Ex parte Hotte

Board of Patent Appeals and Interferences

Aug 25, 1998

08309403 (B.P.A.I. Aug. 25, 1998)

Application for patent filed September 20, 1994.1
1
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(2) is not binding precedent of the Board.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. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte JEAN-FRANCOIS HOTTE
__________
Appeal No. 97-4155
Application 08/309,4031
__________
ON BRIEF
__________
Before MEISTER, ABRAMS, and MCQUADE, Administrative Patent
Judges.
ABRAMS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the decision of the examiner
finally rejecting claims 2, 4-10, 12 and 13, which constitute
all of the claims remaining of record in the application.
Appeal No. 97-4155
Application No. 08/309,403
We note that claim 4 depends from claim 1, which has been2
canceled. This error should be corrected.
2
The appellant's invention is directed to a system for
removably installing a truck equipment onto a truck frame.
The subject matter before us on appeal is illustrated by
reference to claim 12, which has been reproduced in an
appendix to the Brief (Paper No. 13).
THE REFERENCES
The references relied upon by the examiner to support the
final rejection are:
Filipoff et al. 2,789,715 Apr. 23, 1957
(Filipoff)
Tarrant, Sr. 3,623,621 Nov. 30, 1971
Jones 4,109,810 Aug. 29, 1978
THE REJECTIONS
The following rejections stand under 35 U.S.C. § 103:
(1) Claims 2, 4, 7, 8, 12 and 13 on the basis of Filipoff
and Tarrant.2
Appeal No. 97-4155
Application No. 08/309,403
3
(2) Claims 5, 6, 9 and 10 on the basis of Filipoff,
Tarrant and Jones.
The rejections are explained in the Examiner's Answer.
The opposing viewpoints of the appellant are set forth in
the Brief.
OPINION
In a rejection under 35 U.S.C. § 103, the examiner bears
the initial burden of presenting a prima facie case of
obviousness (see In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d
1955, 1956 (Fed. Cir. 1993)), which is established when the
teachings of the prior art itself would appear to have
suggested the claimed subject matter to one of ordinary skill
in the art (see In re Bell, 991 F.2d 781, 783, 26 USPQ2d 1529,
1531 (Fed. Cir. 1993)). It is our opinion that the examiner
has not met this burden, and we therefore will not sustain the
rejections. Our reasons for arriving at this conclusion
follow.
With regard to claim 12, it is the examiner’s opinion
that Filipoff discloses all of the claimed subject matter,
Appeal No. 97-4155
Application No. 08/309,403
4
except that it teaches supporting the truck equipment on an
inclined portion of a pit, instead of by the leg means
required by the claim. However, the examiner points out that
“Tarrant shows a similar system . . . which has a mechanical
support” in the form of legs, and concludes that it therefore
would have been obvious to modify the Filipoff system by
utilizing legs instead of the inclined wall of the pit, in
view of the teaching of Tarrant (Answer, page 3). We do not
agree.
The mere fact that the prior art structure could be
modified does not make such a modification obvious unless the
prior art suggests the desirability of doing so. See In re
Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir.
1984). Filipoff discloses a truck body that is placed in a
pit so that debris can easily be loaded into it (column 1).
To facilitate removal of the truck body from the pit, one side
of the pit is formed into an inclined ramp (119a), and the
truck upon which the body is to be loaded is equipped with a
tiltable bed (T), and has ramp rails (94) extending from the
rear. As shown in Figure 1, the bed and the extending rails
Appeal No. 97-4155
Application No. 08/309,403
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are tilted to match the angle of the inclined side of the pit,
and the truck body is pulled out of the pit and onto the
truck. Filipoff lacks “leg means for supporting the front end
of the truck equipment above the ground” at a given height and
at a given angle, as is set forth in claim 12. Filipoff also
lacks the required
actuator means . . . to raise the front end of the
[truck] ramp means and tilt said ramp means
substantially at said given angle so as to enable
engagement of a lower rear portion of the tilted
ramp means with an upper front portion of the guide
means [of the truck equipment] by moving the truck
frame rearwardly toward the truck equipment
(emphasis added).
Thus, the Filipoff system differs in concept from that set
forth in claim 12, in that it does not move the truck
rearwardly into a position wherein the lower rear portion of
the tilted ramp engages the upper front portion of the
equipment, but simply pulls the equipment up onto the truck.
Tarrant discloses a loading system wherein the truck
equipment to be loaded is elevated above the ground, supported
by front and rear pairs of legs, and the truck is driven
completely under it so that the entire under-surface of the
equipment is engaged by the entire upper surface of the truck
Appeal No. 97-4155
Application No. 08/309,403
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(see Figures 1 and 2). No hauling means for sliding the
equipment on a tilted ramp is necessary.
We fail to perceive any teaching, suggestion or incentive
in either of the references which would have led one of
ordinary skill in the art to modify the Filipoff system in the
manner proposed by the examiner. To support the truck body of
Filipoff on a pair of legs would destroy the essence of the
Filipoff invention which, in our view, would have acted as a
disincentive to one of ordinary skill in the art to make the
change. In addition, neither of the references incorporates
the loading concept expressed in the claim, and therefore even
if they were properly to be combined, the structure recited in
claim 12 would not have been suggested. That is, whereas
Filipoff teaches no overlapping of the truck ramp and the
equipment to be loaded and sliding the equipment over the
entire length of the ramp, and Tarrant teaches full
overlapping and no sliding, in the claimed invention there is
partial overlapping and partial sliding.
For the above reasons, it is our conclusion that the
combined teachings of Filipoff and Tarrant fail to establish a
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Application No. 08/309,403
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prima facie case of obviousness with regard to the subject
matter of claim 12, and therefore we will not sustain the
rejection of this independent claim.
Independent claim 13 contains the same limitations as
those which were discussed above with regard to claim 12, plus
others. It has been rejected on the same grounds, and its
rejection cannot be sustained for the same reasons.
The Jones reference, cited for its teaching of using
rails instead of wheels as the guide means with regard to
dependent
claims 5 and 6, and of using axially movable locking means
with regard to dependent claims 9 and 10, does not alleviate
the shortcomings in the basic combination.
SUMMARY
None of the rejections are sustained.
The decision of the examiner is reversed.
REVERSED
Appeal No. 97-4155
Application No. 08/309,403
8
James M. Meister )
Administrative Patent Judge )
)
)
)
Neal E. Abrams ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
John P. McQuade )
Administrative Patent Judge )
Appeal No. 97-4155
Application No. 08/309,403
9
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