Ex Parte Kieffer et al

Patent Trial and Appeal Board

Jul 24, 2017

13533430 (P.T.A.B. Jul. 24, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/533,430 06/26/2012 Mitchell I. Kieffer 45673.3.8.5 4224
22859 7590 07/26/2017
FREDRIKSON & BYRON, P.A.
INTELLECTUAL PROPERTY GROUP
200 SOUTH SIXTH STREET, SUITE 4000
MINNEAPOLIS, MN 55402
EXAMINER
CHAVCHAVADZE, COLLEEN MARGARET
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
07/26/2017 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@FREDLAW.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MITCHELL I. KIEFFER, ALLEN A. CALDWELL,
NATHAN L. SCHLUETER, and MATTHEW J. DECKER
Appeal 2017-000272
Application 13/533,4301
Technology Center 3600
Before JOSEPH L. DIXON, LARRY J. HUME, and
MATTHEW J. McNEILL, Administrative Patent Judges.
McNEILL, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—4, which are all the claims pending in this application.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Core Distribution, Inc. as the real party in interest.
App. Br. 3.
Appeal 2017-000272
Application 13/533,430
STATEMENT OF THE CASE
Introduction
Appellants’ application relates to a retractable ladder with telescoping
columns and mechanisms that can be manually released to allow the
columns to collapse together. Spec. 13. Claim 1 is illustrative of the
appealed subject matter and reads as follows:
1. An extendable/retractable ladder assembly, comprising:
a first stile comprising a plurality of columns, the columns
having a common axis arranged to fit one inside another in a
nested arrangement for relative axial movement in a telescopic
fashion, the relative axial movement of the columns along the
common axis of the plurality of columns;
a second stile having a second axis that is substantially
parallel to the common axis;
a plurality of rungs extending between the first stile and
the second stile, each rung having an upper surface, a front
surface, a rear surface and a lower surface,
the upper surface defining a generally planar
standing surface, the planar standing surface and a plane
normal to the common axis forming an angle between
about 5 and 45 degrees, whereby the standing surface is
rotated towards horizontal when the ladder assembly is
leaned against a wall,
the front surface defining a generally planar forward
surface, the planar forward surface extending between the
upper surface and the lower surface in a direction such that
the planar forward surface is generally parallel to the
common axis and to the second axis, and
the rear surface defining a generally planar back
surface, the planar back surface extending between the
upper surface and the lower surface in a direction such that
the planar back surface is generally parallel to the common
axis and to the second axis; and
2
Appeal 2017-000272
Application 13/533,430
a plurality of connector assemblies each having a rung
portion and a collar portion, each rung of the plurality of rungs
coupled to one of the columns in the plurality of columns by one
of the plurality of connector assemblies,
the rung portion having a top surface generally
parallel with the generally planar standing surface such
that the rung portion top surface and the plane normal to
the common axis form the angle between about 5 and 45
degrees,
the rung portion having a rung portion front surface
extending in a direction generally parallel to the common
axis and to the second axis,
the collar portion having an opening for (i) coupling
to a first column of the plurality of columns, and (ii)
providing passage for a second column of the plurality of
columns, wherein the second column nests inside the first
column in the nested arrangement.
The Examiner’s Rejections
Claims 1-4 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Chen (US 2007/0209875 Al; Sept. 13, 2007) and Jones (US 5,738,186;
Apr. 14, 1998). Final Act. 2-6.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions the Examiner has erred. We disagree with Appellants’
contentions. Except as noted below, we adopt as our own: (1) the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken and (2) the reasons set forth by the Examiner in the Examiner’s
Answer in response to Appellants’ Appeal Brief. We concur with the
conclusions reached by the Examiner. We highlight the following additional
points.
3
Appeal 2017-000272
Application 13/533,430
Appellants argue the Examiner erred in finding the combination of
Chen and Jones teaches or suggests “a plurality of connector assemblies” as
recited in claim 1. App. Br. 12-14; Reply Br. 2—4. In particular, Appellants
argue Chen teaches a connector assembly with a top surface that is not at an
angle between about 5 and 45 degrees relative to a plane normal to the
common axis of the columns. App. Br. 12 (citing Chen Figs. 5, 7).
Appellants argue Jones teaches angled rungs, but teaches these rungs are
welded to the columns and, therefore, provides no teachings regarding
connectors. App. Br. 13.
Appellants have not persuaded us the Examiner erred in finding the
combination of Chen and Jones teaches the recited “connector assemblies.”
The Examiner finds, and we agree, Jones teaches rungs with an angled top
surface and a front surface that extends in a direction generally parallel to
that of the common axis. Ans. 8-9 (citing Jones Fig. 7). The Examiner
finds, and we agree, Chen teaches connectors between the rungs and the
stiles. Ans. 10 (citing Chen Figs. 3-11). The Examiner finds an ordinarily
skilled artisan would have understood that a combination of Jones and Chen
with an angled top surface of the rung would naturally result in angling the
top surface of the mating part, the connector, so that the parts fit together
securely. Ans. 12-13. We agree. Appellants have not identified persuasive
evidence in the record that modifying Chen’s connector to fit an angled rung
as taught by Jones would have been “uniquely challenging or difficult for
one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1162 (Fed. Cir. 2007). Further, “[a] person of ordinary skill
is also a person of ordinary creativity, not an automaton.” See KSR Int 7 Co.
v. Teleflex Inc., 550 U.S. 398, 421 (2007).
4
Appeal 2017-000272
Application 13/533,430
Appellants also argue the Examiner erred because Chen teaches away
from the claimed invention, “explicitly disparaging] bulky connections such
as welded joints taught by Jones as well as the connector assemblies of the
type that the Appellant teaches.” App. Br. 16 (citing Chen 12). We are not
persuaded by Appellants’ argument. Chen teaches conventional ladders
include rungs fixed to columns, which may result in a bulky ladder that is
inconvenient for storage. Chen 12. Chen teaches prior art extensible
ladders require inconvenient user manipulations to collapse or extend the
ladder. Id. Chen proposes a new ladder that is easily extended or collapsed.
Chen 13.
However, simply because a product is described as “inferior” in some
respects does not by itself constitute a teaching away from using the
“inferior” product. In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). While
such a product might have been inferior, that alone does not by itself
constitute a teaching away from using them, as long as the material was
taught in the prior art as “usable” and had “been used” for the stated
purpose. Id. at 553. The “mere disclosure of alternative designs does not
teach away” and “just because better alternatives exist in the prior art does
not mean that an inferior combination is inapt for obviousness purposes.” In
re Mouttet, 686 F.3d 1322, 1334 (Fed. Cir. 2012) (citations omitted).
The prior art ladders identified by Chen were used for precisely the
same purposes as the improved ladder disclosed by Chen—extensible,
collapsible ladders. We are not persuaded by Appellants’ argument because
Appellants fail to identify an error in the Examiner’s reasoning. Instead, we
find the Examiner’s expressed motivation to combine the references is based
on rational underpinnings—namely an ordinarily skilled artisan would have
5
Appeal 2017-000272
Application 13/533,430
been motivated to modify Chen’s extensible, collapsible ladder to
incorporate Jones’s angled rungs to provide a horizontal standing surface
when the ladder is leaned against a wall, for the user to safely ascend,
descend, and work on the ladder. See Ans. 11.
Further, although the Supreme Court stated that “[a] factfinder should
be aware, of course, of the distortion caused by hindsight bias and must be
cautious of arguments reliant upon ex post reasoning” (KSR, 550 U.S.
at 421), we are satisfied that the combination of Chen and Jones is not based
on hindsight bias. In fact, the proposed combination involves nothing other
than requiring the ordinarily skilled artisan to use common sense in
combining prior art elements that perform their ordinary functions to
predictably result in the claimed system.
For these reasons, we are not persuaded the Examiner erred in
rejecting claim 1. We, therefore, sustain the rejection of claim 1. We also
sustain the rejection of dependent claims 2—4, for which Appellants offered
no separate argument. See App. Br. 11.
DECISION
We affirm the decision of the Examiner to reject claims 1—4.
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
6