Ex Parte 6,935,093 et al

Patent Trial and Appeal Board

Jun 20, 2013

95001742 (P.T.A.B. Jun. 20, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
95/001,742 09/06/2011 6,935,093 JAR-3696-82 3410
23117 7590 06/21/2013
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
JASTRZAB, JEFFREY R
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
06/21/2013 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

THE TORO COMPANY
Requester, Cross-Appellant, Respondent

v.

WRIGHT MANUFACTURING, INC.
Patent Owner, Appellant, Respondent
____________________

Appeal 2013-002900
Inter partes Reexamination Control 95/001,742
Patent US 6,935,093 B21
Technology Center 3900
____________________

Before RICHARD M. LEBOVITZ, JEFFREY B. ROBERTSON and
DANIEL S. SONG, Administrative Patent Judges.

SONG, Administrative Patent Judge

DECISION ON APPEAL

1 Patent US 6,935,093 B2 (hereinafter "'093 patent") issued August 30, 2005,
to Velke et al.
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STATEMENT OF THE CASE
Claims 1, 3, 4 and 6-17 stand rejected and are the subject of the
present appeal. Claims 2 and 5 have been canceled, and claims 7-17 were
added during the reexamination (RAN2 PTOL-2066; ABPO 3; CABR 1).
The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 315 (2002) from
the rejection of claims as discussed infra. The Requester cross-appeals
under 35 U.S.C. §§ 134 and 315 from the Examiner's refusal to enter
proposed rejections of claims 1, 3, 4 and 6-17 (CABR 1). We have
jurisdiction under 35 U.S.C. §§ 134(b) and 315.
In addition to their respective briefs, the Patent Owner also relies on
the declaration of inventor William R. Wright while the Requester also relies
on the declaration of Garry Busboom, who is a named inventor of an applied
prior art and employee of Exmark Manufacturing Company, Inc., which is a
wholly owned subsidiary of the Requester (Resp. Br. R 1). We also note
that the '093 patent is involved in the legal action Wright Manufacturing,
Inc. v. The Toro Company and Exmark Manufacturing Company, Inc., 11-

2 Because the Examiner's Answer mailed September 24, 2012 merely
incorporates the Right to Appeal Notice mailed May 2, 2012, we refer to the
same in this decision. We also refer to and address only specific portions of
the record necessary to the disposition of the appeal, abbreviating the
documents as follows:
1. Right of Appeal Notice = RAN
2. Appeal Brief of Patent Owner = ABPO
3. Rebuttal Brief of Patent Owner = Reb. Br. PO
4. Respondent Brief of Patent Owner = Resp. Br. PO
5. Cross-Appeal Brief of Requester = CABR
6. Respondent Brief of Requester = Resp. Br. R
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cv-01373-MJG (D. Maryland) which has been stayed pending the outcome
of the present reexamination proceedings (ABPO 2; CABR 1).
The application that issued as the '093 patent is a continuation of an
application which issued as US 6,438,931 and is the subject of
Reexamination Control 95/001,741 and Appeal No. 2013-002864 (ABPO 2;
CABR 1). A combined oral hearing with the representatives of the Patent
Owner and Requester with respect to the present case and the related case
was held before the Patent Trial and Appeal Board on May 1, 2013, and a
transcript thereof will be entered into the electronic record in due course.
The Board's decision with respect to Appeal No. 2013-002864 is mailed
concurrently with this decision.
We AFFIRM with respect to the Appeal of the Patent Owner. In
addition, because our decision with respect to the Appeal of the Patent
Owner maintains the rejections of all of the claims, we do not reach the
Requester's Cross-Appeal.3

3 In presenting the Requester's cross-appeal during the Oral Hearing, the
Requester's representative Mr. Miller stated:

MR. MILLER: …
Well, with that, we think that if you tipped -- you know, this
whole set of rejections that are at issue in the cross-appeal are moot in
a sense, if the basic set of rejections is maintained. They were
proposed because in the inter partes reexamination due to the estoppel
effect, you need to make the arguments.
I think they are good rejections, should the first set of rejections
be, for some reason, not upheld, but like I said, I think they are moot
in the event the main set of rejections would be upheld.
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THE INVENTION
The '093 patent describes a mower and representative independent
claim 1 reads as follows (ABPO, Claims App'x, with underlining showing
added subject matter and bracketing showing deleted subject matter relative
to the originally issued patent claims, italics added):
1. A self-propelled power lawn mower comprising:
a pair of rear drive wheels;
a cutter deck assembly;
an engine deck assembly supporting a combustion
engine;
a foot platform for supporting a standing operator of the
mower;
a deck lift system for raising and lowering the cutter deck
assembly, engine deck assembly, and combustion engine
together in order to adjust a blade cutting height of the mower;
[and]
first and second pivoting control arms for helping
provide lateral positioning of the cutter deck assembly, engine
deck assembly, and combustion engine during the raising and
lowering, wherein the first and second control arms are
pivotally connected to either the cutter deck assembly or [[an]]
the engine deck assembly, so as to pivot upward and downward
along with corresponding upward and downward movement of
the cutter deck assembly and combustion engine; and wherein
the first and second pivoting control arms are located entirely
forward of both (a) respective rear edges of said rear drive
wheels, and (b) the foot platform for supporting the standing
operator;
wherein at least one of said control arms pivots about a
rear pivot axis, said rear pivot axis as viewed in side view being
located (i) forward of said foot platform, (ii) forward of a rear
end of the engine deck assembly, and (iii) rearward of a front
edge of at least one of the rear drive wheels; and
wherein pivoting of the control arms an angle ɸ of fifteen
(15) degrees during raising or lowering of the cutter deck
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assembly and engine causes the cutter deck assembly to move a
vertical distance "d" of no more than 2.5 inches.

Independent claim 4 is substantively similar to claim 1.

PRIOR ART
The prior art in the appeal record is:
Hamouz 3,672, 137 June 27, 1972
Wright 5,507,138 Apr. 16, 1996
Musgrave 3,460,325 Aug. 12, 1969
Busboom 5,816,033 Oct. 6, 1998
Hale 3,402,536 Sep. 24, 1968
Hale 3,408,798 Nov. 5, 1968
Velke 5,809,755 Sep. 22, 1998
Velke 5,984,031 Nov. 16, 1999
Berrios 5,653,466 Aug. 5, 1997
Cox AU 271377 Nov. 18, 1965
Procomas GB 2 013 073 A Aug. 9, 1979

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. A. Wright discloses a zero turn radius mower wherein the
"[m]ower deck 9 is mounted on and below frame 11 in front of
engine 7 and engine deck 13[,]" and further discloses that "mower
deck 9 is mounted on and connected to both engine deck 13 and
frame 11" (col. 4, ll. 27-34; Fig. 2).
B. However, Wright does not disclose the manner in which the
mower deck is mounted/connected to the frame and engine deck, or
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require that the mower deck be fixed in position relative to the
engine deck so as to preclude relative movement therebetween.
C. Wright also states that "[m]ower deck 9 (or alternatively the
mower wheels) is vertically movable or adjustable so as to adjust
the height of the cut." (Col. 4, ll. 36-39).
D. However, Wright does not specifically disclose the details of
the height of cut adjustment mechanism.

2. A. Busboom discloses a zero turn radius mower including a mower
deck height control for adjusting the height of cut (Abst.; Figs. 1, 3,
4).
B. The mower 10 of Busboom includes a frame means 12, an
engine support deck 18, an engine 20 and a mower deck 28 (col. 2,
ll. 52-60; col. 2, l. 66-col. 3, l. 1; Figs. 1, 3).
C. Busboom discloses that the mower deck is supported by a
plurality of chain members 42 which are connected to a mower
deck height control mechanism 44 that enables the mower deck to
be raised or lowered with respect to the frame 12 (col. 3, ll. 4-9;
Figs. 1, 3).
D. Busboom teaches that the deck height control mechanism 44
further includes lift arms 82, 76 to which the chain members 42 are
secured, and is operated by actuation of a control lever 54 (col. 3, ll.
20-32; col. 3, ll. 45-49; Fig. 4).
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E. Busboom also teaches that the mower 10 includes a stabilizer
rod 40 that connects mower deck 28 to frame 12 "in conventional
fashion." (Col. 3, ll. 2-4; Fig. 3).

3. A. Cox discloses a mower with an adjustable frame 24, an engine
mounted to the adjustable frame 24, and a rotor disc 31 with blades
32 (pg. 4, ll. 5-18; Figs. 1, 2).
B. Cox teaches that the height of cut is adjusted by raising and
lowering the adjustable frame 24 via height adjustment lever 33
which changes the height of the rotor and blades (pg. 4, ll. 19-22;
Figs. 1, 2). Thus, the engine mounted on the adjustable frame 24 is
also raised and lowered.

4. A. Musgrave discloses a mower including a motor 21 mounted on
plate 20 and a mower deck 50 mounted to plate extensions 37 of
plate 16 with slots 13 (col. 2, ll. 17-26, 38-44; col. 3, ll. 25-28; col.
4, ll. 55-61; Figs. 1, 2).
B. Musgrave teaches that the vertical height adjustment is attained
by raising or lowering the entire connected structure including the
motor, plate 20 and mower deck 50 (col. 4, ll. 55-63; Figs. 1, 2).

5. Hale '536 discloses a vehicle 20 with a mower unit 36 which is
connected to linkage members 136 (i.e., control arms) to rear axle 26
(col. 2, ll. 25-37; col. 4, ll. 53-66).

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6. Hale '798 discloses a mower with a circular mower frame 94
(i.e., mower deck) which is connected to control arms 86, 87 that are
connected to a support bar 83 (col. 4, l. 68-col. 5, l. 12; Figs. 1, 2, 6).

7. A. Velke '031 discloses a zero-turning radius mower with a cutter
deck 1, an engine 9 mounted on an engine deck 3 and a standing
platform 18 (col. 5, ll. 13-16, 32-46; Figs. 1, 2).
B. Velke '031 states that "the mower and cutter decks are separate
structures for performing different functions" (col. 5, ll. 32-33), and
that the cutting deck 1 is mounted to the engine deck 3 (col. 11, l.
66-col. 12, l. 2).
C. In the mower of Velke '031, the height of cut adjustment is
disclosed as being achieved by adjusting the mounting position of
the wheel motor brackets 157 for the rear drive wheels 7 along
numerous mounting holes 169 provided, together with adjusting the
vertical position of the front caster wheels 5 (col. 5, ll. 32-46; col.
11, ll. 52-58; Figs. 1, 3, 10).

8. A. Velke '755 discloses a zero turn radius mower similar to that of
Wright including a mower deck 9 mounted on and below a frame
11 in front of an engine 7 and an engine deck 13 (col. 6, ll. 1-5; Fig.
2).
B. Velke '755 also discloses a platform 71 for supporting the
standing operator between the rear drive wheels of the mower (col.
8, ll. 52-60; Figs. 2, 3, 5).
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C. In describing Figure 5, Velke '755 states
the compartment of foot platform 71 undercuts the frame
or engine deck 13 according to certain embodiments of
this invention. See also FIGS. 2-4. As shown, the foot
supporting surface 163 of platform 71 extends forwardly
of and underneath of a portion of frame or deck 13 until
reaching front or forward wall 159 of the foot platform
compartment. Thus, space is saved in that the engine
deck, pulley and belt assembly 161, and/or pumps 31, 33
are located vertically above each of the operator's feet
and a substantial portion (e.g. at least about 1-3 inches)
of the foot platform. This both conserves space is [sic]
and functions to protect the operator's feet from flying
debris and the like.
(Col. 13, ll. 23-35; Fig. 5).

PRINCIPLES OF LAW
In KSR, the Supreme Court reaffirmed principles based on its
precedent that "[t]he combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results." KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). The Court
also stated that "when a patent claims a structure already known in the prior
art that is altered by the mere substitution of one element for another known
in the field, the combination must do more than yield a predictable result."
Id. The Court also explained that "[w]hen a work is available in one field of
endeavor, design incentives and other market forces can prompt variations of
it, either in the same field or a different one. If a person of ordinary skill can
implement a predictable variation, §103 likely bars its patentability." Id. at
417. The Court further noted that "[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton." Id. at 421.
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EXAMINER'S REJECTIONS
The Examiner rejects the following claims of the '093 patent under 35
U.S.C. § 103(a) as obvious over the cited prior art references:4
4. Claims 1, 3, 4, 6-14, 16 and 17 over Wright in view of Cox,
Musgrave, Busboom, Hale '536, Hale '798 and Velke '755. Claim 11 is also
alternatively rejected in further view of Procomas and Hamouz.
4A. Claim 15 over Wright, Cox, Musgrave, Busboom, Hale '536, Hale
'798 and Velke '755 in view of Velke '031 or Berrios.
6. Claims 1, 3, 4 and 6-17 over Velke '031 in view of Cox,
Musgrave, Busboom, Hale '536 and Hale '798, and alternatively in further
view of Velke '755. Claim 11 is also alternatively rejected in further view of
Procomas and Hamouz.

ISSUES
The following dispositive issues have been raised in the present
appeal:
1. Whether the Examiner erred in concluding that the claims are
obvious principally based on the combination Wright in view of Cox,
Musgrave, Busboom, Hale '536, Hale '798 and Velke '755.
2. Whether the Examiner erred in concluding that the claims are
obvious principally based on the combination of Velke '031 in view of Cox,
Musgrave, Busboom, Hale '536 and Hale '798, and alternatively in further
view of Velke '755.

4 For clarity, the following enumerated Rejections utilize numbering that
corresponds to the numbering of the "Issues" used by the Patent Owner in its
briefs and by the Examiner in the RAN.
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ANALYSIS
Rejections 4 and 4A
Rejections 4 and 4A are based principally on the combination of
Wright in view of Cox, Musgrave, Busboom, Hale '536, Hale '798 and Velke
'755. All of the claims except claim 15 stand rejected in Rejection 4 as
unpatentable over this combination of prior art (RAN 2-14). The Examiner
finds that Wright teaches a mower with independent hydromotors, a mower
deck 9 and a combustion engine 7 where the mower deck is mounted
together and connected (RAN 2-3; see also FF 1A). However, the Examiner
concedes that Wright "fails to teach that vertical adjustment of the mower
deck enables movement of both the engine and the mower as one unit and
fails to teach the specifics of the vertical deck adjustment mechanism."
(RAN 3) (i.e., the recited "deck lift system for raising and lowering the
cutter deck assembly, engine deck, and combustion engine together in order
to adjust a blade cutting height of the mower" of the claims). Indeed, while
Wright suggests including a mechanism for adjusting the height of cut (also
referred to herein as "HOC"), it does not actually disclose a specific
mechanism for doing so (FF 1B-1D).
For the actual HOC adjustment mechanism and the control arm, the
Examiner relies Busboom that discloses a mower with "bell cranks 82, 104
and 76, 86, deck suspension chains 42, counterbalance springs 96,
adjustment handle 54, height control pin 106[,] and control arms 40 pivotally
connected to the mower deck (Figure 3)." (RAN 3). The Examiner
concludes that "[i]t would have been obvious to one having ordinary skill in
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the art at the time of the invention, given the Wright suggestion of vertical
height adjustability to have incorporated the Busboom HOC structures into
the mower of Wright '138 as a mere substitution of known mechanisms for
making mower decks 'vertically moveable or adjustable[.]'" (RAN 3; see
also FF 2A-2E). The Examiner also finds that HOC adjustment in which
"the engine moves with the cutting deck were well known in the art at the
time of the invention" as evidenced by both Cox and Musgrave (RAN 3; see
also FF 3A-4B). The Examiner states that given the teachings of Cox and
Musgrave, "it would have been obvious to have arranged the modified
Wright HOC adjustment to allow for the engine to move in concert with the
deck structure as such HOC structures were well established alternatives for
allowing an operator to change the cutting height." (RAN 3-4).
The Examiner concedes that "Wright as modified by Busboom, Cox
and Musgrave would not necessarily provide for the claimed control arm
length, i.e. that they are short enough such that 15 degree angular movement
corresponds to 2.5 inches of vertical adjustment as claimed[.]" (RAN 4).
However, the Examiner finds that Hale '536 and Hale '798 establish that
different length control arms were known in the art and states that "[g]iven
these combined teachings, merely adjusting the control arm length in the
modified Wright system would have amounted to an obvious choice in
engineering design in order to effect a desired range of vertical height
adjustment." (RAN 4; see also FF 5, 6).
As to the position of the control arm pivot, the Examiner states that it
being mounted forward of the foot platform would have been understood
from Busboom "[s]ince the front wall of the Wright foot platform is the only
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structure directly to the rear of the deck[,]" and this attachment point would
also be rearward of the front edge of the drive wheel (RAN 4). The
Examiner states that the modified Wright system fails to teach that the
control arm pivot is located forward of the foot platform (RAN 5). The
Examiner relies on Velke '755 for its teaching that it is "desirable to extend
the rear edge of the engine deck over the foot platform to conserve space and
protect the operator's feet from flying debris" so that it would have been
obvious to one of ordinary skill to have incorporated this feature for the
noted safety and space saving benefits, and "[i]n doing so, the resultant
control arm pivot would be located forward of the rear end of the engine
deck 13 as claimed." (RAN 5; FF 8A-8C).
Thus, the Examiner's position is that it would have been obvious to
apply the HOC adjustment mechanism of Busboom, including the disclosed
chains and control arm, to provide stable, vertical adjustability to the deck of
Wright where the engine moves with cutting deck as known in the art as
demonstrated by Cox/Musgrave. In addition, it is also the Examiner's
position that mounting the control arms' pivot in the location recited would
have been obvious, especially in view of the safety and space benefits taught
by Velke '755. The Examiner's position is supported by preponderance of
the evidence. We address the Patent Owner's arguments infra.
The Patent Owner argues that even if the prior art references are
combined, such combination does not result in the recited angle because the
control arm of Busboom is too long (ABPO 9-10; see also Decl. of Wright
¶ 6). According to the Patent Owner, Busboom requires a control arm in
order to stabilize the mower deck which is suspended by chains, and requires
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the long length to prevent slackening or tightening of the belt by minimizing
fore/aft movement during raising and lowering of the mower deck (ABPO
11; see also Decl. of Wright, ¶ 7). In contrast, the Patent Owner asserts that
in the claimed invention, engine and deck moves together so that slack in the
belt is not an issue (ABPO 11-12). The Patent Owner argues that there is no
teaching or suggestion to adjust control arm length or recognition that it is a
result effective variable that is to be optimized (ABPO 12-13). The Patent
Owner further argues that both of the Hale references are directed to
automatic leveling systems that cannot be implemented in Wright (ABPO
13-14).
The Patent Owner's arguments are unpersuasive because they do not
take into account what the collective teachings of the prior art. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981) ("The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the references.
Rather, the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art"). It is not necessary that the
inventions of the references must be physically combinable, without change,
to render obvious the invention under review. See In re Sneed, 710 F.2d
1544, 1550 (Fed. Cir. 1983).
As the Examiner noted, Wright suggests a mechanism for adjusting
the height of the mower deck, but fails to disclose the specifics thereof (FF
1C, 1D). Absent such information, one of ordinary skill in the art would
have logically considered known HOC adjustment mechanisms to
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implement in the mower of Wright. Busboom is one such known
mechanism. When implementing the HOC adjustment mechanism of
Busboom in the mower of Wright, we agree with the Examiner (RAN 4) that
it would have been obvious to provide control arms that are sized to be
appropriate to the application so that when applied to the compact standing
mower of Wright which has a compact frame, the control arms would be
shorter than that disclosed in Busboom.5 (RAN 8). In this regard, we agree
with the Requester that "[t]he logical reason for making the control arms
shorter was merely to fit them into the more compact form of mower that
Wright had already invented and patented in Wright '138 - to fit what
Owner acknowledges in Wright '138 was the 'reduced overall length ' of the
mower." (Resp. Br. R 9). We further agree with the Examiner (RAN 8) that
the resultant application of the control arm into the existing compact
structure satisfies the recited stabilization function.
The Patent Owner also argues that a person of ordinary skill in the art
would not provide Busboom's control arm in the mower of Wright because
there is no room and it would require substantial reconstruction and redesign
rendering Wright unsuitable for its intended purpose of providing compact
stand-on mower (ABPO 16-18). Again, these arguments are unpersuasive
because they are based on bodily incorporation and fail to consider the
combined teachings of the art and the skill of one of ordinary skill in the art.

5 While not forming the basis of our decision, we also observe that size is
not ordinarily a patentable feature. In re Rose, 220 F.2d 459, 463 (CCPA
1955) ("size of the article under consideration [] is not ordinarily a matter of
invention"); see also Gardner v. TEC Systems, Inc., 725 F.2d 1338, 1346,
(Fed. Cir. 1984); In re Kirke, 40 F.2d 765, 767 (CCPA 1930).
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See In re Keller, 642 F.2d at 425; In re Sneed, 710 F.2d at 1550. Persuasive
evidence has not been provided that implementing Busboom's HOC
adjustment mechanism in Wright's mower by appropriately sizing it to fit
would have been beyond the skill of those in the art. KSR, 550 U.S. at 417.
The Patent Owner contends that Wright has no chains and there is no
need to provide a control arm because "the cutter deck 9 in Wright is already
structurally connected to engine deck 13 and frame 11" (ABPO 18, 21-22).
The Patent Owner further argues that neither Cox nor Musgrave discloses
any uncontrolled lateral movement and "[o]ne would not have added a
control arm to Wright/Musgrave or Wright/Cox to address an alleged
problem that did not exist or, at worst, was already solved." (ABPO 23-24).
However, as noted above, while Wright suggests a HOC adjustment
mechanism, it does not disclose a particular mechanism. Hence, when the
HOC adjustment mechanism of Busboom which includes chains is
implemented in the mower of Wright, a person of ordinary skill in the art
would have also provided a stabilizer rod (i.e., a control arm) disclosed in
Busboom for stabilization of the mower deck. While the mower of Wright
discloses that the "mower deck 9 is mounted on and connected to both
engine deck 13 and frame 11" (FF 1A), this does not preclude relative
movement between the mower deck and the engine deck (see Resp. Br. PO
13-14 (Patent Owner agreeing with the Examiner that the mower deck and
the engine deck of Wright can be "mounted on" each other and "connected,"
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but "not necessarily move up/down together as one unit.")6; see also FF 4A,
4B). Wright also does not teach against the use of a mower deck supported
by chains which is well-known in the art and indeed present in the Busboom
mower (see Busboom, Figs. 3, 4) and not in dispute between the parties.
Thus, while the Patent Owner asserts that a control arm may not be
necessary in a mower based on the combination of Wright/Musgrave or
Wright/Cox, when the mower deck height control mechanism 44 of
Busboom with its chains is implemented in the Wright's mower to provide
the various functions thereof, a control arm would be desirable to stabilize
the mower deck.
The Patent Owner also argues that Wright criticizes sit-down mowers
like that of Busboom (ABPO 17-18). However, while Wright may criticize
sit-down mowers because of high centers of gravity and the difficulty of
users in ducking under low hanging tree limbs (see Wright, col. 1, l. 60-col.
2, l. 6), this teaching does not provide a correlation between the HOC
adjustment mechanisms known in the art and the seating position of the user.
Thus, the criticism in Wright with respect to seating position would not
dissuade one of ordinary skill in the art from implementing the HOC
adjustment mechanism that is also taught in Busboom. Furthermore, as
noted by the Requester, Wright '138 also "criticizes" many different kinds of
mowers which would, according to the Patent Owner's logic, result in the

6 In response to questioning regarding relative movement between the
engine, the engine deck and the cutting deck in the mower of Wright, the
Patent Owner's legal representative Mr. Rhoa also stated:

MR. RHOA: Wright 138, yes. Is it possible that there is some
movement there between? Yes, it's possible.
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untenable position of removing a substantial body of art pertinent to mowers
from consideration (Resp. Br. R 15 and citations therein). Nonetheless, a
known or obvious product "does not become patentable simply because it
has been described as somewhat inferior to some other product for the same
use." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). The Patent Owner
also takes issue with the Examiner's statement that "[g]iven these combined
teachings, merely adjusting the control arm length in the modified Wright
system would have amounted to an obvious choice in engineering design in
order to effect a desired range of vertical height adjustment." (RAN 4). The
Patent Owner argues that the "proposed rationale for the alleged shortening
of Busboom's control arm length is technically inaccurate and fundamentally
flawed" because the length of the control arm in Busboom "does not
determine or effect the range of vertical height adjustment of the cutter
deck." (ABPO 15-16, citing Decl. of Wright ¶ 8). The Patent Owner argues
that "the length of control arm 40 in Busboom has nothing to do with
determining/effecting the range of vertical height adjustment of the cutter
deck." (Id.).
We are not persuaded that the Examiner erred. Firstly, the Patent
Owner misstates the Examiner. The Examiner did not say that the control
arm "determine[s] or effect the range of vertical height adjustment of the
cutter deck" as asserted by the Patent Owner (emphasis added). Secondly,
the Examiner stated that the phrase has been taken "out of context" by the
Patent Owner and in view of the apparent misunderstanding, explained that
"[c]learly it is not the control arms that control the height adjustment. In the
proposed rejection, the control arms allow, thus effect, the vertical height
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range that was claimed for the control arms, but do not actually perform, i.e.
directly cause the height adjustment." (RAN 9, emphasis added). In other
words, by virtue of their connection to the mower deck, the control arms
move as the vertical height of the mower deck is adjusted to result in the
vertical height adjustment range of the control arm of "no more than about
2.5 inches" as articulated in the claims. Indeed, the paragraph in which the
statement at issue occurs sets the context by beginning with the statement
that "Wright as modified by Busboom, Cox and Musgrave would not
necessarily provide for the claimed control arm length, i.e. that they are short
enough such that 15 degree angular movement corresponds to 2.5 inches of
vertical adjustment as claimed[.]" (RAN 4, emphasis added). Thus, we
agree with the Examiner that the Patent Owner has taken the statement at
issue "out of context," and the Examiner has adequately clarified the
statement misunderstood by the Patent Owner.
Thirdly, the crux of the Examiner's articulated reason for the rejection
is that "merely adjusting the control arm length in the modified Wright
system would have amounted to an obvious choice in engineering design"
based on the evidence of record including Busboom and the Hale references
(RAN 4). In this regard, the Examiner also stated that:
Those having ordinary skill in the art would have understood
that in incorporating the HOC structures of a sitting mower in
a more compact standing mower as Wright as suggested into
the rejection, that certain aspects would have needed to be
adjusted to accommodate the parts… Plainly, those in the art
would have understood that moving the Busboom HOC
structures to a compact frame would have required shorter
control arms, especially when the art was well aware that
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different frame structures require different length control arms
as evidenced by the Hale patents.
(RAN 8).
In addition, the Examiner further stated that:
Those having ordinary skill in the art would have understood
that when stabilization was required, control arms can be used
as evidenced by any of Busboom or the Hale patents. Clearly it
can be gleaned from those teachings that control arms do not
have a finite length, but are instead dependent upon the distance
between the mower deck and the portion of the frame that the
engineer/designer sees fit to establish the requisite degree of
stability. When attempting to stabilize in a more compact
mower design such as Wright's, it is only reasonable to
conclude that those in the art would have understood that
shorter control arms would have been required to fit into that
more compact system.
(RAN 9-10).
We also highlight the fact that the explanation for the statement at
issue was first provided in the Action Closing Prosecution of March 6, 2012,
pages 4, 8-10. Thus, the Patent Owner had ample opportunity to respond,
and the Patent Owner did respond, to the substance of the rejection as
discussed above. To the extent that the Patent Owner believes that the
clarification changed the ground of rejection as articulated in the Non-Final
Office Action, the Patent Owner could have petitioned to have the rejection
denominated as a new ground of rejection and prosecution reopened.
Finally, the Patent Owner observes that the claims require the rear
pivot axis of the control arm to be located "forward of a rear end of the
engine deck assembly." (ABPO 24). The Patent Owner asserts that "[t]he
rear of the engine deck 13 in Wright essentially abuts the front wall 89 of the
platform structure, and therefore there is no way to extend the engine deck
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farther rearwardly as alleged in the Office Action." (ABPO 24). However,
this argument is unpersuasive because it is again essentially based on bodily
incorporation, and does not account for accommodating the extended engine
deck in the manner shown in Figure 5 of Velke '755 to which the teachings
regarding the safety and space benefits are directed (FF 8C). See In re
Keller, 642 F.2d at 425.
As to claims 4 and 6, the Patent Owner does not provide any separate
arguments as to their patentability (ABPO 25). As to claim 17, the Patent
Owner observes that it requires control arms that are even shorter than that
of claim 1, but does not proffer arguments that substantively differ from
those already considered (ABPO 25). The Patent Owner also does not
proffer separate arguments with respect to claims 3, 7-14 and 16.
In view of the above, the Examiner has set forth a prima facie case of
obviousness with respect to Rejection 4 which was not rebutted by the
Patent Owner considering the totality of the evidence. We therefore affirm
the Examiner. The Patent Owner relies on the same arguments with respect
to claim 15 rejected in Rejection 4A (ABPO 26) which is also principally
based on the combination of Wright in view of Cox, Musgrave, Busboom,
Hale '536, Hale '798 and Velke '755. Thus, we affirm Rejection 4A as well.

Rejection 6
Rejection 6 rejects all of the claims as obvious over the combination
of Velke '031 in view of Cox, Musgrave, Busboom, Hale '536 and Hale '798,
and alternatively in further view of Velke '755 (RAN 14-19). The
Examiner's rejection is substantively similar to Rejection 4 except that prior
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art reference Velke '031 is substituted for Wright (RAN 19; ABPO 26). In
particular, Velke '031 teaches a zero turn radius mower with a foot platform
wherein height of cut is adjusted by changing the mounting each front caster
wheel and wheel/drive motor using mounting holes (FF 7A, 7C). Hence,
Velke '031 differs from Wright discussed supra in that Velke '031 does
disclose an HOC adjustment mechanism. The Examiner concludes that
using the HOC adjustment mechanism of Busboom instead of that provided
in Velke '031 is a "mere substitution of known mechanisms for making
mower decks vertically moveable or adjustable and to incorporate the added
bonus of ease of adjustment to Velke ['031]." (RAN 15). As to the provision
of a control arm and the length thereof, the disagreement and arguments
between the Patent Owner and the Examiner are substantively the same as
those discussed supra relative to Rejection 4 (RAN 16; ABPO 27-32).
For the reasons substantially similar to those already discussed supra
relative to Rejection 4, we find no error in the Examiner's rejection. We
further add that providing ease of adjustment as articulated by the Examiner
is another rational reason for implementing the HOC adjustment mechanism
of Busboom that uses a lever, the HOC adjustment in Velke '031 of
adjusting each wheel height being cumbersome in comparison (see Resp. Br.
R 19-20). We further agree with the Examiner that modification of the
length of the control arm would have been obvious to one of ordinary skill in
the art for the reasons already discussed. We also note that in contrast to
Rejection 4, the Patent Owner does not submit arguments as to the specific
positioning of the rear pivot axis of the control arm in response to the
Examiner's findings that the modified Velke '031 appears to satisfy the
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positioning recited, and even if it did not, the application of teachings in
Velke '755 results in such positioning (RAN 16-17).
As to claims 4 and 6, the Patent Owner again does not provide any
separate arguments as to their patentability (ABPO 32). As to claim 17, the
Patent Owner again observes that it requires control arms that are even
shorter than that of claim 1, but does not proffer arguments that
substantively differ from those already considered (ABPO 32-33). The
Patent Owner also does not proffer separate arguments with respect to
claims 3, 7-14 and 16.
Correspondingly, we find that the Examiner has set forth a prima facie
case of obviousness with respect to Rejection 6 and we affirm the same.

CONCLUSIONS
1. The Examiner did not err in concluding that the claims are
obvious principally based on the combination Wright in view of Cox,
Musgrave, Busboom, Hale '536, Hale '798 and Velke '755.
2. The Examiner did not err in concluding that the claims are
obvious principally based on the combination of Velke '031 in view of Cox,
Musgrave, Busboom, Hale '536 and Hale '798, and alternatively in further
view of Velke '755.
3. We do not reach the Cross-Appeal of the Requester.

Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. §§ 1.956.

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AFFIRMED

PATENT OWNER:
NIXON & VANDERHYE PC
901 North Glebe Road
11th Floor
Arlington, VA 22203

THIRD PARTY REQUESTER:

James W. Miller
527 Marquette Avenue
Suite 1960, Rand Tower
Minneapolis, MN 55402