Ex Parte Edholm et al

Patent Trials and Appeals Board

May 2, 2019

14122770 - (D) (P.T.A.B. May. 2, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/122,770
148434 7590
Burr Forman McNair
Husqvarna
11/27/2013
05/06/2019
Bank of America Plaza
101 South Tryon Street, Suite 2610
Charlotte, NC 28280
FIRST NAMED INVENTOR
Fredrik Edholm
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.
38004/09584/P2685USOO 5630
EXAMINER
FABIAN-KOVACS, ARPAD
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
05/06/2019 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):
mcnairip@mcnair.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FREDRIK EDHOLM, HELENA ANDRE,
MAGNUS HENRIKSSON, JASMIN INSANIC, JORGEN JOHANSSON,
JONAS TIBBELIN, MIKAEL ADOLFSSON, and KARL LJUNGQUIST
Appeal2017-009166 1
Application 14/122,7702
Technology Center 3600
Before JOSEPH A. FISCHETTI, KENNETH G. SCHOPPER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Our decision references the Appeal Brief ("Appeal Br.," filed July 20,
2016), the Reply Brief ("Reply Br.," filed June 12, 2017), the Examiner's
Answer ("Ans.," mailed Apr. 13, 2017), and the Non-Final Office Action
("Non-Final Act.," mailed Jan. 22, 2016).
2 According to Appellants, the real party in interest is Husqvama AB.
Appeal Br. 1.
Appeal2017-009166
Application 14/122,770
BACKGROUND
Embodiments described in the Specification "relate to a height
adjustment arrangement for a lawn mower," "changing [the] cutting height
of a lawn mower chassis," and "to a lawn mower comprising a height
adjustment arrangement." Spec. 1, 11. 6-10.
CLAIMS
Claims 1, 7, and 13 are the independent claims on appeal. Claim 1 is
illustrative of the appealed claims and recites:
1. A height adjustment arrangement for a lawn mower for
changing a cutting height of a lawn mower chassis, the height
adjustment arrangement comprising:
a respective link arm pivotally attached about a respective
pivot point at opposite sides of the chassis,
a transversal rod extending between the link arms and
comprising respective wheel attachment ends configured to
protrude outwardly from the respective link arm at a distance
from the respective pivot point, and
a locking arrangement for releaseably locking at least one
of the link arms in a pivot position corresponding to a selected
cutting height of a plurality of cutting heights of the chassis,
wherein the transversal rod further comprises respective
connection portions which are essentially parallel to the link
arms and releasably connected thereto by an interconnection
assembly configured to maintain a relative position between the
connection portion and the link arm, such that pivoting of the link
arm causes the wheel attachment ends to synchronously change
the cutting height of the lawn mower chassis.
Appeal Br. 15.
REJECTIONS
1. The Examiner rejects claims 1-20 under 35 U.S.C. § 112, first paragraph,
as failing to comply with the written description requirement.
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2. The Examiner rejects claims 1-20 under 35 U.S.C. § 112, first paragraph,
as failing to comply with the enablement requirement.
3. The Examiner rejects claims 1-20 under 35 U.S.C. § 112, second
paragraph, as indefinite.
4. The Examiner rejects claims 1-20 under 35 U.S.C. § I02(b) as
anticipated by Rutherford. 3
5. The Examiner rejects claims 1-20 under 35 U.S.C. § I02(e) as
anticipated by Ninomiya. 4
DISCUSSION
Written Description
With respect to claims 1-20, the Examiner finds that the claims
"contain[] subject matter which was not described in the specification in
such a way as to reasonably convey to one skilled in the relevant art that the
inventor ... at the time the application was filed, had possession of the
claimed invention." Non-Final Act. 7. More particularly with respect to
claims 13-20, the Examiner found, "while a single transversal rod (5) is
supported, a second transversal rod associated with a second link arm, a
second connection portion (NOTE: originally filed disclosure associates link
arms 2a, b, and connection portions 9a, b with the single transversal rod 5
and wheels 7) [is not supported]." Id. at 8. The Examiner further states,
"Applicant presented new claims 13-20 defining an invention not supported
by the originally filed disclosure. Upon further review of claims 1-12, the
3 Rutherford, US 3,706,189, iss. Dec. 19, 1972.
4 Ninomiya et al., US 2011/0239610 Al, pub. Oct. 6, 2011.
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Application 14/122,770
claimed invention is not supported by the Drawings and the Disclosure to
make and use the invention." Id. at 18.
Although the Examiner correctly identifies the standard for
determining whether the written description requirement is met, the
Examiner fails to explain adequately how the claims are lacking with respect
to this requirement. See, e.g., Agilent Techs., Inc. v. Ajjj;metrix, Inc., 567
F.3d 1366, 1379 (Fed. Cir. 2009). It is not precisely clear to us, based on a
review of the rejection, which portions of the claims the Examiner has
determined as lacking written description support. For example, with
respect to claims 1-12, the Examiner points to a sufficient structure for
enabling the wheel attachments ends to synchronously change the height of
the lawn mower chassis. See Ans. 5-8; see also Non-Final Act. 7-8, 18.
However, the rejection and analysis provided by the Examiner appears to
either only pertain to the enablement requirement or at least conflates the
written description and enablement requirements. Regardless, we find that
the Specification, which describes synchronously changing the cutting
height by raising or lowering the lawn mower chassis, provides adequate
written description support for the claim. See Spec. 6, 11. 2--4, 6-8; 2, 11. 26-
29; Figs. 1, 2; see also Appeal Br. 7-13.
With respect to claims 13-20, the Examiner appears to indicate that
written description support is lacking because "the specification and
drawings [provide] no disclosure of a single link arm." Ans. 15. However,
the Specification unequivocally describes a link arm. See, e.g., Spec. 2,
11. 6-20. To the extent the Examiner's determination is based on the fact
that the Specification does not expressly disclose an embodiment with a
single link arm, we note that claim 13 recites a first link arm, but does not
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Application 14/122,770
preclude the presence of a second link arm. Thus, embodiments including
two link arms provide adequate written description support for the claim.
Based on the foregoing, we do not sustain the rejection of claims 1-20
here.
Enablement
The Examiner determines that "the index plate, handle and lockability
in two positions is not enabled and disclosed to operate so to synchronously
change the chassis 'cutting' height. The 'cutting' is not enable[d], blade(s)
is not disclosed or shown." Non-Final Act. 8. Thus, the Examiner
determines that " [ o ]ne skilled would not know how the 'synchronous'
chassis 'cutting' height can be achieved, and/or shown to enable and cause
'the third and fourth wheel attachment ends to synchronously change the
cutting height."' Id. at 9. The Examiner also determines that "[ o ]ne skilled
would not know how to make and use" the locking arrangement. Id.
We agree with Appellants that one skilled in the art would understand
how to make and use the claimed device without undue experimentation.
See In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988). In particular, based on
the understanding that Figure 1 represents an exploded view of the height
adjustment arrangement, we agree that"[ o ]ne of ordinary skill would
immediately appreciate the function of the exploded view and the
relationship of the exploded components, e.g.[,] the connections being
laterally displaced for clarity of arrangement." Appeal Br. 9. Put another
way, one of ordinary skill in the art would understand how the arrangement
of parts should be placed within the lawn mower in order for the height
adjustment mechanism to work. Thus, for example, one of ordinary skill
would understand that the handle is not under the chassis or inside the
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Application 14/122,770
housing, as the Examiner finds, because it must be accessible in order to
affect a cutting height adjustment. See Non-Final Act. 10. We also agree
with Appellants that one of ordinary skill in the art would understand how
the cutting height of the lawnmower is changed by the mechanism depicted
in Figure 1. See id. at 8. The Specification describes that because the
cutting blade is attached to the chassis, raising or lowering the chassis via
the height adjustment mechanism would necessarily change the cutting
height. See Spec. 2, 11. 27-29.
Based on the foregoing, we do not sustain this rejection of claims 1-
20.
Indefiniteness
The Examiner finds that claims 1-20 are indefinite because:
The metes and bound of the claim cannot be determined
because a functional recitation, i.e.[,] 'locking arrangement for
releaseably locking,' 'to synchronously change the cutting height
of the chassis' (NOTE: see enablement requirement and new
matter issue above) must be supported by recitation in the claim
of sufficient structure to warrant the presence of the functional
language.
Non-Final Act. 11 (emphasis omitted).
To the extent this rejection is based on the Examiner's findings with
respect to written description and enablement, those findings have been
addressed above. Further, the test for definiteness is whether "those skilled
in the art would understand what is claimed when the claim is read in light
of the specification." Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806
F.2d 1565, 1576 (Fed. Cir. 1986). The Examiner simply does not explain
adequately why the claim lacks sufficient structure or is otherwise indefinite.
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Application 14/122,770
When read in light of the Specification, as discussed by Appellants, we are
not persuaded that the claims are indefinite. See Appeal Br. 8-13.
Anticipation - Ruther! ord
Each of independent claims 1 and 13 requires a transversal rod with a
connection portion that runs essentially or substantially parallel to a link
arm. Appeal Br. 15, 17. We are persuaded by Appellants' argument that
Rutherford does not disclose such a configuration.
The Examiner provides the following annotated Figure labeling what
the Examiner's determines to be the link arms, wheel attachment ends, and
transversal rods:
..........................................................................................................................................................
! Link ill'J11S &
i inlcrc(rnnect:ion
i 'l!'i~,,.,.,h1v r .......... ~ , : .. ~ -·
• \\.'lwel aw1chment
i ernh (:ii ~iuh ;,;,;..k:.,
• 82, 84)
The Figure above is an annotated portion of Rutherford's Figure 3, which
depicts "a fragmentary detail in perspective looking upward under the left
side" of Rutherford's mower and includes annotations labeling portions of
the device according to the claims. Rutherford, col. 1, 11. 49-50.
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Application 14/122,770
The Examiner further explains that Rutherford's transversal rod is
element 82 or 84; that the link arms are elements 90 and 92; and that
"connection portions, in the [Figure above are] near the pivot bushing shown
in the vicinity of the axle pivot (88, 86) and interconnected to and parallel to
the link arms (upstanding portions 90, 92)." Ans. 17. The Examiner also
finds that "the upstanding portions 90 and 92 and lead line to the connection
portion show two separate elements, where the connection portion is in a
second parallel plane with respect to the plane of the upstanding portions or
link arms." Id. The Examiner does not otherwise point to any portion in
Rutherford's description that explains the relative arrangements of the parts
the Examiner is mapping to the claim limitations. We cannot determine,
based on Rutherford's Figure 3, that the portions of Rutherford relied on by
the Examiner are arranged as required by the claim. For example, without
further explanation or evidence, we fail to see how elements 88 or 86 are a
connection portion of elements 84 or 82, respectively. We also cannot see
how elements 88 or 86 must be parallel to arms 92 and 90, respectively. On
this point, we agree with Appellants that elements 88 and 86 appear to
extend perpendicularly away from the arms 92 and 90, respectively. See
Appeal Br. 14.
Based on the foregoing, we do not sustain the rejection of claims 1-20
as anticipated by Rutherford.
Anticipation - Ninomiya
As noted above, each of independent claims 1 and 13 requires a
transversal rod with a connection portion that runs essentially or
substantially parallel to a link arm. Appeal Br. 15, 17. We are persuaded by
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Application 14/122,770
Appellants' argument that Ninomiya also does not disclose such a
configuration.
The Examiner finds that "Ninomiya in figs 3, 5 teaches link arms
(22L, R), transversal rod (24), locking arrangement (index, handle, 51, 70;
fig 8 or fig 18), wheel attachment ends ( 42), bushings (fig 6), parallel
connection portion & interconnection assembly." Non-Final Act. 17. The
Examiner indicates that the "parallel connection portion" is located at the
interconnection of elements 43 and 22a. Id. The Examiner also finds that
Ninomiya Figure 5 "shows a transversal rod (25) between the chassis front
and rear sides, having link arms (25a, b) essentially parallel to connecting
portions (22a, 21a) and interconnected (at 43), [with a] pivoting connection
also shown (at 42, 32)." Ans. 17-18.
Here, we determine that the Examiner has not set forth adequate
explanation or evidence to support the anticipation rejection. As an initial
matter, we note that it is not precisely clear what the Examiner is identifying
as a link arm or transversal rod in Ninomiya. The Examiner first identifies
element 24 as the transversal rod and elements 22L and 22R as link arms.
Non-Final Act. 17. But the Examiner also identifies elements 43 and 22a as
providing the parallel connection even though neither element is a portion of
or otherwise directly connected to rod 24. See id. Then, in the Answer, the
Examiner identifies elements 25a and 25b as the link arms and elements 21 a
and 22a as connecting portions, but elements 25a and 25b are portions of
the bar 25, not elements 21a and 22a. Ans. 17-18.
Regardless of how the Examiner's has interpreted Ninomiya's
elements, we find error in the Examiner's findings. To the extent that
element 24 is considered to be the transverse rod, Ninomiya does not
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disclose any connection portion of that rod that is essentially or substantially
parallel to elements 22L or 22R. To the extent that the Examiner relies on
elements 22a and 25b as providing the claimed parallel arrangement, we find
the record is silent regarding the specific relative arrangement of these
elements. Ninomiya discloses that these elements are attached by a linking
pin 43, but Ninomiya does not provide further explanation regarding this
connection. See Ninomiya ,r 50. Thus, on the record before us, we cannot
conclude that the identified connection portion of transversal rod 25 is
necessarily essentially or substantially parallel to any portion of the link arm
22a.
Based on the foregoing, we do not sustain the rejection of claims 1-20
as anticipated by Ninomiya.
CONCLUSION
We REVERSE the rejections of claims 1-20.
REVERSED
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