Ex Parte Duroux et al

Board of Patent Appeals and Interferences

Mar 31, 2006

09602923 (B.P.A.I. Mar. 31, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BERNARD DUROUX and
DANIEL DUMONT

____________

Appeal No. 2005-0893
Application No. 09/602,923
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ON BRIEF
____________

Before FRANKFORT, PATE, and BAHR, Administrative Patent Judges.
PATE, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-7. Claim 8-15 have been
previously withdrawn from consideration. Accordingly, claims 1-7 are the only claims
remaining for consideration.
The claimed subject matter is directed to an exterior rear view mirror which can be
pivoted by an electric motor at two discrete speeds.
The claimed subject matter may be further understood with reference to claim 1,
appended to appellants= brief.
Appeal No. 2005-0893
Application No. 09/602,923
2
The references of record relied upon by the examiner as evidence of obviousness
are:
Enomoto et al. (Enomoto) 5,012,693 May 7, 1991
Valentino (Valentino) 5,953,167 Sep. 14, 1999
Schenk et al. (Schenk) 6,204,753 Mar. 20, 2001
Tomiyoshi JP 8-26030 Jan. 8, 1996

The Japanese document is understood by reference to a machine translation
provided by the Japanese Patent Office.
THE REJECTIONS
Claims 1, 6 and 7 stand rejected under 35 U.S.C. '103(a) as unpatentable over
Enomoto in view of Tomiyoshi or Schenk.
Claims 1-7 stand rejected under 35 U.S.C. '103 (a) as unpatentable over
Valentino in view of Tomiyoshi or Schenk.
For a complete understanding of the examiner=s rejections, reference is made to
the examiner=s answer.
For a further understanding of appellants= argument with respect to the
rejections, reference is made to the brief and reply brief.
OPINION
The following are our findings of fact with respect to the scope and content of the
prior art. Appellants have stated that claims 1-7 stand or fall together. We limit our
consideration to claim 1 on appeal.
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Application No. 09/602,923

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We have carefully considered the subject matter of claim 1 and the prior art cited
by the examiner, and it is our legal conclusion that the examiner has established a
prima facie case of obviousness with respect to claim 1. Since claim 1 falls, we will
sustain the rejections of all claims on appeal. Our reasons follow.
Enomoto discloses a pivoting side view mirror for an automobile having a base
16, a housing 14, a reflective member 12, and an electric motor 30. Enomoto does not
disclose two discrete speeds.
Valentino discloses a pivoting side mirror with base 128, housing 124, reflective
member 126, and a servo-motor 122. Valentino does not disclose two discrete speeds.
Schenk discloses a side view mirror for a motor vehicle with collision protection.
It is the goal of Schenk to pivot the side mirror of the vehicle close to the vehicle in the
event that an obstruction is detected in the path of the mirror. In the first embodiment of
Schenk, a controller 7 operates with a conventional electric motor 2 to control the
Afolding speed of the side view mirror.@ Accordingly, it is our finding that Schenk
discloses multiple operating speeds for the side view mirror, and the speed utilized is
based on the closing speed of the oncoming obstruction.
Appellants= claim 1 is of the open-ended comprising type. As such it is not
limited to only two discrete speeds. Thus, even if the motor 2 of Schenk is infinitely
adjustable, the various speeds of Schenk are regarded as a plurality of discrete speeds
and are not precluded by appellants= claim language. The disclosure of Schenk is
Appeal No. 2005-0893
Application No. 09/602,923

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merely a disclosure of an electric motor for operating a mirror having at least two
discrete speeds, which is all the open-ended claim language requires.
Furthermore, note the language of Schenk claim 13, wherein it is claimed that the
Schenk device has a first speed and a second speed and the second speed is greater
than the first speed. It goes without saying that this is an express teaching that tracks
the language of appellants= claim 1. In view of this language, it is our finding that
Schenk would have suggested to one of ordinary skill at the time the invention was
made an actuator with two discrete speeds.
Additionally, appellants in the main brief discuss the second embodiment
disclosed by Schenk. This embodiment features a slow actuator 11 which has a normal
speed and a rapid actuator 12 with a spring motor to rapidly fold the mirror in case of a
collision occurring soon. This embodiment, as disclosed, has two discrete
speedsBnormal and rapid. In our view this is a clear teaching of pivoting a mirror at two
discrete speeds. Inasmuch as Schenk teaches that an electric motor can operate a
mirror at more than one speed (first embodiment) and that it is highly desirable for
safety reasons to operate a mirror pivoting mechanism at two discrete speeds (second
embodiment), it is our legal conclusion that Schenk is suggestive of operating a mirror
pivoting mechanism using an electric motor operated at two discrete speeds.
Furthermore, we are of the view that it would have been obvious to apply this teaching
of a two speed mirror to the mirrors disclosed in Enomoto or Valentino for the reason
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Application No. 09/602,923

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disclosed by Schenk, namely to safely pivot the mirror out of the way at a greater than
normal speed in case of an imminent collision.
We have carefully reviewed appellants= arguments in the brief and the reply
brief. We do not credit the argument that the section 103 rejections, at least to the
extent they are based on the combined teachings of Enomoto and Valentino with
Schenk, lack suggestion or motivation or are based on impermissible hindsight.
The section 103 rejections of all claims on appeal is affirmed.
No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR ' 1.136(a).
AFFIRMED

CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
WILLIAM F. PATE III ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )

WFP/lp
Appeal No. 2005-0893 6
Application No. 09/602,923

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