Appeal No. 2005-1557
Application 09/954,604
On this record, we agree with the examiner. The issue in this ground of rejection is
whether one of ordinary skill in this art would have been led by the combined teaching of Bredal
and Elder to add a non-peripheral foot portion to one of the quarter-sized pallets of Bredal in the
manner shown by Elder. We find that Bredal in fact would have disclosed to this person “a
single sheet pallet” with a “loadbearing surface” that can be and is intended by Bredal to be used
alone (e.g., col. 1, ll. 11-16, 20-59 and 63-67; col. 2, ll. 50-52; and col. 2, l. 65, to col. 3, l. 5).
We find that Elder would have disclosed a pallet that has peripheral feet and a non-peripheral
foot that, among other purposes, provides support without respect to the size of the pallet
because Elder specifically discloses that “it can be appreciated that many pallet sizes may be
used with the present invention” (e.g., Elder FIGs. 1-3 and 8-10; cols. 1-3; and col. 3, ll. 26-28).
Thus, we find in the combined teachings of Bredal and Elder substantial evidence
supporting the examiner’s position, and particularly the teaching of Elder that the nestable pallet
configuration which includes a non-peripheral foot disclosed therein is not limited by the size of
the pallet. Accordingly, we are of the opinion that one of ordinary skill in the art routinely
following the applied prior art would have reasonably arrived at the claimed nestable pallet
encompassed by appealed claim 14, including every limitation thereof arranged as required
therein, without recourse to appellants’ specification. See generally, In re Keller, 642 F.2d 413,
425, 208 USPQ 871, 881 (CCPA 1981)(“The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure of the primary reference; nor
is it that the claimed invention must be expressly suggested in any one or all of the references.
Rather, the test is what the combined teachings of the references would have suggested to those
of ordinary skill in the art.”).
Appellants submit, with respect to the ground of rejection of claim 38, that the examiner
admits that the legs of Bredal are not symmetrical about a diagonal extending from a centerpoint
of the top deck to one corner of the top deck, and there is no motivation to arrive at this
structural “because the quarter-pallets of Bredal are already stackable and nestable, as shown in
Figure 9 of Bredal” and thus, “the cutouts do not need to be symmetrical about the diagonal in
order to stack or nest” (brief, page 6). The examiner responds that the cutout or leg
configuration disclosed by Bredal and by Mathieu are “alternative structures” and either can be
used without destroying the structure of Bredal (answer, pages 6-7). Appellants reply that the
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