Ex Parte Baxter

Board of Patent Appeals and Interferences

Jun 25, 2008

10765959 (B.P.A.I. Jun. 25, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte RALPH W. BAXTER, JR.
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Appeal 2006-3052
Application 10/765,959
Technology Center 3600
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Decided: June 25, 2008
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Before WILLIAM F. PATE, III, TERRY J. OWENS, and JENNIFER D.
BAHR, Administrative Patent Judges.

PATE, III, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
This is a response to a Request for Rehearing filed by Appellant with
respect to a Decision entered by the Board in the above-noted Appeal.
Requests for Rehearing are limited to matters misapprehended or overlooked
by the Panel in rendering its decision.
Appellant states that the Board made a factual error in its decision.
Appeal 2006-3052
Application 10/765,959

2
However, Appellant is arguing the Board’s claim construction, which is, in
fact, a legal issue, not a factual one.
Be that as it may, Appellant continues to argue that the term
“differential,” which we suppose in some way Appellant believes is
equivalent to the claim term “differential assembly,” must be construed as a
device with one input and two outputs, the outputs being allowed to rotate at
different speeds. The Examiner had argued in the Answer that the Porter
device was in the nature of a clutch that is used as a so-called “center
differential.” After consulting extrinsic evidence, we determined that
“center differentials” were known in the art and the Examiner’s claim
construction was not unreasonable, particularly where Appellant’s claim is
not directed to a “differential” per se but to “a torque transmitting apparatus”
containing a “differential assembly.” It is entirely reasonable to assume that
the claim terminology “differential assembly” is broader than Appellant’s
dictionary-defined term “differential.” If Appellant is intent on using
broadening language in the claims such as the term “assembly,” he can
hardly complain when the Examiner interprets these same terms broadly.
As further evidence that the Examiner’s claim construction was not
unreasonable, we referred Appellant’s attention to Appellant’s independent
claims on appeal which claims do not support Appellant’s argued definition
that a differential assembly must contain two output shafts. Both of
Appellant’s independent claims are directed to a device with “at least one
output shaft.” We noted that this discrepancy between what is being argued
and what is being claimed is unexplained on the record. We raised this issue
at oral hearing. Appellant’s counsel did not have a response. Appellant’s
Request for Rehearing is silent on this issue as well.
Appeal 2006-3052
Application 10/765,959

3
To sum up, Appellant’s claims are directed to an apparatus that
includes “at least one output shaft.” The Examiner has a reference that
contains all the structure called for including having one output shaft.
Appellant’s argument is that the claims should be construed more narrowly
than the express language of the claims, i.e., they should be construed as
having “two” or “two or more output shafts.” This argument is unsuccessful
in convincing us the Examiner erred in rejecting the claims as lacking
novelty over Porter.
Appellant’s Request for Rehearing has been granted to the extent that
we have reviewed our prior decision, but it is denied with respect to making
any changes thereto.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2007).

REHEARING DENIED

hh

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