Ex Parte Heald

Patent Trial and Appeal Board

Jun 29, 2018

14977989 (P.T.A.B. Jun. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/977,989 12/22/2015 Jonathan Roderick Heald
58898 7590 07/03/2018
Lempia Summerfield Katz LLC
20 South Clark
Suite 600
CHICAGO, IL 60603
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.
010155-14001B 1014
EXAMINER
CHU, KATHERINE J
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
07 /03/2018 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):
docket-us@lsk-iplaw.com
mail@lsk-iplaw.com
pair_lsk@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONATHAN RODERICK HEALD 1
Appeal2017-009871
Application 14/977 ,989
Technology Center 3600
Before ANNETTE R. REIMERS, JEFFREY A. STEPHENS, and
SEAN P. O'HANLON, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE2
Jonathan Roderick Heald (Appellant) appeals under 35 U.S.C.
§ 134(a) from the Examiner's decision to reject under 35 U.S.C. § 103(a)
claims 2---6, 9, 13, 14, 16-19, and 21-23 as unpatentable over Roach (AU
1 Heald Technologies, Ltd. is identified as the real party in interest and is also
the applicant pursuant to 37 C.F.R. § 1.46. Appeal Brief 2 (hereinafter
"Appeal Br.") (filed Feb. 27, 2017).
2 The Examiner states that claims 7, 8, and 10-12 "are objected to as being
dependent upon a rejected base claim, but would be allowable if rewritten in
independent form including all of the limitations of the base claim and any
intervening claims." Final Office Action 4 (hereinafter "Final Act.") (dated
Sept. 9, 2016).
Appeal2017-009871
Application 14/977 ,989
2004201403 Al, published Oct. 21, 2004), Kapala (US 5,054,237, issued
Oct. 8, 1991), and Rowland (US 4,554,695, issued Nov. 26, 1985). Claims
1, 15, and 20 have been canceled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter "relates to a security barrier apparatus, and
a method for operation thereof." Spec. i-f 2, Figs. 1, 2. Claims 21 and 22 are
independent.
Claim 21 is illustrative of the claimed subject matter and recites:
21. A security barrier apparatus comprising:
a support;
at least three upright posts on the support, the at least three
upright posts including at least two fixed posts being fixed to the
support and at least one movable post being translatably movable
relative to the at least two fixed posts, the at least two fixed posts
being spaced apart from one another and defining a first plane
therebetween; and
a slide device, the movable post being mounted to the slide
device of the support for providing said translatable movement,
wherein the slide device operates the security barrier
apparatus between an open position and a closed position such
that in the closed position the at least one movable post is
between the at least two fixed posts for inhibiting a vehicle from
passing between the at least two fixed posts, and in the open
position the at least one movable post is out of alignment with
the first plane and adjacent to one of the at least two fixed posts
for allowing a vehicle to pass therebetween.
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Appeal2017-009871
Application 14/977 ,989
ANALYSIS
Independent claim 21 is directed to a security barrier apparatus having
at least three upright posts on a support, the at least three upright posts
including at least two fixed posts that are fixed to the support and at least
one movable post that is translatably movable relative to the at least two
fixed posts, "the at least two fixed [upright] posts being spaced apart from
one another and defining a first plane therebetween," wherein a slide device
"operates the security barrier apparatus between an open position and a
closed position" such that "in the open position the at least one movable
[upright] post is out of alignment with the first plane" of the at least two
fixed upright posts. See Appeal Br. 15, Claims App.
The Examiner finds that Roach discloses the security barrier apparatus
of claim 1 substantially as claimed except that "Roach fails to disclose that
in the open position, the movable post is out of alignment with the first plane
and adjacent to one of the fixed posts for allowing the passage of a vehicle
therebetween." Final Act. 2. The Examiner finds that "Kapala and Rowland
both teach vehicle barriers, and teach different ways to provide movable
barriers that when in the open position, allow for the full width of the space
between the fixed posts." Id. In particular, the Examiner finds that Kapala
and Rowland "show that it is known to move bollards/barriers out of the way
of the travel path to maximize the width of the travel path when allowing a
vehicle to pass." Ans. 3. 3 As such, the Examiner concludes that "Kapala
and Rowland show that it is possible to provide a maximum width of travel
path with different types of barriers." Id.
3 Examiner's Answer (hereinafter "Ans.") (dated May 18, 2017).
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Appeal2017-009871
Application 14/977 ,989
Appellant contends that none of Roach, Kapala, and Rowland, either
alone or in combination, discloses that "in the open position the at least one
movable [upright] post is out of alignment with the first plane" of the at least
two fixed upright posts, as required by claim 21. See Appeal Br. 3-9; see
also Reply Br. 2--4. 4
As an initial matter, Appellant correctly notes that (1) movable
bollards 6, 7 and fixed bollards 8, 9 of Roach "all lie in the same plane
across the barrier in the open position" (see Appeal Br. 4; see also id. at 5;
Reply Br. 2--4); (2) "lone post 25 [of Kapala] is always in the same location
relative to the service area path and is always in the same plane across the
service area path, whether in an open (lowered) or closed (raised) position"
(see Appeal Br. 4; see also Reply Br. 2, 4); and (3) "Rowland only teaches a
barrier with two upright posts, both of which only rotate about their own
vertical axes. There are no other movable upright posts in Rowland. More
specifically, ... [t]here are no movable upright posts in Rowland that would
then also lie out of alignment with that plane in the open position" (see
Reply Br. 3--4; see also Appeal Br. 4). We agree with Appellant that neither
Roach, Kapala, nor Rowland, alone or in combination, discloses "in the open
position the at least one [upright] movable post is out of alignment with the
first plane" of the at least two fixed upright posts, as recited in claim 21. See
Appeal Br. 6; id. at 15, Claims App.; see also Reply Br. 4.
In this case, we acknowledge the Examiner's position that "it is
known to move bollards/barriers out of the way of the travel path to
maximize the width of the travel path." See Ans. 3. However, merely
4 Reply Brief (hereinafter "Reply Br.") (filed July 12, 201 7).
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Appeal2017-009871
Application 14/977 ,989
because moving bollards/barriers out of the way of the travel path to
maximize the width of the travel path is well known in the art does not mean
that it would have been obvious to combine the teachings of Roach, Kapala,
and Rowland to arrive at the subject invention. KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007) ("[A] patent composed of several elements is
not proved obvious merely by demonstrating that each of its elements was,
independently, known in the prior art."). Stated differently, the concept of
"merely slid[ing posts] out of the way of the travel path to maximize the
travel path," is insufficient evidence of a rational underpinning for
modifying Roach's upright movable bollards 6, 7 to be out of alignment with
the first plane of fixed upright posts 8, 9 in an open position of security
barrier apparatus 1. See Ans. 5; see also id. at 3--4; Appeal Br. 8-10; Reply
Br. 3--4.
Further, given that in Roach, "movable bollards 6, 7 are always in the
same plane as ... fixed bollards 8, 9," we fail to see and the Examiner fails
to adequately explain how movable bollard 6 and/or 7 of Roach would be
modified such that in the security barrier apparatus's open position at least
one movable post 6 or 7 would be "out of alignment" with the first plane of
fixed posts 8, 9. See Appeal Br. 5 (emphasis added); see also id. at 4;
Roach, Figs. 1, 2.
Independent claim 22 is directed to a method of operating a security
barrier apparatus and includes the step of "operating the security barrier
apparatus to an open position where the at least one movable post is out of
alignment with the first plane" of the at least two fixed posts. See Appeal
Br. 15, Claims App. The Examiner relies on the same unsupported findings
in Roach, Kapala, and Rowland discussed above. See Final Act. 2-3. As
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Application 14/977 ,989
such, the Examiner's findings with respect to Roach, Kapala, and Rowland
are deficient for claim 22 as well.
For these reasons, we do not sustain the Examiner's rejection of
independent claims 21 and 22, as well as dependent claims 2---6, 9, 13, 14,
16-19, and 23 as unpatentable over Roach, Kapala, and Rowland.
DECISION
We REVERSE the Examiner's decision to reject claims 2---6, 9, 13,
14, 16-19, and 21-23 as unpatentable over Roach, Kapala, and Rowland.
REVERSED
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