Ex Parte Dyrdek

Patent Trial and Appeal Board

Mar 20, 2013

11130805 (P.T.A.B. Mar. 20, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/130,805 05/17/2005 INV001Robert Dyrdek 065310.00038 2782
27305 7590 03/21/2013
HOWARD & HOWARD ATTORNEYS PLLC
450 West Fourth Street
Royal Oak, MI 48067
EXAMINER
JENNISON, BRIAN W
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
03/21/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT DYRDEK
____________

Appeal 2010-007114
Application 11/130,805
Technology Center 3700
____________

Before LINDA E. HORNER, PATRICK R. SCANLON, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GERSTENBLITH, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Robert Dyrdek (“Appellant”) appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 33-44. We have jurisdiction under 35
U.S.C. § 6(b).

The Claimed Subject Matter
Claims 33 and 36 are representative of the claimed subject matter and
are reproduced below.
33. A heated side window assembly for an automobile,
said automobile having a sideview mirror mounted generally
adjacent said heated side window assembly, said heated side
window assembly comprising:
a glass sheet;
a single continuous, non-intersecting electrical conductor
strip mounted to said glass sheet having a pair of ends, said
conductor strip outputting radiant heat in response to an
electrical current flow therethrough, said conductor strip being
positioned such that it only bounds and heats, but does not
enter, a region defined by an operator’s line of sight to the
sideview mirror of the vehicle, the region being less than fifty
percent of the glass sheet and located on a front half of the glass
sheet;
a switch selectively outputting a control signal;
a power supply; and
a controller electrically coupled between said power
supply and said conductor strip, said controller providing
electrical current to said conductor strip in response to said
control signal,
wherein said operator's line of sight region encompasses
a first line of sight region and a second line of sight region, said
first line of sight region is defined by first and second
horizontal planes passing from a first visual reference point to
the sideview mirror and first and second vertical planes passing
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from said first visual reference point to the sideview mirror,
said second line of sight region is defined by third and forth
[sic] horizontal planes passing from a second visual reference
point to the sideview mirror and third and forth [sic] vertical
planes passing from said second visual reference point to the
sideview mirror.
36. The heated side window assembly according to
Claim 33 wherein said first visual reference point is defined by
the visual reference point of a 95th percentile male and said
second visual reference point is defined by the visual reference
point of a 5th percentile female.
References
The Examiner relies upon the following prior art references:
Graham US 1,606,526 Nov. 9, 1926
Scott US 1,684,560 Sept. 18, 1928
Furuuchi US 3,864,659 Feb. 4, 1975
Spagnoli US 5,466,911 Nov. 14, 1995
Haas US 2002/0153367 A1 Oct. 24, 2002

Rejections
The Examiner makes the following rejections:
I. Claims 36-44 are rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite;
II. Claims 33 and 36-44 are rejected under 35 U.S.C. § 102(b) as
anticipated by Graham;
III. Claim 34 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Graham and Furuuchi;
IV. Claim 35 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Graham and Spagnoli;
V. Claims 33 and 35-44 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Haas and Graham; and
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VI. Claim 34 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Haas, Graham, and Furuuchi.

SUMMARY OF DECISION
We REVERSE.

OPINION
Rejection I – Indefiniteness
The Examiner rejected claims 36-44 under 35 U.S.C. § 112, second
paragraph, as indefinite for omitting essential structural cooperative
relationships of elements, amounting to a gap between the necessary
structural connections. Ans. 4. The Examiner determined that the
omitted structural cooperative relationships are: the operators
[sic] line of sight via the first visual point and the second visual
point to the conductor strip heating element with the further
recitations of the visual points being defined by an indefinite
certain percentage male and indefinite certain percentage
female and the angles formed thereof.
Id. Thus, the Examiner could not “correlate structure of the conductor strip
with the recitation to angles formed via the indefinite certain percentage
male and indefinite certain percentage female.” Id.
Appellant contends that the claim limitations, “a first visual reference
point” and “a second visual reference point,” are defined in paragraphs
[0030] and [0032] of the Specification. App. Br. 8.1 Specifically, Appellant

1 Citations to “App. Br.” refer to the Appeal Brief filed January 21, 2009,
unless otherwise indicated. We acknowledge that Appellant amended his
brief on March 4, 2009, and again on April 30, 2009. Each amendment,
however, replaced only the first page of the brief, and did not alter the other
pages of the January 21st filing.
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asserts that “paragraph [0030] of the present application defines ‘a first
visual reference point V1’ as ‘an eye point location for a first driver, such as
a 95th percentile male, in a driving position.’” Id. at 8-9. Appellant also
asserts that “paragraph [0032] defines ‘a second visual reference point V2’
as ‘an eye point location for a second driver, such as a 5th percentile female,
in a driving position.’” Id. at 9. Appellant notes that these limitations are
recited in dependent claim 36. Id.
Appellant contends that the phrases “95th percentile male” and “5th
percentile female” are “widely used in the automobile glass manufacturing
industry to which the present application relates” and that one of ordinary
skill in the art would thus understand the terms. Id. Appellant points to
several published standards that are alleged to indicate the specific
dimensions and weight of a 95th percentile male and 5th percentile female,
including the Federal Motor Vehicle Safety Standards, a publication by the
National Institute for Occupational Safety and Health, and Economic
Commission for Europe Rule R43 (“ECE R43”).2 Id. at 10-11. Appellant
also asserts that the terminology is used in several U.S. patents. Id. at 11.
Accordingly, Appellant contends that since “government design standards”
are “easily accessible elsewhere and known to one skilled in the art,”
Appellant is not required to include recitation of such standards in his
Specification. Id. at 12.
The test for definiteness under 35 U.S.C. § 112, second paragraph, is
whether “those skilled in the art would understand what is claimed when the

2 Appellant also notes that “SAE International articles #650464 and #720200
. . . provide instruction on determination as to the automobile driver eye
position.” App. Br. at 12.
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claim is read in light of the specification.” Orthokinetics, Inc. v. Safety
Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986). A claim that fails
to positively recite structural relationships of two or more essential elements
of the invention may fail to point out and distinctly claim the invention. See
In re Collier, 397 F.2d 1003, 1005 (CCPA 1968).
The Specification states that, “[t]he first visual reference point V1 can
be any desired reference point, or more likely, can represent an eye point
location for a first driver, such as a 95th percentile male, in a driving
position.” Spec., para. [0030]. Paragraph [0032] similarly states: “This
second visual reference point V2 can be any desired reference point or, more
likely, can represent an eye point location for a second driver, such as a 5th
percentile female, in a driving position.” Spec., para. [0032]. Although the
Specification leaves numerous possibilities for the exact location of the
visual reference points, breadth of a claim limitation alone does not render a
claim term indefinite. See In re Gardner, 427 F.2d 786, 788 (CCPA 1970)
(“Breadth is not indefiniteness.”), cited in Ultimax Cement Mfg. Corp. v.
CTS Cement Mfg. Corp., 587 F.3d 1339, 1352 (Fed. Cir. 2009).
Further, even though the visual reference points may be located in
numerous locations, the locations are not entirely unlimited. The claim
language and Specification make clear that the visual reference points are
used to determine an operator’s line of sight and thus the reference points
must generally be within the area in which an operator would be positioned
in an automobile.
Importantly, Appellant has presented evidence sufficient to support
his position that one of ordinary skill in the art would understand what is
meant by “95th percentile male” and “5th percentile female” such that we do
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not agree that claim 36 is indefinite.3 We also disagree with the Examiner’s
rationale that the claims are indefinite because the standards will change
over time. Claims are interpreted as of the time of invention. Phillips v.
AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc) (citations
omitted). Thus, even if the percentiles changed over time, the claims would
be limited to the standards in existence as of the time of invention.
Accordingly, we do not sustain Rejection I.
Rejection II – Graham
The Examiner found that Graham anticipates claims 33 and 36-44
because it discloses each and every element of the claims. Ans. 4-6.
Appellant asserts, inter alia, that Graham does not disclose a conductor strip
positioned as required by the claims. App. Br. 13-18. In particular,
Appellant contends that the heating element of Graham is “serpentine” and
positioned such that it would enter a region defined by an operator’s line of
sight, contrary to the claim requirement that the conductor strip bounds and
heats, but does not enter, a region defined by an operator’s line of sight to
the sideview mirror of the vehicle. Id. at 16-18.
An Examiner’s factual finding regarding what a reference discloses
must be supported by a preponderance of the evidence. See In re Caveney,
761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the evidence is the
standard that must be met by the PTO in making rejections”); see also In re
Oetiker, 977 F.2d 1443, 1449 (Fed. Cir. 1992) (Plager, J., concurring) (“In
rejecting an application, factual determinations by the PTO must be based on

3 Claims 37-44 do not include the percentile limitations of claim 36. Thus,
the Examiner’s rationale for Rejection I does not directly apply to those
claims.
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a preponderance of the evidence, and legal conclusions must be correct.”)
(citation omitted).
We agree with Appellant that Graham does not disclose placing a
heating element or conductor strip outside of an operator’s line of sight.
Graham teaches that an object of the invention is “to so arrange the electrical
conductors within the body of the glass window or pane that a minimum
amount of obstruction will be occasioned to clear an unobstructed vision
therethrough.” Graham at 1, ll. 18-23. Graham discloses that this is
accomplished by “the size of the wires, their spacing, and the manner in
which they are placed within the glass pane.” Id. at ll. 23-26. Importantly,
another object of Graham is “to provide means for heating the wind shield
[sic] only locally at the point needed to allow for unobstructed vision so as
to minimize the consumption of the current.” Id. at ll. 27-31 (emphasis
added). In other words, Graham minimizes the visual obstruction created by
the electrical conductors through size, spacing, and the manner in which they
are placed in the glass, not by locating the conductors outside of the region
of the glass to be cleared of ice, snow, etc. Thus, the most reasonable
reading of Graham to one of ordinary skill in the art is that it teaches placing
the electrical conductors such that they enter the operator’s line of sight.
Accordingly, we find that the Examiner has not provided sufficient
explanation or reasoning for us to conclude by a preponderance of the
evidence that Graham discloses a conductor strip positioned “such that it
only bounds and heats, but does not enter, a region defined by an operator’s
line of sight to the sideview mirror of the vehicle.” Thus, we do not sustain
Rejection II.
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Rejections III (Graham and Furuuchi) and IV (Graham and Spagnoli)
With respect to Rejection III, the Examiner determined that Graham
and Furuuchi render obvious the subject matter of claim 34. Ans. 6-7. With
respect to Rejection IV, the Examiner determined that Graham and Spagnoli
render obvious the subject matter of claim 35. Ans. 7-8. The Examiner,
however, did not rely on Furuuchi or Spagnoli as disclosing a conductor
strip positioned “such that it bounds and heats, but does not enter, a region
defined by an operator’s line of sight to the sideview mirror of the vehicle;”
rather, the Examiner continued to rely upon Graham as disclosing that
element of the claims.
Accordingly, for the reasons explained in the context of Rejection II,
we do not sustain Rejections III and IV.
Rejection V – Haas and Graham
The Examiner determined that Haas and Graham render obvious the
subject matter of claims 33 and 35-44. Ans. 8-11. The Examiner found that
Haas disclosed most of the elements of the claims except for “the region
defined by an operator’s line of sight to the sideview mirror of the vehicle
and the region being on the front half surface of the window/glass sheet.”
Id. at 9. The Examiner, however, relied upon Graham as disclosing a
heating element placed locally at the point needed to allow for unobstructed
vision. Id. at 10. The Examiner further determined that it would have been
obvious to one of ordinary skill in the art at the time of invention to modify
Haas with
the placement of the heated portion in the front half surface of
the sideview window/glass sheet of Graham in order to provide
an unobstructed view, with respect to the weather elements, as
well as minimize the consumption of current, thereby
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improving the overall efficiency of the side window/glass/sheet
heater.
Id. The Examiner also found that since Haas discloses a “C-shaped”
electrical conductor with a void in the center, it would be obvious to place
the conductor in a desired location to attain the desired heating, and reduce
power consumption and obstruction in the view of the user as taught by
Graham. Id. at 19-20.
Appellant asserts, inter alia, that Haas similarly fails to disclose a
conductor strip positioned such that it bounds and heats, but does not enter, a
region defined by an operator’s line of sight to the sideview mirror of the
vehicle. See, e.g., App. Br. 25. Appellant further contends that the
Examiner has failed to reference the specific limitations of independent
claim 33. Id.
Haas discloses a temperature control device comprising a heater
element and a power source. Haas, Abstract. The primary focus of Haas is
describing a “temperature control device in a disposable covering for
medical applications and as an insert worn under existing clothing.” Id. at
para. [0002]. Haas also discloses, however, that “[i]n an alternative
embodiment, the substrate 18 may be a mirror, glass, window, or any other
solid surface that needs to be heated.” Id. at para. [0039]. Figure 1 of Haas
generally discloses an electrical conductor in the shape of backwards “C.”
See Haas, Fig. 1.
Even accepting the Examiner’s proposed combination of the
backwards “C-shaped” electrical conductor of Haas and the teachings of
Graham regarding placing an electrical heating element in the line of sight,
we find that the Examiner has not provided sufficient explanation or
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reasoning for us to conclude by a preponderance of the evidence that Haas’
conductor could be placed such that it “only bounds and heats, but does not
enter, a region defined by an operator’s line of sight to the sideview mirror
of the vehicle.” The Examiner’s proposed combination maintains reliance
upon Graham for the positioning of the electrical conductor of Haas. But, as
we discussed with respect to Rejection II, Graham teaches to place the
conductor in the line of sight. Thus, the Examiner has not shown that Haas’
disclosure remedies the deficiencies of Graham.
Accordingly, we do not sustain Rejection V.
Rejection VI – Haas, Graham, and Furuuchi
The Examiner’s determination that Haas, Graham, and Furuuchi
render obvious the subject matter of claim 34 is based on combining the
same elements of Haas and Graham as discussed above with respect to
Rejection V. Accordingly, for the reasons explained in the context of
Rejection V, we do not sustain Rejection VI.

DECISION
We reverse the Examiner’s decision rejecting claims 33-44.

REVERSED

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