10256645 (B.P.A.I. Feb. 27, 2009)

Ex Parte Barbison

Board of Patent Appeals and InterferencesFeb 27, 2009

10256645 (B.P.A.I. Feb. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JAMES M. BARBISON ____________ Appeal 2008-2976 Application 10/256,645 Technology Center 3600 ____________ Decided:1 February 27, 2009 ____________ Before: JENNIFER D. BAHR, LINDA E. HORNER, and MICHAEL W. O'NEILL, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date shown on this page of the decision. The time period does not run from the Mail Date (paper delivery) or Notification Date (electronic delivery). Appeal 2008-2976 Application 10/256,645 STATEMENT OF THE CASE James M. Barbison (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 6, 17, and 18. The Examiner has indicated that claims 1-5, 7-10, 16, and 19-27 contain allowable subject matter. No other claims are pending in the application. We have jurisdiction over this appeal under 35 U.S.C. § 6 (2002). The Invention Appellant’s claimed invention is directed to a leveling and stabilization system for a motor vehicle, in particular, a motor home or recreational vehicle. Specification, para. 1. Claim 17, reproduced below, is the only independent claim involved in this appeal. 17. A motor vehicle having a plurality of corners and including wheel assemblies disposed at each of the corners, said motor vehicle comprising: a suspension assembly including an air spring assembly for each of the wheel assemblies, said air spring assemblies being actuatable for adjusting an orientation of said motor vehicle; and a damper assembly for each of the wheel assemblies for locking said motor vehicle at a desired orientation. The Rejection Appellant seeks review of the Examiner’s rejection of claims 6, 17, and 18 under 35 U.S.C. § 102(b) as being anticipated by Gladish (US 4,335,901, issued Jun. 22, 1982). 2 Appeal 2008-2976 Application 10/256,645 SUMMARY OF DECISION We REVERSE. OPINION To establish anticipation, every element and limitation of the claimed invention must be found in a single prior art reference, arranged as in the claim. Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001). In other words, there must be no difference between the claimed invention and the reference disclosure, as viewed by a person of ordinary skill in the field of the invention. Scripps Clinic & Research Found. v. Genentech Inc., 927 F.2d 1565, 1576 (Fed. Cir. 1991). In rejecting the claims as being anticipated by Gladish, the Examiner has taken the position that the damper assemblies of claim 17 read on the actuator means 40 of Gladish. Answer 3. Appellant argued that the actuator means 40 of Gladish are not damper assemblies and do not lock a motor vehicle at a desired orientation. Appeal Br. 4. Instead, according to Appellant, the actuator means 40 of Gladish merely provide for the automatic regulation of air within the air springs. Id. Therefore, the issue presented in this appeal is: has Appellant demonstrated error in the Examiner’s finding that the actuating means 40 of Gladish are damper assemblies for locking the motor vehicle at a desired orientation, as required in claim 17? The ordinary and customary meaning of the term “lock” is “to put in a fixed position.” Webster's New World Dictionary 830 (David B. Guralnik ed., 2nd Coll. Ed., Simon & Schuster, Inc. 1984). Appellant’s description of the damper assemblies 20 in paragraphs 27 and 30 of the Specification confirms that the term “locking” is used in claim 17 in accordance with this 3 Appeal 2008-2976 Application 10/256,645 ordinary and customary meaning. Specifically, Appellant’s Specification describes the damper assembly as including a valve assembly 30 actuatable between a position allowing for movement of the damper assembly and a locked position which locks the damper assembly. Specification, para. 27. According to Appellant, the damper assembly 20 operates by allowing fluid flow through a specifically sized orifice, which provides the damping characteristics that eliminate oscillation of the motor home 12 caused by inconsistencies of the roadway. Specification, para. 30. Once this orifice is blocked and fluid is prevented from flowing from one chamber to another, the damper assembly 20 becomes essentially a fixed member that prevents movement of the body 38 relative to the motor home frame 22 to provide a foundation like feel to the motor home 12. Id. We thus construe the language “locking said motor vehicle at a desired orientation” in claim 17 as putting said motor vehicle at a fixed, that is, immovable, orientation. The actuating means 40 of Gladish do not, and cannot, put the motor vehicle at a fixed orientation. Rather, the actuating means 40 of Gladish permits the operator, by operation of knob 68, to adjust the respective one of regulating valves 26, 28 to feed air to or bleed air from the air bag spring 14 to raise or lower the chassis, and hence the vehicle bed, relative to the axle, to thereby align the vehicle bed with a reference elevation, such as a loading dock. Gladish, col. 5, ll. 11-66. Such feeding or bleeding of air merely increases or decreases the pressure in the associated air spring to raise or lower the bed; it does not lock the air spring against compression and oscillation or otherwise lock the vehicle chassis in a fixed elevation or orientation. Simply stated, the actuating means 40 of Gladish are incapable of locking the vehicle at a desired orientation, as required in claim 17. Nor 4 Appeal 2008-2976 Application 10/256,645 do we find any other structure in Gladish for locking the vehicle chassis in a fixed elevation or orientation. In light of the above, Appellant has demonstrated error in the Examiner’s finding that the actuating means 40 of Gladish are damper assemblies for locking the motor vehicle at a desired orientation, as required in claim 17 and, consequently, in the Examiner’s finding that Gladish teaches all of the limitations of claim 17. We cannot sustain the Examiner’s rejection of claim 17 or claims 6 and 18, which depend from claim 17. DECISION The Examiner’s decision is REVERSED 5 Appeal 2008-2976 Application 10/256,645 LV: CARLSON, GASKEY & OLDS, P.C. 400 WEST MAPLE ROAD SUITE 350 BIRMINGHAM, MI 48009 6