Ex Parte Sandler et al

Patent Trial and Appeal Board

Aug 26, 2016

13161144 (P.T.A.B. Aug. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/161,144 06/15/2011
23908 7590 08/30/2016
RENNER OTTO BOISSELLE & SKLAR, LLP
1621 EUCLID AVENUE
NINETEENTH FLOOR
CLEVELAND, OH 44115
FIRST NAMED INVENTOR
Philip Sandler
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.
BUYPP0103USA 4828
EXAMINER
CERNOCH, STEVEN MICHAEL
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
08/30/2016 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):
ipdocket@rennerotto.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIP SANDLER, MICHAEL J. COWETT,
TIMOTHY BUNSEY, and MATHEW PHILPOTT
Appeal2014-006807
Application 13/161,144
Technology Center 3700
Before JILL D. HILL, LISA M. GUIJT, and PAUL J. KORNICZKY,
Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134 of the Examiner's
decision2 rejecting claims 1, 40-44, and 46-55. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify the real party in interest as Buyers Products Company.
App. Br. 1.
2 Appeal is taken from the Final Office Action dated February 27, 2013
("Final Act."), as modified by the Advisory Action dated July 29, 2013.
Appeal2014-006807
Application 13/161,144
CLAHvfED SUBJECT ~vfATTER
Independent claim 1, the sole independent claim on appeal, is
reproduced below.
1. A material spreading apparatus for mounting in a cargo
bay of a truck, said apparatus comprising:
a molded hopper having a front end and a back end, said
hopper having longitudinally extending inner sides that slope
downwardly toward a longitudinally extending opening in the
bottom of said hopper and longitudinally extending outer sides
that slope downwardly toward the bottom of said hopper,
said hopper further comprising downwardly extending,
columnar, and hollow leg portions for removably supporting said
hopper on a bed of the cargo bay such that the opening will be
disposed above the bed of the cargo bay, said leg portions being
longitudinally spaced apart along respective outer sides of the
hopper and being unitary with respective outer sides of said
hopper;
an elongated conveyor device extending along said bottom
of said hopper beneath said opening for conveying particulates
from said opening toward said back end of said hopper;
a spinner assembly attached to said hopper at said back
end disposed to receive particulates from said hopper for
throwing the particulates over a distribution area;
wherein said hopper is molded from a polymer material
and has an inner wall spaced form an outer wall to form a double-
walled unitary structure, the inner wall forming said inner sides
and said outer wall forming said outer sides and hollow leg
portions, and wherein the hollow legs protrude laterally
outwardly from the outer sides.
REJECTIONS
1. Claims 1, 40, 42--44, 46, 47, 52, 54, and 55 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Swift (US 2003/0006320 Al; pub.
Jan. 9, 2003) and Kost (US 6,722,590 B2; iss. Apr. 20, 2004).
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Appeal2014-006807
Application 13/161,144
2. Claim 41 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Swift, Kost, and Kime (US 6,446,879 B 1; iss. Sept. 10,
2002).
3. Claim 48 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Swift, Kost, and Kavan (US 3,220,740; iss. Nov. 30,
1965).
4. Claims 49-51 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Swift, Kost, and Gorius (US 3,878,815; iss. Apr. 22,
1975).
5. Claim 53 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Swift, Kost, and Weiler (US 3,368,785; iss. Feb. 13,
1968).
ANALYSIS
Rejection 1
Regarding independent claim 1, the Examiner found, inter alia, that
Swift's hopper side support rails 40 comprise leg portions for removably
supporting the hopper on the bed of a cargo bay for a truck, as required by
claim 1. Final Act. 2. In support, the Examiner referred to Swift's
disclosure that "[a] plurality of side support rails may be arranged between
the respective side sloped side walls [of the hopper] and the elongated frame
of the unit which is arranged on the truck bed, to properly support and hold
the hopper thereon." Ans. 3--4 (citing Swift i-f 11, Fig. 1). The Examiner
also determined that, with respect to the claim term "molded hopper," "the
mere fact that the hopper is molded holds no bearing on patentability as a
product by process limitation." Ans. 4.
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Appeal2014-006807
Application 13/161,144
Appellants argue, inter alia, that Swift "do[ es] not describe the hopper
as being removably supported." App. Br. 7-8; Reply Br. 2-3. Appellants
also argue that "Swift does not disclose a molded hopper." App. Br. 8;
Reply Br. 4--5.
We determine that the Examiner's finding that Swift discloses side
support rails 40 removably supporting the hopper is not supported by a
preponderance of the evidence. Although Swift discloses that "said side
support rails may be arranged between the respective sloped side walls and
the elongated frame of the unit," Swift is silent as to whether the side
support rails are removably or fixedly attached to the hopper or the
elongated frame. Swift i-f 11, see also id. at i-f 29.
Regarding the Examiner's finding that the claim limitation "a molded
hopper" is "a product by process recitation," we agree. However, the claim
term molded hopper is a product-by-process limitation that connotes certain
structural limitations in the resulting product. In particular, a molded hopper
is a hopper made by molding, and therefore, the claim term "molded
hopper" connotes a hopper made from moldable material. Further, we must
take such structural considerations into account in analyzing the patentability
of the claimed invention. See Greenliant Sys. Inc. v. Xicor LLC, 692 F.3d
1261, 1268 (Fed. Cir. 2012) ("[I]fthe process by which a product is made
imparts 'structural and functional differences' distinguishing the claimed
product from the prior art, then those differences 'are relevant as evidence of
no anticipation' although they 'are not explicitly part of the claim."' (citing
Amgen Inc. v. F. Hoffman-La Roche Ltd. 580 F.3d 1340, 1370 (Fed. Cir.
2009)). Here, the Examiner fails to find that the prior art discloses a hopper
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Appeal2014-006807
Application 13/161,144
made from moldable material or that it would have been obvious to one
skilled in the art to form a hopper from moldable material.
The Examiner's reliance on Kost for teaching a hollow leg portion
does not cure the deficiencies in the Examiner's findings with respect to
Swift. Final Act 3. Accordingly, we do not sustain the Examiner's rejection
of independent claim 1, and claims 40, 42--44, 46, 47, 52, 54, and 55
depending therefrom.
Rejections 2-5
The Examiner's reliance Kime, Kavan, Gorius, and Weiler does not
cure the deficiencies in the Examiner's findings with respect to Swift
discussed supra. Accordingly, we also do not sustain the Examiner's
rejection of dependent claims 41, 48-51, and 53.
DECISION
The Examiner's decision to reject claims 1, 40--44, and 46-55 is
REVERSED.
REVERSED
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