Ex parte TOBIN et al.

Board of Patent Appeals and Interferences

Aug 25, 1998

08247306 (B.P.A.I. Aug. 25, 1998)

Application for patent filed May 23, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 15
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte MICHAEL W. TOBIN
and
JOSEPH G. PASMA
_____________
Appeal No. 96-4039
Application 08/247,3061
______________
ON BRIEF
_______________
Before CALVERT, COHEN and FRANKFORT, Administrative Patent
Judges.
CALVERT, Administrative Patent Judge.
Appeal No. 96-4039
Application 08/247,306
2
DECISION ON APPEAL
This is an appeal from the final rejection of claim 6,
the only claim remaining in the application.
The claim on appeal is drawn to a plastic form tie, and
is reproduced in the appendix to appellants’ brief.
The references applied in the final rejection are:
Wight 668,366 Feb. 19, 1901
Andersen et al. (Andersen) 3,750,997 Aug. 7, 1973
Young 4,706,429 Nov. 17, 1987
Mason 5,065,561 Nov. 19, 1991
Claim 6 stands finally rejected under 35 U.S.C. § 103
as unpatentable over Mason in view of Andersen, Wight and Young.
The examiner indicates in his answer, and appellants
do not disagree, that the form tie disclosed by Mason differs
from the claimed apparatus in that Mason does not disclose
(1) vane shelves extending between the end and inside plates in
a Z axis (horizontal) direction, (2) diamond-shaped end plates,
and (3) that the tie is made of plastic. However, the examiner
finds that it would have been obvious to modify the tie of Mason
to provide these features in view of (1) Andersen, (2) Wight and
(3) Young, respectively.
Appeal No. 96-4039
Application 08/247,306
3
The Andersen patent discloses a device consisting of
two round, parallel plates, connected by an X-shaped web, for
holding the corners of four plywood panels being used as part of
a temporary deck on which a concrete slab is to be poured.
According to the patent, the device holds the corner of a warped
or twisted plywood panel in the plane of the deck, thereby
preventing displacement of the panel by wind, a gap in the deck
through which concrete can run, or workers tripping over an
uneven deck (col. 1, lines 16 to 24; col. 2, lines 51 to 64).
The examiner finds that (answer, page 4):
[I]t would have been obvious to one with
ordinary skill in the art to modify the
tie of Mason to include perpendicular
vane shelves extending between each pair
of an inside and an end plate as taught
by Andersen in order to provide increased
strength between the parallel plates and
thereby increase the overall strength of
the tie.
In response to appellants, he argues on page 7:
Applicant [sic] argues that the Andersen
fixture is for connecting together the four
corners of plywood panels which are to be
used as a floor on which to pour concrete,
particularly that it is a deck form panel
locking ring and not a wall form fixture. In
this case, however, both Mason and Andersen
teach fixtures for maintaining form panels in
planar alignment, for example against the
forces of pouring concrete. The material of
the panels (foam or plywood), and the
Appeal No. 96-4039
Application 08/247,306
4
orientation of the planar alignment
(horizontal for a floor or vertical for a
wall) is inconsequential as to the teaching
of the parallel plates of the fixture being
provided with
sufficient strength to properly maintain the
panels. For example, in both cases of a
horizontal floor plywood form and a vertical
wall foam form, the pair of parallel plates
of the fixture or tie engaging the form
panels must maintain the alignment of the
form panels against forces perpendicular
thereto created by the concrete.
After fully considering the record in light of the
arguments presented in appellants’ brief and reply brief, and in
the examiner’s answer, we conclude that it would not have been
obvious in view of Andersen to modify the tie of Mason to include
vane shelves as recited in claim 6. While the examiner contends
that the motivation for doing so would have been to provide a
stronger connection between Mason’s end and inside plates, we
find no disclosure in Andersen that the provision of a second web
17 strengthens the connection between plates 14 and 15. Any such
strengthening would be incidental at most; the reason Andersen
provides two webs 16, 17 is so that there will be four pockets 18
to 21 for the corners of four plywood panels. While adding a
horizontal web between the inner and end plates of the Mason tie
Appeal No. 96-4039
Application 08/247,306
5
would obviously strengthen the connection between them, neither
Mason nor Andersen indicates that any such strengthening is
required, and we do not believe that if strengthening were needed
one of ordinary skill would so unnecessarily complicate the
design of the Mason tie (as opposed to, for example, making it
out of stronger or heavier material) unless the horizontal web
would also serve some other, more specific purpose.
We do not consider that one of ordinary skill in the
art would find any suggestion or motivation in Andersen for
providing Mason’s tie with the claimed vane shelves. As
discussed above, in the Andersen device two perpendicular webs
are provided between the parallel plates in order to form four
pockets into which the corners of four plywood panels can fit.
By contrast, in the Mason apparatus the corners of the foam
panels 14 are not located between the plates, but rather the webs
60a or 62a joining the end and inside plates fit into slots 34 in
the foam panels which are located between the end corners of the
panels (col. 3, lines 20 to 23), and it does not appear from
Fig. 1 that webs 60a or 62a are located in the spaces between
panels (i.e., at the corners of four panels). Therefore, even
assuming arguendo that the teachings of Andersen concerning
plywood deck forms would be applicable to Mason’s foam wall
Appeal No. 96-4039
Application 08/247,306
6
forms, one of ordinary skill would not find in Andersen’s dis-
closure of crossed webs to form corner pockets any suggestion to
modify the Mason tie by adding vane shelves to create corner
pockets, because the Mason ties are not disclosed as engaging
and/or retaining the corners of the foam panels 14. In other
words, the art furnishes no reason to provide Mason’s tie with
corner pockets. Any such suggestion would have been based upon
impermissible hindsight gleaned from appellants’ disclosure,
rather than upon the knowledge within the level of ordinary skill
in the art at the time the claimed invention was made.
For the foregoing reasons, we will not sustain the
rejection, and any consideration of the rejection as it relates
to Wight and Young is unnecessary.
Conclusion
The examiner’s decision to reject claim 6 is reversed.
REVERSED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
Appeal No. 96-4039
Application 08/247,306
7
) BOARD OF PATENT
IRWIN CHARLES COHEN ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
CHARLES E. FRANKFORT )
Administrative Patent Judge )
Appeal No. 96-4039
Application 08/247,306
8
William Bruce Day
Swanson, Midgely et al.
922 Walnut
Suite 1500
Kansas City, MO 64106