Ex Parte Kubinski

Patent Trial and Appeal Board

Mar 23, 2016

12982957 (P.T.A.B. Mar. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/982,957
66478 7590
Smartpat PLC
Axel Nix
FILING DATE
12/31/2010
03/25/2016
1180 Norfolk St.
Birmingham, MI 48009
FIRST NAMED INVENTOR
Piotr Kubinski
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.
KUBOl-01 9359
EXAMINER
BLANKENSHIP, GREGORY A
ART UNIT PAPER NUMBER
3612
NOTIFICATION DATE DELIVERY MODE
03/25/2016 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):
info@ smartpat. net
a.nix@gmx.de
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PIOTR KUBINSKI
Appeal2013-002051
Application 12/982,957 1
Technology Center 3600
Before NINA L. MEDLOCK, BART A. GERSTENBLITH, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
GERSTENBLITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Piotr Kubinski ("Appellant") appeals under 35 U.S.C. § 134(a) from
the Examiner's decision rejecting claims 1-11. We have jurisdiction under
35 U.S.C. § 6(b).
Claimed Subject Matter
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and reproduced below.
1 Appellant identifies Piotr Kubinski as the real party in interest. Appeal
Br. 1.
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Appeal2013-002051
Application 12/982,957
1. A recreational vehicle for four or more occupants comprising:
a driving compartment having a driving compartment
floor located at a driving compartment floor elevation, a driving
compartment roof located at a driving compartment roof
elevation, and four or more seats for all occupants of the
recreational vehicle while driving;
a windshield, side windows, and a rear window, located
around the driving compartment; and
a living compartment located underneath and behind the
driving compartment, the living compartment including a living
compartment floor located at a living compartment floor
elevation and a living compartment roof located at a living
compartment roof elevation,
wherein the driving compartment roof elevation is above
the living compartment roof elevation, and the windshield, side
windows, and the rear window extend at least partially above
the living compartment roof elevation,
thereby providing the occupants a horizontal surround
view.
Appeal Br. 10, Claims App.
Rejections
Appellant seeks review of the following rejections:
I. Claims 1-10 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Atcravi (US 6,729,678 Bl, iss. May 4, 2004), Henrichsen
(US Des. 148,066, iss. Dec. 9, 1947), and Sankrithi (US 7,431,366 B2,
iss. Oct. 7, 2008); and
II. Claim 11 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Atcravi, Henrichsen, Sankrithi, and Renaud (US 3,961,716, iss. June 8,
1976).
SUMMARY OF DECISION
We REVERSE.
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Application 12/982,957
ANALYSIS
Rejection I
The Examiner concludes that a combination of the teachings of
Atcravi, Henrichsen, and Sankrithi would have rendered the subject matter
of claims 1-10 obvious to one of ordinary skill in the art at the time of the
invention. Final Act. 2--4 (mailed Feb. 15, 2012). With respect to claim 1,
the Examiner finds that Atcravi discloses most of the elements of the claim,
but "does not disclose a raised driving compartment or rear passenger seats
in the driver's compartment." Id. at 3. The Examiner finds that Henrichsen
"teaches providing a vehicle with a raised driving compartment with a
windshield, side windows, and rear window." Id. The Examiner finds that
Sankrithi teaches "providing rear seats ... in the driving compartment
behind the front row of seats." Id. The Examiner determines that it would
have been obvious to one of ordinary skill in the art at the time of the
invention to:
provide a raised driving compartment to the recreational
vehicle of Atcravi, as taught by Henrichsen, to improve the
driver's visibility to improve safety; and,
provide additional seats in the driving compartment of
Atcravi, as modified, behind the front seats, as taught by
Sankrithi ... , to provide additional seating.
Id. In an Advisory Action, the Examiner adds that "[p ]roviding a raised
driving compartment would result in the space that was previously occupied
by the driving compartment becoming part of the living compartment as the
only feature that distinguished the living compartment from the driving
compartment was the controls for driving the vehicle." Advisory Act. 2
(mailed Mar. 30, 2012).
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Appeal2013-002051
Application 12/982,957
Appellant raises several arguments in response to this rejection. In
particular, Appellant asserts that the prior art does not teach a living
compartment underneath a driving compartment, as recited in claim 1.
Appeal Br. 7. Appellant contends that the Advisory Action "speculates as to
how Atcravi would fill the empty space underneath the raised driving
compartment. This speculation is not based on any disclosure in the prior art
and hence improper." Id.
In response to Appellant's argument, the Examiner states the
following:
The Examiner disagrees because the combination results in a
raised driving compartment similar to that shown in Henrichsen.
The area beneath the driving compartment of Henrichsen is a
passenger area like the rest of first floor of the bus. When the
teaching of Henrichsen is applied to the vehicle of Atcravi, the
resulting vehicle has a raised driving compartment over a section
of the vehicle that has the same purpose as the rest of the first
floor of the vehicle. Since the rest of the first floor of Atcravi is
a living compartment, the resulting vehicle \~1ould have a living
compartment beneath the driving compartment.
Ans. 4.
In his Reply Brief, Appellant explains that the Examiner's finding is
inconsistent with another position taken by the Examiner. Specifically, the
Examiner finds that the area under the raised driving compartment
presumably would be the same as the rest of the living compartment space,
but also acknowledges, in response to a different argument by Appellant
regarding how high the driving compartment would be raised, that the
combination is based on raising the driving compartment only one or two
feet above the roof of the living compartment behind the driving
compartment. Reply Br. 3--4 (referring to Ans. 2-3). Appellant asserts that
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Appeal2013-002051
Application 12/982,957
"[i]fthe driving compartment is not a full story but only two feet tall[ er],
then clearly the area underneath cannot be like the rest of the first floor .... "
Id. at 4.
Appellant's argument is persuasive because the Examiner has not
provided any reason as to why, when modifying Atcravi by raising the
driving compartment, the area underneath the newly raised driving
compartment necessarily becomes part of the living compartment. The
following statement by the Examiner illustrates the problem with the
Examiner's lack of explanation: "When the teaching of Henrichsen is
applied to the vehicle of Atcravi, the resulting vehicle has a raised driving
compartment over a section of the vehicle that has the same purpose as the
rest of the first floor of the vehicle." Ans. 4. Why is that the necessary
result of applying the teaching of Henrichsen---of a raised driving
compartment? A reason, however simple it may be, is not provided. Thus,
the Examiner's finding is not supported sufficiently on the record before us.
Accordingly, we do not sustain the rejection of claims 1-10.
Rejection II
In rejecting claim 11, which depends from claim 10, the Examiner
relies upon Atcravi and Henrichsen to the same extent discussed above, in
the context of Rejection I. Accordingly, for the reasons explained above, we
do not sustain the rejection of claim 11.
DECISION
We reverse the Examiner's decision rejecting claims 1-11.
REVERSED
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