Ex Parte Flatebo et al

Patent Trial and Appeal Board

Jul 31, 2018

13901942 (P.T.A.B. Jul. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/901,942 05/24/2013
47608 7590 08/02/2018
Brown, Winick, Graves, Gross, Baskerville
and Schoenebaum, P.L.C
666 Grand Ave
Suite 2000
Des Moines, IA 50309
FIRST NAMED INVENTOR
James Aaron Flatebo
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
4335/0051 4856
EXAMINER
BATTISTI, DEREK J
ART UNIT PAPER NUMBER
3782
NOTIFICATION DATE DELIVERY MODE
08/02/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
IP@brownwinick.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES AARON FLATEBO,
SCOTT AARON BRITSON, and
MATTHEW WENDELL SCHROEDER
Appeal2017-011645
Application 13/901,942
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
ANNETTE R. REIMERS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
James Aaron Flatebo et al. (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision to reject claims 1, 3, 5, 7-10, 12, 16-
18, and 22 under 35 U.S.C. § 103 as unpatentable over by Nelson (US
3,516,556, issued June 23, 1970) and Anderson (US 6,846,140 B2, issued
Jan. 25, 2005). Claims 19 and 20 have been withdrawn from consideration.
Claims 2, 4, 6, 11, 13-15, and 21 have been canceled. We have jurisdiction
under 35 U.S.C. § 6(b ).
We REVERSE.
Appeal2017-011645
Application 13/901,942
CLAIMED SUBJECT MATTER
The claimed subject matter relates to "a side pack with channels" for
"truck type vehicles that have a bed for carrying cargo and storage units
mounted on the sides of the beds." Spec. ,r,r 1-2; Figs. 4, 7B, 14, 15A-15B.
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
1. A side pack for a vehicle comprising:
a first top panel, the first top panel of the side pack having
at least one elongated channel, the at least one elongated channel
having at least two parallel elongated side walls and at least one
elongated floor forming a substantially C-shaped cross section,
the first top panel of the side pack further including at least a pair
of protrusions protruding into a space between the at least two
parallel elongated side walls, the pair of protrusions configured
to interface with a securing member.
ANALYSIS
The Examiner finds that Nelson discloses a side pack ( container G)
for a vehicle comprising a first top panel in which the first top panel has at
least one elongated channel (track 22a), the at least one elongated channel
has at least two parallel elongated side walls, and at least one elongated floor
forming a substantially C-shaped cross section. Final Act. 2 ( citing Nelson
Figs. 4--5). 1 The Examiner acknowledges that Nelson does not disclose the
first top panel including at least a pair of protrusions protruding into a space
between the at least two parallel elongated side walls such that the pair of
protrusions are configured to interface with a securing member. Id. The
Examiner relies on Anderson for disclosing a vehicle packing system
1 Final Office Action (hereinafter "Final Act.") (dated Nov. 28, 2016).
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Appeal2017-011645
Application 13/901,942
comprising elongated channels (slot opening S) including at least a pair of
protrusions (inward turning lips 141A, 141B) protruding into a space
between at least two parallel elongated side walls such that the pair of
protrusions are configured to interface with a securing member. Id. ( citing
Anderson Figs. 1-5). The Examiner concludes that it would have been
obvious to "substitute the track of Anderson for the channel of Nelson in
order to connect the packs." Id. at 2-3.
Appellants contend that "Anderson would not motivate one skilled in
the art to substitute Nelson's channel 22a with Anderson's channel 141."
Appeal Br. 21. 2 In support of this contention, Appellants argue that
[i]n the modified version (i.e. Anderson's track 141 substituted
for Nelson's track 22a), Nelson's conical bearing 38 simply
slides along Nelson's protrusions 141A, 141B. Like the original
design, conical bearing 38 [of Nelson] would be constrained
laterally along the protrusions 141A and 141B. However, this
does not improve the pack connection. In both cases[,] the
conical bearings 3 8 [ of Nelson] are constrained laterally (only)
and the substitution simply does not result in one pack being
better connected to another.
Id. at 22.
The Examiner responds by providing what appears as two figures
either incorporating the conical bearing 38 shown in Nelson's Figure 4 or
the spherical wheel 21 shown in Nelson's Figure 5 with the cargo bed 110,
track 141, and inward turning lips 141A, 141B shown in Anderson's Figure
2. See Ans. 3. The Examiner takes the position that "the channel of
Anderson could further prevent any slippage of the side packs of Nelson"
2 Appeal Brief (hereinafter "Appeal Br.") (filed Apr. 27, 2017).
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Appeal2017-011645
Application 13/901,942
and that "the protrusions (141A, 141B) of Anderson could further secure any
securing members, including the ones disclosed by Nelson, preventing any
slippage while still allowing for stacking flexibility and movement." Id.
In rebuttal, Appellants contend, "there is nothing in Nelson which
indicates, or even remotely suggests, Nelson's system has a problem with
slipping" (Reply Br. 63) and the Examiner "assume[s] Nelson's disclosed
systems are vulnerable to slipping" but "[t]he Examiner, however, fail[s] to
provide any evidence to support this allegation" (id. at 7).
In this case, we agree with Appellants that Figure 4 of Nelson
illustrates (1) "a cone shaped end of the bearing 3 8 simply slides along edges
of rails 37 and is constrained laterally by the ends of rails 37"; and (2) "the
rails 3 7 constrain the bearings 3 8 to keep containers to which they are
attached from slipping to a region outside of the rails 37." Reply Br. 5---6;
see also Appeal Br. 22; Nelson, Fig. 4. Stated differently, contrary to the
Examiner's position, it would appear that there would be no problems with
slippage because of the "LOAD" of the container to the conical bearing 38,
which is positioned between rails 37 as shown in Nelson's Figure 4. See
Nelson Fig. 4. Here, there is no evidence of record nor technical reasoning
provided by the Examiner to support the finding that there would be slippage
problems in Nelson's containers or that the proposed modification of Nelson
in view of Anderson would improve the pack connection of Nelson's
containers or provide better securement to Nelson's containers. See Appeal
Br. 21-22; see also Reply Br. 5-9.
3 Reply Brief (hereinafter "Reply Br.") ( filed Sept. 19, 2017).
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Appeal2017-011645
Application 13/901,942
For these reasons, we do not sustain the Examiner's rejection of claim
1 and of claims 3, 5, 7-10, 12, 16-18, and 22 depending therefrom, as
unpatentable over Nelson and Anderson.
DECISION
Accordingly, we REVERSE the decision of the Examiner to reject
claims 1, 3, 5, 7-10, 12, 16-18, and 22.
REVERSED
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