Ex Parte Daneshvar

Patent Trial and Appeal Board

Jun 18, 2013

11092311 (P.T.A.B. Jun. 18, 2013)

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.
11/092,311 03/29/2005 Yousef Daneshvar 7402
7590 06/18/2013
Yousef Daneshvar
3425 Lone Pine Rd.
Westbloomfield, MI 48323
EXAMINER
ADAMS, GREGORY W
ART UNIT PAPER NUMBER
3652
MAIL DATE DELIVERY MODE
06/18/2013 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 YOUSEF DANESHVAR
____________

Appeal 2011-000520
Application 11/092,311
Technology Center 3600
____________

Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
JOHN W. MORRISON, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Yousef Daneshvar (Appellant) appeals under 35 U.S.C. § 134 from
the Examiner’s decision finally rejecting claims 16, 18-27, 29, 32, and 35-
41. Claims 1-15, 17, 28, 30, 31, 33, and 34 have been canceled. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).

INVENTION
Appellant’s invention relates to a device for placing strollers,
wheelchairs, scooters and similar devices in a vehicle. Spec. 1 and fig. 1.
Claims 24, 39, and 41 read as follows:
24. A carrier as set forth in Claim 23 including a mechanism that
can be operated from the exterior of the enclosure for moving the
padding into engagement with the object to aid in securing the object
inside the enclosure.

39. A carrier as set forth in Claim 38 wherein the flexible securing
means comprises netting that when the second wall is upright, lies
between the second wall and the object and is pulled at the top against
the object.

41. A carrier as set forth in Claim 25 including a pole that is
attached to the first wall by a hinge and is long enough, when the first
wall is inclined as a ramp, to allow a person to grasp the pole at an
elevation above where the pole is attached to the ramp and use the
pole to pull up the ramp.

REJECTIONS
The following rejections are before us for review:
I. The Examiner rejected claims 16, 18, 21, 23-26, 29, 37, 38, 40,
and 41 under 35 U.S.C. § 103(a) as unpatentable over Antal (US
5,431,524, iss. Jul. 11, 1995) and Haseltine (US 6,036,012, iss. Mar.
14, 2000).
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II. The Examiner rejected claims 19 and 20 under 35 U.S.C.
§ 103(a) as unpatentable over Antal, Haseltine, and Breaux (US
6,379,101 B1, iss. Apr. 30, 2002).
III. The Examiner rejected claim 22 under 35 U.S.C. § 103(a) as
unpatentable over Antal, Haseltine, and Zelko (US 2002/0108951 A1,
publ. Aug. 15, 2002).
IV. The Examiner rejected claim 27 under 35 U.S.C. § 103(a) as
unpatentable over Antal, Haseltine, and Gamulo (US 5,826,768, iss.
Oct. 27, 1998).
V. The Examiner rejected claim 32 under 35 U.S.C. § 103(a) as
unpatentable over Antal, Haseltine, and Milroy (US 4,475,761, iss.
Oct. 9, 1984).
VI. The Examiner rejected claims 35 and 36 under 35 U.S.C.
§ 103(a) as unpatentable over Antal, Haseltine, and Koliopoulos (US
5,680,976, iss. Oct. 28, 1997).
VII. The Examiner rejected claim 39 under 35 U.S.C. § 103(a) as
unpatentable over Antal, Haseltine, and Bodenheimer (US 3,294,034,
iss. Dec. 27, 1966).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

ANALYSIS
Rejection I
Claims 16, 18, 21, 23, 25, 26, 29, 37, 38, and 40
The Notice of Appeal filed March 7, 2008 states that the final
rejection of claims 16, 18-27, 29, 32, and 35-41 is being appealed.
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However, in the Appeal Brief filed September 24, 2008 (hereafter “App.
Br.”), Appellant specifically indicates that only the final rejection of claims
24, 39, 41 is being appealed. App. Br. 2; see also Reply Br. 2. As such,
consistent with the holding of BPAI precedential opinion Ex Parte Ghuman,
88 USPQ2d 1478, 1480 (BPAI 2008), Appellant may not reserve arguments
for some later time. Arguments Appellant could have made but chose not to
make in the Briefs are waived. See 37 C.F.R. § 41.37(c)(1)(vii).
Accordingly, we summarily affirm the Examiner’s rejection of claims
16, 18, 21, 23, 25, 26, 29, 37, 38, and 40 under 35 U.S.C. § 103(a) as
unpatentable over Antal and Haseltine.

Claim 24
The Examiner found that Antal fails to disclose padding and that
Haseltine “discloses an enclosure including foam padding 30.” Ans. 5
(citing to col. 4, l. 591-col. 5, l. 3). Appellant argues that the foam pads of
Haseltine are fixed and hence, Haseltine fails to disclose a mechanism that
can be operated from the exterior of an enclosure for moving the padding
into engagement with an object within the enclosure. App. Br. 6. In
response, the Examiner takes the position that because locks 24 of Haseltine
secure shell 54 about wheelchair 10, “lock 24 functions as a mechanism
which moves pads 30 into engagement.” Ans. 11.
Although we appreciate that locks 24 fasten halves 14, 16, we do not
agree with the Examiner’s position that locks 24 “mov[e] the padding into
engagement with the object,” as called for by claim 24. We could not find

1 We note that the Examiner points to line 69 of column 4 of Haseltine.
However, column 4 has only 67 lines. For the purpose of this appeal we
perceive this to be a typographical error on the part of the Examiner.
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any portion in Haseltine and the Examiner has not pointed to any portion
that discloses that foam pads 30 can be moved by locks 24 into engagement
with wheelchair 10. While foam pads 30 do come into engagement with
wheelchair 10 when halves 14, 16 come together, it is halves 14, 16 that
move foam pads 30 into engagement with wheel chair 10 and not locks 24,
as the Examiner opines. We thus agree with Appellant that, “latches 24 are
used to keep the two halves together” and do not “function as a mechanism
that can be operated from the exterior of the enclosure for moving the
padding into engagement with the wheelchair.” Reply Br. 5.
Since neither Antal nor Haseltine discloses a mechanism, as called for
by claim 24, the Examiner has failed to provide a factual basis for the
rejection. The initial burden of proof to produce the factual basis for the
rejection of an application under section 103 is on the Patent Office. See In
re Warner 379 F.2d 1011, 1016 (CCPA 1967). Accordingly, we do not
sustain the rejection of claim 24 under 35 U.S.C. § 103(a) as unpatentable
over Antal and Haseltine.

Claim 41
The Examiner found that because bar 188 of Antal “meets the
standard dictionary definition of a pole,” namely, “a long slender object,”
bar 188 constitutes a “pole,” as called for by claim 41. Ans. 6 and 11.
However, even assuming arguendo that bar 188 can be viewed as a
“long slender object,” we note that claim 41 also requires that the “pole” be
“attached to the first wall by a hinge.” App. Br., Claims Appendix. In
contrast, as Appellant notes, because Antal’s bar 188 is welded to plate 186,
which in turn is secured directly to the outside surface of ramp 38, bar 188 is
not hinged to the ramp, as called for by claim 41. See Reply Br. 5. As
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such, we likewise do not sustain the rejection of claim 41 over the combined
teachings of Antal and Haseltine.

Rejections II through VI
For the same reasons stated supra with respect to the rejection of
claims 16, 18, 21, 23, 25, 26, 29, 37, 38, and 40 over the combined teachings
of Antal and Haseltine, we also summarily affirm Rejections II through VI.

Rejection VII
Claim 39
The Examiner found that Antal in view of Haseltine fails to disclose
netting as a “[flexible] securing means” and that Bodenheimer “discloses
that netting 96 is a well known replacement for Antal’s straps 230 with equal
satisfactory results.” Ans. 9 (citing to Bodenheimer, col. 6, l. 18).
Appellant argues that the netting of Bodenheimer is not “pulled at the
top against the object,” but rather is “pushed down at the top.” App. Br. 7;
see also Reply Br. 5.
We are not persuaded by Appellant’s argument because straps 230 of
Antal are “pulled at the top” by virtue of their connection between
wheelchair 10 and hooks 146, 180 which places straps 230 in tension. See
Antal, fig. 1. Therefore, because the Examiner is merely proposing to
replace straps 230 of Antal with netting 96 of Bodenheimer, the netting of
Antal, Haseltine, and Bodenheimer is likewise “pulled at the top,” as called
for by claim 39. Appellant has not provided any persuasive evidence to
show otherwise.
As such, for the foregoing reasons, we sustain the rejection of claim
39 over the combined teachings of Antal, Haseltine, and Bodenheimer.
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SUMMARY
The decision of the Examiner is affirmed as to claims 16, 18-23, 25-
27, 29, 32, and 35-40 and reversed as to claims 24 and 41.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

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