Appeal No. 2005-2197 Page 7
Application No. 10/751,432
positioned near the discharge area, causes an adjustment in the fixed height of the
frame and conveyer located at the second end.
Appellants’ arguments regarding the phrase “substantially fixed height” in the
Briefs have been considered. (Brief, p. 15 and Reply Brief, pp. 2-3). It appears that
Appellants’ arguments are directed to the hinged portion of Brasher. These
arguments are not persuasive for the reasons stated above. Specifically, claim 23
does not exclude the presence of a hinged section that is positioned near the
discharge area of the hauler vehicle. We note that Appellants have not argued that
the frame and conveyer located at the second end Brasher do not maintain a
substantially fixed height as required by the claimed invention. There is no disclosure
that the adjustment of the hinged section, positioned near the discharge area, causes
an adjustment in the height of the vehicle frame and conveyer.
The Examiner has rejected claim 25 under 35 U.S.C. § 103(a) as obvious over
Brasher in view of Butler. (Answer, p. 5). We affirm.
The Examiner cites the Butler reference for teaching that persons of ordinary
skill in the art would have recognized that the source of motive power for a hauler
vehicle can comprise a motor connected to a vehicle-mounted battery. (Answer,
p. 5). Appellants have failed to specifically challenge the Examiner’s motivation for
combining the teachings of Brasher and Butler. Rather, Appellants argue that Butler
does not teach modifying the construction of Brasher to include a discharge end
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