13100334 (P.T.A.B. Jul. 26, 2018)

Ex Parte ROUSE et al

Patent Trial and Appeal BoardJul 26, 2018

13100334 (P.T.A.B. Jul. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/100,334 05/04/2011 22885 7590 07/30/2018 MCKEE, VOORHEES & SEASE, P.L.C. 801 GRAND A VENUE SUITE 3200 DES MOINES, IA 50309-2721 FIRST NAMED INVENTOR JON MATTHEWS ROUSE 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. P09536US01 2690 EXAMINER MILLISER, THERON S ART UNIT PAPER NUMBER 2835 NOTIFICATION DATE DELIVERY MODE 07/30/2018 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): patatty@ipmvs.com michelle. woods@ipmvs.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JON MATTHEWS ROUSE and CASEY VAUGHN FABER Appeal2017-007434 Application 13/100,334 Technology Center 2800 Before DONNA M. PRAISS, MONTE T. SQUIRE, and AVEL YN M. ROSS, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL 1 STATEMENT OF THE CASE Appellants2 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision to reject claims 1-19 and 22-25 as obvious under 35 U.S.C. Â§ 103(a) over Collet3 in view of Knepp. 4 App. Br. 3; Final Act. 2. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 In this Decision, we refer to the Specification filed May 4, 2011 ("Spec."), the Final Office Action entered July 11, 2016 ("Final Act."), the Appeal Brief filed Nov. 21, 2016 ("App. Br."), the Examiner's Answer entered Feb. 7, 2017 ("Ans."), and the Reply Brief filed Apr. 7, 201 7. 2 The real party in interest is identified as Iowa State University Research Foundation. App. Br. 1. 3 Collet (US 816,900, issued Apr. 3, 1906) ("Collet"). 4 Knepp et al., (US 2008/0072529 Al, published Mar. 27, 2008) ("Knepp"). Appeal2017-007434 Application 13/100,334 The invention relates to a power transmission structure, and, specifically, to an improved overhead transmission line support structure. Spec. 1:9, 5:5---6. Claims 1 and 4 are illustrative (disputed limitations italicized): 1. An overhead transmission line support structure compnsmg: a base segment; a main segment extending upwardly from the base segment, said main segment comprising a monopole for supporting an overhead transmission line; a hinge operatively connecting the base segment with the main segment such that the hinge provides deflection capacity parallel to overhead transmission lines supported by the overhead transmission line support structure and such that with sufficient longitudinal loading on the overhead transmission line support structure, the main segment rotates about the hinge; wherein the overhead transmission line support structure is an overhead transmission line pole. 4. The overhead transmission line support structure of claim 1 further comprising at least one fuse plate operatively connected between the base segment and the main segment and configured to deform upon the sufficient longitudinal loading on the overhead transmission line support structure. App. Br. 31 (Claims Appendix). OPINION The Examiner determines that claims 1-19 and 22-25 would have been obvious to one of ordinary skill in the art at the time of the invention for the reasons stated on pages 2-18 of the Final Office Action. Appellants separately argue claims 1, 4, 8-11, 16, 22, and 23 (App. Br. 9-27). Accordingly, claims 2, 3, 5-7, 24, and 25 will stand or fall with claim 1, 2 Appeal2017-007434 Application 13/100,334 claims 12-15 and 19 will stand or fall with claim 11, and claims 1 7 and 18 will stand or fall with claim 16. 37 C.F.R. Â§ 4I.37(c)(l)(iv). We review the appealed rejections for error based upon the issues identified by Appellants and in light of the arguments and evidence produced thereon. Cf Ex Parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("it has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections")). After review of the arguments and evidence presented by both Appellants and the Examiner, we are not persuaded that the Examiner erred in rejecting claims 1-19 and 22- 25 for the reasons stated in the Final Office Action and the Answer. Regarding each of the claims separately argued by Appellants, we add the following primarily for emphasis. Claim 1 Appellants argue that the Examiner erred in rejecting claim 1 over the combination of Collet and Knepp because ( 1) Collet does not disclose a hinge, (2) Knepp does not disclose the recited "hinge provides deflection capacity parallel to overhead transmission lines ... ", (3) the claimed deflection capability is not inherently present in Collet's structure because Collet does not disclose the hinge and Collet's "pyramid structure is configured to avoid movement at the top," and (4) one skilled in the art would not have combined Collet with Knepp because the former is directed to a portable structure with base bar c not secured to the ground while the latter is directed to a permanent structure and uses its hinge for raising the frame into place and not lower the frame. App. Br. 10-14. 3 Appeal2017-007434 Application 13/100,334 Appellants additionally argue that Collet teaches away from the recited "said main segment comprising a monopole for supporting an overhead transmission line" by leading one skilled in the art to the use of two poles rather than a monopole, which Appellants assert "by their very name, comprise single pole elements." Id. at 15-16. Appellants further contend that the comprising language in claim 1 does not encompass the use of two monopoles. Id. at 16. Appellants also argue that Collet does not disclose "at least one fuse plate ... " even though this limitation does not appear in claim 1. Id. at 15. Appellants' arguments are not persuasive because Appellants do not adequately rebut the Examiner's finding (Ans. 5---6) that the longitudinal force acting on Collet's structure translates into a force on the leg of Collet producing a torque that is parallel to the longitudinal force as shown in the Examiner's annotated Figure 1 of Collet (id. at 5; App. Br. 12). Nor do Appellants adequately rebut the Examiner's finding (Ans. 6) that deflection of Collet's main segment identified as "a" in Collet's Figures 1 and 2 would be about the bolted portion connected to "c" shown in Figure 2 of Collet. Appellants' assertions in the Appeal Brief that deflection capability is not present in Collet's structure because it is "configured to avoid movement at the top" (App. Br. 12) and in the Reply Brief (Reply Br. 2) that "the tie bars of the reference would prevent the torque movement alleged by the Examiner" are not supported by the preponderance of the evidence cited in this appeal. Appellants direct us to the statement in Collet that "[t]he support consists in a general way of two wooden ladders hinged together at their tops to form when in use an A-shaped frame, Fig. 1, these ladders being held in their divergent positions by tie-bars below carrying a drum 4 Appeal2017-007434 Application 13/100,334 or wire and above by winch-frames carrying winches for straining the steel sustaining-cables." Reply Br. 2 (quoting Collet 1:32-39). While Collet's tie-bars may act to reduce movement, we are not persuaded that the structure would "avoid" or "prevent" the torque forces acting on Collet's structure as explained by the Examiner. The Examiner's finding (Ans. 5---6) that Collet's transmission line support structure is subject to "sufficient longitudinal loading" from natural forces such as ice storms, extreme winds, impacts, or ground movements is supported by the record. Collet 2:96, 2: 112; Spec. 1: 15-17 ("Power transmissions structures are susceptible to progressive or cascading collapse stemming from a variety of catastrophic load events such as ice storms, extreme winds, impacts, ground movements, transmission line breaks, or sabotage."). In addition, the Examiner's finding (Ans. 8) that segment "a" of Collet will rotate in the direction of the longitudinal force upon deflection is also not adequately rebutted by Appellants. Annotated Figure 1 and Figure 2 of Collet are shown below. 5 Appeal2017-007434 Application 13/100,334 6 f:) -~Â·QÂ·Q_Q}.~.---.-.-.0). .. ............. '\'\'\\''~-. Appeal2017-007434 Application 13/100,334 Annotated Figure 1 and Figure 2 are, respectively, a side and front elevation of Collet' s support for electric conductors. Collet 1: 17-21. The annotations to Figure 1 show the longitudinal force F-1 acting on the support structure and the translation of that force on the leg of Collet producing a torque that is parallel to the longitudinal force F-tx. Regarding the combination of the teachings of Knepp with those of Collet, we find the Examiner's reason for modifying Collet's structure with Knepp' s hinge for the benefit of allowing the upper portion of the structure 7 Appeal2017-007434 Application 13/100,334 to be constructed then raised into place with greater ease and stability is supported by the disclosure of Knepp and, therefore, not based on improper hindsight. Final Act. 3--4; Knepp ,r 7. Furthermore, the Examiner's finding (Ans. 9) that Collet's structure is secured to the ground with a guy is also supported by the record. Collet 3: 1-3. As such, we find unpersuasive of error Appellants' argument that because Collet's structure is portable it teaches away from Knepp' s disclosure of securing the structure. Likewise, Appellants' argument (App. Br. 14) against the combination of the references based on Knepp' s disclosure of raising the upper portion of the structure with the use of the disclosed hinge not also suggesting to a skilled artisan that the upper portion of the structure may be lowered is also unpersuasive because "[a] person of ordinary skill is also a person of ordinary creativity, not an automaton." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,421 (2007). We consider the cited prior art as representative of the level of ordinary skill in the art. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) ("[T]he absence of specific findings on the level of skill in the art does not give rise to reversible error 'where the prior art itself reflects an appropriate level and a need for testimony is not shown"') (quoting Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985)). Regarding Appellants' argument that segment "a" of Collet does not disclose or suggest a "monopole" as required by claim 1 because it is joined at the top with an opposing ladder to form a pyramid type structure (App. Br. 14), this argument is not persuasive of error because Appellants do not direct us to any definition of "monopole" that precludes a main segment from being attached to another segment. Nor do Appellants address the 8 Appeal2017-007434 Application 13/100,334 Examiner's additional support (Ans. 20-21) for the use of the term "monopole" in the art in which "monopoles" are attached to each other. Thus, Appellants do not adequately distinguish the claimed structure over the cited prior art based on the recited "monopole." During examination of a patent application, pending claims are given their broadest reasonable construction consistent with the specification. In re Prater, 415 F.2d 1393, 1404---05 (CCPA 1969); In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). It is the Appellants' burden to precisely define the invention, not the PTO's. In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997). Appellants always have the opportunity to amend the claims during prosecution, and broad interpretation by the examiner reduces the possibility that the claim, once issued, will be interpreted more broadly than is justified. In re Prater, 415 F.2d at 1404---05. In sum, we are not persuaded by Appellants that the Examiner erred in rejecting claim 1 over the combination of Collet and Knepp. Claim 4 Regarding claim 4, which depends from claim 1, Appellants additionally contend that the Examiner erred because the "alleged fuse plate of Collet" does not deform. Ans. at 17. According to Appellants, the portable support structure of Collet is not secured to the ground, therefore it would merely topple over without deforming the alleged fuse plate and the alleged fuse plate would not be a fuse plate. Id. Appellants' arguments are not persuasive of error in the rejection of claim 4 for the reasons discussed above in connection with claim 1. In particular, the Examiner's finding that Collet's structure is secured to the 9 Appeal2017-007434 Application 13/100,334 ground is supported by the record. Ans. 9; Collet 3: 1-3. Accordingly, we affirm the Examiner's rejection of claim 4. Claims 8-10 Regarding claims 8-10 which depend from claim 1 and further require that the base segment is "attached to a base plate or flange secured to concrete," "secured through embedment in concrete or ground," and "formed from concrete," respectively, Appellants contend that a skilled artisan would not have been led to modify Collet with Knepp because it would be inconsistent with Collet's teaching of portability. Ans. at 18-20. Appellants further contend that the Examiner's position that portability of Knepp' s construction is within the ordinary creativity of a skilled artisan is hindsight reconstruction and not supported by convincing evidence. Id. at 19. Appellants' arguments are not persuasive of error in the rejection of claims 8-10 for the same reasons discussed above in connection with claims 1 and 4. Specifically, the Examiner's finding that Collet's structure is secured to the ground is supported by the record. Ans. 9; Collet 3: 1-3. Accordingly, we affirm the Examiner's rejection of claim 4. Claims 11 and 16 Regarding independent claim 11, Appellants essentially present the same arguments as with claims 1 and 4 ( although claim 11 does not recite a "fuse plate" as in claim 4 ). Ans. at 20-23. Claim 16 depends from claim 11 and further recites the "fuse plate" that Appellants quote in their arguments for patentability of both claims 11 and 16. Id. at 21, 23. Appellants' arguments regarding claim 16 mirror those made with respect to claim 4. 10 Appeal2017-007434 Application 13/100,334 Appellants' arguments are not persuasive of error in the rejection of claims 11 and 16 for the same reasons discussed above in connection with claims 1 and 4. Specifically, the Examiner's finding that Collet's structure is secured to the ground is supported by the record. Ans. 9; Collet 3: 1-3. Accordingly, we affirm the Examiner's rejection of claims 11 and 16. Claim 22 Regarding independent claim 22, Appellants contend that one skilled in the art would not consider the ladder of Collet to be the recited "post- tensioning system" because it is merely a brace. Ans. at 24. According to Appellants, the Specification states "[t]he post-tensioning system consists of high-strength internal elastic members" that "increase lateral stiffness, overturning moment capacity, and deflection capacity of the structure and provide a self-centering force to right the pole when the extreme load is removed." Id. at 24--25 (quoting Spec. 6:19-23). Appellants' arguments concerning the claim language "comprising," "main segment comprising a monopole," recited in claim 22 and "at least one fuse plate" recited in claim 4 are essentially the same as the arguments presented with respect to claims 1 and 4. Compare id. at 25-26 with id. at 15-17. Appellants' arguments are not persuasive of error in the rejection of claim 22 for the same reasons discussed above in connection with claims 1 and 4. In addition, Appellants' assertion that the ladder of Collet cannot be a "post-tensioning system" because it is a brace it is not supported by the record as the Specification quoted by Appellants confirm that the function of the recited "post-tensioning system" increases lateral stiffness, which Appellants do not distinguish from the function of a "brace." Accordingly, we affirm the Examiner's rejection of claim 22. 11 Appeal2017-007434 Application 13/100,334 Claim 23 Regarding independent claim 23, which differs from claim 1 in that it also includes the "at least one fuse plate" limitation of claim 4, Appellants' arguments are essentially the same as those presented with respect to claims 1 and 4. Id. at 27-29. Appellants' arguments are not persuasive of error in the rejection of claim 23 for the same reasons discussed above in connection with claims 1 and 4. Accordingly, we affirm the Examiner's rejection of claim 23. CONCLUSION In sum, we affirm the Examiner's rejection of claims 1, 4, 8-11, 16, 22, and 23 as obvious over Collet and Knapp. We affirm the Examiner's decision to reject claims 1-19 and 22-25 as obvious under 35 U.S.C. Â§ 103(a). DECISION We affirm the Examiner's decision to reject claims 1-19 and 22-25 as obvious under 35 U.S.C. Â§ 103(a). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l ). AFFIRMED 12