Ex Parte SHAFFER et al

Patent Trial and Appeal Board

Nov 27, 2018

14316094 (P.T.A.B. Nov. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/316,094 06/26/2014
28395 7590 11/29/2018
BROOKS KUSHMAN P.C./FG1L
1000 TOWN CENTER
22NDFLOOR
SOUTHFIELD, MI 48075-1238
FIRST NAMED INVENTOR
Russell SHAFFER
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.
83454670 9320
EXAMINER
HAGEMAN, MARK C
ART UNIT PAPER NUMBER
3652
NOTIFICATION DATE DELIVERY MODE
11/29/2018 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RUSSELL SHAFFER, DANNY WILY ARD,
MARK HIGGINS, KURT JOHN JAECKLE,
MORRIS HADDEN, MATTHEW NAUMANN,
MATTHEW GUERDET, TIMOTHY GEORGE,
JEFFREY GERARD FORTIN, JOHN ROBERT DRYDEN,
and JOHN JEFFREY STESLICKI 1
Appeal2018-000913
Application 14/316,094
Technology Center 3600
Before JENNIFER D. BAHR, PAUL J. KORNICZKY, and
SEAN P. O'HANLON, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 2, 4--7, 9-12, and 14--22. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Ford Global Technologies, LLC (Appellant) is the applicant as provided in
37 C.F.R. § 1.46 and is identified as the real party in interest. Appeal Br. 1.
Appeal2018-000913
Application 14/316,094
THE CLAIMED SUBJECT MATTER
Claim 9, reproduced below, is the only independent claim and is
illustrative of the claimed subject matter.
9. A ramp assembly, comprising:
a ramp connected to an arm;
a connector carried by the arm and defining a channel
having an opening extending across a width of the ramp;
a connection panel mountable to a vehicle having a width
greater than the ramp; and
a connection member selectively engageable to the
channel, attached to the connection panel and extending above
the connection panel when the connection panel is in a
use configuration.
REJECTIONS 2
I. Claims 4--7, 9-12, and 14--22 stand rejected under 35 U.S.C. § 103
as unpatentable over Weinmann (US 3,984,891, issued Oct. 12,
1976) and Ives (US 5,971,465, issued Oct. 26, 1999).
II. Claim 2 stands rejected under 35 U.S.C. § 103 as unpatentable
over Weinmann, Ives, and Thygesen (US 7,302,725 B2, issued
Dec. 4, 2007).
2 The Examiner withdrew a rejection of claims 2, 4--7, 9-12, and 14--22
under 35 U.S.C. § 112(b), in view of the Amendment filed February 10,
2017. Ans. 7; Adv. Act. 2
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DISCUSSION
Rejection I
Claims 4-7, 9-12, 16--20, and 22
Appellant does not argue dependent claims 4--7, 10-12, 16-20, or 22
separately from independent claim 9. See Appeal Br. 10. We decide the
appeal as to these claims on the basis of claim 9, with claims 4--7, 10-12,
16-20, and 22 standing or falling with claim 9. See 3 7 C.F .R.
§ 4I.37(c)(l)(iv) (permitting the Board to select a single claim to decide the
appeal as to a single ground of rejection of a group of claims argued
together).
The Examiner provided an annotated version of Figure 5 of
Weinmann to illustrate how the Examiner is reading the claimed
"connection panel" and "connection member" on the structure of
Weinmann. Ans. 9. The annotated Figure 5 is reproduced below.
Connection Panel
Weinmann's Figure 5 is an enlarged cross-sectional view showing the
pivotal connection between span 11 and foot 12. Weinmann 1 :66-68, 2:9-
11; Fig. 5. The Examiner's annotations include a label "Connection
Member" with a lead line pointing to male cylindrical surface 34, as well as
a rectangular box enclosing the portion of foot 12 disposed below convex
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surface 41 (see Fig. 6) and male cylindrical surface 34 with a label
"Connection Panel" with a lead line pointing to the portion of foot 12 inside
the rectangular box. Ans. 9.
The Examiner determined it would have been obvious to modify
Weinmann to provide a connection panel (i.e., "body") having a width
greater than the width of the ramp and having the connection member (male
cylindrical surface 34) be selectively engageable to the channel "in order to
provide a system that can be installed without modifying the tailgate, allows
the ramps to be secured to the tailgate so they can't slip off and allows
different positions and spacing between multiple ramps while be[ing]
removable and storable in the vehicle during transport," as taught by Ives.
Ans. 3--4 (citing Ives 1:15-19, 2:8-9, 3:12-15; Figs. 1, 3). Appellant does
not specifically contest this determination. Appeal Br. 5-8; Reply Br. 1-3.
Appellant concedes that Weinmann' s male cylindrical surface 34
extends upwardly from the portion of foot 12 labeled "Connection Panel" by
the Examiner, but contends that male cylindrical surface 34 "does not extend
above surface 26 of [foot 12], when the connection panel is in a use
configuration" and that "edge 42 of the foot 12 intentionally overhangs a
portion of the cylindrical surface [34] so [as] to limit the angle that the end
member 17 may be pivoted." Reply Br. 2 (citing Weinmann 3:43-54).
Appellant also takes issue with the Examiner reading the claimed
"connection panel" on only a portion of Weinmann's foot 12, rather than on
the entirety of foot 12. Id. at 3. Appellant further asserts that "the Examiner
has completely ignored the design implications of positioning the cylindrical
member [34] below the edge 42 in Weinmann." Id. Appellant also submits
that "there is no rationale as to why one of ordinary skill in the art would
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break apart the foot 12 into two separate elements ... absent hindsight
disclosure." Id.
We discern no error in the Examiner reading the claimed "connection
panel" on only a portion of Weinmann's foot 12, as indicated in the
annotated version of Weinmann' s Figure 5 reproduced above. The fact that
the structure of Weinmann the Examiner identified as the "Connection
Panel" is integrally formed (i.e., as one piece) with additional structures does
not preclude the Examiner's interpretation. Indeed, the structure that
Appellant's Specification identifies as "connection panel 500" is integrally
formed ( as one piece) with the structure the Specification identifies as
"connection rail 20," which corresponds to the "connection member" recited
in claim 9 as an additional element "attached to the connection panel." See
Spec. ,r 44; Figs. 12, 13; Claims App. 1.
As an alternative position, the Examiner stated, "Additionally, there is
nothing in [ claim 9] that requires the connection member to extend above
the entire connection panel." Ans. 9. We agree with Appellant that this is
an unreasonable interpretation of the claim limitation "extending above the
connection panel." See Reply Br. 3 (stating, "Claim 9 simply states that the
connection member extends above the connection panel, not a portion of the
connection panel."). However, such an interpretation of the claim language
is not necessary to establish that Weinmann satisfies this limitation of the
claim because Weinmann's male cylindrical surface 34 extends above the
entirety of the structure on which the Examiner reads the claimed
"connection panel." The fact that Weinmann's male cylindrical surface 34
does not extend above surface 26 or edge 42 of foot 12 does not patentably
distinguish claim 9 from Weinmann because claim 9 only requires that the
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Application 14/316,094
"connection member" extend "above the connection panel." As shown in
the annotated Figure 5 of Weinmann reproduced above, Weinmann's male
cylindrical surface 34, on which the Examiner reads the claimed "connection
member," extends above the structure on which the Examiner reads the
claimed "connection panel."
Appellant's argument about "the design implications of positioning
the cylindrical member [34] below the edge 42 in Weinmann" (Reply Br. 3)
is unavailing because the Examiner did not propose to modify Weinmann to
change the relative positioning of cylindrical member 34 and edge 42.
Likewise, Appellant's argument questioning why one of ordinary skill in the
art would break apart Weinmann's foot 12 into two separate elements (id.) is
unavailing because the Examiner's rejection does not propose modifying
Weinmann' s foot in such a manner.
For the above reasons, Appellant does not apprise us of error in the
rejection of claim 9. Accordingly, we sustain the rejection of claim 9, as
well as claims 4--7, 10-12, 16-20, and 22, which fall with claim 9, as
unpatentable over Weinmann and Ives
Claims 14 and 15
Claim 14 depends from claim 9 and further recites that the connection
panel "comprises a body portion, a raised section and an access groove, the
raised section being positioned between the body section and [the] access
groove, such that a step is formed on the top surface of the connection
panel." Claims App. 2. Claim 15 depends from claim 14.
The Examiner provided an annotated version of Weinmann's Figure 3
to illustrate the structure on which the Examiner reads the "body portion,"
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"raised section," and "access groove" of claim 14. Ans. 10. This annotated
version ofWeinmann's Figure 3 is reproduced below.
Access
The Examiner's annotations include a rectangular box enclosing a
lower left portion of foot 12 labeled "Body Portion" and a rectangular box
enclosing an upper right portion of foot 12, including upper surface 26,
labeled "Raised Portion - Step," and a rectangular box in the vicinity of stop
surface 35 labeled "Access Groove." Id.
As Appellant points out, Weinmann's male cylindrical surface 34
does not extend above the portion of foot 12 labeled "Raised Portion - Step,"
on which the Examiner reads the "raised section" of the "connection panel"
recited in claim 14. Reply Br. 3. Thus, Weinmann's male cylindrical
surface 34, on which the Examiner reads the claimed "connection member,"
does not extend above the structure on which the Examiner reads the
claimed "connection panel," as required in claim 14, by virtue of its
dependence from claim 9. As discussed above, the Examiner's position that
claim 9 does not require the connection member to extend above the entire
connection panel (see Ans. 9) is an unreasonable interpretation of the claim
limitation "extending above the connection panel."
Alternatively, the Examiner found that Ives teaches a "body portion,"
"raised portion," "step," and "access groove" as recited in claim 14. Id. at
10-11 (presenting annotated versions of Figs. 3 and 4 of Ives to illustrate the
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structure corresponding to these elements). The Examiner's findings are
unavailing for two reasons. First, the Examiner did not propose combining
Weinmann and Ives, much less articulate any rationale in support of any
such combination, in a manner to include all the elements of claim 14
(including the ramp, arm, and connector as recited in claim 9, as well as the
structure labeled "Body Portion," "Raised Portion-Step," and "Access
Groove" in the annotated Figures 3 and 4 of Ives). Id.; see also id. at 5.
Moreover, the structure of Ives on which the Examiner appears to have read
the claimed "body portion" and "raised section" appear to extend above
anchor rod 36 (the "connection member") in the use position shown in
Figures 3 and 4 of Ives. Thus, Ives, like Weinmann, fails to teach the
connection member extending above the connection panel, which comprises
the body portion and raised section, as recited in claim 14.
For the above reasons, the Examiner failed to establish that
Weinmann and Ives render obvious the subject matter of claim 14.
Accordingly, we do not sustain the rejection of claim 14, or claim 15, which
depends from claim 14, as unpatentable over Weinmann and Ives.
Claim 21
Claim 21 depends indirectly from claim 9 and recites, in pertinent
part, that the connection member is a connection rail positioned adjacent an
access recess "defined by a first wall member that supports the connection
rail and a second wall that is angled away from the first wall." 3 Claims
App. 3. The Examiner explained how the first and second walls of claim 21
3 We understand "the wall" in claim 21 to refer to the "first wall member"
recited in claim 21. In the event of further prosecution of the claimed
subject matter, Appellant may wish to consider amending claim 21 to use
consistent terminology----either "wall member" or "wall."
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read on the structure of Weinmann by reference to a second annotated
version ofWeinmann's Figure 5 provided to show how the claimed structure
of claim 15 reads on the structure of Weinmann. See Ans. 11-12. More
specifically, the Examiner stated that "[ w ]ith regard to claim 21, the second
wall or the base member (as labeled below) can be considered the first wall
and the base member or the first wall may be considered 'the second wall
that is angled away."' Id. at 11. The second annotated version of
Weinmann's Figure 5 (annotated with reference to claim 15) is reproduced
below.
/
Base member
Second Wa!l
(connected to
connection
member)
The second annotated Figure 5 includes, in pertinent part, a label
"Base member" pointing to the portion of foot 12 provided with anti-skid
means 29 (below male cylindrical surface 34) and a label "First Wall"
pointing to the portion of foot 12 between the "Base member" and upper
side 26. Id. at 12.
Appellant argues that "Weinmann does not include a second wall
member that is fixedly connected to a connection member to define the
access groove." Reply Br. 5. According to Appellant, because "cylindrical
member [34] is attached directly to the base member, there simply is no
'second wall member."' Id.
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Appellant's argument does not apprise us of error in the rejection of
claim 21 because, unlike claim 15, claim 21 does not require first and second
walls and a base member there between. Compare Claims App. 3 ( claim 21 ),
with id. at 2 ( claim 15). Rather, as discussed above, claim 21 recites an
access recess "defined by a first wall member that supports the connection
rail and a second wall that is angled away from the first wall." The
Examiner reads the claimed "first wall member" on the structure of the
second annotated Figure 5 of Weinmann labeled "Base member" and reads
the claimed "second wall" on the structure of the second annotated Figure 5
of Weinmann labeled "First Wall." See Ans. 11. The structure labeled
"Base member" supports male cylindrical surface 34, thereby satisfying the
limitations of the "first wall member" in claim 21. Further, the structure
labeled "First Wall" is angled away from the structure labeled "Base
member," thereby satisfying the limitations of the "second wall" in claim 21.
For the above reasons, Appellant does not apprise us of error in the
rejection of claim 21 as unpatentable over Weinmann and Ives, which we
thus sustain. 4
Rejection II
Appellant does not present any separate arguments contesting the
rejection of claim 2 as unpatentable over Weinmann, Ives, and Thygesen.
Appeal Br. 10. Thus, for the reasons discussed above in sustaining the
4 Appellant presents arguments against the Examiner's findings as to how
Ives teaches the access groove, first wall, and second wall (see Ans. 12).
Reply Br. 5. Having not been apprised of error in the Examiner's findings
that Weinmann discloses these features, Appellant's arguments are not
persuasive.
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rejection of claim 9, we also sustain the rejection of claim 2 as unpatentable
over Weinmann, Ives, and Thygesen.
DECISION
The Examiner's decision rejecting claims 4--7, 9-12, and 14--22 as
unpatentable over Weinmann and Ives is AFFIRMED as to claims 4--7, 9-
12, and 16-22, and REVERSED as to claims 14 and 15.
The Examiner's decision rejecting claim 2 as unpatentable over
Weinmann, Ives, and Thygesen is AFFIRMED.
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)(l )(iv).
AFFIRMED-IN-PART
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