Ex Parte Barthel

Patent Trial and Appeal Board

Nov 26, 2018

13984879 (P.T.A.B. Nov. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/984,879 11/26/2013 Joachim Barthel
23413 7590 11/28/2018
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
BNV0063US 3609
EXAMINER
JEBARI, MOHAMMED
ART UNIT PAPER NUMBER
2482
NOTIFICATION DATE DELIVERY MODE
11/28/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOACHIM BARTHEL
Appeal 2018-005131
Application 13/984,879
Technology Center 2400
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Non-Final
rejection of claims 1, 2, 5-10, 13-25 and 28-37. Claims 3, 4, 11, 12, 26,
and 27 are cancelled. We have jurisdiction over the pending claims under
35 U.S.C. § 6(b).
We Affirm.
1 According to Appellant, the real party in interest is Huf Huls beck & Furst
GmbH & Co., KG. App. Br. 1. This assignment is confirmed to be of
record as of the mailing date of this opinion.
Appeal 2018-005131
Application 13/984,879
STATEMENT OF THE CASE
Introduction
Appellant's invention generally relates to "a device, in particular for
the tailgate of a vehicle, with a camera unit that is used to acquire images of
an outer area of the vehicle, and with a control unit, which is used to control
a vehicle part, such as an electrical lock for the tailgate." Spec. ,r 1.
Exemplary Claim
1. Apparatus, in particular for a tailgate of a vehicle, with a
camera unit, which serves to acquire images of the
outside area of the vehicle, and a control unit serving to
control a vehicle part,
whereby the camera unit and the control unit are arranged
in particular next to one another by means of a support
element on the vehicle, and
at least the camera unit is protectively housed in a
housing, and
a movable closure element is provided to close an
opening in the housing, and which is movable by a drive
unit between at least two end positions, a closed position
and an open position,
wherein the housing is constructed of at least two parts,
whereby the support element forms a first housing part,
on which the control unit and the camera unit are
arranged, and
the drive unit is arranged on a second housing part,
wherein a linear guide is provided between the first
housing part or the support element and the second
housing part in order to assemble the two housing parts
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Application 13/984,879
into a housing, whereby the second housing part can be
pushed laterally onto the first housing part, and
wherein a labyrinth seal is provided between the first
housing part and the second housing part and the
labyrinth seal is formed by the linear guide, and
wherein a supplemental seal is provided in the area of the
linear guide.
(Claims Appendix).
REJECTIONS
A. Claims 1, 2, 5-10, 13, 17, 20-25, and 28 are rejected under pre-AIA
35 U.S.C. § I03(a), as obvious over the combined teachings and
suggestions of the English Machine Translation of Schutz (DE 10
2009 008 281 Al; published Aug. 12, 2010) ("Schutz"), Kopf et al.
(US 2004/0232787 Al; published Nov. 25, 2004) ("Kopf'), and the
English Machine Translation of Zhu ( CN 201013187; published Jan.
30, 2008). Non-Final Act. 5.
B. Claims 14--16 are rejected under pre-AIA 35 U.S.C. § I03(a), as
obvious over the combined teachings and suggestions of Schutz and
Buschmann (US 2010/0209096 Al; published Aug. 19, 2010). Non-
Final Act. 10.
C. Claims 18, 29, 30, and 32-37 are rejected under pre-AIA 35 U.S.C.
§ I03(a), as obvious over the combined teachings and suggestions of
Schutz and Huckins (Des. 388,107; issued Dec. 23, 1997). Non-
Final Act. 13.
D. Claims 19 and 31 are rejected under pre-AIA 35 U.S.C. § I03(a), as
obvious over the combined teachings and suggestions of Schutz,
Buschmann or Huckins, and Kopf. Non-Final Act. 15.
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Appeal 2018-005131
Application 13/984,879
GROUPING OF CLAIMS
Based on Appellant's arguments (App. Br. 10-23), we decide the
appeal of§ 103 rejection A of claims 1, 2, 5-10, 13, 17, 20-25, and 28 on
the basis of representative claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv). We
address § 103 rejections B-D separately, infra.
Rejection A of Claims 1, 2, 5-10, 13, 17, 20-25, and 28
Issues: Under 35 U.S.C. § 103(a), did the Examiner err in finding the
cited references teach or suggest the limitations of claim 1, and did the
Examiner err in combining the cited references relied upon in this rejection?
Appellant contends Schutz does not teach or suggest that the drive
unit is disposed on a second part of a shell. See App. Br. 10. Appellant
further contends that even if Schutz taught the limitations, one of ordinary
skill in the art would not have been able to modify the Schutz device to have
a linear guide between the first and second housing parts to assemble the
parts into a housing, whereby the second part is pushed laterally onto the
first part. See App. Br. 11.
The Examiner finds Kopf teaches a linear guide between first and
second housing parts, in which the second housing part can be pushed
laterally into the first housing part. See Non-Final Act. 6 (citing Kopfs
claim 27 and Figure 9). The Examiner responds to the arguments advanced
by Appellant in the Appeal Brief and further explains the basis for the
rejections. See Ans. 17-19. The Examiner, in particular, explains in detail
how Schutz's configuration, as depicted in Figures 4---6, is similar to Figure
3 of Appellant's Specification. See Ans. 18. The Examiner explains how
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Application 13/984,879
Schutz teaches a slide. See Ans. 19. 2 The Examiner also explains why the
cited Schutz and Kopf references are reasonably pertinent, and are thus
available as analogous art. 3 See Ans. 18-19.
Based upon our review of the record, we do not find error in the
Examiner's findings, and note that Appellant has not filed a Reply Brief to
rebut the Examiner's additional findings, explanations, and clarifications in
the Answer. Arguments not made are waived. See 3 7 C.F .R.
§ 4I.37(c)(l)(iv).
Therefore, on this record we are not persuaded of error regarding the
Examiner's underlying factual findings and ultimate legal conclusion of
obviousness, as pertaining to representative claim 1. Accordingly, we
sustain the Examiner's rejection A of representative claim 1, and grouped
claims 2, 5-10, 13, 17, 20-25, and 28 (not argued separately), which fall
with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
2 Our reviewing court guides: "'the question under 35 USC 103 is not
merely what the references expressly teach but what they would have
suggested to one of ordinary skill in the art at the time the invention was
made."' Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir.
1989) ( quoting In re Lamberti, 545 F .2d 7 4 7, 7 50 ( CCP A 197 6)) ( emphasis
added); see also MPEP § 2123.
3 A reference is analogous art to the claimed invention if: (1) the reference
is from the same field of endeavor as the claimed invention ( even if it
addresses a different problem); or (2) the reference is reasonably pertinent to
the problem faced by the inventor ( even if it is not in the same field of
endeavor as the claimed invention). In re Bigio, 381 F.3d 1320, 1325 (Fed.
Cir. 2004 ). In order for a reference to be "reasonably pertinent" to the
problem, it must "logically would have commended itself to an inventor's
attention in considering his problem." In re Icon Health and Fitness, Inc.,
496 F.3d 1374, 1379-80 (Fed. Cir. 2007) (quoting In re Clay, 966 F.2d 656,
659 (Fed. Cir. 1992).
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Appeal 2018-005131
Application 13/984,879
Rejections B-D of Claims 14-16, 18, 19, and 29-37
Regarding the remaining claims rejected under § 103 Rejections B-D,
Appellant merely recites the claim language, and alleges it is not taught or
suggested by the combinations of prior art cited by the Examiner. See App.
Br. 23-35.
However, Appellant fails to advance persuasive, substantive
arguments which compare and distinguish the disputed claim limitations
from the combined teachings and suggestions of the cited references, as
found by the Examiner. See 37 C.F.R. § 4I.37(c)(l)(iv) ("A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim.").
Therefore, on this record, we are not persuaded of error regarding the
Examiner's underlying factual findings and ultimate legal conclusion of
obviousness for Rejections B-D of remaining claims 14--16, 18, 19, and
29-37. Accordingly, we sustain these rejections.
CONCLUSION
The Examiner did not err in rejecting claims 1, 2, 5-10, 13-25, and
28-37 under pre-AIA 35 U.S.C. § 103(a).
DECISION
We affirm the Examiner's decision rejecting claims 1, 2, 5-10, 13-25,
and 28-37 under pre-AIA 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See
37 C.F.R. § 41.50(±).
AFFIRMED
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