Ex Parte Rogers et al

Board of Patent Appeals and Interferences

Aug 13, 2012

11326099 (B.P.A.I. Aug. 13, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ORLEY DAVID ROGERS and
TIMOTHY JOHN HOCKEMEYER
____________

Appeal 2010-004748
Application 11/326,099
Technology Center 3700
____________

Before STEFAN STAICOVICI, MICHAEL C. ASTORINO, and
BRADFORD E. KILE, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Orley David Rogers and Timothy John Hockemeyer (Appellants)
appeal under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting
under 35 U.S.C. § 103(a) claims 23, 27-36, and 39-45 as unpatentable over
Greenland (US 7,094,185 B2, issued Aug. 22, 2006) and Ayton (US
6,086,519, issued Jul. 11, 2000) and claims 24, 37, and 38 as unpatentable
over Greenland, Ayton, and Cervantes (US 5,651,758, issued Jul. 29, 1997).
Claims 16-22 and 46-60 have been withdrawn and claims 7 and 14 have
been canceled.1 We have jurisdiction over this appeal under 35 U.S.C. § 6.

THE INVENTION
Appellants’ invention relates to a weightlifting system 9 including a
weight bar frame rack 10 and a weight support assembly 12. Spec. 1, para.
[0006], Spec. 3, [0023], and fig. 1.
Claim 29 is illustrative of the claimed invention and reads as follows:
29. A weightlifting weight support assembly removably
mountable to a weight bar frame rack having an upright frame
member, said weightlifting weight support assembly
comprising:
a first support plate;
a second support plate generally parallel to said first
support plate;
a central support plate transverse to said first support plate
and said second support plate;

1 Claims 1-6, 8-13, 15, 25, and 26 are indicated by the Examiner as
allowed. Ans. 2. Thus, the rejections under 35 U.S.C. § 103(a) of claims 1-
6, 8-10, 13, 15, 25, and 26 as unpatentable over Greenland and Ayton and of
claim 12 as unpatentable over Greenland, Ayton, and Cervantes have been
withdrawn by the Examiner. Ans. 3.
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a first stud which extends transverse to said first support
plate, said first stud engageable with a first opening at least
partially through a first side face of an upright frame member;
a second stud which extends transverse to said second
support plate, said second stud facing toward said first stud,
said second stud engageable with a second opening at least
partially through a second side face of said upright frame
member;
a first hook plate which extends from said central support
plate, said first hook plate defines a first angled surface which
extends at a downward angle relative to said central support
plate and a second angled surface which extends at an upward
angle relative to said central support plate to define an angled
intersection operable to receive a weight bar.

SUMMARY OF DECISION
We REVERSE.

ANALYSIS
The obviousness rejection based upon Greenland and Ayton
The Examiner found that Greenland discloses all the limitations of
independent claims 23, 27, and 29 with the exception of a first hook plate
that defines “a first angled surface which extends at a downward angle
relative to said central support plate and a second angled surface which
extends at an upward angle relative to said central support plate.” Ans. 5-6
and Ans. 10, Examiner’s Figure 1. See also, App. Br., Claims Appendix.
The Examiner further found that “Ayton teaches a first angled surface 24
which extends at a downward angle and a second angled surface 18 which
extends at an upward angle.” Ans. 6. The Examiner concluded that:
It would have been obvious to one of
ordinary skill in the art at the time of the invention
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to modify Greenland's semicircular weight support
with Ayton's angled support in order to prevent the
user from pinching their fingers when racking the
weight in the weight support, as taught by Ayton
(column 1[,] lines 64-67).

Id. See also, Ans. 12, Fig. 3 and Ans. 17.
Appellants argue that the Examiner’s reason to combine the teachings
of Greenland and Ayton, i.e., “to prevent the user from pinching their fingers
when racking the weight in the weight support” (see Ans. 6), “is merely a
conclusory statement.” App. Br. 24. Thus, according to Appellants, the
“Examiner has failed to properly articulate a reasoning with some rational
underpinning to support the legal conclusion of obviousness.” App. Br. 25.
Greenland discloses a self-spotting weight system including a
generally U-shaped upper bracket half 452 (first, second, and central support
plates) having a slot 454 into which the handle of free weight 152 may travel
and a lower bracket half 456 (first and second hook plates), pivoted relative
to upper bracket half 452, and having an open slot 458 which traps the
handle of free weight 152. Greenland, col. 10, ll. 33-47 and fig. 7. See also,
Ans. 10, Examiner’s Figure 1. It is undisputed that Greenland fails to
describe that lower bracket half 456 (first and second hook plates) includes
first and second angled surfaces. See Ans. 5-6 and App. Br. 21. Ayton
discloses a conventional exercise apparatus including angled brackets 22 and
24, mounted to posts 18, for supporting barbell 99. Ayton, col. 2, ll. 57-59;
col. 3, ll. 58, 59, and figs. 3 and 6. Based on Ayton’s teachings of an angled
slot for supporting a barbell, the Examiner is proposing to replace curved
slot 458 of Greenland’s lower bracket half 456 with an angled slot. See Ans.
12, Examiner’s Figure 3 and Ans. 17, Examiner’s unlabeled Figure.
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Although Ayton discloses that it was known in the art to provide an
angled slot to support a barbell (weight) we find the Examiner’s rejection
insufficient to explain what in the prior art would have prompted a person
having ordinary skill in the art to replace Greenland’s curved slot 458 with
an angled slot. The Examiner has not provided any findings that Greenland
recognized a problem of finger pinching when racking free weight 152 in
upper and lower bracket halves 452, 456. Moreover, we agree with
Appellants that in Greenland free weight 152 is first placed within upper slot
454 and then, using handle 466, lower bracket half 456 is pivoted on pivot
460 to bring curved slot 458 into engagement with the handle of free weight
152 and trap (lock) free weight 152 between upper and lower bracket halves
452, 456. App. Br. 25-26. See also, Greenland, col. 10, ll. 42-47. Thus,
because the weightlifter uses handle 466 to bring curved slot 458 into
engagement with the handle of free weight 152, which has already been
racked into upper slot 454 of upper bracket half 452, we do not see how a
weightlifter is prone to finger pinching in Greenland.
We further agree with Appellants that Ayton did not solve the
problem of finger pinching by using an angled slot, but rather by providing
support brackets 130 mounted to the upper ends of left and right posts 118 to
hold barbell 99 outward from and forward of posts 118. See App. Br. 25 and
Reply Br. 3-4. See also, Ayton, Abstract and figs. 1 and 3.
Thus, the reason proffered by the Examiner to replace curved slot 458
of Greenland’s lower bracket half 456 with an angled slot, i.e., “to prevent
the user from pinching their fingers when racking the weight in the weight
support’” (Ans. 6), appears to already be performed by upper slot 454 and
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handle 466 of Greenland and furthermore, as noted supra, Ayton’s angled
slot does not solve the problem of finger pinching, as the Examiner suggests.
Lastly, although we appreciate the Examiner’s position that,
“choosing a shape[,] which is a matter of design choice would have been
obvious to one of ordinary skill in the art,” the Examiner’s reasoning to
specifically select an angled slot to replace the curved slot 458 of
Greenland’s lower bracket half 456 amounts to a per se rule of
unpatentability. See Ans. 18. Reliance on per se rules of obviousness is
legally incorrect and is inconsistent with section 103, which, according to
Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966) and its progeny,
entitles an applicant to issuance of an otherwise proper patent unless the
USPTO establishes that the invention as claimed in the application is
obvious over cited prior art, based on the specific comparison of that prior
art with claim limitations. In re Ochiai, 71 F.3d 1565, 1572 (Fed. Cir.
1995). In this case, the Examiner has not provided any evidence that one of
ordinary skill in the art would have expected that Greenland’s device would
function in the same manner, namely, would trap the handle of free weight
152, regardless of whether Greenland’s slot 458 is curved or angled, in order
for a weightlifter to articulate free weight 152 as desired during exercise.
See Greenland, col. 6, ll. 22-27.
Without a persuasive articulated reasoning based on rational
underpinning for modifying the reference as proposed, the Examiner’s
rejection appears to be the result of improper hindsight analysis. See In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR Int’l
Co. v. Teleflex, Inc., 550 U.S. 398, 418(2007)) (“rejections on obviousness
grounds cannot be sustained by mere conclusory statements; instead, there
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must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness”).
Therefore, absent the aforementioned improper hindsight, we fail to
see why one having ordinary skill in the art would have been led by Ayton’s
angled slot to replace curved slot 458 of Greenland’s lower bracket half 456
with an angled slot, as the Examiner proposes.
Accordingly, we cannot sustain the rejection of independent claims
23, 27, and 29, and their respective dependent claims 28, 30-36, and 39-45,
under 35 U.S.C. § 103(a) as unpatentable over Greenland and Ayton. See In
re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988).

The obviousness rejection based upon Greenland, Ayton, and Cervantes
The addition of the teachings of Cervantes does not remedy the
deficiencies of the combined teachings of Greenland and Ayton as described
supra. Accordingly, the rejections under 35 U.S.C. § 103(a) of claims 24,
37, and 38 as unpatentable over Greenland, Ayton, and Cervantes likewise
cannot be sustained.

SUMMARY
The decision of the Examiner to reject claims 23, 24, and 27-45 is
reversed.

REVERSED

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