Ex Parte Johnson

Patent Trial and Appeal Board

Sep 21, 2018

12479931 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/479,931 06/08/2009
7590 09/21/2018
Brian S. Pickell
10067 Scenic Ridge Boulevard
Holly, MI 48442
FIRST NAMED INVENTOR
James Johnson
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.
JCSOOOlUS 2437
EXAMINER
WAGGENSPACK, ADAM J
ART UNIT PAPER NUMBER
3782
MAIL DATE DELIVERY MODE
09/21/2018 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 JAMES JOHNSON
Appeal 2017-011296
Application 12/479,931
Technology Center 3700
Before BRETT C. MARTIN, BRANDON J. WARNER, and
LISA M. GUIJT, Administrative Patent Judges.
MARTIN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-011296
Application 12/479,931
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 21-26, 28, 29, 31, and 33--43. All other claims were
cancelled during prosecution. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
THE INVENTION
Appellant's claims are directed generally "to a device for hauling an
auger and, more particularly, to such a device adapted to be removably
attached to a snowmobile." Spec. ,r 1. Claim 21, reproduced below, is
illustrative of the claimed subject matter:
21. An auger hauler in combination with a vehicle, wherein
said vehicle defines a pair of opposed exterior side walls
including mounting structure and rear and front portions of said
vehicle, said auger hauler comprising:
a vehicle frame that includes complementary mounting
structure removably attached to said mounting structure of at
least one of said respective exterior side walls of said vehicle and
at least one platform disposed a distance behind and extending a
distance away from said rear portion opposite said front portion
of said vehicle and adapted to carry items; and
an auger frame that includes a pair of opposed supporting
structures extending from said platform, adapted to transport an
auger, and each of which defines an end portion of said
supporting structure disposed opposite said platform and on
which is disposed a holding member adapted to operatively hold
a corresponding end portion of the auger such that a sufficient
amount of space is defined between respective said end portions
of said supporting structures to operatively receive the portion of
the auger defined between the end portions of the auger.
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Appeal2017-011296
Application 12/479,931
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sibley
Dorman
Gates
Columbia
Olivier
us 3,785,541
us 5,836,635
US 6,588,637 B2
US 2007/0262108 Al
US 7,874,435 B2
REJECTIONS
The Examiner made the following rejections:
Jan. 15, 1974
Nov. 17, 1998
July 8, 2003
Nov. 15, 2007
Jan. 25, 2011
Claims 21-26, 28, 29, 31, 33--41, and 43 stand rejected under 35
U.S.C. § 103 (a) as being unpatentable over Columbia, Sibley, Gates and/or
Olivier. Ans. 2.
Claim 42 stands rejected under 35 U.S.C. § I03(a) as being
unpatentable over Columbia, Sibley, Gates and/or Olivier, and Dorman.
Ans. 15.
ANALYSIS
Appellant dedicates nearly the entirety of its Appeal Brief to arguing
that Columbia teaches away from the Examiner's combination of Columbia
with Sibley and that such would render Columbia unsatisfactory for its
intended purpose. See App. Br. 12-16. The Examiner, however, notes that
Columbia itself specifically discloses that the accessory rack may be either
hitch or vehicle mounted. See Ans. 16 (citing Columbia ,r,r 53, 54). Without
acknowledging or addressing this discussion in Columbia, Appellant repeats
the same intended purpose argument. See Reply Br. 9-10. Given that
Columbia specifically calls for vehicle mounting as an alternative to hitch
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Application 12/479,931
mounting, and that Sibley teaches a specific manner of vehicle mounting, we
are not persuaded that the Examiner's alteration is improper.
Appellant next argues that Columbia does not disclose an auger
hauler. Reply Br. 3. Although this may be true, Columbia does specifically
disclose that an auger hauler is the type of accessory that may be mounted to
the rack disclosed therein. Columbia ,r 52. As such, it is not hindsight, as
Appellant alleges (see Reply Br. 4--9), to look to the prior art to determine
the proper accessories that could be added to Columbia to make it suitable
for hauling an auger, as the Examiner has done.
As to the combination with Gates, despite arguing that "[a] person of
ordinary skill in the related art would NOT be motivated to combine these
references with each other," (Reply Br. 8), Appellant's own arguments show
that Gates is exactly the type of accessory that could be added to Columbia
to create an auger hauler ("Gates teaches a utility-holding device configured
to be attached to a utility structure and carry elongated objects." Id.). An
auger is essentially an elongated object and Gates' U-shaped attachments are
nearly identical to the claimed apparatus for holding an auger. The
Examiner also correctly points out that Columbia teaches tubes 654 with
open mouths 662 and tightening knobs 664, such that Columbia's device is
specifically adapted for receiving accessories such as those taught in Gates.
Ans. 6.
As to the remaining limitations, the Examiner is correct regarding
Columbia being disposed a distance behind a rear portion of the vehicle
(Ans. 20) and the supporting structures abutting or nearly abutting the rear
portion of the vehicle (Ans. 21 ). Far from being a hindsight reconstruction
of Appellant's invention, the Examiner merely follows the roadmap laid out
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Application 12/479,931
in the prior art to arrive at a combination that satisfies Appellant's claims.
As such we are not apprised of error in the Examiner's rejections.
DECISION
For the above reasons, we AFFIRM the Examiner's decision to reject
claims 21-26, 28, 29, 31, and 33--43.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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