Ex Parte Crampton

Board of Patent Appeals and Interferences

Aug 10, 2012

11340334 (B.P.A.I. Aug. 10, 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.
11/340,334 01/25/2006 Richard Henry Crampton WORK 3434 1185
7812 7590 08/10/2012
CHERNOFF, VILHAUER, MCCLUNG & STENZEL, LLP
601 SW Second Avenue, Suite 1600
Portland, OR 97204
EXAMINER
CHIN SHUE, ALVIN C
ART UNIT PAPER NUMBER
3634
MAIL DATE DELIVERY MODE
08/10/2012 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 RICHARD HENRY CRAMPTON
____________

Appeal 2010-006488
Application 11/340,334
Technology Center 3600
____________

Before STEVEN D. A. McCARTHY, JAMES P. CALVE, and
RICHARD E. RICE, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the rejection of claims
1 and 7. Claims 2-6, 8-12, and 14-18 have been canceled. Claim 13 has
been withdrawn. App. Br. 1.1 We have jurisdiction under 35 U.S.C. § 6.
We REVERSE.

1 Refers to the Appeal Brief filed on Nov. 17, 2008.
Appeal 2010-006488
Application 11/340,334

2
CLAIMED SUBJECT MATTER
Claim 1 represents the claimed subject matter on appeal:
1. For a stepladder comprising opposing first and
second legs and a plurality of treads, wherein each first and
second leg forms a separate channel having a back wall and two
side walls for receiving the treads, a method for providing the
stepladder with a cushion for a worker carrying the stepladder,
the method comprising the steps of:
a. providing a resilient pad of closed-cell foam in the
shape of a parallelepiped having first, second and third pairs of
mutually parallel opposite faces, wherein the faces of the first
pair are rectangular and are mutually spaced at a distance
greater than the channel of the first leg is wide, the faces of the
second pair are rectangular and are oblique to the faces of the
first pair, and the faces of the third pair are mutually spaced at a
distance greater than the channel of the first leg is deep, and
b. compressing a first portion of the resilient pad between
the first pair of faces and inserting the first portion into the
channel of the first leg between two adjacent treads of the
stepladder with one of the faces of the third pair confronting the
back wall of the channel of the first leg such that the first
portion of the resilient pad resides under compression between
the side walls of the channel of the first leg and such that a
second portion of the resilient pad resides outside of the
channel of the first leg to provide the cushion for the worker,
and wherein the faces of the second pair contact the two
adjacent treads of the stepladder, whereby the resilient pad is
held within the channel of the first leg solely by frictional
forces between the pad and the side walls of the channel of the
first leg and between the pad and the two adjacent treads of the
stepladder.

REJECTION
Claims 1 and 7 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Horneman (US 6,786,371 B2; iss. Sep. 7, 2004).
Appeal 2010-006488
Application 11/340,334

3
ANALYSIS
The Examiner found that Horneman discloses a ladder pad of various
dimensions that would abut conventional 12-inch spacing of ladder treads
and can be used with ladders having side rails and rungs of a variety of
configurations including C-shaped and U-shaped rails. Ans. 3-4, 6 (citing
col. 4, l. 61 to 5, l. 5); 7 (citing Abstract and col. 4, ll. 2-10). The Examiner
also found that Horneman discloses a pad that may be made of rubber foam
or plastic foam and concluded that it would have been obvious to shape and
dimension the pad to fit any ladder, side rail, or rung. Ans. 4. The Examiner
also took Official Notice that the practice of making a compressible object
slightly larger than a receptacle for the object to enable frictional securement
is conventional and concluded that it would have been obvious to make
Horneman’s pad of a size to enable a frictional fit within a ladder channel as
called for in claims 1 and 7. Ans. 3, 5; Final Rej. 2. The Examiner found
this practice is Admitted Prior Art based on Appellant’s statement that “the
examiner might be correct in this assertion,” as broadly stated. Ans. 5
(citing App. Br. 7).
Appellant argues that Horneman uses an adhesive strip 36 to secure
the device 10 to a ladder and does not disclose that the device 10 may be
secured to a ladder by any means other than adhesive strip 36. App. Br. 6;
Reply Br. 2. As a result, Appellant argues that it would not have been
obvious to consider whether the resilient nature of the block may provide
another mechanism for securing the block to the ladder. Reply Br. 2.
Appellant also argues that Horneman’s teaching that the pad can be different
dimensions such as 12 inches in length does not teach that the length of the
block should be slightly greater than the distance between the treads so that
Appeal 2010-006488
Application 11/340,334

4
the pad must be compressed to fit between the treads as claimed. App. Br. 7.
In response the Examiner noted that “the claims did not recite that the length
of the pad of his pad is slightly greater than the distance between the treads
so that the pad is compressed to fit between the treads as argued.” Ans. 6.
The Examiner’s interpretation is not consistent with the language of
claims 1 and 7 interpreted in light of Appellant’s Specification. Claim 1
calls for the resilient pad to include a second pair of faces
wherein the faces of the second pair contact the two adjacent
treads of the stepladder, whereby the resilient pad is held within
the channel of the first leg solely by frictional forces between
the pad and the side walls of the channel of the first leg and
between the pad and the two adjacent treads of the stepladder.
Claim 7 also recites these features.2 The Examiner did not establish any fact
relating to Horneman’s disclosure of this limitation by a preponderance of
evidence as a result of the foregoing claim interpretation.
The Examiner also found that Horneman
teaches making his pad of various dimensions, e.g[.,] 12 inches,
which would abut conventional 12 inches spacing of ladder
treads, to use his pad on a conventional stepladder having
channel rails with treads that are oblique to the walls of the
channel and angle the ends of his block to correspond to the
oblique treads, would have been an obvious mechanical
expedient to facilitate carrying such conventional ladders.
Ans. 3-4. Horneman does disclose that the block is eight to thirteen inches
in length and measures approximately ten to twelve inches in length in a
preferred embodiment (col. 3, l. 66 to col. 4, l. 6), but the Examiner has not

2 Appellant discloses that when pad 20 is not installed in a channel 14, the
distance between the side faces 35, 37 of pad 20 is a little wider than channel
14, and the distance between the top and bottom, oblique faces 34, 36 of the
pad 20 is a little longer than a distance between the adjacent treads 17, 18.
Spec., para. [0018]; figs. 1, 4.
Appeal 2010-006488
Application 11/340,334

5
adequately explained how this disclosure necessarily results in Horneman
disclosing a pad whose length exceeds the distance between adjacent treads
so that the pad contacts adjacent treads and is held in place by frictional
forces between the pad and adjacent treads. See App. Br. 7. Nor has the
Examiner adequately explained how Horneman renders obvious such a pad
when Horneman discloses that the pad 10 is attached to a ladder with an
adhesive strip 36 (col. 2, l. 40 to col. 3, l. 5; App. Br. 6-7) and shows the pad
10 with a length that is less than a distance between rungs (figs. 2, 4).
The Examiner’s reliance on Official Notice does not overcome this
deficiency. Even if it were conventional to make a compressible object
slightly larger than a receptacle for that object, the Examiner has not
adequately explained why this conventional practice would have led a
skilled artisan to size the pad of Horneman so that it contacts adjacent
oblique treads of a ladder and holds the pad in the channel by frictional
forces between the pad and the adjacent treads of the stepladder when the
channel and treads are not designed to be receptacles for such a pad. See
App. Br. 7-8; Reply Br. 1.
Accordingly, we cannot sustain the rejection of claims 1 and 7.
DECISION
We REVERSE the rejection of claims 1 and 7.

REVERSED

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