Ex Parte Elliott

Patent Trial and Appeal Board

May 14, 2014

11697333 (P.T.A.B. May. 14, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte RYAN W. ELLIOTT
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Appeal 2012-002694
Application 11/697,333
Technology Center 3600
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Before STEFAN STAICOVICI, WILLIAM A. CAPP, and
JILL D. HILL, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Ryan W. Elliott (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s final decision rejecting under 35 U.S.C. § 112, second
paragraph, claims 16, 19, 21, and 22 as being indefinite, and under 35 U.S.C.
§ 103(a) claims 1, 4, 5, 16, 19, 21, and 22 as unpatentable over Willemsen
(WO 2004/007929 A2, publ. January 22, 2004) and Keown US
2007/0000347 A1, published Jan. 4, 2007) and claims 1 and 21 as
unpatentable over Willemsen and Bernd (DE 196 30 156 A1, published
January 29, 1998). Claims 6, 7, 13, 17, and 18 have been withdrawn and
claims 2, 3, 8-12, 14, 15, and 20 have been canceled. We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).

INVENTION
Appellant’s invention relates to “an electronically controlled pedal
with hysteresis and kickdown.” Spec. 1, para. [0002] and fig. 2.
Claim 1, reproduced below, is illustrative of the claimed invention and
reads as follows:
1. An electronically controlled pedal assembly with
hysteresis and kickdown comprising:
a housing having a mounting wail, a pair of opposed
sidewalls, a mounting portion, and an end wall, the end wall
having a friction wall, the friction wall including a first
frictional surface having a first radius of curvature and a second
frictional surface having a second radius of curvature less than
the first radius of curvature, and a ramp surface being planar,
the ramp surface extending obtusely from the second frictional
surface to the first frictional surface, the ramp surface
interconnecting the first frictional surface to the second
frictional surface;
a pedal arm rotatably mounted in the housing, the pedal
arm having an upper pedal arm and a lower pedal arm and a
friction lever pivotably mounted to the distal end of the upper
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arm and in sliding contact with the friction wall, the friction
lever having an upper surface in contact with the frictional wall,
and wherein a portion of the upper surface is abraded, and the
pedal arm is rotatable about the mounting portion, and the first
and second radius of curvatures are both centered on the
mounting portion; and
a spring extending axially between the end wall of the
housing and the pedal arm, wherein the spring biases the
friction lever against the housing, and wherein rotation of the
pedal arm by application of a first pedal load urges the friction
lever to slide along the first frictional surface of the friction
wall so as to compress the spring and generate a first frictional
hysteresis force, rotation of the pedal arm by application of a
second pedal load to the pedal arm urges the friction lever to
slide along the ramp surface of the friction wall, rotating the
friction lever towards the end wall the friction lever so as to
compress the spring axially between the pedal arm and the end
wall and generating a kickdown force, and rotation of the pedal
arm by application of a third pedal load to the pedal arm urges
the friction lever to slide along the second frictional surface of
the friction wall so as to further compress the spring and
generate a second frictional hysteresis force, and wherein the
first frictional hysteresis force, kickdown force and second
frictional hysteresis force are translated back through the pedal
arm.

SUMMARY OF DECISION
We AFFIRM.

ANALYSIS
The indefiniteness rejection
As Appellant does not address the rejection (see Ans. 12), Appellant
has waived any argument of error, and we summarily sustain the rejection of
claims 16, 19, 21, and 22 as being indefinite. See In re Berger, 279 F.3d
975, 984, 985 (Fed. Cir. 2002) (holding that the Board did not err in
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sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the
applicant failed to contest the rejection on appeal).

The obviousness rejection based upon Willemsen and Keown
Claims 1, 4, and 5
Appellant argues that the Examiner’s proposed modification of
Willemsen’s electronically controlled pedal with the features of Keown “is
not obvious as there is no suggestion or teaching to make such a
modification.” App. Br. 7. The Supreme Court has rejected the rigid
requirement that the rationale for the proposed combination come from
within the references. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (Rejecting the rigid requirement of a teaching, suggestion or
motivation to combine known elements in order to show obviousness).
Further, Appellant’s conclusory assertion that there is “no suggestion or
teaching” ignores and fails to point out the error in the rationale provided by
the Examiner, namely, “to provide the operator with a kick down sensation.”
See Ans. 5-6. Moreover, attorney argument such as the degree of disruption
of the pedal arm as it pivots to clear the ramp in Keown (see Reply Br. 3)
cannot take the place of evidence in the record. Estee Lauder, Inc. v.
L'Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997).
Appellant further argues that the combined teachings of Willemsen
and Keown fail to disclose “a pedal assembly wherein the lever pivots
towards the end wall so as to compress the spring and maintain the spring in
an axial position while sliding along the ramp so as to generate a kick down
sensation.” App. Br. 7. We are not persuaded by Appellant’s argument,
because as the Examiner correctly found, “Willemsen teaches the pedal
assembly wherein the friction lever 40 pivots toward the end wall 48 so as to
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compress the spring 46 and maintain the spring 46 in an axial position while
sliding along ramp 44 so as to generate a kick down sensation.” Ans. 13
(citing Willemsen, p. 6, ll. 1-16).
Lastly, Appellant argues that the “first and second frictional walls
shown in Keown, Figs 7a and 7b show first and second frictional walls
having a contoured frictional surface which do not follow along a radius of
curvature.” Reply Br. 2. We are not persuaded by Appellant’s argument
because as the Examiner correctly found, friction wall 316 of Keown
includes first and second frictional surfaces having a first and a second
radius of curvature, respectively, as called for by independent claim 1. See
Ans. 5 (citing Keown, figs. 7 and 7a).
With respect to the rejection of dependent claims 4 and 5, Appellant
relies on the arguments presented supra. Reply Br. 3. As such, for the
foregoing reasons, we sustain the rejection of independent claim 1, and its
dependent claims 4 and 5, under 35 U.S.C. § 103(a) as unpatentable over
Willemsen and Keown.

Claim 16, 19, 21, and 22
Appellant argues that Keown’s “second frictional surface is not
entirely circumferential as the far right end of the figure . . . shows the
second circumferential surface curving more dramatically than the portion
adjacent the ramp.” App. Br. 8 (emphasis added); see also Reply Br. 3-4.
Hence, according to Appellant, because the “Examiner is providing no
structural limitation to the word ‘circumferential’ which . . . is the perimeter
of a circle,” Keown’s second frictional surface “is not defined by a radius of
curvature.” Reply Br. 4.
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Appellant’s Specification does not assign or suggest a particular
definition to the claim term “circumference” and therefore, it is appropriate
to consult a general dictionary definition of the word for guidance in
determining the ordinary and customary meaning of the claim term as
viewed by a person of ordinary skill in the art. See Comaper Corp. v. Antec,
Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010). In this case, an ordinary and
customary meaning of the term “circumference” is “1 : the perimeter of a
circle 2 : the external boundary or surface of a figure or object.” Merriam
Webster’s Collegiate Dictionary (10th Ed. 1997). “Absent claim language
carrying a narrow meaning, the PTO should only limit the claim based on
the specification or prosecution history when those sources expressly
disclaim the broader definition.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir.
2004). In this case, although we appreciate that Appellant’s Specification
describes the frictional surface 218a of friction wall 218 as “arcuate” (see
Spec. para. [0041]), Appellant does not provide any persuasive evidence
why the first, narrower definition is preferable to the second, broader
definition, but merely chooses arbitrarily the narrower definition. Claims
are to be given their broadest reasonable interpretation consistent with the
specification. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004). As such, we agree with the Examiner that Keown’s friction wall
316 includes first and second circumferential surfaces, that is, the external
surfaces of friction wall 316. See Ans. 8.
Furthermore, we agree with the Examiner that, “claim 21 does not
specifically require ‘a second frictional surface, having a second entirely
circumferential surface.’” Ans. 14. It is well established that limitations not
appearing in the claims cannot be relied upon for patentability. In re Self,
671 F.2d 1344, 1348 (CCPA 1982). As stated by our reviewing court in In
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re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998), “the name of the game
is the claim.” Lastly, because Keown specifically discloses that the surface
of the kick down feature may be “concentric curves,” the Examiner is on
solid ground in finding Keown discloses first and second circumferential
surfaces having a first and second radius, respectively, as called for by
independent claim 21. See Ans. 14-15; see also Keown, para. [0038].
Appellant has not shown error in the Examiner’s findings.
With respect to the rejection of dependent claims 16, 19, and 22,
Appellant relies on the arguments presented supra. Reply Br. 5.
Accordingly, for the foregoing reasons, we sustain the rejection of
independent claim 21, and its dependent claims 16, 19, and 22, under 35
U.S.C. § 103(a) as unpatentable over Willemsen and Keown.

The obviousness rejection based upon Willemsen and Bernd
Appellant argues that, “Bernd does not teach or suggest a second
frictional surface having a second radius of curvature.” App. Br. 9-10.
According to Appellant, frictional surface 12 in Bernd is “generally planar
and does not follow along a radius.” Id.; see also Reply Br. 4-5.
In response, the Examiner takes the position that “Bernd’s second
frictional surface [12] having a generally planar/curved surface ‘reads on’
the claimed second radius of curvature of a partial circumference.” Ans. 15
(citing to Bernd, fig. 3).
While patent drawings not designated as being drawn to scale cannot
be relied upon to define precise proportions of elements if the specification
is completely silent on the issue, Hockerson-Halberstadt, Inc. v. Avia Group
Int’l, 222 F.3d 951, 956 (Fed. Cir. 2000), that does not mean, “that things
patent drawings show clearly are to be disregarded.” In re Mraz, 455 F.2d
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1069, 1072 (CCPA 1972). A drawing teaches all that it reasonably discloses
and suggests to a person of ordinary skill in the art. In re Aslanian, 590 F.2d
911, 914 (CCPA 1979). In this case, Bernd discloses pivot 4 about which
element 10 rotates in contact with frictional surfaces 12, 16. See Bernd, figs.
1-3. Because an artisan must be presumed to know something about the art
apart from what the references disclose, the skilled artisan would readily
recognize that in order to maintain contact between surfaces 12, 16 and
element 10, as element 10 pivots about point 4, each of surfaces 12, 16 are
arcuate in shape and follow a radius. See In re Jacoby, 309 F.2d 513, 516
(CCPA 1962). As such, each of surfaces 12, 16 constitutes “frictional”
surfaces, as called for by independent claim 1 or “circumferential” surfaces,
as called for by independent claim 21. Therefore, we also sustain the
rejection of claims 1 and 21 over the combined teachings of Willemsen and
Bernd.

SUMMARY
The Examiner’s decision to reject claims 16, 19, 21, and 22 under 35
U.S.C. § 112, second paragraph, as being indefinite is affirmed.
The Examiner’s decision to reject claims 1, 4, 5, 16, 19, 21, and 22
under 35 U.S.C. § 103(a) as unpatentable over Willemsen and Keown is
affirmed.
The Examiner’s decision to reject claims 16, 19, 21, and 22 under 35
U.S.C. § 103(a) as unpatentable over Willemsen and Bernd 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)(1)(iv).

AFFIRMED
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