in a horizontal
direction. Ans. 6. We are persuaded by Appellant’s argument for the
following reasons.
Appellant’s Specification provides that
Passage 16 is provided in tongue member 31 in the horizontal
direction at the appropriate position to permit adjustment of the
receiver insert 15 in the horizontal direction in order to fit the different
horizontal displacements of different vehicles between the rear
bumper hitch ball 13 and the mouth of the trailer hitch receiver 14.
Spec. ¶ 35(emphasis added). Based on this portion of Appellant’s
Specification, we determine that “adjustably securable in a horizontal
direction” relates to the ability of the receiver insert to move in a horizontal
direction relative to the rear bumper hitch ball and be secured at various
points depending on the horizontal displacement between the rear hitch ball
and the mouth of the trailer hitch receiver. See Spec. Fig. 1. Pins 52 and 54
on Jacobs’ receiver arm 32 move horizontally through slots 40 and 42 in
receiver 36. See Jacobs, Fig. 4. However, after passing through slots 40 and
42, pins 52 and 54 are rotated into vertical slots 46 and 48, thereby securing
receiver arm 32 at that point. Id. at 4:19–25. The Examiner has not
explained, and we do not discern, how Jacobs’ receiver arm 32 could be
secured at more than one horizontal location relative to the rear bumper of
vehicle 10. Therefore, the Examiner’s finding that Jacob’s receiver arm 32
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is “adjustably securable in a horizontal direction in said hitch receiver” is not
supported by a preponderance of the evidence. We do not sustain the
rejection of claim 3.
Claim 4, which depends from claim 2, recites the “securing means
including an adjustable clamp for vertically clamping said support arm and
said trailer hitch receiver insert together.” Appeal Br. (Claims App. 2). The
Examiner finds that Jacobs’ element 56 is a “U shaped member
surround[ing] the insert and acts as a clamp to hold the insert to the support
arm, including in a vertical [direction]” as shown in Jacob’s Figure 3. Final
Act. 4. Appellant argues that Jacobs’ element 56 “merely picks up his two
support arms 30 and 32” but “does not provide any clamping pressure which
draws these two members toward each other in combination with a fixed
non-hingeable trailer hitch receiver.” Appeal Br. 9. For the following
reasons, we do not sustain the rejection of claim 4.
Appellant’s Specification provides that “a securing bolt . . . is passed
downwardly through orifice 28 and sleeve 29 and then threadably engaged
with sleeve nut 30 . . . for thereby securing support arm 20 to receiver insert
15 to vertically clamp them securely together in [a] rigid engagement.”
Spec. ¶ 33. Jacobs discloses that “support member 32 has fitted around it a
rectangular bracket 56, the upper portion of which projects above the top of
the support member to provide a loop.” Jacobs, 2:63–65. The Examiner
does not direct us to any portion of Jacob disclosing that the width between
the side arms projecting upward from the base on bracket 56 is adjustable
nor that the arms provide a clamping force on the support arm. Therefore,
the Examiner’s finding that Jacobs’ bracket 56 corresponds to the recited
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“adjustable clamp”2 is not supported by a preponderance of the evidence.
We do not sustain the rejection of claim 4.
Claim 7 recites the “one end of said support arm is secured to a
horizontally extending elongated rigid support member, said elongated
support member having means for securement to said rear bumper.” Appeal
Br. (Claims App. 3). The Examiner finds that one end of Jacobs’ support
arm 58/60 is secured to a horizontally elongated rigid support member 102
which has means, 90, for securement to the rear bumper. Final Act. 4.
Appellant argues that “claim 7 is referring to a long piece of angle iron 20
shown in [Appellant’s] FIGS. 10 through 14 that lays on top of the bumper.”
Appeal Br. 10. Appellant further argues that angle iron 20
has pins sticking out of the underside that drop into holes that must be
drilled into the top surface of the rear bumper, mating the two together
. . . and replaces both the open cup[Figure 1] and the single pin[Figure
8] as a third method of fastening the device to the rear bumper of the
vehicle.
Appeal Br. 10.
For the following reasons, we sustain the rejection of claim 7.
Jacobs discloses that
bumper engager 88 has a grasping device 90, which here is a hook,
connected to a bracket 92. The bracket 92 is hinged to a bracket 94 by
a bolt 96. The bracket 94 is hinged to a bracket 98 by a bolt 100. The
bracket 98 is hinged to a bracket 102 by a bolt 104. The bracket 102
is welded to the lifting mechanism 60.
Jacobs, 3:35–41(emphasis added), Figs. 1 and 3.

2 An ordinary definition of “clamp’ is “a device designed to bind or constrict
or to press two or more parts together so as to hold them firmly.”
https://www.merriam-webster.com/dictionary/clamp (last accessed August
29, 2017).
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As seen in Figure 3 of Jacobs, bracket 102 extends horizontally from rigid
support arm 58/60.
Claim 7 also requires that the elongated support member have “means
for securement to said rear bumper.” Appeal Br. (Claims App. 3). The
Examiner finds that grasping device 90, in the form of a hook, corresponds
to the means for securement. Final Act. 4. This limitation must be analyzed
under 35 U.S.C. § 112, sixth paragraph which requires the “claim shall be
construed to cover the corresponding structure, material, or acts described in
the specification and equivalents.” See also In re Donaldson Co., 16 F.3d
1189, 1195 (Fed. Cir. 1994) (“the broadest reasonable interpretation that an
examiner may give means-plus-function language is that statutorily
mandated in paragraph six.”). Equivalence under 35 U.S.C. § 112, sixth
paragraph requires “[f]unctional identity and either structural identity or
equivalence.” Odetics, Inc. v. Storage Technology Corp., 185 F. 3d 1259,
1267 (Fed. Cir. 1999). Jacobs’ hook-like grasping device 90 performs the
identical function of the means plus function limitation in claim 7, i.e.,
securement of the elongated support member to the rear bumper. In terms of
the structure disclosed in Jacobs, the “statutory equivalence analysis requires
a determination of whether the ‘way’ the assertedly substitute structure
performs the claimed function, and the ‘result’ of that performance is
substantially different from the ‘way’ the claimed function is performed” by
the structure disclosed in the Specification. Id. Appellant explains that the
structure disclosed in Appellant’s Figure 10 for securement of the elongated
support member to the rear bumper is a series of pins that drop into holes in
the top surface of the rear bumper and that the series of pins and holes are an
alternative structure to the open cup 25 which engages hitch ball 26 in the
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embodiment shown in Appellant’s Figures 1–3 and the single pin 25’ which
engages a socket in the bumper in Appellant’s Figure 8. All three of these
structures secure the elongated support arm to the rear bumper in the same
way by connecting similarly shaped mating items together. Jacobs’ hook-
like gripping device 90 secures the elongated support member 102 to the
rear bumper in Jacob in substantially the same way as any of Appellant’s
three devices by hook-like grasping device 90 mating with a similarly
shaped portion of the rear bumper. See Jacobs, Figs. 1 and 3. We therefore
sustain the rejection of claim 7.
With respect to claims 9, 10, and 13, which all depend directly or
indirectly from claim 1, Appellant does not dispute the Examiner’s findings,
but argues “when combined with the novel and patentable features upon
which they depend, patentable invention is provided.” Appeal Br. 10. We
sustain the rejection of claims 9, 10, and 13 for the same reasons stated for
claim 1 and because Appellant has not provided a persuasive argument why
the additional limitations in claims 9, 10, and 13 render the combination
patentable.
Claim 14 depends from claim 9 and contains the same limitation as
claim 3. Appeal Br. (Claims App. 3). In the rejection of claim 14, the
Examiner relies on substantially the same findings as for claim 3. Final Act.
4. We do not sustain the rejection of claim 14 for the same reasons as claim
3.
With respect to claim 15 which depends from claim 1, Appellant does
not dispute the Examiner’s findings but argues “when combined with the
inventive features of claim 1, this combination is considered to be
patentable.” Appeal Br. 11. We sustain the rejection of claim 15 for the
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same reasons stated for claim 1 and because Appellant has not provided a
persuasive argument why the additional limitations in claim 15 render the
combination patentable.
Rejection 2
Appellant does not submit that the limitation recited in claims 5 and
11, both of which depend directly or indirectly from claim 1, of a
downwardly open cup for reception on a ball hitch is novel, but asserts
“these features are considered novel when combined with the patentable
features of independent claim 1 . . . for the same reasons give[n] with regard
to the rejection of claim 1.” Appeal Br. 11. We sustain the rejection of
claims 5 and 11 for the same reasons stated for claim 1.
Rejection 3
Claims 6 and 12 both contain the limitation that the “one end of said
support arm includes at least one rigid downwardly extending pin for
reception in a corresponding pin socket in an upper surface of said rear
bumper.” Appeal Br. (Claims App. 2–3). The Examiner finds that
Schoenberger discloses a support arm 80 secured to the bumper by securing
device 84 that includes a downwardly extending pin 86 received in a pin
socket in the upper surface of the rear bumper. Final Act. 6 (citing
Schoenberger, Fig. 5). Appellant contends that item 86 of Schoenberger “is
nothing more than a securement bolt” while “Appellant’s pin is not secured,
nor does it require to be secured by a nut such as suggested by
Schoenberger.” Appeal Br. 11. Appellant also argues that the claimed
assembly “vertically rigidly ties or clamps the rigid support arm together
with the receiver insert.” Id. at 12. The Examiner responds that Appellant’s
“argument goes beyond the scope of the claims.” Ans. 6. We sustain the
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rejection of claims 6 and 12 because Appellant does not provide persuasive
argument or evidence why the claimed “pin” does not correspond to
Schoenberger’s element 86. We also agree with the Examiner that the claim
language does not preclude securing the claimed “pin” with a nut. Finally,
neither claim 6 nor claim 12 nor any claim from which claims 6 and 12
depend refer to any structure that “ties or clamps” the support arm and the
receiver insert. We, thus, sustain the rejection of claim 6 and claim 12.

DECISION
The Examiner’s decision rejecting claims 1, 2, 5–7, 9–13, and 15 is
affirmed.
The Examiner’s decision rejecting claims 3, 4, and 14 is reversed.

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)(1)(iv).

AFFIRMED-IN-PART