COMMISSIONER'S DECISION
Obviousness: Fork Lift Vehicle
The fork of the lift vehicle is powered in the downward direction which
enables it to lift itself upon the back of a transport truck when such truck
is adapted with appropriate sockets to receive the tines of the fork. The
rejection of some of the claims is affirmed, however two claims were found
allowable as representing an advance in the art.
Final Action: Affirmed in part.
This decision deals with a request for review by the Commissioner of Pat-
ents of the Examiner's Final Action dated January 4, 1977, on application
187,240 (Class 214-1). The application was filed on December 3, 1973, in
the name of Tobias H.A. Grether, and is entitled "Fork Lift". The Patent
Appeal Board conducted a Hearing on April 26, 1978, at which Mr. G. Fisk
represented the applicant.
The invention relates to fork lift vehicles. More specifically it is direct-
ed to fork lift vehicles where the fork is powered in both the upward and
downward directions. This enables the vehicle to lift itself, when the fork
is powered in the downward direction, upon the back of a transport truck
when such truck is adapted with appropriate sockets to receive the tines of
the fork of the lift vehicle. The fork lift vehicle has a pair of forward
wheel members which are independently extendable or retractable. Figure 12
shown below illustrates that embodiment:
(See formula 1)
A further embodiment shows the use of auxiliary wheels attached rearwardly
of the pivotal connection of each forward wheel frame member. Figure 8
below shows that arrangement:
(See formula I)
In the Final Action the examiner refused the application because it fails to
disclose "anything of an inventive nature" over the following references:
United States:
3,390,797 July 2, 1968 Goodacre
3,616,148 July 14, 1971 Schaffer
British:
1,239,148 July 14, 1971 Winter
The Goodacre patent shows a fork lift truck which has a frame with a mast
attached to the frame. A fork assembly is mounted on the mast for power
raising and lowering of the fork. For transportation purposes the fork assem-
bly of the truck is inserted in pockets of the transporting vehicle. The
truck is then lifted off the ground by lowering the fork of the lift truck
under power. Two fixed sub-frames, which are situated under the fork tines,
are provided with rollers 20 at the ends thereof. Figure 2 of that patent,
shown below, illustrates that invention:
(See formula II)
The Schaffer patent shows a fork lift truck wherein the wheelbase may be
adjusted by means of hydraulically extending and retracting two of the vehicle
wheels 32 along the longitudinal axis of the vehicle. These wheels are each
supported by a sub-frame but are in fixed relationship to each other. This
arrangement provides for improved stability when transporting heavy loads.
Figure 2 of the patent, shown below, depicts that invention:
(See formula 1)
Winters also shows a fork lift truck where the wheel base may be adjusted by
hydraulically extending two of the vehicle wheels along the longitudinal axis
of the vehicle. This arrangement again provides for improved stability.
In the Final Action the examiner had this, inter alia, to say:
...
All of the claims in this application stand rejected for
failing to define anything of an inventive nature over the
Goodacre patent in view of what Schaffer and Winter each
show is well known.
The truck shown in the Goodacre patent and the truck claimed in
this application operate in the same manner. The only differ-
ence between these devices is that the foreward wheels of the
applicant's device are spaced laterally outside the forks.
This presents the problem of interference between the sub-
frame and the transport vehicle.
The applicant was confronted with the same problem as Schaffer
and Winter were confronted with and he has used exactly the
same method to solve this problem.
...
In response to the Final Action the applicant had this to say (in part):
...
Applicant's position at this time is the same as laid down
in the responsive letter of November 12, 1976 to the effect
that the applicant submits that there is no suggestion in
either of the references to make the combination formulated
by the Examiner so as to reach the structural and function-
al results which arc provided with applicant's structure
as recited in the claims now in the case. The only reference
which discloses a fork lift that can be lifted upon a truck
chassis is in patent 3,390,797. This lifting is by means of
a powered downward motion of the forks but the forward wheels
in this reference are positioned directly under the forks
as shown in Figure 3 of the patent. This structure then is
not capable of solving the loading of a fork lift vehicle
onto a truck.
Applicant submits that the claims of the present application
define a novel and unobvious combination of elements which
has resulted in a significant advance in the art. It is sub-
mitted that the Examiner's combination of references would
not be arrived at without the benefit of the disclosure of
the present application and accordingly the required attributes
of patentability are present in this application.
...
The consideration before the Board is whether or not the applicant has made
a patentable advance in the art.
At the Hearing Mr. Fisk argued strongly that indeed an invention has been
made, but that it was just a matter of what the scope of monopoly of the in-
vention defined in the claims should be. He also stated at the Hearing that
he was satisfied that claims 3, 7, 8 and 9 would stand or fall with claim 1.
He pointed out, inter alia, that there are many significant advantages of
the independently retractable wheel members, e.g. one wheel member may be
retracted while the other remains in place to provide improved stability
for heavy loads. This provides for better manoeuvrability and better access
for loading or unloading, especially where the transport truck wheels inter-
fere with the front wheels of the fork lift truck. The applicant also
argues the advantages of the auxilliary wheels attached rearwardly of the
pivotal connection of the sub-frames. This allows for balance of the fork
lift, to facilitate loading on the back of a transport truck. The auxiliary
wheels automatically come in contact with the ground when the forward wheel
members are pivoted rearwardly.
When considering the Goodacre patent we find that it clearly meets one broad
aspect of the applicants description of his invention, i.e. the provision of the
downward powered fork on a fork lift to enable the fork lift to lift itself
upon the back of a truck when such truck is adapted to receive the tines of
the fork (see Figures 8 & 12 of Goodacre, supra .
Another broad aspect is clearly met by Shaffer where he shows a fork lift
truck with an adjustable wheel base to improve stability when transporting
heavy loads (see Figure 2 of Shaffer, supra).
On a complete study of the cited references, however, we find no teaching of
a fork lift truck having a pair of forward wheels supported on sub-frame
members which are independently disposable rearwardly to a point adjacent the
rear of the fork. Further, there is no teaching of the use of an auxiliary
wheel attached rearwardly of the pivotal connection of each sub-frame. While
these features may appear, at first blush, to be relatively simple, we find
that the problems that were overcome and the advantages gained therefrom are
significant. We are therefore satisfied that an invention has been described
in the disclosure and illustrated in the drawings. In other words there is
present an indication of thought, design and a degree of ingenuity which, in
our view, constitutes a patentable advance in the art. We believe, however,
that the real merit is in the concept or idea, but to proceed to fruition
was not difficult.
We will now consider the claims. Claim 1 reads:
A fork lift for use with a truck chassis having fork tine
sockets thereon, wherein the improvement comprises: a powered
fork lift vehicle having a frame assembly and a fork with a
pair of generally horizontal tines, means on the vehicle and
carrying said fork for raising and lowering the fork under
power, the fork being located at the forward end of the vehicle,
wheel means supporting the rear end of the vehicle, a pair of
wheels at the forward end of the vehicle and positioned
laterally outwardly of the fork, said fork lift vehicle frame
assembly comprising a main frame and forwardly extending sub-
frame members carrying one each of said pair of wheels, said
sub-frame members each having a movable connection with the
main frame rearwardly of said pair of wheels, and the sub-frame
members and wheels being movable from the main frame support-
ing position to a position rearwardly relative to the main
frame and fork to permit the fork tines to be inserted in said
sockets on the vehicle chassis and the fork lift vehicle
raised by the application of lowering power to the fork.
That claim does not define the scope of monopoly of the invention commensurate
with what we found is the invention described in the specification taking
into consideration what is taught by the cumulative effect of the cited art.
That claim merely covers the two broad aspects, as discussed above, of what
the cited art teaches, i.e. means for raising and lowering the fork under
power, and the use of an adjustable wheel base on a fork lift truck. Mr. Fisk
argued that the fork is raised and lowered under hydraulic power. At the
Hearing this was held, by the Board, to be a common expedient in the art.
In any event the particular source of power is not pertinent to the invention.
This claim defines the limits of scope of monopoly of the invention in terms
which are too broad, because the cited art forecloses the asserted innovated
differences of the claim. We recommend that this claim be refused. We agree
with Mr. Fisk that claims 3, 7, 8 and 9 should fall with claim 1.
Claim 2, which depends on claim 1, is directed to "... each sub-frame has an
auxiliary wheel thereon rearwardly of the sub-frame pivotal connection ...."
There is no teaching, as mentioned, of this in the cited art and the advantages
of this feature has been discussed. In our view this claim when taken as
a whole defines a patentable advance in the art.
Claim 4, which is dependent on claim 1, is directed to "... double acting power"
which is already referred to in claim 1, e.g. "... raising and lowering the
fork under power ...." The latter part of the claim is directed to functional
statement relating to the operation of the fork when used in a downward
direction under power. In view of our previous discussions we believe that this
does not properly define the limits of the monopoly of the invention. This
claim should be refused.
Claims 5 and 6, which depend on claim 1, merely relate to locking or securing
means between the sub-frames and the main frame. These features clearly do not
make these claims allowable over refused claim 1.
Claim 10, which indirectly depends on claim 1, is directed to the "... independent
retraction and extention of the left and right forward wheels." This claim in
view of our previous findings, when taken as a whole, is directed to patentable
subject matter.
Claim 11 is merely directed to means for adjusting the distance between the front
and rear wheels of the fork lift. This claim should be refused in view of the
teachings of Shaffer.
To summarize, we are satisfied that the applicant has made a patentable advance in
the art. We recommend that the Final Action refusing the application for lack
of invention be withdrawn, but that claims 1, 3 to 9 and 11 be refused while
claims 2 and 10 be allowed. Claims 2 and 10 should be submitted in appropriate
form while keeping in mind the problem which will likely be encountered under
Rule 60 of the Patent Rules. A number of the refused claims, however, could
well be found allowable if made properly dependent on one of the allowed claims.
J.F. Hughes
Assistant Chairman
Patent Appeal Board, Canada
I have studied the prosecution of this application and agree with the recommend-
ation of the Patent Appeal Board. Accordingly, I withdraw the Final Action, but
I refuse to grant a patent on claims 1, 3 to 9 and 11. I will, however, accept
claims 2 and 10 when submitted in appropriate form. The applicant has six months
within which to submit the amendment, or to appeal my decision under the provision
of Section 44 of the Patent Act.
J.H.A. Gariepy Agent for Applicant
Commissioner of Patents
Gowling & Henderson
P.O. Box 466, Terminal A
Ottawa, Ontario
Dated at Hull, Quebec K1N 8S3
this 5th day of May, 1978