John AzzarelliDownload PDFPatent Trials and Appeals BoardJul 25, 201914279606 - (D) (P.T.A.B. Jul. 25, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/279,606 05/16/2014 John Azzarelli AZZ-001 7764 52554 7590 07/25/2019 Southeast IP Group, LLC. P.O. Box 14156 GREENVILLE, SC 29610 EXAMINER ADAMS, NATHANIEL L ART UNIT PAPER NUMBER 3654 MAIL DATE DELIVERY MODE 07/25/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOHN AZZARELLI ____________ Appeal 2018-003713 Application 14/279,6061 Technology Center 3600 ____________ Before ANTON W. FETTING, BRUCE T. WIEDER, and AMEE A. SHAH, Administrative Patent Judges. WIEDER, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134 from the Examiner’s rejection of claims 1–3, 5, and 6.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellant, the real party in interest is John Azzarelli. (Appeal Br. 1.) 2 The rejection of claim 7 under 35 U.S.C. § 103 was withdrawn. (Answer 3.) Appeal 2018-003713 Application 14/279,606 2 CLAIMED SUBJECT MATTER Appellant’s invention “relates to a mobile winching system.” (Spec. 1, l. 5.) Claim 1 is the sole independent claim still on appeal. It recites (emphasis added): 1. A mobile winch system comprising: a longitudinal frame having a first end opposite a second end, said first end including a handle and at least two bidirectional, free-spinning wheels attached adjacent said second end thereof; a strap removably attached to said longitudinal frame at the end opposite said handle for anchoring said winch system in a generally fixed position so that said longitudinal frame is generally disposed and oriented in a horizontal position, parallel to a ground surface where said longitudinal frame rests; a winch mounted to said longitudinal frame, said winch comprising a motor, a winch drum, and a winch cable attached to and wound about said winch drum, said winch cable also having a free end; and a power source mounted to said frame for driving said motor. REJECTIONS Claims 1–3 and 6 are rejected under 35 U.S.C. § 102(a)(1) as anticipated by Smith (US 6,231,030 B1, iss. May 15, 2001). Claim 5 is rejected under 35 U.S.C. § 103 as unpatentable over Smith. ANALYSIS Claims 1–3 and 6 “[A]n invention is anticipated if the same device, including all the claim limitations, is shown in a single prior art reference. Every element of Appeal 2018-003713 Application 14/279,606 3 the claimed invention must be literally present, arranged as in the claim.” Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236 (Fed. Cir. 1989). The handle Smith discloses “[a] two wheeled trailed vehicle intended to be towed by a conventional frontal hitch attachment to the rear of an all terrain vehicle.” (Smith, Abstract.) Specifically, Smith discloses a “nominally horizontal frame 10 [that] is basically triangular with a forward extension 39 upon which the preferred hitch 19, a conventional ball coupling 29 is mounted.” (Id. at col. 5, ll. 53–56.) The Examiner finds that Smith’s disclosure of forward extension 39 is a disclosure of a handle. Appellant disagrees and argues that “nowhere in Smith is the forward projection 39 even remotely described as a handle. . . . [I]t seems clear that neither a handle nor manual transportation of the unit is even implied as it is not necessary.” (Appeal Br. 5.) In particular, Appellant argues that the Examiner is obviously making the broadest possible interpretation because no ordinary people skilled in the art would construe the extension upon which a hitch is mounted to be a handle, under its plain meaning. The term’s plain meaning and Applicant’s specification clearly indicate that Applicant’s claimed handle is used to manually transport Applicant’s winch system. However, as stated earlier, forward extension 39 is not explicitly nor implicitly disclosed as being utilized as a handle, to manually transport the invention of Smith nor as being necessary or desired for such function. (Id. at 6.) The Examiner answers that Smith 39 is the neck portion connected to a “conventional ball coupler” (29). When hitching a trailer to a standard ball mount, such as the one taught in Smith, if the ball (which is connected Appeal 2018-003713 Application 14/279,606 4 to the vehicle) is not perfectly under the hitch, the operator either has to move the entire vehicle, or force the hitch into place above the ball by pushing/pulling on the neck portion to get the hitch aligned with the ball. Due to its proximity to the coupler (29), Smith’s element 39 could reasonably be construed as a “handle” in that this portion of a trailer is regularly used to move the coupler into position. (Answer 4.) Appellant does not dispute that the forward extension 39 of Smith may be used in this manner. We give claims their “broadest reasonable interpretation consistent with the specification.” In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000). Under this standard, “claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983). The Specification discloses “a handle-like structure for transporting the system.” (Spec. 3, ll. 9–10.) The Specification also discloses that “[a] single person can easily move the mobile winch system 1 to any physical location required by simply using the handle 6 and wheel 7 system in a common and well-known manner.” (Id. at 6, ll. 9–11.) The Specification further discloses that “[a]ll features disclosed in this specification may be replace by alternative features serving the same, equivalent or similar purpose, unless expressly stated otherwise.” (Id. at 9, ll. 16–17.) In view of these disclosures, and that neither Appellant nor the Examiner point to any special definition of the term “handle” in the Specification, we agree with Appellant that a plain meaning should be applied to the term. (See Appeal Br. 6.) Under a broadest reasonable interpretation, we determine that the term “handle” includes “[a] part of a thing by which it is to be held in order to Appeal 2018-003713 Application 14/279,606 5 use, move, or carry it; (hence) any part or object used in this way.” (https://www.oed.com/view/Entry/83878?rskey=hlGYmZ&result=1#eid, last visited July 16, 2019.) Applying this definition, the forward extension 39 of Smith is a part of the device that may be held in order to move the device, e.g., to manually position the device to place the coupler in proper position. (See Answer 4.) Therefore, we agree with the Examiner that Smith discloses a handle. The strap Smith discloses a cinch “comprised of a length of chain 31 attachable to two appropriate cinch support points 30. Another type of flexible but inextensible length such as a cable or a belt is considered feasible for use as a cinch 13.” (Smith, col. 6, ll. 42–45.) The Examiner finds that Smith’s disclosure of the cinch belt is a disclosure of a strap. Additionally, the Examiner finds that Smith discloses that the belt is “removably attached to said longitudinal frame (10) at the end (60) opposite said handle (39)” and is “capable of anchoring” the device. (Non-Final Action 3; see also Answer 5.) Appellant disagrees and argues that “the cinch of Smith is not disclosed 1) as being on an opposite end of the frame from a handle nor 2) as being used to anchor the skidder in a fixed manner during winching operations, both of which Applicant claims.” (Appeal Br. 6.) With regard to Appellant’s first argument, Appellant does not persuasively argue why the disclosure in, e.g., Figure 1 of Smith showing forward extension 39 at one end of the device and chain/belt cinch 31 at the other end of the device, is not a disclosure of the cinch being on the opposite end of the frame from the handle, as found by the Examiner. Appeal 2018-003713 Application 14/279,606 6 With regard to Appellant’s second argument, we note that claim 1 is a device claim reciting “a strap removably attached to said longitudinal frame at the end opposite said handle.” The additional language in the limitation that the strap is “for anchoring said winch,” describes the intended use, and informs us that the strap must be capable of being so used. However, “the absence of a disclosure relating to function does not defeat . . . [a] finding of anticipation. It is well settled that the recitation of a new intended use for an old product does not make a claim to that old product patentable.” In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). Here, the Examiner finds that the chain/belt cinch 31 “of Smith is capable of anchoring the winch system as claimed.” (Answer 5.) Appellant does not persuasively argue why the Examiner’s finding is in error, i.e., why the chain/belt cinch 31 of Smith is not capable of anchoring the device. In view of the above, we are not persuaded that the Examiner erred in rejecting claim 1 as anticipated by Smith. Appellant argues that dependent claims 2, 3, and 6 “are not anticipated by Smith for the reasons set forth in favor of claim 1.” (Appeal Br. 7.) For the reasons discussed above, we are not persuaded that the Examiner erred in rejecting claims 2, 3, and 6 as anticipated by Smith. Claim 5 Appellant presents a separate topic heading in arguing the patentability of claim 5. However, Appellant simply presents the same arguments discussed above with regard to claim 1. For the reasons discussed above, we are not persuaded that the Examiner erred in rejecting claim 5 as obvious over Smith. Appeal 2018-003713 Application 14/279,606 7 DECISION The Examiner’s rejection of claims 1–3 and 6 under 35 U.S.C. § 102(a)(1) is affirmed. The Examiner’s rejection of claim 5 under 35 U.S.C. § 103 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)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation