Ex Parte Evans

Board of Patent Appeals and Interferences

Mar 24, 2006

10715002 (B.P.A.I. Mar. 24, 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for publication and is not binding precedent of the Board.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 DARIN EVANS
____________

Appeal No. 2005-2211
Application No. 10/715,002
____________

ON BRIEF
____________

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

DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 1-26 and
28-31. Claims 16, 26 and 27-31 were amended subsequent to the final rejection in an
amendment filed April 22, 2004. The appellant originally appealed from the examiner's
rejections of claims 1-31. On page 4 of the answer, however, the examiner withdrew
the rejection of claim 27 under 35 U.S.C. § 112, second paragraph. Inasmuch as there
is no other standing rejection of claim 27, this appeal involves only claims 1-26 and 28-
31.
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BACKGROUND
The appellant's invention relates to a bumper for reducing pedestrian injury. A
copy of the claims under appeal is set forth in the appendix to the appellant's brief.

The Prior Art
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Sturrus et al. (Sturrus) 5,092,512 Mar. 3, 1992
Glance 5,799.991 Sep. 1, 1998

Scrivo GB 2,081,653 Feb. 24, 1982
(published UK Patent Application)

Hamaya S57-172848 Oct. 23, 19821
(Japanese patent document)

The Rejections

1 We derive our understanding of this reference from the English language translation obtained by
the examiner.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the rejections on appeal, we make reference to the final
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rejection (mailed September 29, 2004) and answer (mailed April 26, 2005) for the
examiner's complete reasoning in support of the rejections, and to the brief (filed April
11, 2005) and reply brief (filed June 27, 2005) for the appellant's arguments
thereagainst.
The following rejections are before us for review.
Claims 7-21 and 28-31 stand rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite for failing to particularly point out and distinctly claim the subject
matter which the appellant regards as the invention.
Claims 1, 5-8 and 15-21 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Scrivo.
Claims 9 and 11-14 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Scrivo in view of Sturrus.
Claim 4 stands rejected under 35 U.S.C. § 102(b) as anticipated by or, in the
alternative, under 35 U.S.C. § 103 as being unpatentable over Scrivo.
Claim 3 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Scrivo.
Claims 2 and 10 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Scrivo or Scrivo in view of Sturrus and further in view of Hamaya.
Claims 22-26 stand rejected under 35 U.S.C. § 103 as being unpatentable over
Scrivo or Scrivo in view of Sturrus further in view of Glance.
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OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.

The indefiniteness rejections
The legal standard for definiteness is whether a claim reasonably apprises those
of skill in the art of its scope. See In re Warmerdam, 33 F.3d 1354, 1361, 31 USPQ2d
1754, 1759 (Fed. Cir. 1994). In determining whether this standard is met, the
definiteness of the language employed in the claim must be analyzed, not in a vacuum,
but always in light of the teachings of the prior art and of the particular application
disclosure as it would be interpreted by one possessing the ordinary level of skill in the
pertinent art. In re Johnson, 558 F.2d 1008, 1015, 194 USPQ 187, 193 (CCPA 1977).
We turn our attention first to the examiner's indefiniteness rejection of claim 21,
and claim 31 depending therefrom, on the basis that there is no clear frame of reference
for the limitation "longer than said front wall." While the examiner is correct that the
language in claim 21 is sufficiently broad to encompass the upper and lower walls being
longer than the front wall in either a longitudinal or lateral dimension, this is a matter of
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breadth, not indefiniteness. Just because a claim is broad does not mean that it is
indefinite. See In re Johnson, 558 F.2d 1008, 1016 n.17, 194 USPQ 187, 194 n.17
(CCPA 1977); In re Miller, 441 F.2d 689, 693, 169 USPQ 597, 600 (CCPA 1971); In re
Gardner, 427 F.2d 786, 788, 166 USPQ 138, 140 (CCPA 1970) and Ex parte
Scherberich, 201 USPQ 397, 398 (Bd. App. 1977). As the examiner has not cogently
explained, and it is not apparent to us, why this language renders the claim indefinite as
opposed to merely broad, we cannot sustain the rejection.
With regard to claims 7, 9, 15, 16 and 21, and claims 8, 10-14, 17-20 and 28-31
depending therefrom2, the basis of the examiner's indefiniteness rejection is that no
"parallelogram motion" as recited in the claims is disclosed in appellant's specification
and that, in essence, the claims are misdescriptive of the invention. The examiner's
criticism of the claims appears to be that appellant does not disclose top and bottom
nose portions or sections which are in the form of a closed parallelogram and, as such,
there can be no parallelogram motion.

2 While claims 23-26 also depend from the claims at issue, the examiner inexplicably did not
include these claims in the rejection.
The terminology "parallelogram motion" is used in appellant's specification at
least on pages 3, 4, 7 and 8 and is described, on page 3, in lines 3-5, as a motion "that
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shifts one or both of the top and bottom front walls vertically, such that horizontal impact
forces are converted at least in part to a vertical force upon receiving a horizontal frontal
impact during an initial stroke of the frontal impact." In the paragraph bridging pages 4
and 5 of appellant's specification, it is made clear that the transformation of the top and
bottom nose portions of the energy absorber from their configuration as shown in Figure
3 to their configuration as shown in Figure 4 is the "parallelogram motion" referred to in
the claims. We can see from Figures 3 and 4 that, upon a frontal horizontal impact, the
upper-front wall 54 and lower-front wall 57 are shifted vertically, with a commensurate
bending or inclination of the top wall 52 and upper-mid wall 53 of the upper nose portion
and the lower-mid wall 56 and bottom wall 55 of the lower nose portion, such that the
horizontal walls (52, 53, 56, 55) of each of the nose portions, or at least portions thereof,
remain essentially parallel with one another as the front walls shift vertically.
In light of the above, we conclude that the term "parallelogram motion" can fairly
be understood by one of ordinary skill in the art as shorthand for the type of vertical
shifting of the front wall of the nose portion and commensurate substantially parallel
bending or inclination of the upper and lower horizontal walls of the nose portion seen in
Figure 4. While the examiner may be correct that appellant's nose portion does not
comprise a complete parallelogram, the claims do not require such. The rejection of
these claims under 35 U.S.C. § 112, second paragraph, as being indefinite because of
the use of the terminology "parallelogram motion" cannot be sustained.
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We shall, however, sustain the examiner's rejection of claim 15, and 29 which
depends therefrom3, as being indefinite because the limitation "whereby energy directed
against a knee of an impacted person is converted into a throwing force that directs the
person in a direction generally perpendicular to the line of impact and away from the
vehicle bumper system" appears to be inconsistent with the structure and performance
of appellant's disclosed bumper system for the reason articulated on page 4 of the
answer. Appellant's specification states on page 3 that the "impacted person is initially
'caught' and then 'thrown' in a direction away from the line of impact" and, on page 5,
that, "[u]pon a continuing impact stroke (Fig. 5), the top and bottom horizontal sections
23-24 provide a 'throwing' action, as shown by increasing forces 31 and 31'," such that
"[t]he combination of these forces 31 and 31' 'throw' the impacted human 29 upward in
a direction off the bumper beam 21." The appellant's specification, however, does not
explain, by means of an analysis of the forces, for example, why such throwing force will
direct the person, as distinguished from the person's knee, in a direction away from the
vehicle bumper system rather than, as the examiner contends on page 4 of the answer,
into the automobile.

3 Although claim 24 also depends from claim 15, the examiner inexplicably did not include it in the
indefiniteness rejection.
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The examiner's assessment of how the resultant impact forces will direct the
person impacted by the bumper appears quite reasonable on its face to us and
appellant has not offered any evidence or cogent reasoning to the contrary.
Accordingly, based on the record in this case, we conclude that appellant's description
and explanation of the disclosed bumper system and method is not sufficient to
adequately justify the result recited in the afore-mentioned "whereby ..." clause of claim
15, thereby rendering claim 15, as well as claims 244 and 29 depending therefrom,
indefinite.
The prior art rejections
We shall not sustain the rejection of claim 15 under 35 U.S.C. § 102(b) as being
anticipated by Scrivo or the rejection of claim 24 under 35 U.S.C. § 103 as being
unpatentable over Scrivo or Scrivo in view of Sturrus and further in view of Glance. For
the reasons expressed above, these claims are indefinite. Therefore, the prior art
rejections must fall because they are necessarily based on speculative assumption as
to the meaning of the claims. See In re Steele, 305 F.2d 859, 862-63, 134 USPQ 292,
295 (CCPA 1962). It should be understood, however, that our decision in this regard is

4 We presume the examiner's omission of claim 24 in the indefiniteness rejection to have been an
inadvertent error. We leave it to the examiner to rectify this error in the event of further prosecution with
respect to claim 24.
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based solely on the indefiniteness of the claimed subject matter, and does not reflect on
the adequacy of the prior art evidence applied in support of the rejection.
The remaining independent claims on appeal which stand rejected on prior art
are claims 1, 9, 16 and 21. Claims 1 and 9 each recite an energy absorber having a top
horizontal section defined by a top wall and an upper-mid wall connected by an upper-
front wall and having a bottom horizontal section defined by a bottom wall and a lower-
mid wall connected by a lower-front wall. Claims 16 and 21 each recite an energy
absorber including at least one section having parallel upper and lower walls and having
a main front wall wherein, upon impact, the upper and lower walls flex with a
parallelogram motion. Unlike appellant's claimed device, each of the top and bottom
horizontal sections (legs 34) of Scrivo is comprised of a solid body rather than an upper
and lower wall connected by a front wall (see brief, page 15, and reply brief, page 8).
Accordingly, the above-discussed limitations of claims 1 and 9 are neither met by Scrivo
nor addressed by the examiner's application of additional references to Sturrus,
Hamaya and Glance. As for claims 16 and 21, even assuming the examiner is correct
that each of the legs 34 of Scrivo's energy absorber will deflect in the same manner as
each of appellant's top and bottom nose portions, i.e., with the front surface shifting
vertically and the top and bottom surfaces bending or inclining commensurate with the
shift so as to remain substantially parallel (i.e., a "parallelogram motion"), each leg 34,
as pointed out above, is made of a solid body, not parallel upper and lower walls as
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called for in claims 16 and 21. As also discussed above, the examiner's additional
application of Sturrus, Hamaya and Glance fails to remedy this deficiency.
In light of the above, we cannot sustain the examiner's rejection of claims 1, 5-8
and 16-21 as being anticipated by Scrivo, the rejection of claims 9 and 11-14 as being
unpatentable over Scrivo in view of Sturrus, the rejection of claim 4 as being anticipated
by or unpatentable over Scrivo, the rejection of claim 3 as being unpatentable over
Scrivo, the rejection of claims 2 and 10 as being unpatentable over Scrivo or Scrivo in
view of Sturrus and further in view of Hamaya or the rejection of claims 22, 23, 25 and
26 as being unpatentable over Scrivo or Scrivo in view of Sturrus further in view of
Glance.
CONCLUSION
To summarize, the rejection of claims 15 and 29 under 35 U.S.C. § 112, second
paragraph, is affirmed. All other rejections are reversed. The examiner's decision is
AFFIRMED-IN-PART.

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No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
AFFIRMED-IN-PART

CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN P. McQUADE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )

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