Ex Parte Bachstein et al

Board of Patent Appeals and Interferences

Aug 18, 2010

10900349 (B.P.A.I. Aug. 18, 2010)

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

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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
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Application 10/900,349

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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

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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.
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Application 10/900,349

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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.
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Application 10/900,349

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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
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Application 10/900,349

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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

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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