13124878 (P.T.A.B. Jan. 11, 2017)

Ex Parte Ertmer

Patent Trial and Appeal BoardJan 11, 2017

13124878 (P.T.A.B. Jan. 11, 2017)

United States Patent and Trademark Office 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. 13/124,878 04/19/2011 Klaus Ertmer 2057/16 1544 27774 7590 01/13/2017 MAYF.R Rr WTT T TAMS PC" EXAMINER 928 Mountain Avenue MISA, JOAN D Second Floor Moutainside, NJ 07092 ART UNIT PAPER NUMBER 3671 NOTIFICATION DATE DELIVERY MODE 01/13/2017 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): docket @ mwpatentlaw. com mwolf @ mwpatentlaw.com kwilliams@mwpatentlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KLAUS ERTMER Appeal 2015-002242 Application 13/124,878 Technology Center 3600 Before CHARLES N. GREENHUT, LYNNE H. BROWNE, and LISA M. GUIJT, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Klaus Ertmer (Appellant) appeals under 35 U.S.C. § 134 from the rejection of claims 1—10. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An excavator attachment cutter, comprising: an attachment bracket being flanged for attaching the excavator attachment cutter to a moving carrier arm of an excavator; Appeal 2015-002242 Application 13/124,878 at least one motor; two cross-cutting heads, which are rotationally driven by said at least one motor, mounted on either side of a longitudinal axis of said attachment bracket and carry numerous cutting teeth, the cutting teeth of each cutting head providing a cylindrical cutting surface as they rotate; and a revolving cutter chain having numerous cutting teeth and extending in a running direction parallel to the longitudinal axis of the attachment bracket in such a manner between the two cutting heads, that a front reversing line of the cutter chain lies essentially in a plane tangential to the cutting surfaces of the two cutting heads; wherein said at least one motor, driving the cutting heads, also drives the cutter chain. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Karlovsky US 3,730,593 May 1, 1973 Unzicker US 2006/0021265 A1 Feb. 2,2006 Excavator-Wikipedia, the free encyclopedia, http://www.en.wikipedia/org/wiki/Excavator (hereinafter “Wiki 1”) Trencher-Wikipedia, the free encyclopedia, http://www.en.wikipedia/org/wiki/Trencher (hereinafter “Wiki 2”) REJECTIONS I. Claims 1—4, 6, 7, 9, and 10 stand rejected under 35 U.S.C. § 102(b) as anticipated by Unzicker. II. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Unzicker and Karlovsky. III. Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Unzicker. 2 Appeal 2015-002242 Application 13/124,878 DISCUSSION Rejection I Appellant argues claims 1—4, 6, 7, 9, and 10 together. See Appeal Br. 7. We select independent claim 1 as the representative claim, and claims 2— 4, 6, 7, 9, and 10 stand or fall with claim 1. The dispositive issue in this appeal is whether or not Unzicker discloses an “excavator,” according to claim 1. If, as we find infra, Unzicker discloses an excavator, Appellant’s arguments (see Appeal Br. 3—7; see also Reply Br. 3—6) that Unzicker fails to disclose the claimed attachment bracket “for attaching the excavator attachment cutter to a moving carrier arm of an excavator,” as required by claim 1, are moot. The Examiner finds that Unzicker discloses each and every limitation of claim 1. See Final Act. 2—3. In particular, the Examiner finds that Unzicker discloses “an attachment bracket (swivel 120 in figs.3 and 6) being flanged (as shown in the drawing below) for attaching a moving carrier arm (mounting section 110 in figs.3 and 5) of... an excavator carrier device (see fig.2).” Id. at 2. Appellant contends that “Unzicker simply does not show an excavator and thus cannot show an attachment bracket that is capable of attaching the excavator attachment cutter to a moving carrier arm of an excavator.” Appeal Br. 3. In support of this contention, Appellant opines that “Unzicker shows a trencher in combination with a leveler mounted to a track vehicle, not an excavator.” Id. Appellant further directs our attention to two Wikipedia entries, one describing an excavator and the other describing a trencher. Id. (citing Wiki 1 and Wiki 2). The Specification states, “[t]he invention relates to an attachment cutting system having an attachment bracket for attaching a movable carrier 3 Appeal 2015-002242 Application 13/124,878 arm of a carrier device. In particular, such a carrier device is an excavator or a similar construction machine.” Spec. 11. The Specification further states, “The attachment bracket 02 is flanged in the usual manner to the carrying arm of a carrier device (not shown).” Spec. 122. We are mindful that the Specification does use the terms excavator and trencher to refer to the cited prior art (EP 1 715 106 A1 and U.S. 7,096,609) consistently with definitions advanced by Appellant in citing Wiki 1 and Wiki 2. Spec. 3,6. However, the Specification does not expressly define the term “excavator,” and neither an excavator nor its moving carrier arm are shown in the drawings. See id. at Figs. 1—2. Where no explicit definition for a term is given in the specification, the term should be given its ordinary meaning and broadest reasonable interpretation. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1368 (Fed. Cir. 2003). The ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1319 (Fed. Cir. 2005) (en banc). In determining the ordinary and customary meaning of the claim term as viewed by a person of ordinary skill in the art, it is appropriate to consult a general dictionary definition of the word for guidance.” Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (citing Phillips, 415 F.3d at 1303, 1322— 23). An ordinary and customary meaning of the claim term “excavator” is “one that excavates; especially : a power-operated shovel.” Merriam- webster.com, accessed at http://www.merriam- 4 Appeal 2015-002242 Application 13/124,878 webster.com/dictionary/excavator (last accessed January 3, 2017).1 This definition, which by the fact that power-operated shovels are listed as one specific type of excavator, encompasses more than power-operated shovels of the type discussed in Wiki 1. The Wiki 1 article itself, upon which Appellant’s argument is based, considers “excavators” a subdivision of “heavy equipment” and in the complete listing of heavy equipment, the “trencher” of Wiki 2 is categorized within the “excavator” subdivision.2 Thus, Appellant’s own evidence compels that the broadest reasonable interpretation of the claim term “excavator,” as would be understood by one skilled in the art encompasses other excavation apparatus such as the trencher described in Wiki 2 and Unzicker’s excavation apparatus. See, e.g., Unzicker, Title, Abstract, Fig. 2; see also Ans. 5 (citing Unzicker para. 24)(“The present invention relates generally to an excavation machine having a frame and an excavation boom.”). Thus, Unzicker discloses an “excavator” as recited in claim 1. As all of Appellant’s arguments are predicated upon the proposition that Unzicker does not disclose an excavator (see Appeal Br. 3—7; see also Reply Br. 3—6), those arguments are moot in view of our determination that Unzicker discloses an excavator as claimed. Accordingly, we sustain the 1 See also The American Heritage® Dictionary of the English Language, Fifth Edition https://ahdictionary.com/word/search.html?q=excavator (last accessed Jan. 11, 2017). 2 See https://en.wikipedia.Org/wiki/Heavy_equipment#Types (last accessed Jan. 11, 2017); see also, e.g., McGraw-Hill Dictionary of Scientific & Technical Terms (2003) (defining “trench excavator” as a machine like that depicted in Wiki 2). http://encyclopedia2.thefreedictionary.com/trench+excavator (last accessed Jan. 11,2017). 5 Appeal 2015-002242 Application 13/124,878 Examiner’s decision rejecting claim 1, and claims 2—4, 6, 7, 9, and 10, which fall therewith. Rejections II and III Appellant does not separately argue the rejection of claims 5 (Rejection II) and 8 (Rejection III). See Appeal Br. 7; see also Reply Br. 6. Accordingly, we sustain the Examiner’s decisions rejecting claims 5 and 8. DECISION The Examiner’s rejections of claims 1—10 are 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). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 6