Ex parte WHICKER, JR.

Board of Patent Appeals and Interferences

Mar 10, 1998

08261772 (B.P.A.I. Mar. 10, 1998)

Application for patent filed June 20, 1994.1
Although no final rejection has been issued, the instant application2
contains two Office actions wherein claims were rejected in each action.
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(2) is not binding precedent of the Board.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. 22
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte CHARLES N. WHICKER, JR.
__________
Appeal No. 97-2716
Application 08/261,7721
__________
ON BRIEF
__________
Before, CALVERT Administrative Patent Judge,
McCANDLISH Senior Administrative Patent Judge,and
MEISTER, Administrative Patent Judge.
MEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Charles N. Whicker, Jr. (the appellant) appeals from the
rejection of claims 1, 2, 4 and 6-24.2
Appeal No.97-2716
Application 08/261,772
2
WE REVERSE.
The appellant’s invention pertains to a ground position
indicator and signaling device. Independent claim 1 is further
illustrative of the appealed subject matter and reads as follows:
1. A ground position indicator and signaling device
for signaling airborne personnel comprising a
substantially pliable heavy, open weave web having a
triangular shape with a length ratio of sides to base
of at least about 1.5:1 for deployment upon ground
including a contrasting arrow on the web and means for
contrast between the web and the ground, which contrast
means provides a high degree of visibility to the
airborne personnel who are in an overhead position
adjacent to the ground upon which the web is deployed.
The references relied on by the examiner are:
Wolff 1,937,374 Nov. 28, 1933
Adams 3,334,554 Aug. 08, 1967
Latimer 4,019,271 Apr. 26, 1977
Goff 4,792,258 Dec. 20, 1988
Hadzicki 4,892,272 Jan. 09, 1990
Hull et al. (Hull) 5,245,943 Sep. 21, 1993
Nowell et al. (Nowell) 5,325,798 Jul. 05, 1994
(Filed Dec. 22, 1992)
The claims on appeal stand rejected under 35 U.S.C. § 103 in
the following manner:
(1) claims 1, 4, 7 and 9 as being unpatentable over Adams in
view of Latimer and Wolff;
(2) claim 20 as being unpatentable over Adams in view of
Latimer, Hull and Hadzicki;
Appeal No.97-2716
Application 08/261,772
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(3) claim 2 as being unpatentable over Adams in view of
Latimer, Wolff and Hadzicki;
(4) claims 6, 8, 10, 12, 14 and 18 as being unpatentable
over Adams in view of Latimer, Wolff and Hull;
(5) claim 11 as being unpatentable over Adams in view of
Latimer, Wolff and Goff;
(6) claim 13 as being unpatentable over Adams, Latimer,
Wolff and Nowell;
(7) claims 15 and 16 as being unpatentable over Adams in
view of Latimer, Wolff, Hull and Hadzicki;
(8) claims 17 and 19 as being unpatentable over Adams in
view of Latimer, Wolff, Nowell and Hull;
(9) 21-23 as being unpatentable over Adams in view of
Latimer, Wolff, Hull and Hadzicki; and
(10) claim 24 as being unpatentable over Adams in view of
Latimer, Hull, Hadzicki and Nowell.
The examiner’s rejections are explained on pages 3-13 of the
Office action dated November 2, 1995 (Paper No. 6).
OPINION
Rejections (1) and (3) through (8):
Each of these rejections is bottomed on the examiner’s view
that it would have been obvious to (A) make the arrow-like
Appeal No.97-2716
Application 08/261,772
4
traffic marker or indicator of Adams of a “substantially pliable
heavy, open weave” material in view of the teachings of Latimer
and (B) provide the triangular portion (i.e., the head of the
arrow) with a contrasting arrow in view of the teachings of
Wolff.
As to (A), we observe that Adams is directed to a portable
“traffic direction marker” of a generally arrow-like
configuration (i.e., having a generally triangular head 34 and an
elongated, rectangular shaft-like portion 32) which is of such a
character that it (1) can be disposed to lie flat upon a
supporting surface “such as a roadway or berm without attachment
thereto” (see column 1, lines 7-13), (2) is “durable and reliable
in use and resistant to displacement upon being subjected to
vehicular traffic passing thereover or in close proximity to the
same” (column 1, lines 20-22), (3) has the ability to “resist any
tendency of wind from passing vehicles to cause the same to fold
over upon itself” (column 1, lines 29 and 30) and (4) may be
rolled up for ease of portability and storage (column 1, lines 18
and 19). To this end, a plurality of transversely extending ribs
76 are provided “for reinforcing the first portion [i.e., the
shaft-like portion 32] against twisting about its longitudinal
Appeal No.97-2716
Application 08/261,772
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axis” (column 1, lines 51 and 52) and the entire marker or
indicator is made of a resin and the shaft-like portion 32 is
additionally provided with an embedded resilient metal strip to
yieldingly resist rolling (column 2, lines 3-8). Additionally,
both the triangular head 34 and the shaft-like portion 32 may
have a fabric of nylon embedded therein for reinforcement (column
3, lines 33 and 34). From the above, it is readily apparent that
Adams goes to great lengths to ensure that his traffic directing
marker or indicator (a) is durable and will resist displacement
when vehicles pass thereover and (b) will resist the tendency of
wind created by passing vehicles from twisting the marker and
blowing it about the roadway.
Latimer discloses a portable traffic sign having a sign
display portion 14 that is attached by clips or hooks 38 to a
hollow mast 12 and cross bar 13 that are oriented in a vertical
plane. It is the principal object of Latimer’s to provide a
portable sign that (1) is constructed from materials that are
“light in weight” and (2) can be easily “broken down” (see column
1, lines 65-68). The display portion is
fabricated from an open weave or perforated material,
of any color, which is preferably flexible, and can be
knitted or woven, a metal, synthetic, or natural
material, or the like, that will allow for a passage of
air. [Column 3, lines 62-66.]
Appeal No.97-2716
Application 08/261,772
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Apparently, the sign display portion is “preferably flexible” so
that it can be rolled up and stored inside the hollow mast (see
column 6, lines 62-68). Although it is also stated that the
material “may, of course, be rigid” (see column 8, line 18), it
is not altogether clear whether this statement refers to both an
open weave material and a perforated material and, in any event,
the claims on appeal require that the open weave material be
“substantially pliable.” The open weave material of Latimer
provides air passages in order to minimize wind loads (see column
8, lines 20-25).
In our view, there is nothing in the combined teachings of
these two references which would fairly suggest making the
traffic direction marker or indicator of Adams of a substantially
pliable open weave material in view of the teachings of Latimer.
This is especially the case since Latimer’s materials are “light
in weight” and there is nothing to indicate that the flexible
open weave material of Latimer would (a) provide durability and
resist movement when vehicular traffic passes over it and (b)
resist twisting and folding movements when subjected to the
forces of the wind in the manner Adams indicates is necessary to
provide an effective traffic marker when it is laid flat on a
roadway. In this latter regard, it should be noted that the
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Application 08/261,772
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flexible open weave material of Latimer resists twisting and
folding movements by virtue of the fact that it is fastened to a
rigid supporting structure or frame by means of hooks or clips;
there is, however, no such supporting structure or frame in
Adams.
The examiner makes much out of the fact that Adams, in lines
19-26 of column 2, indicates that a plurality of openings
(apparently openings 73) are provided in order to decrease wind
resistance and thus effect a reduced tendency for folding or
flopping. We must point out, however, that the openings 73 are
on the tail end of the shaft-like portion (rather than the
triangular portion as claimed) and, further, these openings (as
the examiner apparently recognizes) do not form an “open weave
web” as claimed.
As to (B) the examiner has taken the position that it would
have been obvious to provide the traffic direction marker or
indicator of Adams with a contrasting arrow “since Wolf [sic,
Wolff] teaches that a contrasting arrow can be utilized to convey
information, and since Latimer teaches that it is known to place
information conveying symbols on an open weave material” (answer,
page 10). It is true that Latimer teaches the placement of
“single or multiple symbols, letters, numers, or the like” (see
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Application 08/261,772
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column 2, lines 23-25) on a portable traffic sign having a
display portion formed of an open weave material, but there is no
teaching of placing a contrasting arrow thereon. While Wolff
teaches an arrow, it is in the context of a permanently installed
aerial indicator (note Fig. 12) which can be seen from airplanes
and is located near a facility such as an airport. More
specifically, the arrow of Wolff sits on top of a mat having a
plurality of open cells with lights positioned below the cells
such that
at night the space below the mat is illuminated and the
indicia [e.g., an arrow] thereon appears dark and the
mat light, from above, and thus provides easy reading
of the indicia . . . . [Page 3, lines 34-37.]
Absent the appellant’s own teachings we are at a loss to
understand why one of ordinary skill in this art would have been
motivated to single out the arrow from the disparate teachings of
Wolff and incorporate it into the arrow-like traffic indicator of
Adams by placing it on the triangular portion thereof (i.e., the
head of Adams’ arrow-like traffic indicator). This is
particularly the case because there appears to be neither reason
nor need for placement of an arrow on the indicator of Adams
inasmuch as Adams’ indicator is already in the shape of an arrow.
With respect to Rejections (3) through (8), we have
carefully reviewed the teachings of Hull, Hadzicki, Goff and
Appeal No.97-2716
Application 08/261,772
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Nowell, but find nothing therein which would overcome the
deficiencies of Adams, Latimer and Wolff that we have noted
above.
In view of the foregoing, we will not sustain Rejection (1)
(i.e., claims 1, 4, 7 and 9 as being unpatentable over Adams in
view of Latimer and Wolff); Rejection (3) (i.e., claim 2 as being
unpatentable over Adams in view of Latimer, Wolff and Hadzicki);
Rejection (4) (i.e., claims 6, 8, 10, 12, 14 and 18 as being
unpatentable over Adams in view of Latimer, Wolff and Hull);
Rejection (5) (i.e., claim 11 as being unpatentable over Adams in
view of Latimer, Wolff and Goff); Rejection (6) (i.e., claim 13
as being unpatentable over Adams, Latimer, Wolff and Nowell);
Rejection (7) (i.e., claims 15 and 16 as being unpatentable
over Adams in view of Latimer, Wolff, Hull and Hadzicki); and
Rejection (8) (i.e., claims 17 and 19 as being unpatentable over
Adams in view of Latimer, Wolff, Nowell and Hull).
Rejections (2), (9) and (10):
Independent claim 20 expressly requires, inter alia, that
the ground position indicator be formed of a “substantially
pliable fiberglass mesh web.” Although it is not entirely clear
how the examiner intends to combine the references in order to
Appeal No.97-2716
Application 08/261,772
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satisfy this limitation, it appears that the examiner considers
that it would have been obvious to make the traffic marker or
indicator of Adams of an open weave material in view of the
teachings of Latimer and to further make the open weave material
of a fiberglass mesh web in view of the teachings of Hadzicki.
However, for the reasons stated above with respect to Rejections
(1) and (3) through (8), we do not believe that it would have
been obvious to make the traffic marker or indicator of Adams of
an open weave material in view of the teachings of Latimer. With
respect to Hadzicki, the answer states that this reference “is
relied upon only for the teaching that it is known to make mesh
material from fiberglass” (see page 10). However, the mere fact
that, generally speaking, that fiberglass mesh is a “known”
material does not serve as a sufficient basis for concluding that
it would have been obvious to utilize fiberglass mesh in the
traffic marker or indicator of Adams, as modified by Latimer.
Instead, it is well settled that it is the prior art which must
provide one of ordinary skill in the art the motivation to make
the proposed modifications needed to arrive at the claimed
invention. See, e.g., In re Lalu, 747 F.2d 703, 223 USPQ 1257
(Fed. Cir. 1984). Here, the fiberglass mesh of Hadzicki is
obviously a light weight material (see column 3, lines 20-27)
Appeal No.97-2716
Application 08/261,772
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that is used in an entirely disparate environment from that of
Adams (i.e., to form a venting screen 24 on the sail of a kite-
like flying machine), and there is absolutely nothing in the
combined teachings of Adams, Latimer and Hadzicki which would
fairly suggest making the traffic marker or indicator of Adams of
this lightweight material.
In rejecting independent claim 20 the examiner has
additionally relied on the teachings of Hull; however, the
examiner has only relied on this reference for a teaching of
ground securement means and a storage container.
With respect to Rejections (9) and (10), we have carefully
reviewed the teachings of Wolff and Nowell but find nothing
therein which would overcome the deficiencies of Adams, Latimer,
Hadzicki and Hull that we have noted above. This being the case
we will not sustain Rejection (2) (i.e., claim 20 as being
unpatentable over Adams in view of Latimer, Hull and Hadzicki;
Rejection (9) (i.e., claims 21-23 as being unpatentable over
Adams in view of Latimer, Hull, Hadzicki and Wolff) and Rejection
(10) (i.e., claim 24 as being unpatentable over Adams in view of
Latimer, Hull, Hadzicki and Nowell).
Appeal No.97-2716
Application 08/261,772
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All of the above-noted rejections are reversed.
REVERSED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
HARRISON E. McCANDLISH ) APPEALS AND
Senior Administrative Patent Judge ) INTERFERENCES
)
)
)
JAMES M. MEISTER )
Administrative Patent Judge )
Appeal No.97-2716
Application 08/261,772
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