Ex Parte Church et al

Patent Trials and Appeals Board

Mar 4, 2019

14802669 - (D) (P.T.A.B. Mar. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/802,669 07/17/2015
125048 7590
Reising Ethington P.C.
755 W. Big Beaver Road
Suite 1850
Troy, MI 48084
03/06/2019
FIRST NAMED INVENTOR
David R. Church
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.
8380.3019.001 1807
EXAMINER
BOWES, STEPHEN M
ART UNIT PAPER NUMBER
3657
NOTIFICATION DATE DELIVERY MODE
03/06/2019 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):
USPTOmail@reising.com
USPTOmail@gmx.com
kolakowski @reising.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID R. CHURCH, BRET ALLEN ENGELS, and
EDWARD RAY GREEN
Appeal2018-005538
Application 14/802, 669 1
Technology Center 3600
Before MICHAEL C. ASTORINO, BRUCE T. WIEDER, and
BRADLEY B. BAY AT, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner's decision rejecting claims 1-20.2 We have jurisdiction over the
appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 "Bendix Spicer Foundation Brake LLC ... is the real party in interest."
Br. 1.
2 Throughout this Decision, we refer to the Non Final Office Action ("Non-
Final Act.," mailed Aug. 16, 2017), Appeal Brief ("Br.," filed Jan. 12,
2017"), and the Examiner's Answer ("Ans.," mailed Mar. 8, 2018
("Answer").
Appeal2018-005538
Application 14/802,669
STATEMENT OF THE CASE
Claimed Subject Matter
Claims 1, 7, 9, and 13 are independent claims. Claim 1, reproduced
below, is illustrative of the subject matter on appeal.
1. A drum brake assembly, comprising:
a brake spider having a central aperture configured to
receive an axle extending therethrough along a center axis of the
central aperture;
first and second brake shoes, each of said first and second
brakes shoes having a first end pivotally coupled to said brake
spider;
a first cam follower disposed at a second end of said first
brake shoe;
a second cam follower disposed at a second end of said
second brake shoe; and,
a camshaft having
a shaft disposed along a rotational axis;
a cam disposed at one end of the shaft, the cam
having an inboard side proximate said shaft and an outboard side
distant from said shaft and a cam surface extending between said
inboard and outboard sides in engagement with said first and
second cam followers, movement of said cam causing said first
and second brake shoes to move between positions of
engagement and disengagement with an associated braking
surface; and,
a noise reducing mass disposed on said outboard
side of said cam, the mass configured to establish a natural
frequency in said cam that differs from a natural frequency of
said first and second brake shoes by at least 200 Hz.
Rejections
I. Claims 6, 8, 12, and 19 are rejected under 35 U.S.C. § 112(b) as
indefinite.
2
Appeal2018-005538
Application 14/802,669
II. Claims 1--4, 6, 9, 10, 13-17, 19, and 20 are rejected under
35 U.S.C. § 103 as unpatentable over Clark et al. (US 2006/0016652 Al,
pub. Jan. 26, 2006) ("Clark") and Okada et al. (US 5,971,112, iss. Oct. 26,
1999) ("Okada").
III. Claim 5, 7, 8, 11, 12, and 18 are rejected under 35 U.S.C. § 103
as unpatentable over Clark, Okada, and Jackson (US 5,515,952, iss. May 14,
1996).
ANALYSIS
Rejection I
The Appellants do not submit an argument concerning the Examiner's
rejection of claims 6, 8, 12, and 19 under 35 U.S.C. § 112(b) as indefinite.
See Ans. 3. We summarily sustain this ground of rejection.
Rejections 11-111
Independent claim 1 calls for a drum brake assembly including a
camshaft having a shaft, a cam, and, "a noise reducing mass ... configured
to establish a natural frequency in said cam that differs from a natural
frequency of said first and second brake shoes by at least 200 Hz." Br.,
Claims App. Independent claims 7, 9, and 13 include a similar limitation.
See id.
The Examiner finds that Clark teaches substantially all of the subject
matter of claim 1, including "a noise reducing mass (Fig. 10) disposed on
said outboard side of said cam, but does not disclose the mass configured to
establish a natural frequency in said cam that differs from a natural
frequency of said first and second brake shoes by at least 200 Hz." Non-
3
Appeal2018-005538
Application 14/802,669
Final Act 4. To cure this deficiency the Examiner turns to Okada. Id. at 5.
The Examiner finds, "Okada [] discloses a drum brake assembly wherein the
brake shoes have different natural frequencies (Abstract). Okada[] discloses
that providing the shoes with different natural frequencies reduces judder, a
type of vibration noise." Id. (citing Okada, col. 3, 11. 55---65, col. 4, 11. 37-
42). The Examiner also finds, "[f]orming connected parts with different
natural frequencies prevents the natural frequencies from overlapping and
creating an especially large vibration." Id. The Examiner concludes, "it
would have been obvious to one of ordinary skill in the art ... to modify the
different connected parts of the drum brake of Clark [] by forming them to
have different natural frequencies as taught by Okada [] in order to reduce
coupled vibrations and judder (Abstract)." Id.
The Appellants point out that "Okada [] disclose[ s] a drum brake
assembly in which a brake shoe (not a cam) is altered in some manner so
that the natural frequency of one brake shoe differs from the natural
frequency of the other brake shoe in order to reduce 'judder."' Br. 8 ( citing
Okada, Abstract, col. 2, 11. 16-22). The Appellants argue that Okada does
not teach modifications to a cam (id. at 9) and that "the combination of Clark
[] and Okada [] does not disclose the fundamental concept of establishing a
natural frequency in the cam differing from the natural frequencies in the
brakes shoes" (id. at 10). The Appellants' argument is persuasive.
In response, the Examiner explains that the rationale for the
modification of the different connected parts of Clark's drum brake to have
different natural frequencies is based on a broad finding from Okada.
Ans. 4. In the words of the Examiner, Okada "broadly teach[ es] that it is
desirable for connected parts to have different natural frequencies." Id. We
4
Appeal2018-005538
Application 14/802,669
disagree with the Examiner that Okada's teachings extend to all the
components of the drum brake assembly. Consequently, we determine that
the Examiner's conclusion of obviousness lacks rational underpinning.
Further, to the extent that the Examiner invokes legal precedent as a source
of supporting rationale to further modify Clark's drum brake (see Non-Final
Act. 5 (citing In re Aller, 220 F.2d 454,456 (CCPA 1955)), the further
modification does not cure the lack of rational underpinning.
Thus, we do not sustain the Examiner's rejection of independent
claim 1, and dependent claims 2--4 and 6, as unpatentable over Clark and
Okada. Similarly, we do not sustain the Examiner's rejection of independent
claims 9 and 13, and dependent claims 10, 14--17, and 19, as unpatentable
over Clark and Okada because the rejection suffers from the same deficiency
as the rejection of claim 1.
The remaining rejection based on Clark and Okada in combination
with Jackson also suffers from the same deficiency as discussed above and is
not cured by the additional findings and reasoning associated therewith.
Thus, we do not sustain the Examiner's rejection of independent claim 7 and
dependent claim 8, as well as dependent claims 5, 12, and 18, which depend
from independent claims 1, 9, and 13, respectively.
DECISION
We SUMMARILY AFFIRM the Examiner's decision rejecting
claims 6, 8, 12, and 19 under 35 U.S.C. § 112(b) (Rejection I).
We REVERSE the Examiner's decision rejecting claims 1-20 under
35 U.S.C. § 103 (Rejection II-III).
5
Appeal2018-005538
Application 14/802,669
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
6