Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Examiner’s Comments
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Column and line (or Paragraph Number) citations have been provided as a convenience for Applicants, but the entirety of each reference should be duly considered. Any recitation of a Figure element, e.g. “Figure 1, element T should be construed as inherently also reciting “and relevant disclosure thereto”.
The text of those sections of Title 35, US Code not included in this action can be found in a prior Office action.
Election/Restrictions
Applicant’s election without traverse of Species A in the reply filed on 1/14/26 is acknowledged.
Claims 14-19 are hereby withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the lock member to lock the accessory to the base plate of claim 12 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
Claims 12 and 24 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 12 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. See MPEP § 2172.01. The omitted elements are: the structures by which a lock member (button 40) allows the accessory to be locked (“fixed”) to the base plate. The button alone does not provide sufficient structure to perform the task.
Claim 24, line 10, “one aperture” lacks antecedent basis in the claim. Perhaps “a second aperture from the third set” should be recited instead.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 7-9, 13, and 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over Rutman et al. ‘363 in view of Hargrove (4990049).
For claim 1, Rutman et al. (2023/0112363) discloses a base plate (20, FIG.4) for an accessory attachment system, comprising:
a first member (20, FIG.4) made from a first material;
a second member (20, FIG.4) made from a second material,
wherein at least one of the first and second members include a plurality of apertures,
wherein the plurality of apertures comprises at least mounting apertures (24) and power connection apertures (60) configured to interface with an accessory;
wherein the base plate has an outwardly facing surface (upper surface in FIG.4) including the mounting apertures (24) and the power connection apertures (60) and inwardly facing surface opposite the outwardly facing surface (see lowermost surface in FIG.4).
The first and second members are attached to each other in an overlapping arrangement.
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Rutman et al. disclose a desire for the baseplate to transport accessories that vary based on the tasks the user performs at the jobsite ([0003]) where a PHOSITA understands that some accessories are heavier than others. Rutman et al. lack a support frame as recited for the baseplate.
Hargove ‘049 teaches a base plate (62) having a first member (62) including a support frame (58,60) attached thereto; the support frame comprising a ladder structure having at least first and second rails (58,58) and a plurality of cross members (60,60) spaced apart from each other and extending between the first and the second rails; wherein the first rail is attached along one edge of the base plate and the second rail is attached along an opposite edge.
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention and with a reasonable expectation of success to have provided fixed on a lower surface of the bottom plate of the base plate Rutman et al. ‘363 a ladder structure support frame as taught by Hargrove in order to add strength and stiffness to the base plate so that the baseplate can adequately support heavier accessories.
With the ladder structure positioned on a lower surface of the bottom plate, Rutman et al., as modified, discloses the first member, second member, and support frame attached together in an overlapping arrangement to for the base plate.
For claim 20, Rutman et al. ‘363 inherently disclose the method recited.
For claims 2 and 21, the first material is the same as the second material.
For claim 3, the first material and the second material comprise metal (MPEP 608.02 IX).
For claim 8, the first member comprises a top plate (FIG.4) and the second member comprises a bottom plate (FIG.4) that is fixed to the top plate.
For claim 9, the top plate includes a first set of mounting apertures (24) and a first set of power connection apertures (60), and wherein the bottom plate includes a second set of mounting apertures (24, [0048]) and a second set of power connection apertures (60, FIG.4),
wherein the first and second sets of mounting apertures are aligned with each other, and
wherein the first and second sets of power connection apertures are aligned with each other when the top and bottom plates are attached to each other.
For claim 10, Rutman et al. ‘363 provide the top plate and the bottom plate both include mounting apertures that are aligned with each other, and wherein the top plate and the bottom plate both include power connection apertures that are aligned with each other.
Further Rutman et al. ‘363 shows pockets as seen in the cross-sectional view of FIG.4 where the top plate (first member) is recessed relative to the surrounding surface.
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Claims 24-26 are rejected under 35 U.S.C. 103 as being unpatentable over Rutman et al. ‘363, as modified above.
For claim 24, the plurality of apertures additionally includes a third set of apertures (not numbered, but seen in FIGS. 5A and 5B of Rutman et al.) different from the mounting apertures and power connection apertures, wherein:
the third set of apertures, the mounting apertures, and the power connection apertures are all separate from each other (as seen in FIGS.5A-B, [0049]) and formed in a desired pattern (grid pattern) on the base plate (FIGS.2, 5A-B, and 8A-C);
in the desired pattern, between each pair of adjacent mounting apertures, in a horizontal direction is one aperture from the third set of apertures; and
in the desired pattern, apertures from the third set of apertures are spaced around each power connection aperture.
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Rutman et al., as modified, lack between each pair of adjacent mounting apertures in a longitudinal direction, perpendicular to the horizontal direction, is a second aperture from the third set of apertures.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention and with a reasonable expectation of success to have provided a second aperture as recited between each pair of adjacent mounting apertures in a longitudinal direction for it is a mere duplication of part since it would be obvious to have one on each side of the power connection apertures in order to allow securement from all directions. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). It has been held that mere duplication of an essential working part of a device involves only routine skill in the art. (See MPEP 2144.04 (iv) (B). Although the reference does not disclose the second apertures, the court held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced. In this instance, there is no new or unexpected result from the additional apertures.
For claim 25, the third set of apertures, the mounting apertures, and power connection apertures each have a unique configuration such that the third set of apertures, the mounting apertures, and power connection apertures can easily be identified and differentiated from each other by a user (as seen in FIGS.5A-B), and wherein the mounting apertures are greater in size than apertures of the third set of apertures. Though the reference is silent as to the drawings being to scale, examiner is evaluating FIGS.5A-B for what is reasonably disclosed and suggested to one of ordinary skill in the art (MPEP 2125(I)).
For claim 26, the mounting apertures (24) are within a first set of pockets bounded by a polygonal shape (as seen in FIG.2), and the power connection apertures (54) are within a second set of pockets that are curvilinear (FIG.2, reproduced in part below).
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Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Rutman et al. ‘363 as applied above in view of Reid (2384965).
For claim 11, Rutman et al. ‘363 lack the recited spot welding of the top and bottom plates.
Reid teaches a method of assembly of a wall using a plurality of panels (10) to be welded to each other in an overlapped relation by spot welding (Page 2, Col 2, lines 4-13).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention and with a reasonable expectation of success to have provided spot welds as taught by Reid for attachment of the top and bottom plates of Rutman et al. ‘363 in order to permit the attachment operation to be performed quickly and cheaply and further to have placed the welds at least in the recessed pockets to aid in aesthetics of the base plate.
Claim 12, as best understood, is rejected under 35 U.S.C. 103 as being unpatentable over Rutman et al. ‘363 in view of Rutman et al. ‘747 (2024/0217447).
For claim 12, Rutman et al. ‘747 teaches a base plate having a plurality of apertures which include a plurality of locking apertures configured to receive a lock member.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention and with a reasonable expectation of success to have provided in addition to and separate from the apertures present on the base plate of Rutman et al. ‘363 a plurality of locking apertures as taught by Rutman et al. ‘747 in order to accommodate part of a locking assembly.
Claims 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over Rutman et al. ‘363 as applied above in view of Calvin et al. (9139141).
Rutman et al. as applied above disclose the support frame comprises a ladder structure having at least first and second rails and a plurality of cross members spaced apart from each other and extending between the first and the second rails.
For claims 22 and 23, Rutman et al. as modified, lacks a plurality of bearings that are attached to the first rail and the second rail such that the plurality of bearings extends outwardly of the base plate and the step of attaching bearings to the first rail and the second rail such that the bearings extend outwardly of the base plate.
Calvin et al. teach a side mountable bearings for use in a slidable frame assembly, the assembly including corresponding channels (18,20) with which the bearings interact.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention and with a reasonable expectation of success to have provided a plurality of side mountable bearings as taught by Calvin et al. for use attached to the first and second rails of the support frame of the base plate of Rutman et al. and extending outwardly therefrom in order to allow the base plate of Rutman et al. to slide for easier access.
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Rutman et al. ‘363 as applied above in view of Myrick (6890138).
Rutman et al. (2023/0112363) discloses a base plate (20, FIG.4) for an accessory attachment system, comprising:
a first member (20, FIG.4) made from a first material;
a second member (20, FIG.4) made from a second material,
wherein the first and second members are attached to each other in an overlapping arrangement (as seen in FIG.4); and
wherein at least one of the first and second members include a plurality of apertures,
wherein the plurality of apertures comprises at least mounting apertures (24) and power connection apertures (60) configured to interface with an accessory.
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Rutman et al. ‘363 disclose the base plate including both the first and second member being metal but fails to provide one of the first and second materials different from plastic as recited.
Myrick (6890138) teaches a base plate (100) that may be made of any one of various materials such as urethane, metal, aluminum, wood, rubber, various polymers, and so on. The material will depend in many instances at least in part on intended use and desired attributes such as the vehicle in which the base plate is used. (Col 4, lines 5-11).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention and with a reasonable expectation of success to have provided one the first and second materials of Rutman et al. ‘363 from any number of various materials as taught by Myrick including plastic as an obvious material expedient in order to gain the specific properties of the material including, for example, making the baseplate lighter in weight, more corrosion resistant, or easier or cheaper to manufacture. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination since the court has held that the use of a different material is obvious over that of the prior art if it performs the same function. See MPEP 2144.07 and also Sinclair & Carroll Co. v.Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Rutman et al. ‘363, as modified in view of the well known prior art.
For claim 27, the examiner takes official notice that welds, adhesives, and fasteners are well known in the prior art for use in fixing vehicle components to one another. For instant and unquestionable support, Flamm (3613920) discloses a support surface (50) welded to a support framework of side members (52), end member (54), and flanges (56) (Col 2, lines 70-71).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention and with a reasonable expectation of success to have provided one of a weld, adhesive, or fastener of the well known prior art for use in attaching the base plate and support frame of Rutman et al., as modified, as a simple substitution, obvious expedient, and in order to create a stable and lasting or permanent structure.
The claim would have been obvious because the substitution of one known element for another would have yielded predictable results to one of ordinary skill in the art at the time of the invention. KSR, 550 US at 82 USPQ2d at 1385 (Supreme Court 2007) (KSR) supports this rationale of a simple substitution.
Courts have recognized that it would have been obvious to substitute one known element for another that performs the same function, where the results of the substitution would have been predictable. See, e.g., Agrizap, Inc. v. Woodstream Corp., 520 F.3d 1337, 1344 (Fed. Circ. 2008) (concluding that the claims were obvious, noting that “[t]he asserted claims simply substitute a resistive electrical switch for the mechanical pressure switch").
Moreover, applicant has not disclosed that having a weld, adhesive, or fastener solves any stated problem (in the original disclosure) or is for any particular purpose, and it appears that alternative attachments would perform equally well. The choice to modify would not change the use of the device or produce an unexpected result.
Applicant may seasonally challenge, for the official record in this application, this and any other statement of judicial notice in a timely manner in response to this office action. Please specify the exact statement to be challenged. Applicant is reminded, with respect to the specific challenge put forth, of the duty of disclosure under Rule 56 to disclose material which is pertinent to patentability including claim rejections challenged by applicant.
Response to Arguments
Applicant's arguments filed 8/20/26 have been fully considered but they are not persuasive.
With regard to the drawings, new FIG.10 does not overcome the objection set forth above. That is, it shows only an aperture and what applicant describes as “a button” without showing a lock member “to lock” the accessory to the base plate of claim 12. Even a button on a shirt enters an aperture (a slit in the shirt) and then rotates so that the rear side of the button engages a front side of a shirt to hold it in place. There is no such mechanism here. It is entirely unclear how the button provided is capable of functionally locking.
With regard to the 112 rejections, all but those for claims 12 and 24 are now moot with claim 24 having only a small antecedent basis issue.
With regard to the new matter objections, applicant’s arguments were persuasive and those objections have been removed and are now moot.
With regard to the 103 prior art rejections:
Claims 1-3, 7-9, 13, 20-22, 24, and 25-26 are rejected under 35 U.S.C. 103 as allegedly being unpatentable over Rutman (U.S. 2023/0112363) in view of Hargrove (U.S. Patent No. 4,990,049).
Independent Claim 1
Applicant argues the rejection fails because Rutman discloses a single base plate (20) and not two separate layers constituting the claimed “first member” and “second member”.
Examiner disagrees and directs applicant’s attention to the cross-sectional view of FIG.4 which provides two distinct layers as seen in the marked-up copy below. A PHOSITA can rely on the drawiwngs for what they reasonably teach. In this instance, that is two overlapping distinct layers, one representing the recited “first member” and the other the recited “second member”.
The court has held that the description of the article pictured can be relied on, in combination with the drawings, for what they would reasonably teach one of ordinary skill in the art. In re Wright, 569 F.2d 1124, 1127-28, 193 USPQ 332, 335-36 (CCPA 1977)
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Applicant goes on to argue that the proposed combination with Hargrove does not supply the recited "support frame...attached...in an overlapping arrangement to form the base plate" because the support frame of Hargrove is not attached to base plate (62). Examiner disagrees and directs applicant’s attention to FIG.6 and the description at Col 3, lines 58-65. The specification of Hargrove makes clear that the base plate and support frame need to be attached when the ramp is in use. This is accomplished with flange (64) engaging a member of the support frame. It is apparent though that other attachment mechanisms are possible to a PHOSITA under the obvious to try/experimentation rationale. “The upper surface of each of the loading ramps 56 is formed by an expanded metal mesh panel 62 which is provided with a pair of depending flanges 64 in spaced parallel relation to each other adjacent to but spaced from one end thereof for removably positioning the mesh panel 62 on the loading ramp frame by engaging one of the transverse members 60 as illustrated in FIG. 6.”
Thus, for the reasons above, there is no impermissible error with the rejection, which is hereby maintained.
Claim 3
For claim 3, applicant argues that MPEP § 608.02(IX) concerns drawing requirements and articulates no reasoning bearing on the obviousness of a material selection. Examiner disagrees. This portion of the MPEP outlines “DRAWING SYMBOLS” and a PHOSITA knows that based on the cross-sectional makings of the figure, the material in question is in fact metal. Please refer to that section of the MPEP.
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It is unclear to the examiner how this lacks the "articulated reasoning with some rational underpinning" required under KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), and MPEP § 2144. What is present in Rutman is a metal. There is no need for articulated reasoning in the rejection of claim 3, which is hereby maintained.
Independent Claim 20
For claim 20, applicant reiterates the argument set forth for claim 1, which was addressed above. The rejection for claims 20 and 22 is maintained.
Dependent Claims 8-9
For claim 8, applicant reiterates the argument set forth for claim 1, which was addressed above. The rejection for claims 8 and 9 is maintained.
Dependent Claim 13
For claim 13, applicant argues that the Examiner's stated rationale for combining Hargrove ("to add strength and stiffness...so the baseplate can adequately support heavier accessories," see Office Action, page 5) does not explain why a person of ordinary skill would attach Hargrove's ladder frame specifically beneath a two-member plate assembly in the claimed stacking arrangement, particularly where, as explained above, Hargrove never fixes its ladder frame to any plate structure in the first place. Examiner has addressed this issue above. The ladder frame of Hargrove is attached to the baseplate of Hargrove as seen in FIG.6 and described at the bottom of Column 3 of the reference. The ladder frame would likewise be fixedly attached in the Rutman combination in order to, as set forth above in the rejection, add strength and stiffness to the base plate. The rejection of claim 13 is maintained.
Dependent Claims 24-26
For claim 24, applicant argues an unexplained, unlabeled feature visible only in a reference's drawings, with no supporting textual disclosure of its structure, function, or spatial relationship to other elements, does not establish that the reference discloses or renders obvious the specific three-aperture arrangement recited in claim 24. Examiner disagrees. Just as applicant argued in the remarks for the current invention (pages 10-13), although the specification of Rutman does not expressly “use the words”, to a PHOSITA the drawings “reasonably convey” (reasonable teach) an aperture as seen in FIGS.5A and 5B. In each of these figures, the apertures are clearly depicted positioned between mounting apertures in a desired pattern similar to the pattern claimed. As claim 24 has been significantly amended, so too has the rejection above.
Claim 11 is rejected under 35 U.S.C. 103 as allegedly being unpatentable over Rutman '363 in view of Reid (U.S. Patent No. 2,384,965).
For claim 11, applicant argues against Reid in isolation. In response, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Applicant further argues that Reid’s teach of spot welding does not readily correspond to Rutman but makes no further arguments to support this rationale. Examiner is not persuaded by this argument.
Finally, applicant contends that the rationale for combining is not found in the reference.
However, it is within the purview of the examiner to rely on common sense. Doing so is not legal error. The court has held that the use of common sense does not require a specific hint or suggestion in a particular reference only a reasoned explanation. See DyStar Textilfarben GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1366 (Fed. Cir. 2006). “[I]n Sakraida v. AG Pro, Inc., the Court derived . . . the conclusion that when a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” Id. at 417, 82 USPQ2d at 1395-96 (Internal quotations omitted.). See also MPEP 2144 which makes this abundatnly clear in section I. RATIONALE MAY BE IN A REFERENCE, OR REASONED FROM COMMON KNOWLEDGE IN THE ART, SCIENTIFIC PRINCIPLES, ART-RECOGNIZED EQUIVALENTS, OR LEGAL PRECEDENT The rationale to modify or combine the prior art does not have to be expressly stated in the prior art; the rationale may be expressly or impliedly contained in the prior art or it may be reasoned from knowledge generally available to one of ordinary skill in the art, established scientific principles, or legal precedent established by prior case law. In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988); In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992). See also In re Kotzab, 217 F.3d 1365, 1370, 55 USPQ2d 1313, 1317 (Fed. Cir. 2000) (setting forth test for implicit teachings); In re Eli Lilly & Co., 902 F.2d 943, 14 USPQ2d 1741 (Fed. Cir. 1990) (discussion of reliance on legal precedent); In re Nilssen, 851 F.2d 1401, 1403, 7 USPQ2d 1500, 1502 (Fed. Cir. 1988) (references do not have to explicitly suggest combining teachings); Ex parte Clapp, 227 USPQ 972 (Bd. Pat. App. & Inter. 1985) (examiner must present convincing line of reasoning supporting rejection); and Ex parte Levengood, 28 USPQ2d 1300 (Bd. Pat. App. & Inter. 1993) (reliance on logic and sound scientific reasoning).
For at least the reasons above, the rejection of claim 11 is maintained.
Claim 12 is rejected under 35 U.S.C. 103 as allegedly being unpatentable over Rutman '363 in view of Rutman (U.S. 2024/0217447).
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the claimed button’s receipt within the locking aperture itself fixes the accessory to the base plate) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant argues Rutman '447's extension/opening pairing performs only a secondary, anti-slide function after fixation has already occurred through an entirely different structure and then goes on to state that Rutman '447 thus neither discloses nor suggests a locking aperture "configured to receive a button to fix the accessory to the base plate" as claim 12 requires. Examiner disagrees and submits the reference satisfies the claims as broadly recited and interpreted. That is, as applicant has graciously pointed out, the opening (120) of Rutman 447 is configured to receive a button (108) to fix the accessory to the base plate by sliding the accessory relative thereto fixing it in place. Nothing in the claim language prevents additional means to secure the device or vitiates the use of locking by sliding.
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The rejection of claim 12 is maintained.
Claims 22-23 are rejected under 35 U.S.C. 103 as allegedly being unpatentable over Rutman '363 in view of Calvin (U.S. Patent No. 9,139,141).
Applicant argues the Calvin reference in isolation. In response, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant goes on to argue that the characterization of Calvin as teaching a generic "side mountable bearing for a slidable frame assembly" (see Office Action, page 10) does not reflect what Calvin discloses. Examiner disagrees. At the most basic level, Calvin teaches a PHOSITA that bearings exist in the prior art. It further teaches that PHOSITA that bearings can be used in sliding horizontal structures (cargo bed frame) from an internal (retracted) position to an external (extended) position. These elements are not new or novel. To say that bearings only cooperate within a frame and are inseparable therefrom is false but regardless, there is nothing that vitiates the use of corresponding channels/tracks in Rutman et al. As seen in FIGS. 8A-8C, channels such as those taught by Calvin et al. (see 18,20) could be implemented within the bed of Rutman et al. to correspond with the bearings. A PHOSITA could easily have provided a slide frame system for use with the base plate of Rutman et al. (providing channels (18,20 of Calvin et al.) within the truck bed of Rutman et al. (see FIGS.8A-C) and a plurality of corresponding side mountable bearings attached outwardly to the first and second rails of the support frame of the base plate of Rutman et al., as modified for the same intended purpose of sliding accessibility.
For the rationale, applicant argues the reference of Calvin fails to detail the desirability of sliding a cargo bed between retracted and extended positions. However, it is within the purview of the examiner to rely on common sense. Doing so is not legal error. The court has held that the use of common sense does not require a specific hint or suggestion in a particular reference only a reasoned explanation. See DyStar Textilfarben GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1366 (Fed. Cir. 2006). “[I]n Sakraida v. AG Pro, Inc., the Court derived . . . the conclusion that when a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” Id. at 417, 82 USPQ2d at 1395-96 (Internal quotations omitted.). See also MPEP 2144 which makes this abundatnly clear in section I. RATIONALE MAY BE IN A REFERENCE, OR REASONED FROM COMMON KNOWLEDGE IN THE ART, SCIENTIFIC PRINCIPLES, ART-RECOGNIZED EQUIVALENTS, OR LEGAL PRECEDENT
Further with regard Calvin, applicant asserts the reference is non analogous art. The examiner disagrees. It has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992).
In this case, the cargo bed of Calvin is in the field of the inventor’s endeavor because it acts to provide support to a load thereon (“cargo load”, Abstract) by supporting the cargo bed frame assembly and a cargo load on the cargo bed frame assembly when the assembly is in a closed position, in an open position, and in all intermediate positions between the closed position and the open position during extension or retraction of the cargo bed frame assembly; and further is pertinent to the particular problem of providing an adequate support surface/cargo bed which a load/accessory (the cargo load, Abstract) is securely supported for transport.
Applicant goes on to argue the “anchor frame” or “cargo frame” from which the bearings of Calvin extend is not akin to the “first rail” and “second rail” as recited. The examiner disagrees. There are no recited structural limitations in the current claim set of this application that would prevent a PHOSITA from interpreting those elements of the anchor/cargo frame of Calvin in this manner. Applicant has provided no support or detail in the current claim language to distinguish the elements over that of the prior art and as such the rejection is maintained.
Claims 4-5 are rejected under 35 U.S.C. 103 as allegedly being unpatentable over Rutman '363 in view of Myrick (U.S. Patent No. 6,890,138).
Applicant argues the Myrick reference in isolation. In response to applicant's arguments against Myrick individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant goes on to argue Myrick is not analogous art to the claimed base plate because the round openings (101) are sized only to "firmly engage" a cylindrical peg shaft for lateral cargo restraint (see claim 4); they have no mounting-foot interface and no power-connection function of any kind. However, the examiner is not using Myrick to teach round openings, a mounting-foot interface, or power connection function. Myrick is being used only to teach the desirability of a specific material. Applicant is correct in stating “Myrick is cited only to supply the "plastic" limitation”.
Regardless, examiner asserts the reference does constitute analogous art because it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992).
In this case, the structure of Myrick is in the field of the inventor’s endeavor because the structure acts to provide support to a load thereon (see FIGS. 6a, 7a, 7b); and further is pertinent to the particular problem of providing an adequate support surface/a plate upon which a load/accessory is securely supported for transport.
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Applicant finally argues that the motivation for the combination is not found in the prior art reference of Myrick.
Examiner disagrees and directs applicant’s attention to rejection in the final office action and specifically to Myrick at Col 4, lines 5-11, which provides the articulated reasoning with some rational underpinning to support the legal conclusion of obviousness. Myrick discloses that “material selection can be based in part on intended use and desired attributes”.
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The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination since the court has held that the use of a different material is obvious over that of the prior art if it performs the same function. See MPEP 2144.07 and also Sinclair & Carroll Co. v.Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
In this instance, substituting a plastic layer for a metal layer of Rutman would continue to allow support of a load on the base plate (the predictable result) while allowing the base plate obtain desirable characteristics (“attributes”) known to plastic, such as being lighter in weight. “Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v.Interchemical Corp., 325 U.S. at 335, 65 USPQ at 301 (1945).
The examiner is permitted to rely on common sense and ordinary ingenuity. Doing so is not the basis for legal error. The court has held that the use of common sense does not require a specific hint or suggestion in a particular reference only a reasoned explanation. See DyStar Textilfarben GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1366 (Fed. Cir. 2006). “[I]n Sakraida v. AG Pro, Inc., the Court derived . . . the conclusion that when a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” Id. at 417, 82 USPQ2d at 1395-96 (Internal quotations omitted.). See also MPEP 2144 which makes this abundatnly clear in section I. RATIONALE MAY BE IN A REFERENCE, OR REASONED FROM COMMON KNOWLEDGE IN THE ART, SCIENTIFIC PRINCIPLES, ART-RECOGNIZED EQUIVALENTS, OR LEGAL PRECEDENT
For at least the reasons above, the rejection of claims 4 and 5 are maintained.
New Dependent Claim 27
Applicant argues Hargrove does not disclose or suggest fixing the ladder frame to the tread plate by a weld, an adhesive, or a fastener. Instead, Hargrove provides fastening via flanges. However, as set forth above, applicant makes no claim that the particular type of means (welds, adhesive, fasteners) to fix/fasten the components is critical and obvious alternatives are known from the prior art. Moreover, permanently attaching the base plate of Rutman et al. and a frame as taught by Hargrove would amount to a rigid, lasting structure and as set forth above improve stability. A rejection for claim 27 is set forth above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
To support examiner’s assertion that the apertures shown in Rutman et al. for what they reasonable teach a PHOSITA, the following references are set forth all of which includes apertures known to a PHOSITA. Kaatz (10406966), Holt (7721923), Parks (4027892), Labeur (6007283), McKee (5788310), and Douglass et al. (6648569) all disclose apertures/hopes/openings represented pictorially as small circles.
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Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HILARY L GUTMAN whose telephone number is 571.272.6662. Examiner interviews are available. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, VIVEK KOPPIKAR can be reached on 571.272.5109. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Center by visiting: https://patentcenter.uspto.gov. Should you have questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/HILARY L GUTMAN/Primary Examiner, Art Unit 3612B
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