Appeal 2007-2031
Application 10/905,818
ANALYSIS
A. Rejection of claims 17, 20, 21, 24, and 26 under 35 U.S.C. § 103(a) as
unpatentable over Heckman in view of Pepper.
The Examiner correctly found that Heckman discloses all of the claim
limitations of these claims except for 1) one or more side walls extending up from
the platform around a perimeter of a protected area, wherein the side walls are
adapted to prevent or substantially prevent windswept rain from passing through
the side walls and into the protected area from a lateral direction as required by
claims 17 and 21 (Heckman teaches side rails rather than walls); and 2) that the
moving means discloses a motor, a power source for the motor, and a pump and
one or more hydraulic cylinders as required in various combinations by claims 20,
24, and 26 (Answer 4-5, Finding of Fact 1-3). Pepper supplies the missing
limitations (Findings of Fact 4-5).
In the pre-KSR Briefs, the Appellant’s arguments in opposition to this
rejection boil down to 1) to an extensive discussion in favor of a strict application
of the teaching, suggestion, motivation test and challenging the Examiner’s stated
motivation (Answer 6) for replacing the side rails with side walls of preventing a
small child from falling through the rails of Heckman (Br. 13-22); and 2) an
argument that neither Heckman nor Pepper recognized the problem or solution
addressed by the present invention (Br. 22-25). Neither argument is persuasive.
First, KSR forecloses Appellant’s argument that a specific teaching is required for a
finding of obviousness. KSR, 127 S.Ct. at 1741, 82 USPQ2d at 1396. Second,
KSR makes clear that it is not necessary for the prior art to recognize the same
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