Ex Parte Beaujot

Patent Trial and Appeal Board

Sep 28, 2016

12224039 (P.T.A.B. Sep. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/224,039 11/05/2010
23117 7590 09/30/2016
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Norbert Beau jot
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.
3343-62 4118
EXAMINER
MITCHELL, JOEL F
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
09/30/2016 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NO RB ER T BEAUJOT
Appeal2014-007440
Application 12/224,039
Technology Center 3600
Before ANNETTE R. REIMERS, LISA M. GUIJT, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellant, Norbert Beaujot, 1 appeals under 35 U.S.C. § 134 from the
Examiner's Final decision rejecting claims 1-22. We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
Appellant identifies Straw Track Manufacturing Inc. as the real party
in interest. Appeal Br. 3.
Appeal2014-007440
Application 12/224,039
THE CLAIMED SUBJECT MATTER
The claims are directed to "a diagonal brace apparatus for a rigid
implement frame." Appeal Br. 24 (Claim 1). Claims 1, 10, and 17 are
independent. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A diagonal brace apparatus for a rigid implement frame,
the rigid implement frame comprising
at least one rigid lateral beam, the apparatus comprising a
bias element adapted at a first end thereof for connection to a
front location on a front portion of the implement frame and
adapted at a second end thereof for connection to a rear location
on a rear portion of the implement frame laterally offset from the
front location wherein the bias element is operative to exert a bias
force resisting rearward bending of an outer end of the at least
one rigid lateral beam with respect to an inner end of the at least
one rigid lateral beam when connected to the implement frame.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Bedney
Moos
Hartman
McGugan
us 4,504,076
us 4,660,652
us 4,881,603
us 5, 177 ,887
REJECTIONS
The Examiner made the following rejections:
Mar. 12, 1985
Apr. 28, 1987
Nov. 21, 1989
Jan. 12, 1993
1. Claim 1 stands rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
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Application 12/224,039
2. Claims 1and2 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by McGugan.
3. Claims 1and3 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Bedney.
4. Claims 4--16 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bedney and Moos.
5. Claims 17-22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hartman and Moos.
Appellant seek our review of the rejections.
ANALYSIS
The Rejection of Claim 1 as Indefinite
The Examiner finds that the "term 'rigid' in claim 1 is used by the
claim wherein 'bending of an outer end of the at least one rigid lateral beam
with respect to an inner end of the at least one rigid lateral beam' is resisted
(lines 6-8), while the accepted meaning is '1. Not bending: stiff.' (Webster's
II Dictionary, Third Edition)[.] The term is indefinite because the
[S]pecification does not clearly redefine the term." Final Act. 2.
In response, Appellant argues that that:
the term "rigid" does not mean "cannot bend" -- but instead
means "difficult to bend." This is the way in which the term
"rigid" frequently is used in everyday English -- and it also
happens to be the way the term is used in the specification.
Indeed, "rigid" members in the specification are talked about as
being "flexing" (at least to some extent). See, for example,
paragraphs 6, 14--16, 28-29, and 32, of the published application.
Appeal Br. 9-10. Appellant also states that other dictionaries define "'rigid'
as 'stiff, hard, and difficult to bend or move.' Applicant thus respectfully
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Application 12/224,039
submits that a definition of 'rigid' as something that is not able to bend at all
cannot be supported. As used in claim 1, 'rigid' simply means difficult to
bend." Appeal Br. 10.
The Examiner's proposed definition of "rigid" is inconsistent with the
Specification's usage of the term. In re Prater, 415 F.2d 1393, 1404-05
(CCP A 1969) (During examination of a patent application, pending claims
are given their broadest reasonable construction consistent with the
specification.); In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004). For example, the Specification states the "rigid lateral beam" is
subject to flexing:
(1) "Thus the range of flexing motion is from a forward position that
is perpendicular to a rearward position. The lateral beams only flex
rearward from the perpendicular position." Spec. 6: 16-17.
(2) "Steel beams can flex both forward and rearward from a neutral
position up to a yield point at which the beam will bend." Spec. 7:4--5.
In light of the Specification's teachings about the "rigid" lateral beam
and the other evidence presented by Appellant, we agree with Appellant that
the term "rigid" is definite, and the broadest reasonable interpretation of
"rigid" is "difficult to bend." Thus, we cannot sustain the Examiner's
rejection of claims 1 and 2 under 35 U.S.C. § 112, second paragraph.
The Rejection of Claims 1 and 2 as Anticipated by McGugan
Appellant argues claims 1 and 2 as a group. Appeal Br. 16-18. We
select claim 1 as the representative claim, and claim 2 stands or falls with
claim 1. 37 C.F.R. § 41.37( c )(1 )(iv).
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Application 12/224,039
The Examiner finds that McGugan discloses all of the limitations of
claim 1 including a "bias element [(hydraulic cylinder 24)] operative to exert
a bias force resisting rearward bending of an outer end (adjacent 26) of the at
least one rigid lateral beam with respect to an inner end (adjacent 22) of the
at least one rigid lateral beam when connected to the implement frame."
Final Act. 3.
In response, Appellant argues that McGugan's "hydraulic cylinder
[24] is not that of a bias element, but rather of a simple actuator." Appeal
Br. 16. According to Appellant,
when the operator directs pressurized hydraulic fluid into one
end, the cylinder will extend, and when the operator directs
pressurized hydraulic fluid into the other end, the cylinder will
retract. When not extending or retracting, the hydraulic fluid is
simply locked and prevented from flowing in or out, such that
the hydraulic cylinder cannot extend or retract, and the hydraulic
cylinder becomes a fixed entity .... If all forces are removed
from the hydraulic cylinders of McGugan, and if there is no
failure, the hydraulic cylinder will remain fixed, and will not
extend or retract.
Id. at 16-17.
Contrary to Appellant's argument, however, we agree with the
Examiner's findings that hydraulic cylinders 24 are bias elements:
First, the hydraulic cylinders clearly provide a bias force when
extending and retracting. Specifically, when extending, the
cylinder 24 exerts a bias force resisting rearward bending of an
outer end of the at least one rigid lateral beam (of 6) with respect
to an inner end of the at least one rigid lateral beam. Second,
when locked, cylinder 24 ofMcGugan is operative to exert a bias
force resisting rearward movement of the blade 20. Otherwise,
if the blade 20 were allowed to move freely or with low
resistance while in use, it would not be able to push snow as
desired.
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Ans. 19-20. Appellant does not show error by the Examiner.
Appellant's argument that claim 1 requires that "the bias element
exerts a constant push or pull, depending on the configuration" (Appeal Br.
17 (emphasis added)) is unsupported by the claim language. As the
Examiner noted, "[ e ]xerting a constant push or pull is different than being
'operative to exert a bias force resisting rearward bending' as claimed."'
Ans. 20. The broad language of claim 1 merely requires a rearward biasing
force if and when there is rearward bending of the lateral beam. Appellant's
argument is not persuasive because it is not commensurate in scope with
claim 1. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) ("[A]ppellant's
arguments fail from the outset because ... they are not based on limitations
appearing in the claims.").
Appellant has not shown error by the Examiner, and we sustain the
rejection of claim 1 and 2 under 35 U.S.C. § 102(b).
The Rejection of Claims 1 and 3 as Anticipated by Bedney
Appellant argues claims 1 and 3 as a group. Appeal Br. 11-15. We
select claim 1 as the representative claim, and claim 3 stands or falls with
claim 1. 37 C.F.R. § 41.37( c )(1 )(iv).
The Examiner finds that Bedney discloses all of the limitations of
claim 1 including that "the bias element [32] .... is operative to exert a bias
force resisting rearward bending of an outer end of the at least one rigid
lateral beam with respect to an inner end of the at least one rigid lateral beam
when connected to the implement frame (while positioned as in Fig. 2)."
Final Act. 4.
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In response, Appellant makes virtually the same arguments as those
made for the rejection based on McGugan. Appellant argues that Bedney's
"hydraulic cylinder [32] is not that of a bias element, but rather of a simple
actuator." Appeal Br. 11. According to Appellant,
When the operator directs pressurized hydraulic fluid into one
end, the cylinder will extend, and when the operator directs
pressurized hydraulic fluid into the other end, the cylinder will
retract. When not extending or retracting, the hydraulic fluid is
simply locked and prevented from flowing in or out, such that
the hydraulic cylinder cannot extend or retract, and the hydraulic
cylinder becomes a fixed entity .... If all forces are removed
from the hydraulic cylinders of Bedney, and if there is no failure,
the hydraulic cylinder will remain fixed, and will not extend or
retract.
Id. at 12-13.
Contrary to Appellant's argument, however, we agree with the
Examiner's findings that hydraulic cylinders 32 are bias elements:
First, elements 32 exert a bias force on the frame as they extend
and retract. Specifically, when retracting, the cylinder exerts a
bias force resisting rearward bending of an outer end of the at
least one rigid lateral beam (28) with respect to an inner end of
the at least one rigid lateral beam. Second, when locked,
elements 32 exert a bias force resisting bending of the frame, as
said elements 32 hold the frame in place and do not let it move.
These cylinders 32 of Bedney act to bias the frame in the viewed
operating and transport positions (Figs. 1, 2). If there were not
bias, the frame would be free to move between the positions
when forces act upon it.
Ans. 16-17. Appellant does not show error by the Examiner.
Appellant's argument that claim 1 requires that "the bias element
exerts a constant push or pull, depending on the configuration" (Appeal Br.
13) is unsupported by the claim language. As the Examiner noted,
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"[e]xerting a constant push or pull is different than being 'operative to exert
a bias force resisting rearward bending' as claimed." Ans. 18. The broad
language of claim I merely requires a rearward biasing force if and when
there is rearward bending of the lateral beam. Appellant's argument is not
persuasive because it is not commensurate in scope with claim 1. See In re
Self, 671 F.2d at 1348.
Appellant also argues that
inner beam 28 is not rigidly attached at its inner end at 26, but
instead is pivotally attached at 26 .... Applicant respectfully
submits that pivotal attachments are in fact precluded by the
language of claim 1, which specifies that the implement frame
comprises at least one rigid lateral beam and a bias element
adapted at a first end thereof for connection to a front location on
a front portion of the implement frame and adapted at a second
end thereof for connection to a rear location on a rear portion of
the implement frame laterally offset from the front location
wherein the bias element is operative to exert a bias force
resisting rearward bending of an outer end of the at least one rigid
lateral beam with respect to an inner end of the at least one rigid
lateral beam when connected to the implement frame. Once the
term "rigid" is properly understood, it becomes clear that this
argument -- and indeed, this rejection - simply cannot be
sustained.
Appeal Br. 14-15.
In response, the Examiner states that:
claim 1 is [directed] to a 'rigid lateral beam.' The beam being
'rigidly attached' or having a 'rigid attachment' is not claimed ..
. . [E]lement 28 of Bedney is viewed to be a rigid beam because
it is an arm that holds its position and does not bend (or is not
easily bent) along its length, as it is depicted in the figures.
Element 28 has a pivotal attachment at one of its ends, but this
does not affect its rigidity. As shown, a structure being rigid ...
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Application 12/224,039
does not prevent it from being pivotally attached to another
element.
Ans. 18-19. We agree with the Examiner that claim 1 does not recite that
the rigid lateral beam is "rigidly attached" or that a rigid lateral beam must
be rigidly attached to another structure.
Appellant has not shown error by the Examiner, and we sustain the
rejection of claim 1and3 under 35 U.S.C. § 102(b).
The Rejection of Claims 4-16 as Unpatentable Over Bedney and Moos
Appellant argues claims 4--9 and 10-16 as two groups. Appeal Br.
11-15. We select claim 4 as the representative claim, and claims 5-9 stand
or fall with claim 4. 37 C.F.R. § 41.37(c)(l)(iv). We also select
independent claim 10 as the representative claim, and claims 11-16 stand or
fall with claim 10. Id.
With respect to claims 4--16, Appellant argues that "[c]ombining the
bias element of Moos with the pivoting parts of Bedney does not show the
bias element exerting a bias force against one end of a rigid beam that is
rigidly attached to a frame exert, the bias force resisting rearward bending of
an outer end of the rigid lateral beam with respect to an inner end thereof."
Appeal Br. 19-20.
Claims 4--9
With respect to claims 4--9 which depend from claim 1, the Examiner
responds that "claim 1 does not set forth the beam being 'rigidly attached' or
having a 'rigid attachment."' Ans. 21. For the reasons discussed above with
respect to the rejections of claim 1, the Examiner correctly finds that claim 1
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does not recite a "rigid attachment" for the rigid lateral beam. We sustain
the rejections of claims 4--9 which depend from claim 1.
Claims 10-16
Claim 10 recites, in part, "at least one rigid lateral beam having an
inner beam end rigidly attached to an inner portion of the implement frame."
The Examiner finds that Bedney teaches this limitation. Final Act. 7.
With respect to claims 10-16, the Examiner concedes that claim 10
recites that lateral beam is "rigidly attached" to the implement frame, but
argues that "being 'rigidly attached' does not preclude pivoting. The inner
beam 28 of Bedney is viewed to be rigidly attached at its inner end at 26 as
no parts are bent (when positioned or during pivoting). Giving the claims
their broadest reasonable interpretation, a rigid attachment is viewed to be a
connection in which the connecting elements, or the elements facilitating the
connection, are not bendable (or, correspondingly, easily bendable)." Ans.
21-22. Contrary to the Examiner's finding, a person skilled in the art would
not consider that a "rigidly attached" beam is the same as a "pivotally
attached" beam, or that the pivotally attached beams disclosed in Bedney
and Moos are rigidly attached beams as recited in claim 10. We cannot
sustain the rejections of claims 10-16.
The Rejection of Claims 17-22 as Unpatentable Over Hartman and Moos
Appellant argues claims 17-22 as a group. Appeal Br. 21-23. We
select claim 1 7 as the representative claim, and claims 18-22 stand or fall
with claim 17. 37 C.F.R. § 41.37(c)(l)(iv).
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The Examiner finds that Hartman discloses all of the limitations of
claim 1 7 except that "Hartman does not explicitly disclose an active
hydraulic source operative to anticipate flow out of the hydraulic cylinder
when a force is exerted on the cylinder that is greater than the bias force."
Final Act. 11. The Examiner finds that Moos discloses this missing
limitation:
Id.
Moos discloses a hydraulic cylinder (35) operatively connected
to an active hydraulic source (including 40, 42), the active
hydraulic source operative to supply hydraulic fluid to the
hydraulic cylinder at a substantially constant bias pressure (via
42); and wherein the active hydraulic source is operative to allow
hydraulic fluid to flow out (via 40) of the hydraulic cylinder
when a force is exerted on the hydraulic cylinder that is greater
than the bias force exerted by the cylinder.
In response, Appellant argues:
The Final Office Action concedes that Hartman does not
explicitly disclose an active hydraulic source operative to
anticipate flow out of the hydraulic cylinder when a force is
exerted on the cylinder that is greater than the bias force and,
similar to as above, relies on Moos for these features. However,
[as] applicant has explained in detail above, Moos does not teach
or suggest this subject matter. The rejection of claim 17 and its
dependents is flawed for at least these reasons.
Appeal Br. 21. Contrary to Appellant's argument, however, Appellant's
previous discussion concerned the pivotal movement of the beam, not
whether Moos disclosed "an active hydraulic source operative to anticipate
flow out of the hydraulic cylinder when a force is exerted on the cylinder
that is greater than the bias force," as recited in claim 17. Thus, Appellant
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does not address the rejection as articulated by the Examiner, and does not
show Examiner error.
Appellant also argues that Moos "does not teach or suggest in any
way that the bias element could resist bending of a difficult to bend or rigid
beam." Appeal Br. 21-22. As the Examiner noted, this feature "is not
recited in the rejected claim 17." Ans. 23. Appellant's argument is not
persuasive because it is not commensurate in scope with claim 1. See In re
Self, 671 F.2d at 1348.
The Examiner also determines that:
Hartman and Moos are analogous because they both disclose
hydraulic control means for towed agricultural implements. It
would have been obvious to one of ordinary skill in the art at the
time of the invention to provide the apparatus of Hartman with
the hydraulic source means as taught by Moos in order to allow
flexing of the frame through allowable movement of the cylinder.
Ans. 23.
In response, Appellant argues:
such movement would provide no purpose in the Hartman
machine, and replacing the hydraulic cylinders of Hartman with
those of Moos still shows only parts being moved about a pivot
axis, as discussed above. There is no logical reason one skilled
in the art at the time of the invention would have sought to make
a change that would have had no practical effect. Even in the
forced combination, the wrong arrangement still would be
provided.
Appeal Br. 22. Appellant also states that "claim 17 claims a rigid wing
frame pivotally attached at an inner end thereof to an outer end of a middle
frame, and then goes on to specify the lateral beams and fore and aft beams
rigidly attached to form the wing frame, and the hydraulic cylinder
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(providing the bias element) exerting force on defined portions of the rigid
wing frame." Reply Br. 13.
Appellant's arguments are unclear and unpersuasive. Appellant's
previous arguments with respect to the rejections of independent claims 1
and 10, and their dependent claims, do not address any distinctions between
claim 17 and Hartman and Moos, or identify which limitations in claim 17
are missing from the combination of Hartman and Moos. Here, Appellant
does not show that the Examiner's proposed modification is beyond the skill
of one skilled in the art. In re Keller, 642 F .2d 413, 425 (CCP A 1981) ("The
test for obviousness is not whether the features of a secondary reference may
be bodily incorporated into the structure of the primary reference ....
Rather, the test is what the combined teaching of those references would
have suggested to those of ordinary skill in the art."); see also In re Sneed,
710 F.2d 1544, 1550 (Fed. Cir. 1983) ("[I]t is not necessary that the
inventions of the references be physically combinable to render obvious the
invention under review."); KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007) ("[I]f a technique has been used to improve one device, and a person
of ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill."). Thus, Appellant does not apprise us
of error.
For the reasons discussed above, we sustain the rejection of claim 17,
and claims 18-22 fall with claim 17.
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DECISION
For the above reasons, the Examiner's rejection of claims 1 and 2
under 35 U.S.C. § 102(b) as being anticipated by McGugan is AFFIRMED.
The Examiner's rejection of claims 1and3 under 35 U.S.C. § 102(b)
as being anticipated by Bedney is AFFIRMED.
The Examiner's rejection of claims 4--9 under 35 U.S.C. § 103(a) as
being unpatentable over Bedney and Moos is AFFIRMED.
The Examiner's rejection of claims 10-16 under 35 U.S.C. § 103(a) as
being unpatentable over Bedney and Moos is REVERSED.
The Examiner's rejection of claims 17-22 under 35 U.S.C. § 103(a) as
being unpatentable over Hartman and Moos is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv) (2015).
AFFIRMED-IN-PART
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