Ex parte Giannopoulos

Board of Patent Appeals and Interferences

Jul 29, 1998

08603348 (B.P.A.I. Jul. 29, 1998)

Application for patent filed February 20, 1996. 1
According to appellant, the application is a continuation-in-
part of Application 08/494,923, filed June 26, 1995, now
abandoned.
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 12
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte JEROME GIANNOPOULOS
________________
Appeal No. 97-4214
Application 08/603,3481
________________
ON BRIEF
________________
Before STAAB, McQUADE and NASE, Administrative Patent Judges.
McQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Jerome Giannopoulos appeals from the final rejection of
claims 11 through 22, all of the claims pending in the
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Application 08/603,348
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application.
The invention is a motorized scaffold truck. Claim 11 is
representative and reads as follows:
11. A universal motorized scaffold truck comprising:
a horizontal support frame having scaffold supporting
means for removably and entirely supporting conventionally
available scaffold means thereon, said frame supported by
wheels for lateral movement on a ground surface;
a vertically extendable steering mast having upper and
lower ends and secured at said lower end to said frame and
having a steering mechanism connected for steering selected of
said wheels from the upper end of said mast;
an electric motor mounted on said frame and engaged for
driving selected of said wheels; and
a switch at the upper end of said mast for selectively
energizing said electric motor.
The references relied upon by the examiner as evidence of
anticipation and obviousness are:
Everitt 2,857,212 Oct. 21, 1958
Rosander 3,503,466 Mar. 31, 1970
The appealed claims stand rejected as follows:
a) claims 11, 12 and 15 through 19 under 35 U.S.C. §
102(b) as being anticipated by Rosander;
b) claims 13, 14, 21 and 22 under 35 U.S.C. § 103(a) as
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being unpatentable over Rosander; and
c) claim 20 under 35 U.S.C. § 103(a) as being
unpatentable over Rosander in view of Everitt.
Reference is made to the appellant’s brief (Paper No. 10)
and to the examiner’s answer (Paper No. 11) for the respective
positions of the appellant and the examiner with regard to the
merits of these rejections. On page 5 of the brief, the
appellant states that “[c]laims 11 through 22 are grouped
together and stand or fall together” and that “the Board may
select claim 11 from the group and decide the appeal on the
ground of rejection based on that claim alone.” Thus for
purposes of this appeal, claims 12 through 22 shall stand or
fall with representative claim 11.
As indicated above, claim 11 stands rejected under 35
U.S.C. § 102(b) as being anticipated by Rosander. Rosander
discloses a motorized device for moving and guiding a wheel-
supported scaffold. The device includes a horizontal platform
and frame 10, 11, a front wheel 12, a vertically extendible
steering mechanism 40-49 operatively connected to the front
wheel (see column 2, line 68 through column 3, line 3), two
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rear wheels 14, a battery-powered motor for driving the rear
wheels (see column 1, lines 64 through 67), a switch 50 at the
upper end of the steering mechanism for controlling the motor,
a scaffold-steadying bracket 57-59 mounted on the steering
mechanism, and a scaffold-engaging bolster 20 mounted on the
platform and frame. The scaffold-engaging bolster includes
vertical and horizontal extension members 30, 32 having end
clevises 30', 32' which can be moved into engagement with
components 60, 61 of the scaffold as illustrated in Figure 1.
The scaffold-steadying bracket also includes clevises 59 for
engaging a component of the scaffold. Rosander explains that
[a]fter the device has been positioned as shown and
described, with the clevises engaging the scaffold,
the operator may mount the scaffold and move and
guide the scaffold without dismounting. The motor
control 50 is within reach of the operator and the
handle grip 49 permits easy guiding of the device
and scaffold [column 2, lines 58 through 63].
Anticipation is established only when a single prior art
reference discloses, expressly or under principles of
inherency, each and every element of a claimed invention. RCA
Corp. v. Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444,
221 USPQ 385, 388 (Fed. Cir. 1984).
The sole issue raised in this appeal by the appellant is
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whether Rosander meets the limitation in claim 11 requiring
“scaffold supporting means for removably and entirely
supporting conventionally available scaffold means thereon.”
This limitation is written in means plus function format and
thus is to be construed in accordance with 35 U.S.C. § 112,
sixth paragraph, as covering the corresponding structure
described in the specification and equivalents thereof.
The examiner submits that Rosander’s scaffold-steadying
bracket, scaffold-engaging bolster and platform meet the
limitation at issue because they are “capable of entirely
supporting a scaffold which has a relatively small cross-
section” (answer, page 3).
In essence, the appellant contends that
Rosander discloses an entirely different
structure. Rosander does not support scaffolding on
his motorized vehicle 10, nor does he provide any
means for doing so, and in addition his vehicle 10
is obviously too small to do so and he provides no
such suggestion anywhere in his disclosure that this
even could or should be done. To the contrary, he
has to provide a complex multiple connected
structure to connect his vehicle 10 to the scaffold
in order to drag the wheeled scaffold structure
along with the motorized vehicle 10 [brief, page 6].
The appellant is correct to the extent that the Rosander
reference does not expressly disclose (or suggest) that the
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scaffold-steadying bracket, scaffold-engaging bolster and
platform described therein perform the function of removably
and entirely supporting conventionally available scaffold
means thereon as recited in claim 11. This, however, is not
dispositive of the issue before us. It is not necessary that
an anticipatory reference teach what the subject application
teaches, but only that the claim read on something disclosed
in the reference. Kalman v. Kimberly Clark Corp., 713 F.2d
760, 771, 218 USPQ 781, 789 (Fed. Cir. 1983), cert. denied,
465 U.S. 1026 (1984). In the present case, it is not
apparent, nor has the appellant cogently explained, why
Rosander’s scaffold-steadying bracket, scaffold-engaging
bolster and platform are not inherently capable of removably
and entirely supporting conventionally available scaffold
means thereon as recited in claim 11. Thus on the face of it,
the Rosander structure meets the claimed function under
principles of inherency. Moreover, the appellant has neither
asserted nor shown that this prior art structure is not the
equivalent of the corresponding structure described in the
appellant’s specification for accomplishing the claimed
function. In this light, the appellant’s position on appeal
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that the standing 35 U.S.C. § 102(b) rejection of claim 11 is
unsound because Rosander does not meet the “scaffold
supporting means” limitation in this claim is not well taken.
Therefore, we shall sustain the examiner’s rejection of
claim 11 and of claims 12 through 22 which stand or fall
therewith.
The decision of the examiner is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
LAWRENCE J. STAAB )
Administrative Patent Judge )
)
)
)
JOHN P. McQUADE ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
Appeal No. 97-4214
Application 08/603,348
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Carothers and Carothers
445 Fort Pitt Boulevard, Suite 500
Pittsburgh, PA 15219