Ex Parte Baumann et al

Board of Patent Appeals and Interferences

Dec 23, 2004

09891271 (B.P.A.I. Dec. 23, 2004)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte HANS-UWE BAUMANN, DIETER SEMMEL and VASIL BARBUNOPULOS
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Appeal No. 2004-2060
Application No. 09/891,271
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HEARD: December 9, 2004
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Before FRANKFORT, STAAB, and MCQUADE, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 3 and 6 through 11. Claims 4 and
5, the only other claims pending in the application, stand
objected to as being dependent upon a rejected base claim and
have been indicated to be allowable if rewritten in independent
form including all of the limitations of the base claim and any
intervening claims.
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Application No. 09/891,271
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Appellants' invention (e.g., claim 1) relates to a receiving
device for pedals of a motor vehicle comprising a mounting plate
(2) on which a clutch pedal (3), a brake pedal (4) and an
accelerator pedal (5) are swivellably disposed, wherein the
clutch pedal (3) is swivellably held in an insert (12) which
forms a preassembled constructional unit with the clutch pedal,
which constructional unit can be fastened between projecting legs
(10, 11) of the mounting plate (2) and is constructed to be
optionally removable therefrom when the vehicle includes an
automatic transmission. Appellants' invention also addresses a
pedal assembly for a motor vehicle (claim 6) and a method of
making a receiving device of the type noted above (claim 9). A
copy of representative claims 1, 6 and 9 can be found in the
Appendix attached to appellants' brief.
The sole prior art reference relied upon by the examiner in
rejecting the appealed claims is:
Counts 3,192,794 Jul. 6, 1965
Claims 1 through 3 and 6 through 11 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Counts.
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Rather than reiterate the examiner's full commentary
regarding the above-noted anticipation rejection and the
conflicting viewpoints advanced by the examiner and appellants,
we make reference to the final rejection (mailed February 5,
2003) and the examiner's answer (mailed January 27, 2004) for the
reasoning in support of the rejection and to appellants' brief
(filed November 5, 2003) for the arguments thereagainst.
OPINION
In reaching our decision in this appeal, this panel of the
Board has given careful consideration to appellants'
specification and claims, to the applied prior art Counts patent,
and to the respective positions articulated by appellants and the
examiner. As a consequence of our review, we have reached the
determination that the examiner's rejection will not be
sustained. Our reasons follow.
In urging that claims 1 through 3 and 6 through 11 are
anticipated under 35 U.S.C. § 102(b) based on Counts, the
examiner has found, inter alia, that Counts discloses
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a mounting plate (28) on which an accelerator pedal
(110), a brake pedal (78), and a clutch pedal (79) are
swivellably disposed, wherein the clutch is swivellably
held in an insert (82), which forms a pre-assembled
construction unit. The construction unit is fastened
between projecting legs (24) and (26) of the mounting
plate and is optionally removable (final rejection,
page 2).
Like appellants (brief, pages 4-6), it is our opinion, after
having reviewed the Counts patent, that no preassembled
constructional unit including the clutch pedal, which
constructional unit can be fastened between projecting legs of a
mounting plate and is constructed to be optionally removable
therefrom when the vehicle includes an automatic transmission, is
taught or suggested in Counts. Counts expressly notes that the
brake and clutch levers (12) and (14) seen in Figure 1 "depend
downwardly below the dashboard 16 in a conventional manner" (col.
2, lines 43-44) and that the hand operated control assembly (22)
for facilitating operation of the clutch, brake and accelerator
pedals of the vehicle by a paraplegic driver having little or no
use of his lower limbs is intended to be added onto the vehicle
and supported from the undersurface of the dashboard (16) by
supports (24, 26) and operatively connected to the control pedals
of the vehicle so that the control pedals can be operated by the
right hand of a paraplegic driver (col. 1, lines 35-40). A
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modified version of the hand-operated control assembly adapted to
be used in conjunction with a vehicle having an automatic
transmission is shown in Figures 6 and 7 of Counts.
Looking particularly to the clutch (14, 79) seen in the
embodiment of Figures 1-4 of Counts, we note that the control
assembly (22) includes a hand-operated clutch control lever (86)
secured to support shaft (30) adjacent one end thereof, a clutch
crank arm (92) secured to a portion of shaft (30) adjacent the
opposite end thereof, and a clutch control rod (72) having an
upper end secured to crank arm (92) and an inner or lower portion
(76) with a bifurcated clevis (82) pivotally secured to the
clutch lever (14) adjacent pedal (79). Operation of the clutch
portion of the control assembly (22) is set forth in column 4,
lines 15+ of Counts.
Given the foregoing, it is clear to us that Counts has no
"preassembled constructional unit" of the type defined in
appellants' claims 1, 6 and 9 on appeal, and that the examiner's
findings that clutch (14, 79) of Counts is swivellably held in an
insert (82) which thereby forms such a “preassembled
constructional unit,” and that the preassembled constructional
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unit with clutch is optionally removable from the vehicle, are in
error. Notwithstanding that the clutch pedal (14, 79) and the
portion of control apparatus (22) associated therewith in Counts
may be individually removable from the vehicle, as the examiner
appears to so urge on pages 5 and 6 of the answer, the clutch
pedal (14, 79) in Counts is not part of any preassembled
constructional unit, which constructional unit can be fastened
between projecting legs of a mounting plate and is constructed to
be optionally removable therefrom as a unit when the vehicle
includes an automatic transmission. Nor do we view the
limitations regarding the "preassembled constructional unit" of
claims 1, 6 and 9 on appeal as being mere process limitations
which, according to the examiner, can be given no patentable
weight. For those reasons, we will not sustain the examiner's
rejection of independent claims 1, 6 and 9 under 35 U.S.C.
§ 102(b) based on Counts, or the rejection of dependent claims 2,
3, 7, 8, 10 and 11 under 35 U.S.C. § 102(b). Thus, the decision
of the examiner is reversed.
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REVERSED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOHN P. MCQUADE )
Administrative Patent Judge )
CEF/lbg
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Application No. 09/891,271
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