Federal Circuit disposition — 2011-1159

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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(Reexamination No. 90/006,283)
IN RE REHRIG PACIFIC COMPANY
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2011-1159
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Appeal from the United States Patent and Trademark
Office, Board of Patent Appeals and Interferences.
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Decided: January 30, 2012
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JOHN E. CARLSON , Carlson, Gaskey & Olds, P.C., of
Birmingham, Michigan, argued for appellant.
RAYMOND T. CHEN , Solicitor, United States Patent
and Trademark Office, of Alexandria, Virginia, for appel-
lee. With him on the brief were LYNNE E. PETTIGREW and
JANET A. G ONGOLA , Associate Solicitors. Of counsel was
NATHAN K. K ELLY, Associate Solicitor.
__________________________
Before RADER, Chief Judge, PROST and M OORE, Circuit
Judges.

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IN RE REHRIG PACIFIC 2
M OORE, Circuit Judge.
Rehrig Pacific Company (Rehrig) appeals from a deci-
sion by the Board of Patent Appeals and Interferences
(Board) affirming the 35 U.S.C. § 102 rejection of repre-
sentative claim 25 of U.S. Patent No. 6,283,044 (’044
patent) during reexamination. For the reasons set forth
below, we reverse and remand.
BACKGROUND
Rehrig is the assignee of the ’044 patent, which de-
scribes and claims both pallet assemblies and “top frame
assemblies.” Pallets are commonly used in warehouses to
store or transport goods, and “typically require large
openings for receipt of pallet jacks.” ’044 patent col.1
ll.11-12, col.16 ll.38-40, col.2 ll.28-29. Figure 1 shows an
example of a pallet assembly:
“Top frame assemblies,” which the ’044 patent also
calls “top frames,” are “used to help stabilize the top of a
shipment of objects in conjunction with a pallet at the
bottom of the shipment.” Id. col.16 ll.19-25. The top

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IN RE REHRIG PACIFIC 3
frames claimed in the ’044 patent comprise a top member
and a bottom member, each with a plurality of cross-ribs.
Id. col.17 ll.21-50. The cross-rib sections of the top and
bottom members mate with each other to create box beam
sections between the top and bottom members. Id.
Figure 25 shows an example of a top frame:
The Board treated claim 25 as representative of the
claims on appeal, which are directed to top frames and
methods of forming top frames. Claim 25 reads:
A top frame assembly adapted for use with a pal-
let, wherein the top frame assembly and the pallet
have at least one layer of objects positioned there-
between, the top frame assembly comprising:
first and second top frame members each having
an outer rail defining at least one opening through
the top frame member, the first top frame member
having a first plurality of cross-ribs extending

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IN RE REHRIG PACIFIC 4
downwardly therefrom, the second top frame
member having a second plurality of cross-ribs ex-
tending upwardly therefrom for mating with the
first plurality of ribs, the first and second plural-
ity of ribs fastened to each other to form a plural-
ity of complete box beam sections between the
first top frame member and the second top frame
member.
Id. cl.25 (emphasis added). After construing the term “top
frame,” the Board affirmed the rejection of claim 25 as
anticipated by German patent DE 32 05 910 A1 (Konig).
Rehrig appeals the Board’s decision. We have jurisdiction
under 28 U.S.C. § 1295(a)(4).
D ISCUSSION
We review the U.S. Patent and Trademark Office’s
(PTO’s) claim construction de novo. In re Baker Hughes
Inc., 215 F.3d 1297, 1301 (Fed. Cir. 2000). During reex-
amination, “the PTO must give claims their broadest
reasonable construction consistent with the specification.”
In re Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir.
2010). Anticipation is a question of fact that we review
for substantial evidence. Id.
Claim Construction
The only disputed terms in claim 25 are “top frame
assembly” and “top frame,” which the ’044 patent uses
interchangeably. The Board construed the term “top
frame” as “a structure placed on top of a shipment of
goods, resting on a pallet, to help stabilize them.” J.A. 9.
The Board held that the preamble limits the claim by
distinguishing between a top frame and a pallet, but
rejected Rehrig’s argument that “top frame” should be
construed to exclude certain structural elements associ-
ated with pallets, such as openings for forklift tines. The

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IN RE REHRIG PACIFIC 5
Board thus concluded that “the only requirement of a ‘top
frame’ assembly is that it be a structure which is able to
‘stabilize’ objects when placed on top of a shipment of
objects resting on a pallet.” J.A. 11-12. In its denial of
Rehrig’s Request for Rehearing, the Board clarified its
construction by explaining that a top frame must merely
be “a structure ‘capable of being used’ on top of a pallet of
goods to stabilize them.” J.A. 21.
Rehrig argues that the Board erred and that we
should construe “top frame” to exclude structural features
of pallets. Rehrig argues that its proposed construction
comports with the ordinary and customary meaning of the
term, as shown in the prior art. It relies on U.S. Patent
No. 5,160,029 (Piggot), entitled “Unitary Top Frame,”
which teaches that “top frames are, at times, employed in
conjunction with the pallet and the goods. The goods are
placed on the pallet and a top frame is placed on the
goods.” Piggot, col.1 ll.46-49. Rehrig notes that the top
frame in Piggot does not have multiple decks or forklift
tine openings.
Rehrig also argues that the ’044 specification shows
that the term top frame excludes structural features of
pallets. Rehrig contends that the specification consis-
tently uses the terms pallet and top frame as separate
and distinct concepts, which it argues defines top frame
by implication as being different from a pallet. Rehrig
notes that the two top frame embodiments disclosed in
the ’044 patent lack the columns, multiple decks, and
forklift tine openings present in the four disclosed pallet
embodiments, and that these features would be a disad-
vantage for the functioning of a top frame. Rehrig also
points out that while every pallet claim in the ’044 patent
recites multiple decks and a column between the decks,
none of the top frame claims recite these structural fea-
tures.

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IN RE REHRIG PACIFIC 6
The PTO argues that the Board correctly interpreted
the term “top frame.” The PTO contends that the ’044
patent differentiates between pallets and top frames only
in terms of their use, and does not define top frame to
exclude the structural features of pallets. The PTO also
argues that the prior art does not establish an ordinary
and customary meaning of the term top frame that ex-
cludes the structural features of pallets.
We agree with the PTO that the ’044 specification
does not clearly disavow top frames that include features
common to pallets, such as openings for forklift tines. We
hold, however, that the Board erred when it construed top
frame as a structure that is merely “‘capable of being
used’ on top of a pallet of goods to stabilize them.” J.A.
21. The parties do not dispute that the preamble of claim
25 limits the claim, but disagree as to whether it imposes
a structural limitation that a top frame must be used on
top of a pallet of goods. The preamble recites a “top frame
assembly adapted for use with a pallet, wherein the top
frame assembly and the pallet have at least one layer of
objects positioned therebetween.” ’044 patent cl.25.
Claim 25 thus differentiates between a pallet and a top
frame by defining a pallet as a structure that is positioned
below a layer of objects and a top frame as a structure
that is placed on top of the objects. We conclude, based on
the explicit claim language, that a top frame must be a
structure placed on top of a layer of objects. This construc-
tion is consistent with the specification, which states that
a “top frame is used to help stabilize the shipment of
objects at the upper end in conjunction with a pallet at
the lower end.” ’044 patent col.5 ll.41-43. The specifica-
tion further discloses that a top frame may be “positioned
on top of” multiple layers of goods so that they are “sand-
wiched” between a pallet and the top frame. Id. col.16
ll.55-57. Similarly, figure 18 depicts several layers of

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IN RE REHRIG PACIFIC 7
goods resting on a pallet with a top frame on top of the
goods. Id. fig.18. The specification also states that with a
top frame “positioned and secured on top of the stack [of
goods], it is contemplated that another pallet . . . may be
stacked on top of [the] top frame.” Id. col.17 ll.65-67.
Invalidity
In a split decision, the Board affirmed the rejection of
claim 25 as anticipated by Konig under 35 U.S.C.
§ 102(b). Konig discloses a plastic pallet with an upper
and lower plate, each having “longitudinal and crosswise
ribs . . . positioned in mirror image to each other,” which
“form pipes with an approximately rectangular cross-
section” when the plates are welded together. DE 32 05
910 A1 at 4, ll.17-27. Based on its construction of the
term top frame, the Board held that the pallet taught by
Konig meets every structural limitation recited in claim
25. The Board reasoned that Rehrig introduced no evi-
dence that Konig’s pallet could not be used as a top frame.
The dissenting judge argued that Konig could not antici-
pate claim 25 because the record contains no evidence
that the pallets in Konig were ever placed on top of goods.
Anticipation is a question of fact that we review for
substantial evidence. Suitco Surface, 603 F.3d at 1259. A
patent claim is anticipated if every limitation is found in a
single prior art reference. 35 U.S.C. § 102. We hold that
the Board erred by finding that Konig discloses every
limitation of claim 25. As discussed above, the broadest
reasonable construction of top frame is that it is a struc-
ture placed on top of goods. The dissenting Board judge
correctly noted, however, that Konig contains no teaching
that pallets could be placed on top of goods to stabilize
them. Because we hold that the Board lacked substantial
evidence that Konig teaches this limitation, we reverse its

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IN RE REHRIG PACIFIC 8
decision holding that claim 25 was anticipated and re-
mand.
REVERSED AND REMANDED

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