Ex Parte Link et al

Board of Patent Appeals and Interferences

Jul 26, 2012

11063036 (B.P.A.I. Jul. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________
Ex parte ROBERT ANDREW LINK,
DERYL THOMAS WEBSTER, and KENNETH SCHNEIDER
____________________

Appeal 2010-004523
Application 11/063,036
Technology Center 3600
____________________

Before: STEVEN D. A. McCARTHY, PHILLIP J. KAUFFMAN, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-004523
Application 11/063,036

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STATEMENT OF CASE
Appellants seek review of the Examiner’s rejection of claims 1-8, 17-
21, and 23-25 under 35 U.S.C. § 102(b) as anticipated by Morris
(US 2,552,804; iss. May 15, 1951).1 We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.

THE INVENTION
Appellants’ claimed invention relates to a dolly assembly for use in
emptying containers. Spec. 1, para. [0001]. Claims 1 and 17 are the
independent claims on appeal, and are reproduced below:
1. A lever for tilting a container positioned on a dolly and
having a bottom surface, the lever comprising:
a fulcrum;
a first end; and
a second end joined to the first end and adapted to
contact the bottom surface of the container when pressure is
applied to the first end,
the lever having a first position in which all portions of
the lever between the fulcrum and the second end are spaced
apart from the bottom surface of the container, the first position
causing the container to assume a first orientation, and the lever
having a second position that causes the bottom surface to
assume a second orientation that is inclined relative to the first
orientation; the dolly being configured to transport the
container with the lever in the first position.

1 The Examiner’s Answer states that claims 22, 26, 28 and 30 are subject to
this ground of rejection; however, these claims have been cancelled, and
thus are not before us on appeal. See Ans. 3; Br. 2, Claims App’x.
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17. A dolly assembly comprising:
a dolly for holding a container having a bottom surface,
the dolly including at least two wheels, an axle engaging one of
the at least two wheels, and a frame having a container
supporting surface; and
a lever attached to the dolly, the lever having a first end
of a first arm and a second end of a second arm, wherein, when
the lever is in a first position, the second end is adapted to
contact the bottom surface of the container and to tilt the
container when pressure is applied to the first end, the lever
further having a second position wherein the second arm is
spaced apart from the container.

OPINION
Claims 1 and 2
Appellants argue claims 1 and 2 as a group, and we select claim 1 as
representative. Br. 3-4; see 37 C.F.R. § 41.37(c)(1)(vii)(2011).
Claim 1 is directed to a lever comprising a fulcrum, a first end, and a
second end. Claim 1 requires the lever to have a first position in which all
portions of the lever between the fulcrum and the second end of the fulcrum
are spaced apart from the bottom surface of a container, and such first
position must cause the container to assume a first orientation.
The Examiner found, and we agree, that Morris discloses a lever
(ramp 21) comprised of a fulcrum (pivot 22), a first end (finger 23), and a
second end (x)2 as called for in claim 1. Ans. 3-4; see also Morris, col. 2, ll.
19-21, 39; figs. 1, 4. In light of this, Appellants’ argument that the rejection
fails to identify the corresponding structure in Morris is unconvincing. See
Br. 4.

2 As labeled by the Examiner in an annotated version of Morris’s Figure 4.
Ans. 3.
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In making this finding, the Examiner reasoned, and we agree, that
claim 1 does not include structural limitations (e.g., size or shape) with
regard to the container, and therefore Morris’s lever (ramp 21) is capable of
a first position, as called for in claim 1, when utilized with an appropriately
configured container. See Ans. 5.
In light of this, the burden shifted to Appellants to show that Morris’s
lever (ramp 21) is incapable of a first position as called for in claim 1. See
In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997) (once the Examiner
finds that the prior art structure would be capable of performing all of the
functions claimed, the burden shifts to the applicant to show that this is not
the case).
Appellants argue that Figure 4 of Morris shows contact between the
container and the portion of the lever (ramp 21) between the fulcrum (pivot
22) and the second end (x). Br. 4. This argument is unpersuasive because it
does not address the rejection as articulated by the Examiner. The rejection
does not rely upon Morris’s container, but rather finds that Morris’s lever
(ramp 21) is capable of the claimed first position when utilized with an
appropriately configured container. See Ans. 5.
Appellants also argue that the rejection fails to show or explain how
Morris is capable of this configuration. Br. 3-4. This assertion is factually
incorrect because, as discussed, supra, the Examiner explained how Morris’s
lever (ramp 21) is capable of a first position as called for in claim 1.
Further, Appellants’ assertion is not supported by evidence or a cogent
explanation of why Morris’s lever (ramp 21) is incapable of the claimed first
position. See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(Appellants’ arguments do not take the place of evidence). Therefore,
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Appellants have not carried their burden of demonstrating that Morris’s
lever (ramp 21) is incapable of a first position as called for in claim 1.3
Accordingly, we sustain the rejection of claims 1 and 2.

Claims 3-6, 20, and 21
Appellants argue claims 3-6 as a group, and we select claim 3 as
representative. Br. 4-5; see 37 C.F.R. § 41.37(c)(1)(vii)(2011). Appellants
put forth the same argument for claim 20 and its dependent claim 21 as for
claim 3. Br. 4-5. Therefore, our analysis of claim 3 is applicable to claims
20 and 21.
Appellants argue that the rejection fails to identify an elbow as called
for in claim 3. Br. 4. However, the Examiner identifies the portion joining
the first and second ends (finger 23 and x, respectively) of Morris’s lever
(ramp 21) as corresponding to an elbow as called for in claim 3. See Ans. 3-
4; see also Ans. 5-6 (identifying the bend in ramp 21 shown in Figures 1 and
4). Thus, Appellants have not identified an error in the rejection of claim 3.
Accordingly, we sustain the rejection of claims 3-6, 20, and 21.

Claims 7 and 8
Appellants argue claims 7 and 8 as a group, and we select claim 7 as
representative. Br. 5; see 37 C.F.R. § 41.37(c)(1)(vii)(2011).

3 Appellants also argue that, “the only specificity provided by the Office
Action explicitly teaches away from the claimed limitation.” Br. 4. Such
argument is not persuasive because teaching away is not germane to the
issue of anticipation. See Seachange Int'l, Inc. v. C-COR, Inc., 413 F.3d
1361, 1380 (Fed. Cir. 2005).
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Claim 7 depends indirectly from claim 1 (via claims 6, 5, and 3), and
recites, “wherein the second end is maintained in the upright position by
weight of the container upon removal of the pressure applied to the first
end.”
The Examiner found that Morris discloses a lever (ramp 21) as
claimed, and that Morris’s lever (ramp 21) includes a second end that is
capable of being maintained in the upright position by the weight of an
appropriately configured container. Ans. 3-4, 6. Appellants argue that the
rejection does not include a citation to the reference. Br. 5. Similar to our
analysis of the rejection of claim 1, supra, Appellants’ assertion is
unpersuasive because it is does not identify a structural distinction between
Morris’s lever (ramp 21) and the claimed lever. Further, Appellants’
assertion is not supported by evidence or a cogent explanation of why
Morris’s lever (ramp 21) is incapable of being positioned as claimed.
Accordingly, we sustain the rejection of claims 7 and 8.

Claim 17, 18, 19, 23
Appellants argue claims 17, 18, 19, and 23 as a group, and we select
claim 17 as representative. Br. 5-6; see 37 C.F.R. § 41.37(c)(1)(vii)(2011).
Independent claim 17 requires the lever have a second position,
“wherein the second arm is spaced apart from the container.”
Appellants argue that the rejection makes no showing that Morris
discloses a second position as called for in claim 17. Br. 5. This assertion is
factually incorrect as the Examiner addresses the second position. See Ans.
4; see also Office Action dated Jan. 22, 2009, at 3.
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Appellants also argue that Figure 4 of Morris shows contact between
the container and the portion of the lever (ramp 21) between the fulcrum
(pivot 22) and the second end (x). Br. 5. This argument is unpersuasive
because the rejection does not rely upon Morris’s container, but rather finds
that Morris’s lever (ramp 21) is capable of a second position as claimed
when utilized with an appropriately configured container. See Ans. 5.

Claims 24 and 25
Appellants argue claims 24 and 25 as a group, and we select claim 24
as representative. Br. 6; see 37 C.F.R. § 41.37(c)(1)(vii)(2011).
Claim 24 depends from independent claim 17 and recites “wherein the
dolly includes a plurality of crossbeams4, the plurality of crossbeams
defining an opening in the dolly.” Claim 24 does not recite that the plurality
of beams cross each other.
The Specification does not provide a lexicographical definition of the
claim term “cross-beam.” Cross-beam is commonly understood to mean “a
beam placed across some part of a structure or mechanism; a transverse
beam.”5 This ordinary meaning suggests that claim 24 calls for a plurality of
beams placed across some part of the dolly (and not necessarily across each
other). We find nothing in the Specification inconsistent with this ordinary
meaning. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (the words of

4 Cross-beam is not hyphenated in claim 24 and is hyphenated in the
Specification. See Spec. para. [0022].
5 “Cross-beam,” n., Oxford English Dictionary (1989) available at
http://www.OED.com.

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the claim must be given their plain meaning unless the plain meaning is
inconsistent with the specification).
We recognize that the Specification illustrates that dolly 100 may
include cross-beams 104 and 106 that cross each other. Spec. para. [0022];
fig. 2A. Because the language of claim 24 is broader than this example, we
decline to import this as a limitation of claim 24. See Superguide Corp. v.
DirecTV Enterps., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (“Though
understanding the claim language may be aided by the explanations
contained in the written description, it is important not to import into a claim
limitations that are not a part of the claim. For example, a particular
embodiment appearing in the written description may not be read into a
claim when the claim language is broader than the embodiment.”).
In light of this claim construction, Appellants’ argument that Morris’s
side plates 5 and 6 are not cross-beams because they do not cross is
unpersuasive. Br. 6. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982)
(“[A]ppellant’s arguments fail from the outset because . . . they are not based
on limitations appearing in the claims.”).
Accordingly, we sustain he rejection of claims 24 and 25.

DECISION
We affirm the Examiner’s decision to reject claims 1-8, 17-21, and
23-25.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED
Appeal 2010-004523
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