Ex Parte Stevens

Patent Trial and Appeal Board

Mar 25, 2013

11459658 (P.T.A.B. Mar. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte TODD A. STEVENS
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Appeal 2010-006472
Application 11/459,658
Technology Center 3600
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Before PHILLIP J. KAUFFMAN, PATRICK R. SCANLON, and
NEIL A. SMITH, Administrative Patent Judges.

SCANLON, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
decision rejecting claims 1, 4-9, 12 and 14-19. Claims 2, 3, 10, 11 and 13
have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
The claimed invention “relates generally to the field of garden rakes.”
Spec. 1, l. 7. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A rake comprising:
a rod;
a first rake and a second rake mounted to
said rod and having respectively first tines and
second times, said first rake immovably mounted
to said rod whereas said second rake is pivotally
mounted to said rod, said second rake having
relative to said first rake an open position, and a
closed position, the second rake being infinitely
adjustable between the open and closed positions
to assume an infinite number of intermediate
positions, said second tines spaced apart a first
distance from said first tines when said second
rake is in said open position and spaced apart a
second distance from said second tines less than
said first distance when in any of said intermediate
positions, said second tines are intertwined with
said first tines when said second rake is in said
closed position;
a handle slidably mounted to said rod and
connected to said second rake such that the handle
and second rake move together as a unit, said
handle having a top position, a bottom position,
and an infinite number of in between positions
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corresponding to said second rake being in said
open position, said closed position, and said
intermediate positions, said handle slidable along
said rod to said top position, said bottom position,
and said in between positions;
a control lever pivotably mounted to said
handle to selectively fix the position of said handle
relative to said rod, said lever having a finger
located at a first end; and
a spring biasing said control lever such that
said finger frictionally engages said rod while said
handle is in said top position, said bottom position,
and said in between positions to releasably hold
said handle in place limiting relative motion
between said handle and said rod but yieldable to
allow said finger to be moved apart from said rod
thereby allowing said handle to be slideable along
said rod between said top position, said in between
positions, and said bottom position.
REFERENCES
The Examiner relies upon the following prior art references:
Woodward
Hemans
Tolliver
Kalavitis
Lanz
US 523,952
US 4,958,871
US 5,303,536
US 6,151,878
US 6,671,930 B2
Jul. 31, 1894
Sep. 25, 1990
Apr. 19, 1994
Nov. 28, 2000
Jan. 6, 2004
Weathers US 2005/0218674 A1 Oct. 6, 2005
REJECTIONS
Appellant seeks review of the following rejections:
Claims 1 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tolliver, Kalavitis and Weathers.
Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tolliver, Kalavitis, Weathers and Lanz.
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Claims 6, 7, 9, 18 and 19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Tolliver, Kalavitis, Weathers, Lanz and Hemans.
Claim 8 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Tolliver, Kalavitis, Weathers, Lanz, Hemans and Woodward.
Claims 12, 15 and 16 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Tolliver.
Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tolliver and Weathers.
ANALYSIS
Rejection of claims 1 and 17
Claim 1
The Examiner finds that Tolliver, in Figures 1a-2b, discloses a rake 10
comprising a rod 24, a first rake 14 immovably mounted to the rod, a second
rake 15 pivotally mounted to the rod, and a handle 25 slidably mounted to
the rod.1 Ans. 3-4. The Examiner concludes that it would have been
obvious to provide the rake of Tolliver with intertwined tines as taught by
Kalavitis. Ans. 4. In addition, the Examiner finds that “Weathers teaches a
rake having a handle 37 wherein a control lever 51 having a finger 52-54 is
biased by spring 57 and is pivotally mounted to the handle for engaging and
positioning the handle to rod 17” and concludes it would have been obvious

1 Claim 1 uses the term “rake” to refer to both the entire apparatus as well as
the two tine-bearing components that are mounted to the rod. The tine-
bearing components are referred to in Appellant’s Specification as either
“rakes” or “rake heads.” To avoid confusion, we hereafter refer to the first
and second rakes of claim 1 as the first and second rake heads. The same
will apply to the “pair of mutually opposed rakes” of independent claim 9,
which is discussed infra.
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to replace Tolliver’s handle 25 with a handle having a spring-biased control
lever as taught by Weathers. Ans. 4-5. The Examiner further states that the
proposed combination is “a simple substitution of one known type of handle
and locking mechanism for another to obtain a predictable result,” with a
secondary result of the handle being lockable at a plurality of positions.
Ans. 11.
Appellant argues that the Examiner improperly combines the
references through hindsight and asserts:
No where [sic] does Tolliver discuss locking sleeve 25 in
any other position. Meanwhile, Kalavitis fails altogether
to teach locking pull handle 13 anywhere along handle 3.
Even further afield, Weathers fails to deal with handles
assuming multiple positions along a rod, but rather deals
with attaching a debris packer to a rod.
App. Br. 5. We do not agree that the Examiner’s rejection is an improper
hindsight reconstruction because it does not include knowledge gleaned only
from Appellant’s disclosure, but rather takes into account the teachings of
Tolliver, Kalavitis and Weathers, i.e., knowledge which was within the level
of ordinary skill at the time the claimed invention was made. See In re
McLaughlin, 433 F.2d 1392, 1395 (CCPA 1971) (As long as a judgment on
obviousness “takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made and does not
include knowledge gleaned only from applicant’s disclosure, such a
reconstruction is proper.”). The Examiner provides adequate reasoning
based on rational underpinnings to explain why one of ordinary skill would
have been led to provide the rake of Tolliver with a handle having a spring-
biased control lever. We agree with the Examiner that once this
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modification is made, the modified device will have a handle that can be
locked in any position along the rod.
For the above reasons, we sustain the rejection of independent claim 1
under 35 U.S.C. § 103(a) as being unpatentable over Tolliver, Kalavitis and
Weathers.
Claim 17
Dependent claim 17 recites that the rake of claim 1 is able to rest in an
erect position independent of external support. The Examiner concludes it
would have been obvious to a person having ordinary skill in the art to
provide the combination of Tolliver (Figures 1a-2b), Kalavitis and Weathers
with the flat tines depicted in the Figure 4 embodiment of Tolliver with the
expected result that the rake will be able to rest in an erect position
independent of external support. Ans. 5.
Appellant argues against the Examiner’s conclusion of obviousness on
the basis that the conclusion is inconsistent with the Examiner’s earlier
position that Appellant’s disclosure—Figure 13 in particular—failed to
support that the rake could stand on its own. App. Br. 6. More specifically,
Appellant asserts that the Examiner improperly states “that visual features
are inadequate to provide support for a limitation and then turns around and
claims anticipation of the limitation using the exact same visual features that
were inadequate to provide support for the limitation.” App. Br. 7.
This argument is not persuasive. As noted by the Examiner, the two
allegedly inconsistent positions were made in two separate Office Actions.
Ans. 13. The fact that the Examiner is now taking a position different from
a prior position does not necessarily make the current position incorrect.
Because Appellant’s argument with respect to claim 17 does not apprise us
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of error, we sustain the rejection of claim 17 under 35 U.S.C. § 103(a) as
being unpatentable over Tolliver, Kalavitis and Weathers.
Rejection of claims 4 and 5
Regarding claim 4, the Examiner finds that the combination of
Tolliver, Kalavitis and Weathers includes a “control lever 51 pivotally
mounted about a pivot axis located between the finger 52-54 and a portion of
spring 57,” but does not disclose the pivot axis being located between the
entire spring and the finger. Ans. 6. The Examiner determines that Lanz
discloses a control lever 40 with a pivot axis 42 located between the finger
40’ and the entire spring 44 and concludes it would have been obvious to
one of ordinary skill in the art to provide the combination of Tolliver,
Kalavitis and Weathers with the spring placement taught by Lanz “to
provide easy assembly and replacement of the spring.” Id.
Appellant argues that the Examiner’s stated motivation for the
proposed modification lacks support and is not drawn from any reference.
App. Br. 7-8. This contention is not convincing because, as noted by the
Examiner, “the combination is a predictable result of applying the known
technique of separating the spring from the pivot point to improve similar
devices in the same way.” Ans. 16. We agree that providing the
combination of Tolliver, Kalavitis and Weathers with the spring placement
of Lanz would have been a predictable variation of the control lever 51 to
perform substantially the same function in substantially the same manner.
See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007) (“If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.”).
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The Examiner’s rationale thus provides adequate reasoning based on
rational underpinnings to explain why one of ordinary skill would have been
led to provide the combination of Tolliver, Kalavitis and Weathers with the
spring placement of Lanz. For this reason, we sustain the rejection of claim
4. We also sustain the rejection of claim 5, which depends from claim 4 and
for which Appellant does not advance any separate argument. App. Br. 7-8.
Rejection of claims 9, 18 and 19
Independent claim 9 recites a rake comprising, inter alia, a handle
mounted on a rod, wherein the handle and rod have complementary mating
surfaces that allow the handle to slide on the rod while preventing rotation of
the handle relative to the rod. The Examiner finds that Hemans teaches a
handle 4 and a rod 12 having square cross sections with complementary
mating surfaces that allow the handle to slide, but not rotate, relative to the
rod. Ans. 7. The Examiner concludes that it would have been obvious to
provide the combination of Tolliver, Kalavitis, Weathers and Lanz with the
complementary mating surfaces of Hemans. Id.; see also Ans. 8.
Appellant does not contest the Examiner’s findings and conclusion
regarding Tolliver, Kalavitis, Weathers, Lanz and Hemans with respect to
claim 9. App. Br. 8. Rather, Appellant puts forth the same arguments as
those advanced with respect to claim 1. Id. We accordingly sustain the
rejection of claim 9 for the same reasons as discussed supra with respect to
claim 1. We also sustain the rejection of claims 18 and 19, which depend
from claim 9 and for which Appellant does not advance any separate
argument.
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Rejections of claims 6-8
Appellant states that each one of claims 6-8 stands or falls with claim
1. App. Br. 8, 9. Because claim 1 falls for the reasons discussed supra, we
sustain the rejections of claims 6-8.
Rejection of claims 12, 15 and 16
Appellant relies solely on the same argument made in connection with
claim 17 that the Examiner has improperly taken two inconsistent positions
as the basis for patentability of independent claim 12 over Tolliver. App.
Br. 9. We find this argument unavailing for the reasons set forth supra in
our analysis of claim 17. As Appellant has thus failed to apprise us of error,
we sustain the rejection of claim 12. We also sustain the rejection of claims
15 and 16, which depend from claim 12 and for which Appellant does not
advance any separate argument. Id.
Rejection of claim 14
The Examiner concludes that claim 14, which depends from claim 12,
would have been obvious over the combination of Tolliver and Weathers.
Appellant states that claim 14 stands or falls with claim 12. App. Br. 9. As
claim 12 falls for the reasons set forth supra, we sustain the rejection of
claim 14.
DECISION
We affirm the decision of the Examiner rejecting claims 1, 4-9, 12 and
14-19.
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)(1)(iv).

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AFFIRMED

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