refusing to consider new arguments made for the first time on appeal
How later courts described this case
- refusing to consider new arguments made for the first time on appeal
- lack of factual support for opinion renders expert’s affidavit of little weight
Written by the judges who cited it.
The opinion
BALDWIN, Judge,
dissenting in part, with whom LANE, Judge, joins.
I cannot agree that the subject matter of claim 12 is anticipated by or rendered obvious in view of the Altenpohl, Sr. reference.
Although I find that the broad recitation of a “vertical support body” in claims 14 and 16 reads upon the hanger plate 2 of the reference, I cannot agree that the claimed post of claim 12 is also anticipated by hanger plate 2. I agree with appellant that the term “post” connotes to one of ordinary skill in the mechanical arts a component having an elongated rod-like body, and that such a rod-like body simply does not read upon a plate, which in its “ordinary sense” connotes a “flat and relatively thin piece of metal or other material. Webster’s Third New International Dictionary 1734 (1961).
I believe that this distinction between a post and a plate is amply supported in the record not only by the affidavit of Hanhart, but also by the Patent Office classification definitions and accompanying search notes submitted by appellant. Although the majority opinion disregards these definitions and notes because they “relate to different classes . . . from the one . . . under which appellant’s patent was classified,” I find them to be pertinent insofar as they do pertain to the mechanical arts. One note in particular clearly demonstrates the distinction between a post and a plate by its statement that a particular member “means any non-rodlike body such as a plate . . . .” (emphasis added).
Moreover, even assuming arguendo that a vertical post reads upon the plate of Altenpohl, Sr., I do not find the reference to disclose the claimed latch which is “slidably and guidingly secured to said support post.” My examination of the reference drawings and the working model of the reference device submitted by appellant convinces me that Altenpohl, Sr. lacks this recited structure. The reference latch bar 19 is slidably and guidingly secured. However, it is so secured only to the frame 11, crossbar 20, and flange 13, not to the plate 2 which the majority considers to be the claimed post. I note that the majority in construing plate 2 as a vertical post, has overlooked the fact that horizontal flange 13 must be considered to be a member which is distinct from the claimed vertical post.
*1160 Upon reviewing the rejection of claim 12 under § 103, I find that the modification of the reference proposed by the examiner, which was adopted by the board and the majority here, first assumes that plate 2 is a post and that latch bar 19 is secured thereto in the manner claimed. Based upon these assumptions, the reference was modified by relocating crossbar 20. Since I do not agree with those underlying assumptions which were made, 1 have examined the reference to determine whether or not it contains any teachings which would suggest to one of ordinary skill in the art that the plate 2 be changed to a post and that the latch mechanism be slidably and guidingly secured thereto. Having not found any such teachings, I can only conclude that the § 103 rejection was based upon an improper hindsight reconstruction of the prior art.
Accordingly, I would reverse the decision of the board as to claim 12.