Ex Parte Bachstein et alDownload PDFBoard of Patent Appeals and InterferencesAug 18, 201010900349 (B.P.A.I. Aug. 18, 2010) Copy Citation 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. 10/900,349 07/28/2004 William Eugene Bachstein 08350.3446 7198 58982 7590 08/18/2010 CATERPILLAR/FINNEGAN, HENDERSON, L.L.P. 901 New York Avenue, NW WASHINGTON, DC 20001-4413 EXAMINER MCGOWAN, JAMIE LOUISE ART UNIT PAPER NUMBER 3671 MAIL DATE DELIVERY MODE 08/18/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte WILLIAM EUGEN BACHSTEIN and DANIEL EDWARD SHEARER ____________ Appeal 2009-007130 Application 10/900,349 Technology Center 3600 ____________ Before JAMESON LEE, RICHARD TORCZON and SALLY C. MEDLEY, Administrative Patent Judges. MEDLEY, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-007130 Application 10/900,349 2 STATEMENT OF THE CASE Caterpillar Inc. (“Caterpillar”), the real party in interest, seeks review under 35 U.S.C. § 134(a) of a Final Rejection of claims 1-6 and 8-23. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. BACKGROUND Caterpillar discloses, referring to Caterpillar’s figure 2 reproduced below [numbers from figure 2 inserted], a work machine control system including a control device [160] with a grip and a switch that extends rearwardly from a fixed surface [152] adjacent a forward-facing operator’s station [150]. Spec. 3-9. Caterpillar’s figure 2 is below: Figure 2 depicts a work machine control system. Claim 1 is illustrative: A control system for a rear-mounted work implement on a work machine operable from a forward-facing operator's station on the work machine, comprising: a surface adjacent to the operator's station, the surface being fixed in a position; and a control device attached to the surface, including a stationary grip extending rearward and configured to be gripped by an operator, a position of the grip being fixed relative to the surface during use, the grip being positioned to stabilize an operator when turned in the operator's station to view the work implement, and Appeal 2009-007130 Application 10/900,349 3 a switching mechanism disposed between the grip and the surface, and being configured to operate the work implement and configured to be actuatable by a hand of the operator on the grip. The Examiner relies on the following prior art references: Okazawa et al. (“Okazawa”) 6,276,749 Aug. 21, 2001 Fee et al. (“Fee”) 5,768,947 Jun. 23, 1998 Caterpillar appeals the rejection of claims 1-6 and 8-23 under 35 U.S.C. § 103(a) as unpatentable over Okazawa and Fee. ISSUE Has Caterpillar shown that the Examiner incorrectly determined that it would have been obvious to orient Fee’s control device in Okazawa’s control system such that the control device extends rearwardly? FINDINGS OF FACT Okazawa 1. Okazawa describes, referring to Okazawa’s figure 2 reproduced below [numbers from figure 2 inserted], a work vehicle driver’s room [3] including an operator’s seat [11], and a control console [10a] that includes an upper surface and a mono lever [8b] for operating rear work equipment (i.e., a ripper). Col. 5, ll. 34-55. Okazawa’s figure 2 is below: Figure 2 above depicts a work vehicle driver’s room. Appeal 2009-007130 Application 10/900,349 4 Fee 2. Fee describes, referring to Fee’s figure 2 reproduced below [numbers from figure 2 inserted], a construction equipment operator station including a hand support and control [28] for controlling the operation of a ripper. Col. 3, ll. 21-25, 51-54. Fee’s figure 2 is below: Figure 2 above depicts a construction equipment operator station. 3. Fee describes, referring to Fee’s figure 3 reproduced below [numbers from figure 3 inserted], the hand support and control [28] includes a base [30] and an end portion [32] upstanding at a first angle from base [30] and a hand grip [36] extending outwardly from end portion [32]. Col. 3, ll. 53-60. Fee’s figure 3 is below: Figure 3 above depicts a hand support and control. Appeal 2009-007130 Application 10/900,349 5 4. A first control lever [42] is rotationally mounted to distal end [38] of the hand grip [36] which can be most readily rotated by the operator’s thumb. Col. 4, ll. 1-5. ANALYSIS Caterpillar disputes the Examiner’s determination that it would have been obvious to orient Fee’s control device in Okazawa’s control system so that it extends rearwardly. Br. 12-16. The Examiner finds, referring to Okazawa’s figure 2 above, that Okazawa describes a control system operable from a forward-facing operator’s station that includes a surface [10a] (i.e., control console) fixed in a position and adjacent to the operator’s station [11] (i.e. seat) and attached to the surface [10a] is a control device [8b] (i.e., mono lever) used for operating the rear mounted work equipment (i.e., ripper). Ans. 4, citing col. 5, ll. 49-55. The Examiner further finds that Okazawa describes that the rear mounted work equipment with control device [8b] is used when the operator is turned in their seat to face rearward and in that position the operator would have to use their left hand to operate the control device [8b]. Ans. 8. The Examiner does not rely on Okazawa for describing a control device that includes a stationary grip and switching mechanism, but instead finds that Fee describes a control device [28] (i.e., hand control and support) including a stationary grip [36] (i.e., hand grip) and a switching mechanism [42] (i.e., first control lever) to operate the rear mounted work equipment (i.e., ripper). Ans. 4, 5. The Examiner further finds that Fee teaches that a stationary grip is desirable because it stabilizes the operator and prevents inadvertent actuation of the equipment, as is the case with joysticks. Ans. 6, citing col. 3, ll. 42-50. Appeal 2009-007130 Application 10/900,349 6 The Examiner determined that it would have been obvious to one with ordinary skill in the art at the time the invention was made to include Fee’s control device [28] with stationary grip [36] and switching mechanism [42] in a rearward facing position in the control system of Okazawa to stabilize the operator and allow more control over the equipment in use. Ans. 6. The Examiner explains that in the combination, Fee’s control device [28] with stationary grip [36] and switching mechanism [42] would be located on the wall of the operator’s cab as taught by Fee to stabilize the operator, but in the same general area as Okazawa’s control device [8b] for actuation by the left hand and would therefore have to be positioned to extend rearwardly in order for the operator to effectively actuate the switching mechanism [42]. Ans. 8. The Examiner further explains that if Fee’s control device [28] is not positioned to extend rearwardly, but remains front facing, it would be difficult for the operator to actuate the switching mechanism [42] since the operator’s left thumb would not be located at the top of the control device [28] where it needs to be located in order to actuate the switching mechanism [42]. Ans. 6, 8. Caterpillar’s arguments that Fee does not disclose or suggest a stationary grip extending rearwardly (Br. 13, 14) are unpersuasive. Caterpillar’s arguments dismiss the Examiner’s determination that the combination of Okazawa and Fee suggest the disputed limitation. The Examiner’s determination that it would have been obvious to include Fee’s control device [28] with stationary grip [36] and switching mechanism [42] in a rearward facing position in Okazawa’s control system to stabilize the operator and allow more control over the equipment in use (Ans. 6) is reasonable. The Examiner’s findings and rationale for combining Okazawa Appeal 2009-007130 Application 10/900,349 7 and Fee are clearly set forth in both the Final Rejection and Examiner’s Answer, yet the combined teachings of Okazawa and Fee are not addressed in the Appeal Brief. The determination of obviousness is not based on whether the claimed invention is expressly suggested in any one reference, or all of the references, but is based on what the combined teachings of the references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Caterpillar’s arguments that due to the configuration of Fee’s system, the operator with controls in each hand cannot operate knob [42] (i.e., first control lever) with their thumb if the grip [36] and knob [42] were to extend rearwardly (Br. 14, citing col. 3, ll. 60-67) are misplaced. Caterpillar’s arguments focus too narrowly on the particular embodiment of Fee. The Examiner only relies on Fee for teaching a hand control and support [28] that includes the hand grip [36] and first control lever [42]. Ans. 4, 9. The intended purpose and manner of use of Fee’s hand control [28] need not be preserved. The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned, as they are a part of the literature and are relevant for all they contain. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983), citing In re Lemelson, 397 F.2d 1006, 1009 (CCPA 1968). For all these reasons, we sustain the rejection of claims 1-6 and 8-23 as unpatentable over Okazawa and Fee. DECISION We AFFIRM the rejection of claims 1-6 and 8-23 under 35 U.S.C. § 103(a) as unpatentable over Okazawa and Fee. Appeal 2009-007130 Application 10/900,349 8 TIME PERIOD No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1) (2009). ORDER AFFIRMED CATERPILLAR/FINNEGAN, HENDERSON, L.L.P. 901 New York Avenue, NW WASHINGTON, DC 20001-4413 Copy with citationCopy as parenthetical citation