Ex parte Parr et al.

Board of Patent Appeals and Interferences

Sep 28, 1998

08144818 (B.P.A.I. Sep. 28, 1998)

Application for patent filed October 28, 1993. 1
According to the appellants, this application is a
continuation of Application 07/901,537, filed June 19, 1992.
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not binding precedent of the Board.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. 27
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JASON PARR and
JONATHAN P. VARNHAGEN

_____________
Appeal No. 97-0740
Application 08/144,8181
______________
ON BRIEF
_______________
Before STONER, Chief Administrative Patent Judge, McQUADE and
CRAWFORD, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
Appeal No. 97-0740
Application 08/144,818
2
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s final
rejection of claims 11-20, which are all the claims pending in
the application. Claims 1-10 have been canceled.
The appellants’ claimed subject matter is a portable
collapsible backboard and basket assembly mounted in the bed
of a pickup truck. Claim 11 is exemplary of the claims on
appeal and recites:
11. A portable collapsible backboard and basket assembly
mounted in the bed of a pickup truck, the bed having a floor
and a plurality of raised sidewalls forming a cavity, the
assembly comprising:
base means positioned in and securely affixed to the
pickup truck within the cavity of the pickup truck;
foldable support means attached to said base means and
rotatable between a storage position adjacent the floor of the
bed of the pickup truck and to a display position
substantially perpendicular to the floor of the bed of the
pickup truck;
a backboard foldably and rotatably attached to said
support means; and
a basketball basket attached to said backboard; and
wherein when said assembly is folded and collapsed into
said storage position, it forms a compact package sized to fit
within said cavity of the pickup truck, and wherein when said
assembly is erected into said display position, it holds and
Appeal No. 97-0740
Application 08/144,818
3
supports said backboard in position above and outside the
dimensions of the cavity.
THE REFERENCES
The following references were relied on by the examiner:
Gross 2,144,148 Jan. 17, 1939
Lange 2,340,540 Feb. 01, 1944
Naideth 3,108,803 Oct. 29, 1963
Sheets et al. (Sheets) 3,233,898 Feb. 08, 1966
Haubert Des.216,684 Mar. 03, 1970
Sinner 3,722,886 Mar. 27, 1973
Koether 4,220,981 Sep. 02, 1980
Andersen 4,330,101 May 18, 1982
Gordin et al.(Gordin) 4,712,167 Dec. 08, 1987
D’Annunzio 4,789,156 Dec. 06, 1988
Anastasakis 4,869,501 Sep. 26, 1989
Aakre et al. (Aakre) 4,946,163 Aug. 07, 1990
THE REJECTIONS
Claims 11, 12, 14 and 18 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Gross in view of D’Annunzio,
Gordin, Koether and Haubert.
Claim 13 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Gross in view of D’Annunzio, Gordin, Koether
and Haubert as applied to claims 11, 12, 14 and 18 above and
further in view of Lange.
Appeal No. 97-0740
Application 08/144,818
4
Claim 15 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Gross in view of D’Annunzio, Gordin, Koether
and Haubert, as applied to claims 11, 12, 14 and 18 above and
further in view Andersen.
Claims 16 and 19 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Gross in view of D’Annunzio, Gordin,
Koether and Haubert as applied to claims 11, 12, 14 and 18
above, and further in view of Aakre and Anastasakis.
Claim 17 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Gross in view of D’Annunzio, Gordin, Koether
and Haubert as applied to claims 11, 12, 14 and 18 above and
further in view of Sheets.
Claim 20 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Gross in view of D’Annunzio, Gordin, Koether
and Haubert as applied to claims 11, 12, 14 and 18 above, and
further in view of Sinner and Naideth.
Rather than reiterate the entire arguments of the
appellants and the examiner in support of their respective
positions, reference is made to the appellants’ brief (Paper
No. 14) and the examiner’s answer (Paper No. 20) for the full
exposition thereof.
Appeal No. 97-0740
Application 08/144,818
5
OPINION
In reaching our conclusion on the issues raised in this
appeal, we have carefully considered appellants’ specification
and claims, the applied references and the respective
viewpoints
advanced by the appellants and the examiner. As a consequence
of our review, we have made the determinations which follow.
We turn first to the examiner’s rejection of claims 11,
12, 14 and 18 under 35 U.S.C. § 103 as being unpatentable over
Gross in view of D’Annunzio, Gordin, Koether and Haubert.
Gross discloses a portable collapsible backboard and basket
assembly including a base means 12 securely affixed to a stage
floor 72 (See Figs. 1 and 6). Gross also discloses a foldable
support means 3 attached to the base means 12. The foldable
support means is rotatable between a storage position adjacent
to the stage floor, depicted in Fig. 2, and a display position
substantially perpendicular to the stage floor, depicted in
Fig. 1. There is also included a backboard 2 foldably and
rotatably attached to the support means 3 (See Figs. 4 and 5).
A basketball basket 6 is attached to the backboard 2. When
Appeal No. 97-0740
Application 08/144,818
6
the assembly is folded and collapsed into a storage position,
it forms a compact package which accommodates easy concealment
in a minimum of space, as for instance in a closet or under a
platform (column 1, lines 13-17). Gross does not disclose
that the backboard and basket assembly is mounted in the bed
of a pickup truck or that the folded and collapsible assembly
form a package that fits within the cavity of that pickup
truck as recited in claim 11.
The examiner has cited D’Annunzio, Gordin, Koether and
Haubert to supply the teachings of a backboard basket assembly
which is mounted to a pickup truck and sized to fit within the
confines of the cavity of the pickup truck. Haubert discloses
a foldable and collapsible backboard and basket assembly which
is affixed to and disposed within a trailer. Gordin discloses
a lighting system which is foldable and collapsible to fit on
the bed of a truck. D’Annunzio discloses a portable backboard
and basket assembly which is attached to the bumper of a
pickup truck and is disassembled so as to be transported
within the truck. Koether discloses portable floodlighting
equipment which is foldable and collapsible and is mounted on
vehicle wheels.
Appeal No. 97-0740
Application 08/144,818
7
The examiner states:
Given the relatively recent advent in
the basketball art of using a pickup truck
to mount and transport a knockdown
basketball backboard, goal and support, the
known concept in the basketball art of
foldably mounting a backboard support to a
trailer for transport thereof, and the
general knowledge of mounting foldable
supports to the bed of either a truck or
trailer so that the supported apparatus may
be deployed for use by unfolding the
support while still attached to the bed, it
would have been obvious to the person of
ordinary skill in the art to affix the base
of Gross to a trailer or the bed of a
pickup truck whereby it may be unfolded for
use and collapsed to facilitate portability
between different usage sites. [Examiner’s
Answer at page 5].

In regard to the requirement of claim 11 that the folded and
collapsed assembly "forms a compact package sized to fit
within said cavity of the pickup truck," the examiner states:
. . .the routineer would have been
particularly motivated to size Gross as
modified to fit within the cavity of the
pickup truck to eliminate hazards (for
example, to navigation over roadways) which
would be present if the apparatus overhung
the sides or rear of the truck. [Examiner’s
Answer at page 5].
In rejecting claims under 35 U.S.C. § 103, the examiner bears
the initial burden of presenting a prima facie case of
Appeal No. 97-0740
Application 08/144,818
8
obviousness. In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d
1955, 1956 (Fed. Cir. 1993); In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). In order to meet this burden the examiner must
establish why one having ordinary skill in the art would have
been led to the claimed invention by the express or applied
suggestions found in the prior art. See In re Sernaker, 702
F.2d 989, 994, 217 USPQ 1, 5 (Fed. Cir. 1983). Only if that
burden is met does the burden of coming forward with evidence
or arguments shift to the appellant. In re Oetiker at 977 F.
2d 1445, 24 USPQ2d 1444. If the examiner fails to establish a
prima facie case the rejection is improper and will be
overturned. In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596,
1598 (Fed. Cir. 1988).
It is our opinion that the examiner has failed to set
forth a prima facie case of obviousness in this case. First,
it is unclear from the examiner’s answer how the various
disparate teachings of the references would be combined. In
addition, while Gordin discloses that a collapsible lighting
system may be transported on the bed of the truck, the
lighting system does not form a package when folded that fits
Appeal No. 97-0740
Application 08/144,818
9
in the cavity of the truck. The examiner has cited no
reference which teaches or suggests a foldable assembly, of
any kind, which when folded forms a package which fits within
the cavity of a pickup truck.
In view of the foregoing we will not sustain the
examiner’s rejection of claims 11, 12, 14 and 18 under 35
U.S.C. § 103 over Gross in view of D’Annunzio, Gordin, Koether
and Haubert. We have reviewed the disclosures of Lange,
Andersen, Aakre, Anastasakis, Sheets, Sinner and Naideth in
connection with the rejections of claims 13, 15-17, 19 and 20
which are dependent on claim 11 but these disclosures do not
cure the deficiencies noted above for the combination of
Gross, D’Annunzio, Gordin, Koether and Haubert. As such, we
will not sustain the rejections of claims 13, 15, 16, 17, 19
and 20.
The decision of the examiner is reversed.
REVERSED
Appeal No. 97-0740
Application 08/144,818
10
)
BRUCE H. STONER, JR., Chief )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JOHN P. McQUADE )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )

sd
Joseph P. Carrier
Weiner, Carrier, Burt & Esser, P.C.
24101 Novi Road
Suite 100
Novi, Michigan 48375