Ex Parte Bihrer et alDownload PDFPatent Trial and Appeal BoardFeb 16, 201613105448 (P.T.A.B. Feb. 16, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/105,448 05/11/2011 53609 7590 02/18/2016 REINHART BOERNER VAN DEUREN P,C 2215 PERRYGREEN WAY ROCKFORD, IL 61107 FIRST NAMED INVENTOR Markus Bihrer 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. 508625 3261 EXAMINER FIGUEROA, FELIX 0 ART UNIT PAPER NUMBER 2833 NOTIFICATION DATE DELIVERY MODE 02/18/2016 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): RockMail@reinhartlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARKUS BIHRER and JOHANN KRECH Appeal2014-004094 Application 13/105,448 1 Technology Center 2800 Before MICHAEL P. COLAIANNI, CHRISTOPHER M. KAISER, and JULIA HEANEY, Administrative Patent Judges. KAISER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the decision2 of the Primary Examiner rejecting claims 30-58. Final Act. 4--10. We have jurisdiction under 35 U.S.C. § 6(b). We affirm in part. OPINION Appellants' invention "relates to a plug connector comprising a plug connector housing which is designed to be electrically insulating and is formed from a plurality of housing parts." Spec. 1. 1 According to Appellants, the Real Party in Interest is Lapp Engineering & Company. Appeal Br. 2. 2 Final Office Action, mailed April 26, 2013 ("Final Act."). Appeal2014-004094 Application 13/105,448 Claim 30, reproduced below, is representative of the appealed subject matter: 30. Plug connector comprising: a plug connector housing designed to be electrically insulating and comprising a plurality of housing parts, at least one contact element arranged in a receiving area of the plug connector housing, said contact element being accessible for a contact element of a complementary plug connector via a plug opening, and an electric cable leading into the plug connector housing via a cable opening, the electrical conductor of said cable being connected to the contact element, and joins between the housing parts and adjoining the receiving area being closed in a materially joined manner and, as a result, creeping current paths leading away from the contact element in the receiving area run exclusively to the plug opening and/or to the cable opening. Appeal Br., Claims App'x 1. The Examiner rejected claims 30-41; 44--48; 55; and 56 under 35 U.S.C. § 102(b) as anticipated by Toorell. 3 Final Act. 4--7. The Examiner also rejected the following claims under 35 U.S.C. § 103(a) as obvious over the following combinations of references: claims 42, 43, and 49-52 over Toorell and Huang;4 claims 53 and 54 over Toorell; and claims 57 and 58 over Toorell and Bertsch. 5 Id. at 7-9. Appellants make several arguments against these rejections. First, with respect to claims 30-41, 44--48, and 53-58, Appellants argue that Toorell does not teach the recited "contact element being accessible for a 3 Toorell, US 4,184,734, issued Jan. 22, 1980. 4 Huang, US 6,309,257 Bl, issued Oct. 30, 2001. 5 Bertsch et al., US 2010/0048066 Al, published Feb. 25, 2010. 2 Appeal2014-004094 Application 13/105,448 contact element of a complementary plug connector via a plug opening," Appeal Br., Claims App'x 1, because Toorell is not designed to receive a complementary plug connector. Appeal Br. 7-8, 13, 15. Specifically, Appellants argue that, because Toorell's connector is designed to receive a light bulb base, and because a light bulb base is not a plug connector, Toorell is not designed to receive a plug connector. Id. We do not find this argument persuasive. The Examiner found that T oorell' s contact element, designed to make contact with a light bulb base, disclosed the recited contact element that is accessible for a contact element of a complementary plug connector. Final Act. 4. In making this finding, the Examiner construed "complementary plug connector" broadly enough to encompass light bulb bases. Answer 7-8. Appellants disagree with that construction, but they have directed us to no evidence to support a narrower construction than that proposed by the Examiner. Appeal Br. 7. Accordingly, Appellants have not shown any reversible error by the Examiner. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (approving of our long-standing "practice to require an [Appellant] to identify the alleged error in the examiner's rejections"); SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) ("[M]ere statements of disagreement ... as to the existence of factual disputes do not amount to a developed argument."). Second, with respect to claims 30-44, 57, and 58, Appellants argue that Toorell fails to disclose the recited "joins between the housing parts ... being closed in a materially joined manner and, as a result, creeping current paths leading away from the contact element in the receiving area run exclusively to the plug opening and/or to the cable opening." Appeal Br. 8- 3 Appeal2014-004094 Application 13/105,448 9, 11-12, 15. Specifically, argue Appellants, Toorell' s joins can be made in any way that is "simple to assemble and cheap to manufacture," while the joins of Appellants' invention are "not likely to be simple or cheap." Appeal Br. 8-9. We are not persuaded that the Examiner erred harmfully. Appellants are correct that Toorell is concerned with simple assembly and a product that is inexpensive overall. Toorell, col. 1, 11. 36-39. But, although Appellants suggest that no simple and inexpensive joining process could accomplish the result recited in Appellants' claims, they have directed us to no evidence to support such a conclusion. As the Examiner noted, Answer 8, Toorell teaches joining the housing parts using ultrasonic welding. Toorell, col. 5, 11. 23-28. This same joining process is described repeatedly in Appellants' Specification as advantageous in achieving the aims of the invention. Spec. 5, 6, 15, 18, 26. Accordingly, we are not persuaded that the Examiner erred harmfully in finding that Toorell discloses joins that are constructed in such a way as to achieve the properties recited in Appellants' claims. Third, with respect to claims 45--48, Appellants argue that Toorell fails to disclose the recited "intermediate space between a cable sheath and the plug connector housing being closed by way of an adhesive material" (claims 45 and 46) or "intermediate space between a cable sheath and the plug connector housing being closed by a gel" (claims 4 7 and 48). Appeal Br. 9-10. We find this argument persuasive. The Examiner cited Toorell, col. 5, 11. 23-28, as disclosing this limitation. Final Act. 6-7. The cited portion of Toorell discloses joining the parts of the housing using glue, but it does not disclose using the glue to close a gap between the housing pieces and the cable entering the housing. Toorell, col. 5, 11. 23-28. Accordingly, 4 Appeal2014-004094 Application 13/105,448 we conclude that the Examiner erred reversibly in finding that Toorell discloses the intermediate-space-closing limitations of claims 45--48 within the meaning of 35 U.S.C. § 102. Fourth, with respect to claim 34, Appellants argue that Toorell fails to disclose the recited "joins between the housing parts extend[ing] parallel to a central axis of the plug connector housing." Appeal Br. 10. We do not find this argument persuasive. Toorell shows joins parallel to the central axis of its connector. As the Examiner noted, Answer 10, the "exterior portions of [elements] 19," along the upper surface of elements 13 and 15, are the joins between the housing parts, and these run parallel to the central axis of Toorell's connector. Toorell, Fig. 1. Appellants have offered no evidence to the contrary. Fifth, with respect to claim 35, Appellants argue that Toorell fails to disclose the recited "housing parts ... designed to be mirror symmetrical to the central axis," and, with respect to claim 36, Appellants argue that Toorell fails to disclose the recited "joins between the housing parts extend[ing] parallel to a plane running transversely to the central axis." Appeal Br. 10. We do not find these arguments persuasive. As the Examiner noted, Final Act. 10, housing parts 10 and 11 of Toorell are each mirror symmetrical along the central axis of the connector. Toorell, Fig. 1. In addition, as the Examiner noted, Final Act. 10, Toorell's joins "have a width" and therefore extend parallel to a plane running transverse to the connector's central axis. Toorell, Fig. 1. Appellants have offered no evidence to the contrary. Sixth, with respect to claim 44, Appellants argue that Toorell fails to disclose the recited "adhesive material stick[ing] adhesively to both the housing parts adjoining the join." Appeal Br. 10. We do not find this 5 Appeal2014-004094 Application 13/105,448 argument persuasive. As the Examiner noted, Final Act. 6, Toorell discloses joining the housing parts using an adhesive material. Toorell, col. 5, 11. 23- 28. Adhesive materials cannot join parts to which the adhesive materials do not stick. Answer 11. Appellants have not offered any evidence to the contrary. Accordingly, Toorell inherently discloses adhesive material sticking to the housing parts on both sides of a joint. Seventh, with respect to claims 49-51, Appellants argue that Huang does not teach or suggest the recited "gel ... in the form of a gel body." Appeal Br. 12. We do not find this argument persuasive. The Examiner found that Huang's element 40 was a gel body for sealing a joint. Final Act. 7-8; Answer 12; see Huang, Fig. IA. Appellants have not offered any evidence or developed argument that this finding was erroneous. SmithKline Beecham, 439 F.3d at 1320 ("[M]ere statements of disagreement ... as to the existence of factual disputes do not amount to a developed argument."). In the absence of such evidence or argument, we cannot conclude that the Examiner committed harmful error by construing "gel body" broadly enough to encompass the cured glue taught by Huang. Eighth, with respect to claims 51 and 52, Appellants argue that Huang does not teach or suggest the recited "displacement area for displaced gel." Appeal Br. 12. Specifically, Appellants argue that Huang's displacement area is located in the housing part rather than in the gel body. Id. We do not find this argument persuasive. As the Examiner noted, Answer 12, Appellants' claims do not require the gel displacement area to be located in the gel body. Claim 52 makes this explicit by requiring the gel displacement area to be located "in the plug connector housing." Appeal Br., Claims App'x 4. Claim 51 requires that "the gel body ha[ve] a displacement area." 6 Appeal2014-004094 Application 13/105,448 Id. The Examiner construed "the gel body has a displacement area" as broad enough to encompass "the gel body has a displacement area [associated with it]" rather than limiting the term to "the gel body has a displacement area [located within it]." Appellants offer no evidence or developed argument that this construction was erroneous. Ninth, with respect to claims 53 and 54, Appellants argue that it was improper for the Examiner to take official notice of the type of gel material to be used, specifically "material produced on the basis of polyurethane" (claim 53) or "produced from two components" (claim 54). Appeal Br. 14. The Examiner responds that official notice was not taken; rather, the Examiner merely concluded that it was within the general skill of a person of ordinary skill in the art "to select a known material on the basis of its suitability for the intended use as a matter of obvious design preference." Answer 13. This is the same rationale the Examiner relied upon in the Final Rejection. Final Act. 8. We are not persuaded that the Examiner committed harmful error in relying on this rationale. The selection of a known material "on the basis of suitability for the intended use [of the article to be made from that material] would be entirely obvious." In re Leshin, 277 F.2d 197, 199 (CCP A 1960). As to the Examiner's implicit findings that the materials recited in claims 53 and 54 were known to be suitable for the recited purpose of sealing gaps, Appellants have not challenged the substance of these findings, so we accept them as fact. In re Kunzmann, 326 F.2d 424, 425 n.3 (CCPA 1964). As discussed above, we are persuaded of harmful error by the Examiner only by Appellants' argument as to claims 45--48. Accordingly, the rejection of those claims under 35 U.S.C. § 102(b) as anticipated by 7 Appeal2014-004094 Application 13/105,448 T oorell is reversed. Because none of Appellants' other arguments are persuasive, we affirm the Examiner's other rejections. We note that, although we reverse the anticipation rejection of claim 47, we affirm the obviousness rejections of claims 53 and 54, which depend from claim 47. We leave it to further proceedings to determine whether claim 4 7 should be rejected as obvious in light of the obviousness rejection of claims that incorporate all the limitations of claim 4 7. ORDER The Examiner's rejection under 35 U.S.C. § 102(b) of claims 45--48 as anticipated by Toorell is reversed. The Examiner's rejection under 35 U.S.C. § 102(b) of claims 30--41, 44, 55, and 56 as anticipated by Toorell is affirmed. The Examiner's rejections under 35 U.S.C. § 103(a) of claims 42, 43, and 49-52 as obvious over the combination of Toorell and Huang; of claims 53 and 54 as obvious over Toorell; and of claims 57 and 58 as obvious over the combination of Toorell and Bertsch are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136. 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