Ex Parte Deel et al

Patent Trial and Appeal Board

Aug 23, 2018

13440232 (P.T.A.B. Aug. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/440,232 04/05/2012
23409 7590 08/27/2018
MICHAEL BEST & FRIEDRICH LLP (Mke)
100 E WISCONSIN A VENUE
Suite 3300
MILWAUKEE, WI 53202
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Ray Deel
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.
051077-9217-USOl 5740
EXAMINER
SLIFKA, SARAH A
ART UNIT PAPER NUMBER
1724
NOTIFICATION DATE DELIVERY MODE
08/27/2018 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):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAY DEEL, WILLIAM JUBECK, and ANTHONY F ACCIO
Appeal 2017-011759
Application 13/440,232
Technology Center 2800
Before MONTE T. SQUIRE, A VEL YN M. ROSS, and
JEFFREY R. SNAY, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 2, 4--9, 11-15, and 24--28. We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm.
1 We refer to the Specification ("Spec.") filed April 5, 2012; Final Office
Action ("Final Act.") dated October 18, 2016; Appellants' Appeal Brief
("App. Br.") filed March 17, 2017; Examiner's Answer ("Ans.") dated July
26, 2017; and Appellants' Reply Brief ("Reply Br.") filed September 26,
2017.
2 Appellants identify Joy MM Delaware, Inc. as the real party in interest.
App. Br. 2.
Appeal2017-011759
Application 13/440,232
BACKGROUND
The subject matter on appeal relates to a plastic battery tray cover for
use with underground mining equipment. Spec. ,r 2. According to the
Specification, traditional battery tray covers are formed of coated steel. Id.
,r 3. Steel-based covers are heavy (e.g. approximately 620 pounds), which
increases the amount of energy used by the equipment, as well as the time
and effort required to remove the cover to service batteries. Id. Appellants
describe a hinged plastic battery cover which reduces weight and facilitates
access to the batteries. Id. ,r 4, 19. Claim 1 is illustrative:
1. A battery-powered mining machine comprising:
a battery tray, including an upper lip;
a first plurality of batteries in the battery tray, the first
plurality of batteries electrically coupled to the mining machine
so as to provide power to the mining machine;
a second plurality of batteries in the battery tray, the
second plurality of batteries electrically coupled to the mining
machine so as to provide power to the mining machine; and
a battery tray cover mounted on the battery tray for
enclosing the first and second plurality of batteries in the
battery tray, the battery tray cover including a first panel
pivotably attached to a second panel, each of the first and
second panels made entirely of plastic and including a top
surface, a bottom surface engaging, when the battery tray cover
is closed, the upper lip of the battery tray, and a continuous side
surface between the top surface and the bottom surface;
wherein, the battery tray cover is configured to be in
a first position, wherein the first panel substantially
covers a top portion of the first plurality of batteries and
the second panel substantially covers a top portion of the
second plurality of batteries, and
a second position, wherein the first panel
substantially covers the top portion of the first plurality
of batteries and the second plurality of batteries are
substantially uncovered.
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Appeal2017-011759
Application 13/440,232
App. Br. 16 (Claims Appendix).
REJECTIONS
I. Claims 7 and 14 stand rejected under 35 U.S.C. § 112, first paragraph,
for lack of adequate written description.
II. Claims 1, 2, 4, 5, 7-9, 11-14, and 24--27 stand rejection under
35 U.S.C. § 103(a) as unpatentable over Hayes and Saito.
III. Claims 6, 15, and 28 stand rejection under 35 U.S.C. § 103(a) as
unpatentable over Hayes, Saito, and Hiers.
OPINION
We review the appealed rejection for error based upon the issues
identified by Appellants and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to
identify the alleged error in the examiner's rejections .... "). After
considering the evidence presented in this Appeal and each of Appellants'
arguments, we are not persuaded that Appellants identify reversible error.
Thus, we affirm the Examiner's rejection for the reasons expressed in the
Final Office Action and Answer. We add the following primarily for
emphasis.
Rejection I
The Examiner finds that the weight range ("approximately 120 lb. to
320 lb.") recited in each of claims 7 and 14 is not reflected in the
Specification. Final Act. 2. Appellants correctly point out that the
originally-filed Specification teaches that traditional covers weighed
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Application 13/440,232
approximately 620 pounds, and that covers according to the invention can
weigh 20o/o-50% of traditional covers. App. Br. 9. We are persuaded that
the foregoing disclosure is sufficient to demonstrate possession of the weight
range recited in each of claims 7 and 14. Accordingly, we do not sustain
Rejection I.
Rejection II
With regard to Rejection II, Appellants separately argue independent
claims 1, 11, and 24, but rely on the same arguments in each instance. We
view Appellants' arguments as being directed to the appealed claims as a
group. We select claim 1 as representative. Each of the remaining claims
stands or falls with claim 1.
The Examiner finds that Hayes discloses a plastic battery tray cover
that meets all of the structural recitations set forth in claim 1, except that
Hayes does not teach a hinge separating the cover into two panels. Final
Act. 3--4. The Examiner finds that Saito teaches use of hinged panels in
connection with a battery cover, and determines that it would have been
obvious to one of ordinary skill in the art to modify Hayes' cover to include
a central hinge, such that different battery regions may be accessed without
needing to remove the entire cover. Id. at 4.
Appellants argue that Saito' s cover is designed to cover only a portion
of the batteries-namely, the battery electrodes-and, therefore, fails to
teach first and second panels that substantially cover a top portion of first
and second pluralities of batteries. App. Br. 12. Relatedly, Appellants argue
that Saito fails to disclose a battery tray cover that is configured such that
first and second panels are independently movable to uncover either the first
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Application 13/440,232
or second plurality of batteries. Id. These arguments are repeated in the
Reply Brief. Reply Br. 3--4.
Appellants' arguments are not persuasive of reversible error. Hayes
already provides a hinged battery tray cover, albeit as a single panel hinged
at an edge, rather than two panels centrally hinged. Hayes 8, 11. 15-18.
Hayes teaches that the hinge is "for opening and removing the cover for
inspection and servicing purposes." Id. Appellants do not dispute the
Examiner's finding that one of ordinary skill would have recognized an
advantage of a central hinge, to permit access to different battery regions.
On this appeal record, we are persuaded that a preponderance of the
evidence supports the finding that one of ordinary skill would have had a
reason to provide Hayes' edge-hinged battery cover panel in the form of two
centrally-hinged cover panels, to facilitate ease of access to battery regions.
Accordingly, Rejection II is sustained.
Rejection III
Appellants do not separately argue against Rejection III.
Accordingly, Rejection III also is sustained.
DECISION
The Examiner's decision rejecting claims 1, 2, 4--9, 11-15, and 24--28
is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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