Appeal No. 2005-2197 Page 6
Application No. 10/751,432
Claims 23, 24, 27 and 28 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Brasher.3 We affirm.
According to the Examiner, Brasher discloses a hauler vehicle that comprises
a frame, a source of motive power and a conveyer centrally disposed and coupled
with the frame. (Answer, p. 4). Brasher discloses the conveyer (50) transports the
solid particles along the length of the hauler vehicle toward the second end (16), i.e.,
discharge end. (Col. 2, ll. 40-49). Brasher discloses the second end (16) further
comprises a hinged section (18) positioned near the second end. (Col. 2, ll. 21-26).
Claim 23 requires the frame and conveyer (discharge end) to have a
substantially fixed height. Appellants have not argued that the frame and conveyer
located at the second end of Brasher does not have a substantially fixed height.
Rather, Appellants argue that “[t]he claimed ‘substantially fixed height’ of the
discharge end precludes any adjustment of the discharge end, and consequently, the
Brasher patent is irrelevant to the present invention.” (Brief, p. 14). It appears that
Appellants are arguing that the claimed invention excludes the hinged portion of
Brasher. We do not agree. As stated above, claim 23 does not exclude the
presence of other unnamed components. The hinged section is positioned near the
discharge area. There is no disclosure that the adjustment of the hinged section,
3 For this rejection, Appellants assert that the subject matter of claims 24, 27 and 28 are
patentable for the same reasons as have been presented for claim 23. (Brief, pp. 14-15). Thus, we will
limit our discussion to claim 23.
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