Ex Parte Baumhauer

Board of Patent Appeals and Interferences

Dec 22, 2009

11402375 (B.P.A.I. Dec. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte WALTER BAUMHAUER

Appellant
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Appeal 2009-008876
Application 11/402,375
Technology Center 3600
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Decided: December 22, 2009
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Before RICHARD E. SCHAFER, RICHARD TORCZON, and SALLY
GARDNER LANE, Administrative Patent Judges.

LANE, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF THE CASE
The appeal, under 35 U.S.C. § 134(a), is from a Final Rejection of
Appellant’s claims 1-8 and 11. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellant’s application is directed to a flat key. (Spec. 1).
The Examiner relied on the following references:
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Application 11/402,375

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Name Number Date
Vonlanthen et al. 4,270,372 June 2, 1981
Prunbauer 4,977,767 December 18, 1990

The Examiner rejected claims 1-8 and 11 under 35 U.S.C.
§ 102(b) over Prunbauer. Appellant argued separately for the patentability
of claims 5 and 6. The Examiner rejected claims 6-8 and 11 under 35 U.S.C.
§ 103(a) over Prunbauer and Vonlanthen. We focus on claims 1, 5, and 6 in
our review. See 37 C.F.R. §41.37(c)(1)(vii).
II. FINDINGS OF FACT
1. Appellant’s claim 1 recites:
A flat key having a blade formed with a pair of opposite
edges, with a pair of opposite faces between the edges, and with
an outer-end tip, the blade further being formed with:
a pair of relatively shallow, outwardly open, and
generally parallel but spaced grooves formed in at least one of
the faces and each extending generally longitudinally in a
nonstraight path through a plurality of control points from the
tip, each of the shallow grooves having a greater transverse
width at and outward toward the tip from one of its control
points than inward from the one control point; and
a relatively deep and outwardly open groove formed in
the one face at least partially between the shallow grooves and
extending generally longitudinally in a nonstraight path from
the tip generally nonparallel to the shallow grooves.

(App. Br. 13, Claims App’x).

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2. Figure 1 of Appellant’s specification is reproduced below.

Figure 1 depicts a side view of a key with a pair of grooves (7 and 9), which
are relatively shallow and generally parallel to each other, and a
substantially deeper groove (8), which is not parallel to the other grooves.
(Spec. 8, ll. 1-9).
3. Appellant’s specification explains that grooves 7 and 9 are
“inflected” at “inflection or control points 11,” with the grooves getting
wider from control point 23 outward. (Spec. 8, l. 23, through 9, l. 4).
4. Figure 1 of Prunbauer is reproduced below.

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Figure 1 depicts a side view of a key with two grooves (9 and 11), which are
substantially parallel and substantially the same width, and a third groove
(10), which is substantially deeper and not parallel with the other grooves.
(Prunbauer col. 3, ll. 5-15).
5. Prunbauer teaches that grooves 9 and 11 are “inflected” at
positions 13 and that grooves 9 and 11 are wider at tip 12. (Prunbauer col. 3,
ll. 21-30).
6. Appellant’s claim 5 recites the key of claim 1, “wherein the one
control point is that control point closest to the tip.” (App. Br. 14, Claims
App’x).
7. Appellant’s claim 6 recites:
In combination with a flat key having a blade formed
with a pair of opposite edges, with a pair of opposite faces
between the edges, and with an outer-end tip, the blade further
being formed with:
bitting along at least one of the edges;
a pair of relatively shallow, outwardly open, and
generally parallel but spaced grooves formed in at least one of
the faces and each extending generally longitudinally in a
nonstraight path through a plurality of control points from the
tip, each of the shallow grooves having a greater transverse
width at and outward toward the tip from one of its control
points than inward from the one control point; and
a relatively deep and outwardly open groove formed in
the one face and extending generally longitudinally in a
nonstraight path from the tip generally nonparallel to the
shallow grooves;
a lock comprising:
a relatively stationary lock housing;
a lock cylinder rotatable in the housing about an axis
and formed with an axially outwardly open flat passage
shaped to snugly receive the key blade;
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a first slide displaceable in the cylinder generally
transversely of the axis and parallel to the one face of the key in
the passage and provided with a formation engageable generally
radially of the axis in the deep groove;
a second slide displaceable in the cylinder generally
transversely of the axis and parallel to the one face of the key in
the passage and provided with a pair of narrow formations
engageable generally radially of the axis in the shallow grooves
and of generally the same transverse width as the shallow
grooves;
a third slide displaceable in the cylinder generally
transversely of the axis and parallel to the one face of the key in
the passage and provided with a pair of wide formations
engageable generally radially of the axis in the shallow grooves
and of generally the greater transverse width of the shallow
grooves at the outermost points, whereby the first, second, and
third slides are shifted transversely on insertion of the key by
interengagement of the formations and the respective grooves;
and
a lock element displaceable in only one predetermined
position of the first, second, and third slides between a position
blocking rotation of the cylinder in the housing and a position
permitting such rotation.

(App. Br. 16, Claims App’x).
8. Appellant’s specification teaches that a lock with a third slide
having wide formations will not fit a key with narrow grooves, as in the
prior art. (Spec. 5, ll. 17-20).
9. Vonlanthen teaches that locks with tumbler pins varying in
diameter makes it impossible to insert a key with grooves of identical width,
narrower than the diameter of the tumbler pins, into the lock. (Vonlanthen
col. 2, ll. 1-7).
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III. ISSUE
Does Prunbauer teach a key with a pair of shallow grooves that have a
greater transverse width (are wider) outward from one of the “control
points” toward the tip of the key, as claimed?
Does the combination of Prunbauer and Vonlanthen teach a lock and
key, wherein the lock has slides with a pair of wide formations and the key
has a pair of pair of shallow grooves that have a greater transverse width (are
wider) outward from one of the “control points” toward the tip of the key, as
claimed?
IV. ANALYSIS
35 U.S.C. § 102(b)
Appellant’s claim 1 is drawn to a key that has three grooves – two that
are relatively shallow and run generally parallel to each other and one that is
relatively deep. (FF 1). The relatively shallow grooves are wider outward to
the tip of the key from a “control point” than inward from the “control
point.” (FF 1). Appellant’s specification depicts this arrangement of
grooves in Figure 1 (FF 2), showing a number of “inflection or control
points.” (FF 3).
Prunbauer depicts that same arrangement of grooves, with two
relatively shallow grooves running parallel to each other and a third, deeper
groove. (FF 4). The two shallow grooves are “inflected” at a specific
position along the groove and become wider after this point, moving towards
the tip of the key. (FF 5).
Appellant argues that the Examiner erred by considering any point
along the grooves to be a “control point,” as claimed. (App. Br. 9).
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Appellant’s specification equates “inflection” and “control” points. (FF 3).
Appellant does not direct us to, nor do we find in the specification, any other
definition of “control point,” or any structural difference between a “control
point” and an “inflection point.” Appellant argues that those skilled in the
art would understand a “control point” to be the point where a lock tumbler
comes to rest when a key is inserted (App. Br. 9, see also Reply Br. 1), but
Appellant does not provide evidence that the skilled artisan would consider
the “inflection points” of Prunbauer to be different. “Argument of counsel
cannot take the place of evidence lacking in the record.” Meitzner v.
Mindick, 549 F.2d 775, 782 (CCPA 1977). Appellant fails to explain why
the inflection point of Prunbauer is structurally different and would not
function as the claimed “control point.”
Because Prunbauer teaches a key with two shallow and generally
parallel grooves, which widen from an inflection point outward toward the
end of the key, the Examiner did not err in finding the claimed key is the
same as the key taught by Prunbauer.
Appellant argues that the key of claim 5 is patentable because
Prunbauer teaches that the shallow grooves are wide only forward of the
control point closest to the tip of the key. (App. Br. 10). We disagree with
Appellant’s characterization of Prunbauer Figure 1. We find that grooves 9
and 11 widen beginning at points 13, not just forward of points 13.
(See FF 4). Accordingly, we are not persuaded that the Examiner erred in
finding the key of claim 5 to be the same as the key taught by Prunbauer.
Appellant’s position as to claim 6 is that it is “allowable for the same
reason as claim 1.” (App. Br. 10). Appellant does not argue that the
Examiner erred in finding that Prunbauer teaches a lock with slides as
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claimed (see Ans. 4) and therefore any such argument is waived. 37 C.F.R.
§41.37(c)(1)(vii). As with claim 1, Appellants have not shown that the
Examiner erred in finding claim 6 to be anticipated by Prunbauer.
35 U.S.C. § 103(a)
Appellant’s claim 6 recites a key and a lock, wherein the lock has
slides with both narrow and wide formations, specifically, the third slide has
a wide formation. (FF 7). According to Appellant’s specification, this wide
third slide will not fit a key with narrow grooves. (FF 8). Vonlanthen
teaches that locks with tumbler pins varying in diameter make it impossible
to insert a key that has grooves narrower than the diameter of the tumbler
pins.
(FF 9).
The Examiner refers to the “tumbler pins” of Vonlanthen as “slides.”
(Ans. 5 and 7). Appellant does not argue or provide evidence to show that
the Examiner erred in equating the tumbler pins and slides and we consider
any such argument to be waived. (37 C.F.R. §41.37(c)(1)(vii)).
Instead, Appellant argues that Vonlanthen1 does not teach tumbler
pins of differing sizes. (App. Br. 11). We disagree. Vonlanthen expressly
teaches tumbler pins of differing diameter and that their diameter can
prevent the wrong key from being inserted into the lock housing. (FF 9).
Thus, we agree with the Examiner that those in the art would be motivated to
combine the lock structure taught in Vonlanthen with the key structure
taught in Prunbauer to optimize security of the lock and key. (See Ans. 5).

1 Appellant refers to “US ‘631 of Volanthen,” but the cited reference is U.S.
Patent 4,270,372 of Vonlanthen. We address Appellant’s arguments in
respect to U.S. Patent 4,270,372.
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Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 6 as being obvious over Prunbauer and Vonlanthen.
V. ORDER
Upon consideration of the record and for the reasons given,
the rejection of claims 1-8 and 11 under 35 U.S.C.
§ 102(b) over Prunbauer is AFFIRMED; and
the rejection of claims 6-8 and 11 under 35 U.S.C. § 103(a) over
Prunbauer and Vonlanthen is AFFIRMED.
FURTHER ORDERED that no time period for taking any subsequent
action in connection with the appeal may be extended under 37 C.F.R. §
1.136(a)(1)(iv).

AFFIRMED

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