Ex Parte Bartel

Board of Patent Appeals and Interferences

Feb 18, 2010

10175355 (B.P.A.I. Feb. 18, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JAMES J. BARTEL
____________________

Appeal 2009-005322
Application 10/175,355
Technology Center 3600
____________________

Decided: February 19, 2010
____________________

Before STEVEN D.A. McCARTHY, STEFAN STAICOVICI
and KEN B. BARRETT, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s 2
decision finally rejecting: 3
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claims 1-3, 6, 9 and 10 under 35 U.S.C. § 103(a) as being 1
unpatentable over Mullican (US 5,887,880, issued Mar. 30, 2
1999), VanDenberg (US 5,868,418, issued Feb. 9, 1999) and 3
Vin (US 4,039,037, issued Aug. 2, 1977); 4
claim 4 under § 103(a) as being unpatentable over 5
Mullican, VanDenberg, Vin and Schwenk (US 3,951,225, 6
issued Apr. 20, 1976); 7
claim 5 under § 103(a) as being unpatentable over 8
Mullican, VanDenberg, Vin, Schwenk and Maurer (US 9
6,035,956, issued Mar. 14, 2000); 10
claims 24 and 25 under § 103(a) as being unpatentable 11
over Mullican, VanDenberg, Vin, Schwenk, Maurer and Moll 12
(US 4,355,696, issued Oct. 26, 1982); 13
claims 16-19, 22, 23 and 27 under § 103(a) as being 14
unpatentable over Mullican, VanDenberg, Schwenk and 15
Maurer; and 16
claims 11, 14, 15 and 26 under § 103(a) as being 17
unpatentable over Schwenk, Moll and Maurer. 18
We have jurisdiction under 35 U.S.C. § 6(b). 19
We AFFIRM. 20
Claim 1 recites: 21
22
1. A vehicle having a powered low 23
profile drive line, comprising: 24
a frame assembly extending from a front end 25
of the vehicle to a rear end, said frame assembly 26
sloping upward from the front end to the rear end 27
of the vehicle relative to horizontal; 28
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an engine supported by said frame assembly 1
and having a power output; 2
a power transfer device having a transfer 3
input operably attached to said power output and a 4
transfer output axially offset from said transfer 5
input; 6
a driveshaft having a first end operably 7
attached to said transfer output, said driveshaft 8
substantially horizontal along a length of said 9
frame assembly; 10
a rear drive operably attached to a second 11
end of said driveshaft for enabling power transfer 12
thereto; and 13
a low profile suspension resiliently 14
supporting rear wheels relative to said frame 15
assembly such that said rear wheels move 16
vertically with respect to said frame assembly. 17
18
ISSUES 19
The Appellant does not argue the rejections of any of claims 2, 3, 6, 9 20
and 10 separately from the rejection of claim 1. (See App. Br. 7-10; Reply 21
Br. 1-3). Claim 1 is representative of the group including claims 1-3, 6, 9 22
and 10 for purposes of the rejection of those claims under § 103(a). See 37 23
C.F.R. § 41.37(c)(1)(vii). The Appellant argues the rejections of claim 4 and 24
of claims 16-19, 22, 23 and 27 separately from the rejection of claim 1. 25
(App. Br. 10 and 13). Claim 16 is representative of the group including 26
claims 16-19, 22, 23 and 27. 27
Although the Appellant argues the rejections of claims 5, 24 and 25 28
separately from the rejections of claims 1 and 4, the Appellant advances no 29
reason why the subject matter of claim 5, claim 24 or claim 25 might be 30
patentable if the subject matter of claims 1 and 4 is not patentable. (See 31
App. Br. 11). Consequently, the rejections of claims 5, 24 and 25 raise no 32
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issues separate from those raised in connection with the rejections of claims 1
1 and 4. 2
Five issues raised in this appeal are: 3
Does Mullican teach away from the subject matter of 4
claim 1? (See App. Br. 7 and 9-10; Ans. 9-10; Reply Br. 2-3). 5
Has the Examiner failed to articulate reasoning with 6
some rational underpinning sufficient to support the conclusion 7
that a vehicle having a powered low profile drive line as well as 8
a low profile suspension supporting rear wheels relative to a 9
frame assembly such that the rear wheels move vertically with 10
respect to the frame assembly would have been obvious from 11
the combined teachings of Mullican, VanDenberg and Vin? 12
(See App. Br. 7-8 and 9; Ans. 10-11; Reply Br. 2). 13
Has the Examiner failed to articulate reasoning with 14
some rational underpinning sufficient to support the conclusion 15
that a vehicle having a powered low profile drive line as well as 16
a frame assembly sloping upwardly from the front end to the 17
rear end of the vehicle relative to the horizontal would have 18
been obvious from the combined teachings of Mullican, 19
VanDenberg and Vin? (See App. Br. 8-9; Ans. 10). 20
Has the Examiner failed to articulate reasoning with 21
some rational underpinning sufficient to support the conclusion 22
that the subject matter of claim 4 would have been obvious 23
from the combined teachings of Mullican, VanDenberg, Vin 24
and Schwenk? (See App. Br. 10; Ans. 11). 25
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Has the Examiner failed to articulate reasoning with 1
some rational underpinning sufficient to support the conclusion 2
that the subject matter of claim 16 would have been obvious 3
from the combined teachings of Mullican, VanDenberg, 4
Schwenk and Maurer? (See App. Br. 13; Ans. 13). 5
The Appellant does not argue the rejections of any of claims 14, 15 6
and 26 separately from the rejection of claim 11. (See App. Br. 11-12). 7
Claim 11 is representative of the group including claims 11, 14, 15 and 26 8
for purposes of the rejection of those claims under § 103(a). 9
A sixth issue raised in this appeal is: 10
Has the Examiner failed to articulate reasoning with 11
some rational underpinning sufficient to support the conclusion 12
that a rear drive line for a vehicle including a torsion box and 13
air springs arranged behind wheel axles to accommodate a half 14
shaft differential, swing axles and step-up gear drives would 15
have been obvious from the combined teachings of Schwenk, 16
Moll and Maurer? (See App. Br. 11-12; Ans. 12-13). 17
18
FINDINGS OF FACT 19
The record supports the following findings of fact (“FF”) by a 20
preponderance of the evidence. 21
1. Mullican discloses an automobile carrier 10 including a front 22
wheel drive truck 12 attached to a cargo bed 14. (Mullican, col. 4, ll. 27-31). 23
2. Mullican discloses a suspension system for supporting a frame 24
member 36 of the cargo bed 14 above a wheel 24. The suspension system 25
includes an air bag 46. The air bag 46 is mounted between a backing plate 26
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48 secured to the frame member 36 and a lower bag mount 50 secured 1
between axle arms 51. A swing arm 42 attached to the lower bag mount 50 2
supports a spindle 44 at one end of the swing arm 42. The spindle 44 3
mounts the wheel 24. The lower bag mount 50 pivots at its opposite end on 4
a pivot axle 52 fixed to the frame member 36, enabling the air bag 46 to 5
raise or lower the frame member 36 relative to the wheel 24. (Mullican, col. 6
5, l. 59 – col 6, l. 9). 7
3. Mullican discloses that progressive deflation of the air bags 46 8
when the cargo bed 14 is in a transport position parallel to the road surface 9
allows the swing arm 42 to pivot toward the backing plate 48. This 10
movement allows the cargo bed 14 to move into a loading position in which 11
the cargo bed 14 and its frame slope downwardly from the front end to the 12
rear end relative to the horizontal. (Mullican, col. 6, ll. 10-28; see also id., 13
col. 3, ll. 37-38 and fig. 2). 14
4. Mullican describes several problems with conventional 15
automotive carriers. For example, Mullican discloses that low-slung 16
automobiles hoisted onto the cargo beds of conventional automotive carriers 17
of “rollback” design are susceptible to damage from the hoisting cable due 18
to the angle formed between the cargo bed and the loading surface when the 19
cargo bed is in the load position. In addition, Mullican discloses that 20
automobiles carried on automotive carriers of “rollback design” raise the 21
centers of gravity of the automotive carriers to an undesirable level. 22
(Mullican, col. 1, ll. 31-42). 23
5. Mullican also discloses that conventional rental trucks and 24
trailers suffer the drawback of requiring a raised dock, a ramp or a power lift 25
to permit the loading of heavy items. (Mullican, col. 1, ll. 43-61). 26
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6. Mullican’s squatdown suspension permits trucks and trailers 1
used for hauling cargo to lower the back of the cargo bed to the loading 2
surface to achieve a loading angle of no more than three degrees (Mullican, 3
col. 2, ll. 47-50), thereby providing a safer configuration for winch and cable 4
as compared to conventional rollback design automobile carriers (Mullican, 5
col. 3, ll. 15-18) and eliminating the need for loading ramps and similar 6
loading aids (Mullican, col. 2, ll. 42-46). 7
7. VanDenberg describes a suspension system 2 for a vehicle 3 8
such as a truck or trailer. (VanDenberg, col. 4, ll. 30-35). 9
8. VanDenberg’s suspension system 2 includes a suspension 10
frame 6 attached to a pair of frame rails 5 of the vehicle 3 via a pair of slide 11
channels 7. The suspension system 2 also includes a central beam 15 and a 12
pair of air springs or air bags 17 extending intermediate the slide channels 7 13
at one end of the central beam 15. VanDenberg’s central beam 15 is coupled 14
to an axle 10 for mounting wheel assemblies 11. (VanDenberg, col. 4, ll. 15
37-47 and fig. 1). 16
9. VanDenberg’s suspension frame 6 includes parallel pivot 17
flanges 26 for pivotally supporting the central beam 15 via a pivot pin 27. 18
(VanDenberg, col. 4, ll. 58-61). In addition, VanDenberg’s suspension 19
frame 6 houses a pair of coil springs 37 reacting in compression against 20
spring plates 45 coupled to the end of the central beam 15 opposite the air 21
springs 17. (VanDenberg, col. 5, ll. 11-20). 22
10. Progressive inflation of the air springs 17 when the wheel 23
assembly 11 is in a highway mode allows the central beam 15 and the axle 24
10 on which the wheel assembly 24 is mounted to pivot away from the slide 25
channels 7 and the frame rails 5. This pivotal movement results in 26
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movement of the wheel assembly 11 into a coupling mode in which the axle 1
10 is farther from the frame rails 5 than when in a highway mode. (See 2
VanDenberg, col. 7, ll. 15-22; compare VanDenberg, fig. 5 and col. 4, ll. 14-3
16 with id., fig. 6 and col. 4, ll. 17-19). 4
11. Neither Mullican nor VanDenberg appears to expressly mention 5
rear drive vehicles. 6
12. Vin discloses a drive train for a rear-wheel-drive, depressed 7
floor bus. (Vin, col. 1, ll. 45-48; see also id., col. 1, ll. 4-30). Vin’s drive 8
train includes an engine 1 and a gearbox or transmission 2. (Vin, col. 1, ll. 9
45-48). The power output 3 of Vin’s gearbox, which is likewise the power 10
output of Vin engine 1, is connected to the input shaft 5 of a differential gear 11
6. The input shaft 5 serves as a transfer input to a gear train 7. (Vin, col. 1, 12
ll. 48-52). Figures 1 and 2 of Vin depict the gear train 7 as transferring 13
power to an output shaft or transfer output 8 axially offset below the output 14
shaft 3 from the gearbox 2. (See Vin, col. 1, ll. 55-59). 15
13. Vin discloses that each of the output shafts 8 is connected 16
though a universal joint 9 to a drive shaft 10. (Vin, col. 1, ll. 52-55). In this 17
manner, power from the output shaft 3 is transferred to output shafts 8 which 18
are axially offset below the output shaft 3. Each of the drive shafts 10 drives 19
bevel gear pairs 14. Power transmitted to the bevel gear pairs 14 transfers 20
through speed-reducing gear trains 15 to drive the half-axles 16 of the 21
driving wheels 17. (Vin, col. 1, ll. 62-66). The arrangement of the bevel 22
gear pairs 14 and the speed-reducing gear trains 15 allows the half-axles 16 23
to be raised above the level of the drive shafts 10. 24
14. Vin’s drive train is capable of driving more than one pair of rear 25
wheels. (See Vin, col. 2, ll. 11-20 and fig. 1). 26
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15. Vin teaches that the depressed arrangement of depressed-floor 1
vehicles lowers the center of gravity of the vehicle. (Vin, col. 1, ll. 10-13). 2
16. Vin also teaches that vehicles with depressed-floor 3
arrangements are advantageous over vehicles which require steps or ramps 4
for boarding. (Vin, col. 1, ll. 4-13). 5
17. Schwenk discloses a torsion axle 11 for a front or rear driven 6
motor vehicle. (Schwenk, col. 1, ll. 5-12; col. 2, ll. 39-41 and col. 3, ll. 6-7). 7
18. Schwenk’s torsion axle 11 includes a transverse axle part 13 8
having an L-section or a V-section. (Schwenk, col. 2, ll. 39-48). Carrier 9
elements 16, 17 welded to the opposite ends of the transverse axle part 13 10
carry stub axles 24, 25. (Schwenk, col. 2, ll. 51-54). Schwenk discloses 11
providing longitudinal arms 14, 15 including bores 32, 33 for attaching 12
Schwenk’s transverse axle part 13 to the body of a vehicle. (Schwenk, col. 13
2, ll. 66-68). 14
19. Schwenk’s longitudinal arms 14, 15 have U-shaped cross-15
sections for supporting vertically-acting spiral springs 28, 29. (Schwenk, 16
col. 2, ll. 55-65). The positions of the springs 28, 29 as depicted in Figure 1 17
of Schwenk indicates that the springs 28, 29 act between the longitudinal 18
arms 14, 15 and the body of the vehicle. 19
20. The previous fact indicates that the longitudinal arms 14, 15 are 20
pivotally mounted to the body of the vehicle by means of the bores 32, 33 so 21
as to permit the transverse axle part 13 to pivot relative to the body subject 22
to the bias forces imposed on the longitudinal arms 14, 15 by the springs 28, 23
29. 24
21. Schwenk discloses attaching a gear unit or differential 34 to the 25
body of the vehicle. (Schwenk, col. 3, ll. 7-9). Figure 1 of Schwenk depicts 26
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two opposed drive shafts 35, 36 extending from the differential 34. 1
Schwenk discloses that the drive shafts 35, 36 drive the wheels 12. 2
(Schwenk, col. 3, ll. 7-9). 3
22. Since the differential 34 is fixed to the body of the vehicle and 4
the stub axles are supported by the transverse axle part 13, which is 5
pivotably mounted to the body, the drive shafts 35, 36 must be connected to 6
the differential 34 by movable joints. In other words, the drive shafts 35, 36 7
must be connected to the differential 34 in a manner that allows the outer 8
ends of the drive shafts 35, 36 to move up and down without the differential 9
34 also moving up and down. This finding is supported by Figure 1 of 10
Schwenk, which appears to depict boot seals on the opposite ends of the 11
drive shafts 35, 36 capable of permitting the drive shafts 35, 36 to pivot up 12
and down relative to the differential 34 and the stub axles 24, 25. 13
23. The Appellant in the Specification formally defines the term 14
“half-shaft differential” as encompassing “any differential that has axles 15
connected to it in a manner that allows the outer ends of the axles to move 16
up and down without the differential also moving up and down.” (Spec. 15, 17
¶ 0052). 18
24. Schwenk’s differential 34 is a half-shaft differential. 19
25. The Appellant in the Specification formally defines the term 20
“swing axle” as encompassing “an axle that is connected to the differential 21
by a movable joint.” (Spec. 15, ¶ 0052). 22
26. Schwenks’ drive shafts 35, 36 are swing axles. 23
27. Maurer discloses an offset axle for a motor vehicle including a 24
differential 2 mounted near a gantry drive or step up gear drive 3. (Maurer, 25
col. 2, ll. 52-53). Maurer’s gantry drive 3 includes a drive pinion 5, two 26
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intermediate pinions 6 and a spur wheel 7 for driving a vehicle wheel. 1
(Maurer, col. 2, ll. 53-59). 2
28. Moll discloses an axle suspension for a motor vehicle. (Moll, 3
col. 1, ll. 30-36). 4
29. Moll’s suspension includes axially trailing links 5 pivotably 5
connected at leading ends to the vehicle body. (Moll, col. 2, ll. 34-38). 6
Moll’s suspension also includes a cross support member 3 rigidly fastened to 7
the free ends of the trailing links 5. (Moll, col. 2, ll. 34-36). Moll’s 8
suspension is supported by coiled or pneumatic springs 2 arranged at the 9
ends of the cross-support member 3. (Moll, col. 2, ll. 41-46). 10
30. The trailing links 5 mount wheel bearings 6 approximately in 11
the center of the trailing links 5. (Moll, col. 2, ll. 49-51). The sole drawing 12
figure of Moll shows the cross support member 3 and the springs 2 arranged 13
behind the wheel bearings 6. 14
31. The Examiner finds (see Ans. 6), and the Appellant does not 15
dispute (see, e.g., App. Br. 11-12), that air springs were well known in the 16
vehicle suspension art. 17
18
PRINCIPLES OF LAW 19
A reference teaches away from the subject matter of a claim only if “a 20
person of ordinary skill, upon reading the reference, would be discouraged 21
from following the path set out in the reference, or would be led in a 22
direction divergent from the path that was taken by the applicant.” In re 23
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Prior art does not teach away 24
from claimed subject matter merely by disclosing a different solution to a 25
similar problem unless the prior art also criticizes, discredits or otherwise 26
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discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201 1
(Fed. Cir. 2004). 2
“[W]hen a patent claims a structure already known in the art that is 3
altered by the mere substitution of one element for another known in the 4
field, the combination must do more than yield a predictable result” to be 5
non-obvious under § 103(a). KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 6
416 (2007) (citing United States v. Adams, 383 U.S. 39, 50-51 (1966)). 7
8
ANALYSIS 9
Neither Mullican nor VanDenberg teaches away from the subject 10
matter claimed in claim 1. Although Mullican discloses a preferred 11
embodiment including a front wheel drive truck attached to a cargo bed (FF 12
1), neither Mullican nor VanDenberg mentions, much less criticizes or 13
disparages, the use of either a powered low profile drive line or a suspension 14
similar to that disclosed by Mullican or VanDenberg in a rear driven vehicle 15
(FF 11). 16
Furthermore, the cited prior art as a whole, including the combined 17
teachings of Mullican, VanDenberg and Vin, fails to teach away from the 18
claimed subject matter. In a passage cited by the Appellant as teaching 19
away from the claimed subject matter (see, e.g., App. Br. 7), Mullican 20
discloses that one drawback of conventional rental trucks and trailers is the 21
requirement of a raised dock, a ramp or a power lift to permit the loading of 22
heavy items (FF 5). Mullican also discloses that automobiles carried on 23
automotive carriers of “rollback design” raise the centers of gravity of the 24
automotive carriers to an undesirable level (FF 4). Vin teaches that the 25
depressed arrangement of depressed-floor vehicles lowers the center of 26
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gravity of the vehicle and that vehicles with depressed-floor arrangements 1
are advantageous over vehicles which require steps or ramps for boarding. 2
(FF 15 and 16). 3
Mullican discloses that low-slung automobiles hoisted onto the cargo 4
beds of conventional automotive carriers of “rollback” design are susceptible 5
to damage from the hoisting cable due to the angle formed between the 6
cargo bed and the loading surface when the cargo bed is in the load position. 7
(FF 4). Mullican also discloses that Mullican’s suspension addresses this 8
problem. (FF 6). 9
Even assuming that the problems identified in the passage of Mullican 10
cited by the Appellant as teaching away from the subject matter of claim 1 11
relate to rear drive (see, e.g., App. Br. 7), the combined teachings of 12
Mullican, VanDenberg and Vin would have provided one of ordinary skill in 13
the art reason to combine Vin’s rear drive with suspensions as taught by 14
Mullican and VanDenberg to lower the profile of a vehicle. Vin would have 15
taught that lowering the profile of the vehicle would address the problems 16
identified by Mullican in the passage cited by the Appellant. Mullican’s 17
identification of these problems would not have discouraged one of ordinary 18
skill in the art from combining the teachings of Mullican, VanDenberg and 19
Vin. 20
The Examiner reasons that it would have been obvious “to provide the 21
drive scheme taught by Vin to the vehicle wheels of the vehicle of Mullican 22
et al. as modified by VanDenberg for the purpose of providing a greater 23
drive force, in that the drive scheme of Vin is adapted to drive plural sets of 24
rear wheels.” (Ans. 4; see also id. at 11). The Examiner’s reasoning has 25
some rational underpinning in the sense that the teachings of Vin would 26
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have a design incentive, namely, providing a greater drive force, which 1
would have provided an apparent reason for one of ordinary skill in the art to 2
connect a drive line capable of driving plural sets of rear wheels (see FF 14). 3
The Examiner also reasons that it would have been obvious 4
to provide the wheel suspension taught by 5
Mullican et al. with a further raised position (e.g., 6
figure 6 of VanDenberg) as taught by 7
VanDenberg, yielding an arrangement wherein the 8
frame may slope upward from front to back, in 9
order to accommodate loading arrangements at a 10
dock having a raised portion. 11
(Ans. 3-4). The Examiner’s reasoning has some rational underpinning in the 12
sense that the Examiner has identified a design incentive for sloping the 13
frame assembly of a vehicle upwardly from the front end to the rear end of 14
the vehicle relative to the horizontal. 15
The disclosure of Mullican implies that there exist raised docks 16
having heights designed to accommodate relatively high profile trucks and 17
trailers. (See FF 5). As recognized by the Examiner’s reasoning, the cargo 18
floors of trucks having lower profiles, and particularly of trucks or vans 19
having depressed cargo floors in accordance with the teachings of Vin, 20
might lie below the levels of such raised docks. One of ordinary skill in the 21
art would have had an incentive to permit such trucks to raise their frame 22
assemblies so as to slope upwardly from the front end to the rear end to 23
bring the back of the frame to the level of the dock. Mullican alone does not 24
disclose a mode in which the frame assembly slopes upwardly from the front 25
end to the rear end. Nevertheless, Mullican’s teaching that progressive 26
deflation of the air bags in the suspension associated with the rear wheels 27
permits the frame assembly to slope downwardly from the front end to the 28
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rear end (FF 3) would have suggested that progressive inflation of the same 1
air bags would have permitted the frame assembly to slope upwardly from 2
the front end to the rear end. VanDenberg’s coupling mode (see FF 10) 3
would have suggested to one of ordinary skill in the art how the air bags 4
associated with the rear wheels might be inflated to raise the rear wheels and 5
permit the frame assembly to slope upwardly from the front end to the rear 6
end to communicate with a raised dock. 7
The Appellant’s argument that the suspension of VanDenberg’s 8
preferred embodiment merely moves up and down and does not slope (see 9
App. Br. 8) is not persuasive of error in the Examiner’s reasoning, since the 10
argument fails to address the design incentive identified by the Examiner. 11
The Appellant provides no persuasive argument to explain why the 12
Examiner’s reasoning fails to support the conclusion that the subject matter 13
of claim 1 would have been obvious. 14
Schwenk, which discloses a half-shaft differential with opposed swing 15
axles extending therefrom (see FF 21, 24 and 26), does not teach away from 16
the subject matter of claim 4. Neither does Schwenk or Maurer teach away 17
from the subject matter of claim 16. Both Schwenk and Maurer teach 18
structures susceptible of use in rear drive vehicles. (See FF 17 and 27). As 19
such, neither would discourage one of ordinary skill in the art from 20
constructing a vehicle having a low profile rear drive line such as those 21
claimed in claims 4 and 16. The Examiner’s reasoning explaining why the 22
combined teachings of Mullican, VanDenberg and Vin would have provided 23
one of ordinary skill in the art reason to combine Vin’s rear drive with a 24
suspension as taught by Mullican and VanDenberg also explains why one of 25
ordinary skill in the art would combine teachings relating to other structures 26
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susceptible of use in rear drive vehicles, such as structures of the type 1
described by Schwenk and Maurer, with the teachings of Mullican, 2
VanDenberg and Vin. 3
Finally, the Examiner reasons that it would have been obvious “to 4
replace the coil springs [of Schwenk] with air springs for the purpose of 5
adjusting the nature of the resilient support” and to move the air springs 6
behind the wheel axles “for the purpose of enlarging the moment arm of the 7
trailing arm arrangement, for example to reduce the force required of the air 8
springs.” (Ans. 6; see also id. at 13). The Examiner’s reasoning has some 9
rational underpinning in the sense that air springs were well known in the 10
vehicle suspension art (FF 31). One of ordinary skill in the art would have 11
recognized that air springs, like spiral springs, provide resiliency to a 12
suspension. (As an illustration of this, see Spec. 26, ¶ 0069). As such, one 13
of ordinary skill in the art would have recognized that air springs were a 14
simple substitute for the spiral springs disclosed by Schwenk. The 15
Appellant does not contend that such a substitution would have been beyond 16
the level of ordinary skill in the art or that the results of the substitution 17
would not have been predictable. 18
In addition, the Examiner’s reasoning has some rational underpinning 19
in the sense that the Examiner has identified a design incentive for arranging 20
the torsion box and air springs behind the wheel axles, namely, to increase 21
the moment arm at which the springs providing resiliency to the suspension 22
act. Moll (see FF 29-30) would have suggested to one of ordinary skill in 23
the art how to arrange the torsion box and the air springs behind the wheel 24
axles so as to obtain the greater moment arm. The Appellant provides no 25
persuasive argument to explain why the Examiner’s reasoning fails to 26
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support the conclusion that the subject matter of claim 11 would have been 1
obvious. 2
3
CONCLUSIONS 4
Mullican does not teach away from the subject matter of claim 1. 5
The Examiner has not failed to articulate reasoning with some rational 6
underpinning sufficient to support the conclusion that a vehicle having a 7
powered low profile drive line as well as a low profile suspension supporting 8
rear wheels relative to a frame assembly such that the rear wheels move 9
vertically with respect to the frame assembly would have been obvious from 10
the combined teachings of Mullican, VanDenberg and Vin. 11
The Examiner has not failed to articulate reasoning with some rational 12
underpinning sufficient to support the conclusion that a vehicle having a 13
powered low profile drive line as well as a frame assembly sloping upwardly 14
from the front end to the rear end of the vehicle relative to the horizontal 15
would have been obvious from the combined teachings of Mullican, 16
VanDenberg and Vin. Therefore, the Examiner has not erred in rejecting 17
claims 1-3, 6, 9 and 10 under § 103(a) as being unpatentable over Mullican, 18
VanDenberg and Vin. 19
The Examiner has not failed to articulate reasoning with some rational 20
underpinning sufficient to support the conclusion that the subject matter of 21
claim 4 would have been obvious from the combined teachings of Mullican, 22
VanDenberg, Vin and Schwenk. Therefore, the Examiner has not erred in 23
rejecting claim 4 under § 103(a) as being unpatentable over Mullican, 24
VanDenberg, Vin and Schwenk. Neither has the Examiner erred in rejecting 25
claim 5 under § 103(a) as being unpatentable over Mullican, VanDenberg, 26
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Vin, Schwenk and Maurer or in rejecting claims 24 and 25 under § 103(a) as 1
being unpatentable over Mullican, VanDenberg, Vin, Schwenk, Maurer and 2
Moll. 3
The Examiner has not failed to articulate reasoning with some rational 4
underpinning sufficient to support the conclusion that the subject matter of 5
claim 16 would have been obvious from the combined teachings of 6
Mullican, VanDenberg, Schwenk and Maurer. Therefore, the Examiner has 7
not erred in rejecting claims 16-19, 22, 23 and 27 under § 103(a) as being 8
unpatentable over Mullican, VanDenberg, Schwenk and Maurer. 9
Finally, the Examiner has not failed to articulate reasoning with some 10
rational underpinning sufficient to support the conclusion that a rear drive 11
line for a vehicle including a torsion box and air springs arranged behind 12
wheel axles to accommodate a half shaft differential, swing axles and step-13
up gear drives would have been obvious from the combined teachings of 14
Schwenk, Moll and Maurer. Therefore, the Examiner has not erred in 15
rejecting claims 11, 14, 15 and 26 under § 103(a) as being unpatentable over 16
Schwenk, Moll and Maurer. 17
18
DECISION 19
We AFFIRM the Examiner’s decision rejecting claims 1-6, 9-11, 14-20
19 and 22-27. 21
No time period for taking any subsequent action in connection with 22
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 23
§ 1.136(a)(1)(iv) (2007). 24
25
AFFIRMED 26
Appeal 2009-005322
Application 10/175,355

19
mls 1
2
HARNESS, DICKEY & PIERCE, P.L.C. 3
P.O. BOX 828 4
BLOOMFIELD HILLS, MI 48303 5