Richard LeVert

Patent Trials and Appeals Board

Jan 28, 2021

2020000968 (P.T.A.B. Jan. 28, 2021)

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.
12/804,693 07/27/2010 Richard LeVert 100604 LeVert
HollowShank
2529
4988 7590 01/28/2021
ALFRED M. WALKER
225 OLD COUNTRY ROAD
MELVILLE, NY 11747-2712
EXAMINER
TORRES, ALICIA M
ART UNIT PAPER NUMBER
3619
MAIL DATE DELIVERY MODE
01/28/2021 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 RICHARD LEVERT
Appeal 2020-000968
Application 12/804,693
Technology Center 3600
Before BENJAMIN D. M. WOOD, BRANDON J. WARNER, and
LEE L. STEPINA, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s January 30, 2019 Non-Final Action rejecting claims 20 and 34–
38. See Non-Final Act. 1. An oral hearing in accordance with 37 C.F.R.
§ 41.47 was held on January 14, 2021, a transcript of which will be entered
into the record in due course.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies the real party in interest as Richard LeVert. Appeal
Br. 3.
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CLAIMED SUBJECT MATTER
The claims are directed to methods of bolting down a nut on a
threaded rod, e.g., a threaded J-bolt, using a driver with an elongated hollow
shaft. Claim 20, reproduced below, is illustrative of the claimed subject
matter:
20. A method of bolting down framing on a concrete foundation
of a building consisting essentially of the steps of:
in a construction site, providing a concrete footing with a
distal end of a threaded J-bolt embedded therein and a wood
frame base plate mounted on said concrete footing through
which said threaded J-bolt passes upwardly therethrough;
selecting a driver from a set of drivers each comprising
an elongated hollow shaft of a different length with a closed
proximate end with a long reach for accessing tight locations
where said threaded J-bolt leaves said wood frame base plate
and where wrenches and hands can’t go,
said selected driver having an enlarged drive shank
mounted on and integral with said closed proximate end having
a permanently built-in axially aligned integral collet drive
adapter associated therewith, said selected driver further having
an open distal end and a hollow one piece socket integrally
mounted on said open distal end of each said hollow shaft, of
said selected driver;
said selected driver having a smooth, continuous,
uninterrupted portion between said drive shank at said closed
proximate end and said hollow one piece socket integrally
mounted thereon;
said selected driver selected for having a length sufficient
to completely enclose said J-bolt extending out of said base
plate, said driver ln effect comprising a one part device with no
attachments to fall off;
selecting and seating a single nut in said socket and
engaging said threaded J-bolt from a free end thereof and
threading said single nut for a full length of said J-bolt where
long thread rods are a design necessity down to where said nut
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is tightened on said base plate, whereby there being no
limitation on nut travel;
wherein said hollow shaft is adapted to receive
therewithin said extended J-bolt, and wherein said J-bolt
extends into said hollow shaft and through said single nut, said
J-bolt threadable through said single nut along a length thereof,
and wherein a proximal end of said extended J-bolt within said
hollow shaft is spaced apart from said closed proximal end of
said hollow shaft; and
in a single tightening step, using a power tool, driving
said drive shank to deliver full applied torque with no slippage
through said hollow one piece integrally mounted socket at said
distal end to said single nut; and
tightening down said single nut on said threaded J-bolt in
said single tightening step without stopping to separately
tighten any other further nut to said threaded J-bolt.
REFERENCES
Name Reference Date
Lohness US 3,955,451 May 11, 1976
Stephens US 2006/0000169 A1 Jan. 5, 2006
GearWrench-Amazon July 26, 20062

2 GearWrench-Amazon, also referred to in the record as “GearWrench
890100GD-Amazon” (Non-Final Act. 2) and “the Amazon sell sheet”
(Appeal Br. 10), is a printed copy of a listing on the Amazon.com website,
dated August 29, 2018, describing the “GearWrench 8901GD 5/16-Inch Nut
Driver Shaft.” GearWrench-Amazon, unnumbered 1st page. GearWrench-
Amazon identifies the “Date First Available” for this product as July 26,
2006. Id., unnumbered third page. Appellant does not dispute that
GearWrench-Amazon is prior art.
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REJECTIONS
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
20, 37, 38 103(a) Stephens, GearWrench-Amazon,
Lohness
34 103(a) Stephens, GearWrench-Amazon
35, 36 103(a) Stephens, GearWrench-Amazon,
Lohness
OPINION
Claims 20, 37, and 38: Rejected as Unpatentable
over Stephens, GearWrench-Amazon, and Lohness
Appellant argues claims 20, 37, and 38 as a group. Appeal Br. 9–13.
We select claim 20 as representative of the group, and decide the appeal of
this rejection on the basis of claim 20 alone. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Stephens teaches the claimed construction
site having a concrete footing with a distal end of a threaded J-bolt
embedded therein and a wood frame base plate mounted on the concrete
footing through which the J-bolt passes. Non-Final Act. 2 (citing Stephens
¶ 26, Fig. 3). The Examiner further finds that GearWrench-Amazon teaches
a driver capable of being used in accordance with the claimed method,
except that it “fails to specifically disclose selecting the driver from a set of
drivers each comprising an elongated hollow shaft of a different length.” Id.
at 3–4. For that limitation, the Examiner relies on “supporting document
GearWrench GearDriver – Ratcheting Screwdrive System
(GW_GearDriver_Rat_Screwdriver_Sellsheet.pdf)” (“GearWrench
GearDriver”), which “discloses the inclusion of the GearWrench-
890100GD-Amazon hollow shaft driver in a set of drivers of varying
lengths, as per claim 20.” Id. at 4. The Examiner finds that:
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[W]hen combined, . . . the hollow shaft (of the driver of
GearWrench-8901GD-Amazon) is adapted to receive
therewithin the extended j-bolt (of Stephens), and wherein the
j-bolt extends out of the hollow shaft and through the single nut
(not shown), the j-bolt threadable through the single nut along a
length thereof, and wherein a proximal end of the extended
j-bolt within the hollow shaft is spaced apart from the closed
proximal end (of the driver of GearWrench-8901GD-Amazon)
of the hollow shaft, as per claim 20.
Id.
The Examiner also acknowledges that GearWrench-Amazon fails to
specifically disclose: (1) the nut driver having a smooth, continuous,
uninterrupted portion between the drive shank at the closed proximal end
and the hollow one piece socket integrally mounted thereon; and (2) using a
power tool for the single tightening step. Id. at 5. For the former limitation,
the Examiner finds that:
[I]t would have been obvious to one having ordinary skill in the
art before the effective filing date of the claimed invention to
provide the driver with a smooth, continuous, uninterrupted
portion between the drive shank and the hollow one piece
socket, as per claim 20, not only because this is the typical
configuration of prior art nut drivers ([GearWrench-Amazon]
provides the identifier band for easy indication of the driver size
when provided in a set) as can be seen by the cited prior art but
also because such a change of shape is well within the skill of
one in the art.
Id. at 5–6; see Ans. 4 (“any modification to make the portion of
[GearWrench-Amazon] any more smooth, continuous and uninterrupted
would be a mere matter of design choice and well within ordinary skill”).
Regarding the latter limitation, the Examiner finds that it would have
been obvious to use the GearWrench-Amazon nut driver “to drive a nut
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completely along the length of the J-bolt,” and “to perform the single
tightening step of the nut with a power tool, instead of by hand, . . . since
such drivers are old and well-known in the art to be driven by hand and/or
by power, interchangeably, as taught by Lohness.” Non-Final Act. 5–6.
We have reviewed each of Appellant’s arguments for patentability of
claim 20, but are unpersuaded that the Examiner erred in determining that
claim 20 is unpatentable over Stephens, GearWrench-Amazon, and Lohness.
Accordingly, we sustain the Examiner’s rejection for essentially those
reasons expressed in the Non-Final Action and Answer, and we add the
following primarily for emphasis.
Appellant argues that “there is no teaching found in the Amazon sell
sheet directing the potential purchasers on use of the GearWrench-
890100GD driver.” Appeal Br. 11. The Examiner responds that “the
sequence of steps of the claimed method simply recite what is already the
natural, logical use of the driver of GearWrench-890100GD and Lohness in
the construction environment of Stephens.” Ans. 3. According to the
Examiner, “[t]he method does not claim any extraordinary steps above and
beyond what one of ordinary skill would perform given the driver of
GearWrench-890100GD and Lohness for driving a nut onto Stephen’s
J-bolt.” Id. In the Reply Brief, Appellant counters that the “claimed method
cannot be implemented with the GearWrench-8901GD nut driver,” because,
e.g., it “does not have ‘a driver comprising an elongated hollow shaft of
sufficient length to fully enclose said length of said J-bolt.’” Reply Br. 1–2.
This argument is not persuasive. First, we are not persuaded that
GearWrench-Amazon is devoid of instructions to one of ordinary skill in the
art as to how to use the GearWrench driver. GearWrench-Amazon labels the
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tool a “Nut Driver,” and describes it as being “[h]ollow for max clearance of
bolt.” GearWrench-Amazon, unnumbered first page. One of ordinary skill
in the art—who would have to be, at a minimum, an ordinarily skilled
construction worker familiar with attaching nuts to bolts3—would readily
apprehend that the GearWrench nut driver is used to drive nuts onto bolts.
We are also not persuaded that the GearWrench driver’s hollow shaft
is of insufficient length to enclose the length of a J-bolt. Besides the fact
that GearWrench-Amazon describes the driver as being hollow for “max
clearance” of the bolt, Claim 20 is not limited to a J-bolt having any
particular length extending from the wood frame base plate.4
Appellant further argues that neither GearWrench-Amazon nor
Lohness teaches or suggests a nut driver that “includes an axially aligned
integral collet drive adapter.” Appeal Br. 12; see Reply Br., 1–2 (the
GearWrench-8901GD nut driver “does not have . . . ‘a permanently built-in
axially aligned integral collet drive adapter associated therewith.’”). The
Examiner responds that “the term ‘collet drive adapter’ is not a term of art
and is not limiting structurally.” Ans. 5. According to the Examiner,
“collets” are used “to shrink or tighten around a shaft to grip a tool for

3 See Stephens ¶ 2 (describing “the construction industry” adapting to
potential problems attaching “nuts” and “bolts” to pressure-treated wood
products); see also U.S. Pat. No. 5,615,587 to Foerster (“Foerster”), 1:12–14
(“Matable pairs of threaded nuts and bolts have been commonly used to
fasten objects together.”).
4 In the Reply Brief, Appellant presents, for the first time, evidence
regarding the length of the hollow portion of GearWrench nut drivers
purchased by Appellant. Reply Br. 2–3. Our rules make clear that evidence
presented after filing an appeal and after filing a brief in that appeal cannot
be admitted, except under circumstances not present here. 37 C.F.R.
§ 41.33(d). Accordingly, this evidence will not be considered in the appeal.
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driving”; thus, a “collet adapter” is “any shaft that can be gripped by a
collet.” Id. The Examiner contends that “the drive end of the GearWrench-
8901 driver can be gripped by a collet,” and therefore qualifies as a “collet
drive adapter.” See id. (“the claims fail to require any structural limitation of
the ‘collet drive adapter’ that would preclude the drive shank/adapter of
GearWrench-890100GD” from being considered a collet drive adapter).
Appellant replies that “‘collet drive adapter’ is defined in the specification,
in the original claims, and clearly shown in Figs. 3, 4, 6 and 11.” Reply
Br. 6.
Appellant does not appear to contend that “integral collet drive
adapter” has a well-understood meaning in the art; instead, as noted above,
Appellant relies on its contention that the original disclosure defines this
term. However, we are unable to find any such definition in the
Specification, original claims, or drawings. Appellant does not identify any
specific portion of the Specification defining the term “integral collet drive
adaptor,” and, indeed, we have found no such definition in the Specification.
As for the drawings, Appellant specifically relies on Figures 3, 4, 6, and 11.
Figures 3, 4, 6 depict a “collet drive shank 13” (Spec. 7:14–16), and Figure
11 depicts a “1/4 inch removable [i.e., not integral] collect to socket
adapter.” To the extent that that “integral collet drive adapter” is meant to
refer to collect drive shank 13 depicted in Figures 3, 4, and 6, we note that
the Specification states that sockets with collet drive shanks were
“commonly available” at the time of the invention. Spec. 2:1–2. In any
event, Appellant does not dispute the Examiner’s finding that “collets” are
used “to shrink or tighten around a shaft to grip a tool for driving,” a “collet
adapter” is “any shaft that can be gripped by a collet,” and “the drive end of
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the GearWrench-8901 driver can be gripped by a collet.” Ans. 5. Giving
“collet drive adapter” its broadest reasonable interpretation consistent with
the Specification (In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004)), we are
not persuaded that the Examiner erred in finding that GearWrench-Amazon
teaches such an adapter.
Appellant further argues that there is no teaching in Lohness to
modify GearWrench-Amazon to be “continuously smooth.” Appeal Br. 11.
The Examiner responds that the GearWrench driver “already has an
essentially smooth, continuous, uninterrupted portion except for the
identification band,” and any modification to make the driver “more smooth,
continuous and uninterrupted would be a mere matter of design choice and
well within ordinary skill.” Ans. 4. In its Reply Brief, Appellant contends
that “in a Stephens construction environment . . . the smooth surface is less
likely to be interfered with by other elements, than a surface with recessed
portions within which are positioned attachments, such as the plastic sleeve
included in the recessed portion about 1 ¾ inches into the GearWrench-
8901GD nut driver.” Reply Br. 5.
A limitation may be found to be an obvious matter of design choice if,
e.g., it does not result in a difference in function or give unexpected results
(In re Rice, 341 F.2d 307, 314 (CCPA 1965)); it solves no stated problem
(In re Kuhle, 529 F.2d 553, 555 (CCPA 1975)); or it does not modify the
operation of the claimed device (In re Japikse, 181 F.2d 1019 (CCPA 1950).
We are unable to discern anything in the Specification suggesting that a
driver having “a smooth, continuous, uninterrupted portion between said
driver shank at said closed proximate end and said hollow one piece socket”
results in a difference in function, solves any stated problem, or modifies the
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operation of the device. Indeed, we are unable to find this term used, much
less described, in the Specification. Appellant’s discussion in the Reply
Brief of a “plastic sleeve” included in the GearWrench nut driver is not
supported by either the GearWrench-Amazon or GearWrench-GearDriver
references. Nor does Appellant explain why such a plastic sleeve would run
afoul of the “smooth, continuous, uninterrupted” limitation.
Appellant next argues that Lohness does not teach modifying
GearWrench-Amazon to use the GearWrench driver to turn nuts on J-Bolts
“in a single tightening step.” Appeal Br. 11. In a related argument,
Appellant contends that “there must be some motivation to operate the
GearWrench-890100GD driver using a power tool in a single tightening step
. . ., which is just not found in or even suggested by Lohness (and certainly
not found in or suggested by the Amazon sell sheet for the GearWrench-
890100GD driver.” Id. The Examiner responds that “one having ordinary
skill would use a power tool (as taught by Lohness) to tighten the nut onto
the J-bolt [of Stephens]). Ans. 4. According to the Examiner, “[o]ne having
ordinary skill in the art would not deliberately pause during the tightening
step nor would one having ordinary skill in the art leave the nut loose, or
untightened, on the J-bolt,” and therefore “the claimed method is simply an
old and well-known use of an old and well-known product.” Id.
Lohness teaches that the shank of its invention may by turned either
by an electric drill or by a hand-operated handle grip. Lohness, 2:60–63.
While it does not expressly teach that a nut driver, such as the GearWrench
nut driver, may likewise by turned either by an electric drill or by hand, an
express teaching, suggestion or motivation to combine references is not
required to support a conclusion of obviousness. KSR Int’l Co. v. Teleflex,
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Inc., 550 U.S. 398, 418 (2007). The Examiner is not required to “seek out
precise teachings directed to the specific subject matter of the challenged
claim,” but may “take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” Id. A claim may be
obvious, for example, if it represents the use of a known technique to
improve similar devices in the same way. Id. at 417. This corresponds to
the Examiner’s finding that “Lohness discloses a similar hollow shank nut
driver . . . and that such drivers are known to be driven, interchangeably, as a
hand tool and with an electric drill.” Non-Final Act. 5 (citing Lohness,
2:60–63).
Regarding the requirement that the tightening be performed “in a
single step,” we note as an initial matter that the Specification does not
appear to describe this limitation. Thus, it is not entirely clear what this
limitation requires. In any event, Appellant has not expressly addressed the
Examiner’s finding that “[o]ne having ordinary skill in the art would not
deliberately pause during the tightening step nor would one having ordinary
skill in the art leave the nut loose, or untightened, on the J-bolt,” and “the
claimed method is simply an old and well-known use of an old and well-
known product.”5 Therefore, we are not persuaded of Examiner error in this
regard.

5 These findings are supported by Stephens. Stephens teaches that “[i]n the
building industry,” wooden boards “are typically attached to the building
foundation” (Stephens ¶ 16), and that this may be accomplished by
tightening down nuts onto the threaded portion of a J-bolt that extends
beyond the upper surface of the board (id. ¶ 26, Fig. 3). Thus, one of
ordinary skill in the art would not be expected to leave the nut loose or
untightened, or to “deliberately pause during this tightening step.” Ans. 4.
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Claim 34: Rejected as Unpatentable
over Stephens and GearWrench-Amazon
Independent claim 34 is similar to claim 20 except that it does not
require: (1) selecting a driver from a set of each comprising an elongated
hollow shaft of a different length; (2) driving the nut driver with “a power
tool” to “deliver full applied torque with no slippage”; and (3) tightening
down the nut “in a single tightening step without stopping to separately
tighten any other further nut to said threaded J-bolt.” Appeal Br. 8–9
(Claims App.). Appellant’s arguments in support of the patentability of
claim 34 are essentially the same as those made with respect to claim 20,
which we found unpersuasive. Therefore, for the reasons discussed above in
connection with claim 20, we sustain the Examiner’s rejection of claim 34 as
unpatentable over Stephens and GearWrench-Amazon.
Claims 35 and 36: Rejected as Unpatentable
over Stephens, GearWrench-Amazon, and Lohness
Claim 35 depends from claim 34 and additionally requires that a
power tool be used “to deliver full applied torque with no slippage through
said hollow one piece integrally mounted socket to said nut, said power tool
having a chuck engaged with said drive shank.” Appeal Br. 9 (Claims
App.). Appellant’s arguments in support of claim 35 are essentially the
same as those in support of claim 20, which, as discussed above, contains a
similar limitations. Therefore, for the reasons discussed above in connection
with claim 20, we sustain the Examiner’s rejection of claim 35.
Claim 36 depends from claim 35 and additionally requires that the
driver be “selected from a set of drivers of differing lengths to match any
free length of a J-bolt to be tightened in place.” Id. Appellant argues that
there is no teaching in GearWrench-Amazon or Lohness “that the driver is
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selected from a set of drivers of differing lengths to match any free length of
a J-bolt to be tightened in place.” Appeal Br. 17. But Appellant does not
address, in the Appeal Brief, the Examiner’s analysis based on the
GearWrench-GearDriver reference, and therefore does not show error in that
analysis. To the extent that Appellant relies on new evidence in the Reply
Brief to address this limitation, as stated above, we do not consider this
untimely evidence. Appellant’s remaining arguments in support of claim 36
are essentially the same as those in support of claim 20, which, as discussed
above, are unpersuasive. Therefore, for the reasons discussed above in
connection with claim 20, we sustain the Examiner’s rejection of claim 36.
CONCLUSION
The Examiner’s rejections are affirmed.
More specifically,
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
20, 37, 38 103(a) Stephens,
GearWrench,
Lohness
20, 37, 38
34 103(a) Stephens,
GearWrench
34
35, 36 103(a) Stephens,
GearWrench,
Lohness
35, 36
Overall
Outcome
20, 34–38

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TIME PERIOD FOR RESPONSE
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