Ex Parte Gassmann et al

Patent Trial and Appeal Board

Oct 21, 2013

11593978 (P.T.A.B. Oct. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOERG GASSMANN, ROMAN GOLDBERG, and
KAI NITSCHMANN
____________

Appeal 2011-009653
Application 11/593,978
Technology Center 3700
____________

Before STEFAN STAICOVICI, MICHAEL C. ASTORINO, and
GEORGE R. HOSKINS, Administrative Patent Judges.

HOSKINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Joerg Gassmann et al. (“Appellants”) appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 12-31. We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.
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CLAIMED SUBJECT MATTER
Claims 12 and 23 are representative of the subject matter on appeal:
12. A household appliance comprising:
a housing;
a linearly movable component mounted for linear
movement with respect to the housing; and
a drive band connected to the component wherein the
component can be moved by means of the drive band.

23. A clothes dryer comprising:
a housing;
a drum disposed within the housing and mounted for
rotation with respect to the housing;
a fan generating an air flow through the dryer and a
ducting system guiding the air flow, the ducting system
including a section disposed downstream from the drum and
upstream from the fan;
a channel having a substantially U-shaped cross-section
and extending in a direction substantially transverse to the air
flow through the section; and
a linearly movable component mounted for linear
movement within the channel; and
a drive device disposed near a first end of the channel
and including a motor driving a sprocket wheel and a drive
band including multiple holes for receiving the sprocket wheel,
the drive band being connected to the scraper and moving the
scraper in a linear direction in response to rotational movement
of the sprocket wheel, the drive band having sufficient
flexibility to bend around the sprocket wheel and having
sufficient rigidity to selectively apply a pushing force and a
pulling force on the linearly movable component.

REJECTIONS
Appellants request our review of the following rejections:
Claims 12, 14, 15, 18, 20, and 23 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Pauly (US 1,791,574, issued Feb. 10, 1931);
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Claim 13 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Pauly in view of Alber (DE 44 07 276 A1, published Sept. 7, 1995);
Claims 16 and 17 are rejected as unpatentable over Pauly in view of
Simpson (US 3,041,964, issued July 3, 1962);
Claims 19, 21, 22, 24, and 25 are rejected as unpatentable over Pauly
in view of Ellis (US 2,570,437, issued Oct. 9, 1951);
Claims 12 and 26-28 are rejected as unpatentable over Grunert (DE 44
03 183 C2, published Aug. 3, 1995) in view of Luck (US 2,422,025, issued
June 10, 1947); and
Claims 29-31 are rejected as unpatentable over Pauly in view of Luck.

ANALYSIS
Rejection of Claims 12, 14, 15, 18, and 20
as Anticipated by Pauly
Appellants assert this rejection is improper because Pauly fails to
disclose the “drive band” set forth in independent claim 12. See, e.g., App.
Br. 9-11. Appellants assert the Specification sets forth a special definition of
“drive band” at page 2, lines 24-30. See App. Br. 15-19. The Examiner
disagrees, asserting the Specification cited by Appellants fails to clearly set
forth a special definition, and therefore the ordinary and customary meaning
of “drive band” controls. See Ans. 16-18. An applicant is entitled to be his
or her own lexicographer by clearly setting forth, in the Specification, a
special definition of a claim term “so as to put one reasonably skilled in the
art on notice that the patentee intended to so redefine the claim term.” See
Bell Atlantic Network Servs., Inc. v. Covad Comms. Group, Inc., 262 F.3d
1258, 1268 (Fed. Cir. 2001). The Specification at page 2, lines 24-30 states
(bolded and italicized emphasis added):
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A drive band is a preferably convex strip which is
produced from a highly flexible metal, in particular a suitable
steel, and can transmit a shearing force in addition to a tensile
force and is conventionally used as a tape measure which can
be rolled up. Said drive band can be bent relatively easily and
reversibly in a plane perpendicular to its transverse direction,
with any convex shape which may be present disappearing at a
bending point. The stability of the tape under shearing stress is
largely maintained at a bending point.

Thus the Specification paragraph relied upon by Appellants begins:
“A drive band is . . . .” Spec., pg. 2, l. 24. That introductory phrase
indicates to one of ordinary skill in the art that the applicant may be
attempting to set forth a special definition of “drive band.” Nonetheless,
when the entire Specification paragraph is read as a whole, it fails to put one
of ordinary skill in the art on notice that the applicant intended to set forth
such a special definition. That is because the text following the introductory
phrase fails to indicate clearly what the supposed special definition might be.
For example, the bolded phrase in the Specification paragraph above
can be understood in more than one way. See, e.g., App. Br. 17 (asserting
“preferably” modifies only the term “convex”); Ans. 20 (asserting
“preferably” “suggests that this is not a definition, but merely a preference
for what the drive band might comprise of”). In short, the Specification
paragraph relied upon by Appellants fails to put one of ordinary skill on
notice of whether the term “preferably” applies only to “convex” (as
Appellants urge) or may also apply to other terms such as “strip” (as the
Examiner urges). That lack of reasonable notice renders the supposed
special definition fatally defective. See, e.g., Conoco, Inc. v. Energy & Env.
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Int’l. L.C., 460 F.3d 1349, 1357-58 (Fed. Cir. 2006) (a special definition
“cannot draw limitations into the claim from a preferred embodiment.”).
Moreover, the Specification paragraph relied upon by Appellants
contains several indefinite descriptions of a “drive band.” See Ans. 17-18
and 24. Such descriptions include the italicized phrases in the Specification
paragraph, above. The use of such loose language strongly indicates a
special definition of “drive band” was not intended by the applicant.
For the foregoing reasons, the Specification paragraph at issue here
fails to put one of ordinary skill in the art on notice that the applicant
intended to redefine the term “drive band.” Therefore, we apply the
broadest reasonable interpretation of “drive band” which is consistent with
the Specification as it would be interpreted by one of ordinary skill in the art.
See In re American Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004). There is no dispute between the Examiner and Appellants as to the
meaning and application of the term “drive”, so we turn to “band.”
The Examiner and Appellants present dueling dictionary definitions to
support their respective claim interpretations of “band”. See Ans. 17 (a band
is defined as “something that confines or constricts while allowing a degree
of movement”); Reply Br. 28-29 (a band is defined as “a strip serving to join
or hold things together,” among several other definitions). However,
Appellants concede that the broadest reasonable interpretation of “drive
band” includes, for example, (a) in the “mechanics” field, “a belt connecting
wheels or pulleys,” and (b) “a fillet, belt, or strap: a band for the hair; a band
for connecting pulleys.” See Reply Br. 29. We find the chain 25 of Pauly
satisfies those descriptions of “band”, particularly including a “belt”, and
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therefore conclude the broadest reasonable interpretation of “band” includes
the Pauly sprocket chain 25.1
Appellants present several arguments attempting to establish the Pauly
sprocket chain 25 is not a “band” as that claim term would be understood by
one of ordinary skill in the art in light of the Specification. See App. Br. 10-
20; Reply Br. 27-31. For example, Appellants urge the Pauly sprocket chain
25 is not a “strip” (see App. Br. 17-18; Reply Br. 28-31); does not provide
elasticity or limited buckling resistance, or reduce a need for a guide means
(see App. Br. 9); is strictly unidirectional and is not suitable for bidirectional
use (see App. Br. 10-11); and cannot be used to apply both a pulling force
and a pushing force (see App. Br. 19-21). These arguments are not
convincing, because they all improperly attempt to import one or more
limitations into claim 12 from the Specification. See Ans. 18-19; see also In
re American Acad. of Sci. Tech. Ctr., 367 F.3d at 1369 (cautioning against
reading limitations into a claim from a preferred embodiment of the
Specification, even if it is the only embodiment described, absent a clear
disclaimer in Specification). The simple term “band” in claim 12 cannot
carry the weight Appellants would place upon it with these additional
requirements which are not found in the claim. See, e.g., App. Br. Claims
App’x., Claim 23 (reciting “the drive band having . . . sufficient rigidity to
selectively apply a pushing force and a pulling force”). In particular,
concerning whether the Pauly sprocket chain 25 is a “strip,” as already stated

1 Similarly, the dictionary definition of “chain” in Appellants’ briefing as
being “a series of usually metal links or rings connected to or fitted into one
another and used for various purposes (as support, restraint, transmission of
mechanical power, or measurement)” overlaps with these dictionary
definitions of “band.” See App. Br. 18; Reply Br. 32 (emphasis added).
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above, we apply the broadest reasonable interpretation of “drive band”
which is consistent with the Specification as interpreted by one of ordinary
skill in the art. Under such a claim construction, a “band” is not limited to a
“strip.”
For the foregoing reasons, the Pauly sprocket chain 25 is a “drive
band” as recited in independent claim 12, and we sustain the Examiner’s
rejection of that claim as anticipated by Pauly. Appellants do not argue for
the patentability of dependent claims 14, 15, 18, and 20 apart from claim 12.
We therefore also sustain the Examiner’s rejection of those claims.
Rejection of Independent Claim 23
as Anticipated by Pauly
Appellants assert this rejection is improper because Pauly fails to
disclose the following portion of claim 23: “the drive band having . . .
sufficient rigidity to selectively apply a pushing force and a pulling force on
the linearly movable component.” See App. Br. 11-12 and 20-21. To the
extent Appellants’ arguments rely on the term “drive band” in claim 23, we
find them unpersuasive for the reasons already set forth above in relation to
claim 12. More particularly concerning claim 23, Appellants additionally
assert the Pauly drive band / sprocket chain 25 can apply a pulling force but
not a pushing force because “the sprocket chain 25 clearly would lose its
rigidity and the hooks of the sprocket chain 25 could disengage within the
sprocket chain 25 and break up the drive mechanism.” See App. Br. 11-12
and 21; see also Pauly, Fig. 3.
However, as the Examiner noted (see Ans. 6 and 22-23), Pauly
discloses the sprocket wheels 23 and 24 may be adjusted “so as to maintain
the proper degree of tautness in” the sprocket chain 25 to pull the felt wiper
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scrapers 26 linearly across the screen filter 7 to remove lint. See Pauly,
pg. 2, ll. 56-61 and 80-93. We agree with the Examiner that, if the Pauly
sprocket chain 25 is mounted with that degree of tautness as disclosed in
Pauly, then the chain 25 would be able to push and to pull the scrapers 26
equally well.
For the foregoing reasons, we are not persuaded by Appellants’
argument that Pauly fails to disclose a drive band having sufficient rigidity
to apply a pushing force, and we sustain the Examiner’s rejection of claim
23 as anticipated by Pauly.
Rejection of Dependent Claim 13
as Unpatentable Over Pauly and Alber
Appellants’ sole challenge to this rejection, separate from the rejection
of the parent independent claim 12 discussed above, is that Alber is non-
analogous art to the presently claimed invention. See App. Br. 25-27. The
claimed invention generally concerns a household appliance such as a
clothes dryer, in which a motor operates a drive band to linearly move a
scraping element to remove lint from an air filter. See Spec. 1-2. Alber, by
contrast and comparison, generally concerns a window frame, ventilation
flap, or the like, in which a motor operates a drive band in a linear fashion to
rotate the frame or flap between open and closed positions. See Alber2 pg. 1,
ll. 1-3 and pg. 2, ll. 38-42.
“Two criteria have evolved for determining whether prior art is
analogous: (1) whether the art is from the same field of endeavor, regardless
of the problem addressed, and (2) if the reference is not within the field of

2 Citations herein to Alber refer to the English-language translation of the
German-language original, made part of the present record in the Office
Action dated September 16, 2009.
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the inventor’s endeavor, whether the reference still is reasonably pertinent to
the particular problem with which the inventor is involved.” In re Clay, 966
F.2d 656, 658-659 (Fed. Cir. 1992). The Examiner finds Alber is reasonably
pertinent to the particular problem with which the inventor is involved,
identifying that problem as “transmitting a force from a motorized drive
unit.” See Ans. 26. We agree.
A reference in a field different from that of applicant’s endeavor may
be reasonably pertinent if it is one that, because of the matter with which it
deals, would have logically commended itself to an inventor’s attention in
considering his or her invention as a whole. In re ICON Health and Fitness,
Inc., 496 F.3d 1374, 1379-80 (Fed. Cir. 2007). We appreciate the claimed
invention relates to a household appliance, while Alber refers to a window
frame (see Reply Br. 34-35). Nonetheless, an inventor seeking to transmit a
force from a motor to actuate an element would look for a suitable drive
element. As we determined above, Alber discloses a motor that operates a
drive band for actuating (rotating) the frame or flap between open and closed
positions. Hence, we agree with the Examiner’s finding that the Alber
reference would logically have commended itself to an inventor considering
the problem of transmitting a force from a motor for actuating an element.
See Ans. 27.
For the foregoing reasons, Alber is analogous art to the claimed
invention, and we sustain the Examiner’s rejection of claim 13 as
unpatentable over Pauly in view of Alber.

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Rejection of Dependent Claims 16 and 17
as Unpatentable Over Pauly and Simpson
Appellants initially assert this rejection is improper because Pauly
does not disclose the “drive band” of the parent claim 12. See App. Br. 28.
We reject that argument for the reasons already provided above.
The Examiner concludes it would have been obvious to modify Pauly
in view of Simpson “for the purpose of providing an improved drive band
capable of withstanding rigorous use without rupture, stretching or loosening
for extensive periods of time” and “because Simpson et al. teaches a plastic
coated drive band that has a longer operating life and Pauly could be
similarly improved by using a plastic coated drive band, thus reducing
maintenance costs.” See Ans. 8-9 and 27-28. Appellants dispute that
conclusion, asserting “one of ordinary skill in the art would have no reason
to substitute the belt member 14 of [Simpson] for the sprocket chain 25 of
[Pauly] since the substitution would not provide any difference over what is
already disclosed by the Pauly reference.” See App. Br. 28 (emphasis
added). Appellants provide no further evidence or technical reasoning in
support of that assertion. See id.; see also Reply Br. 36-37.
We are not persuaded by Appellant’s arguments because “when a
patent claims a structure already known in the prior art that is altered by the
mere substitution of one element for another known in the field, the
combination must do more than yield a predictable result.” KSR Int’l Co. v.
Teleflex, Inc., 550 U.S. 398, 416 (2007). Appellants provide no persuasive
reason why one of ordinary skill in the art could not have implemented such
a substitution. Nor do Appellants provide any persuasive reason why the
results of the substitution would have been unpredictable. Appellants’
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unsupported conclusory assertion is not convincing in light of the detailed
discussion provided by the Examiner setting forth the reasons for the
combination.
Appellants further assert Simpson does not disclose that its drive belt
14 can transmit a shearing force, or that its drive belt 14 enables
bidirectional use. See App. Br. 28. As already discussed above in relation
to parent claim 12, these arguments rely on an improper claim interpretation
of “drive band” which would incorporate limitations into the claims from the
Specification. The arguments are therefore not convincing.
For the foregoing reasons, we sustain the rejection of claims 16 and
17 as unpatentable over Pauly in view of Simpson.

Rejection of Dependent Claims 19, 21, 22, 24, and 25
as Unpatentable Over Pauly and Ellis
Appellants assert this rejection of five dependent claims is improper
on the sole basis that the rejection of their respective parent independent
claims 12 and 23 as anticipated by Pauly was improper. See App. Br. 29;
Reply Br. 37-38. Having sustained the anticipation rejection of the parent
claims above, we further sustain this rejection of claims 19, 21, 22, 24, and
25 as otherwise unchallenged by Appellants.

Rejection of Claims 12 and 26-28
as Unpatentable Over Grunert and Luck
Appellants’ initial challenge to this rejection is that Luck is non-
analogous art to the presently claimed invention. See App. Br. 29-34; Reply
Br. 38-42. The claimed invention generally concerns a household appliance
such as a clothes dryer, in which a motor drives a drive band to linearly
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move a scraping element to remove lint from an air filter. See Spec. 1-2.
Luck, by contrast and comparison, generally concerns a navigational
position plotting mechanism, in which a motor operates a drive band in a
linear fashion to position a stylus 21 over a map 23. See Luck, col. 1, ll. 1-4;
col. 3, l. 14 to col. 4, l. 5.
As already discussed above, “analogous” art in the present application
includes references logically relating to transmitting a force from a
motorized drive unit. Luck is just such a reference, in that it discloses a
motor operating a drive band in a linear fashion to position a stylus 21 over a
map 23. See Luck, col. 3, l. 14 to col. 4, l. 5; see also Ans. 11-14 and 28-30.
Therefore, Luck is analogous art to the claimed invention for purposes of 35
U.S.C. § 103(a).
Appellants additionally argue that, even if Luck is analogous art, still
one of ordinary skill would not have relied upon the Luck plotting
mechanism when seeking to improve upon a lint scraping mechanism such
as in Grunert and the claimed invention. See App. Br. 31-32 and 34.
Specifically, Appellants assert the stylus 21 of Luck will not incur any
resistance from other objects as it moves over the map 23 surface, while a
lint scraper such as in Grunert and the claimed invention must be reliable
enough to withstand buckling of the drive band and/or the increased load on
the motor if the lint scraper gets stuck at an unforeseen obstruction. See id.
We are not persuaded by that argument. We find that some resistance
will be encountered by either the Luck stylus 21 moving across the map 23
surface or the Grunert lint scraper 8 moving across the lint screen 3. See
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Grunert, 1.3 Therefore, Appellants’ argument rests upon an alleged
difference only in the degree of resistance encountered in the two different
contexts. Appellants cite to no evidence of record to support the assertion
that the difference in degree is so great that one of ordinary skill in the art
would ignore the disclosure of Luck when seeking to improve upon the lint
scraper of Grunert. Attorney argument cannot take the place of evidence in
the record. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
For the foregoing reasons, Luck is analogous art to the claimed
invention, and we are not persuaded by Appellants’ arguments against
applying the disclosure of Luck to a lint scraper, so we sustain the
Examiner’s rejection of claims 12 and 26-28 as unpatentable over Grunert
and Luck.

Rejection of Dependent Claims 29-31
as Unpatentable Over Pauly and Luck
Appellants assert this rejection is improper because Luck is non-
analogous art to the presently claimed invention. See App. Br. 34-36; Reply
Br. 42-44. Appellants also argue that, even if Luck is analogous art, still one
of ordinary skill would not have looked to the Luck plotting mechanism
when seeking to improve upon a lint scraping mechanism such as in Pauly
and the claimed invention. See App. Br. 35-36; Reply Br. 42-44. We have
already considered and rejected both of these arguments above. Therefore,
we sustain the Examiner’s rejection of claims 29-31 as unpatentable over
Pauly and Luck.

3 Citations herein to Grunert refer to the English-language translation of the
German-language original, made part of the present record in the Answer.
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DECISION
We AFFIRM the rejection of claims 12, 14, 15, 18, 20, and 23 as
anticipated by Pauly; the rejection of claim 13 as unpatentable over Pauly
and Alber; the rejection of claims 16 and 17 as unpatentable over Pauly and
Simpson; the rejection of claims 19, 21, 22, 24, and 25 as unpatentable over
Pauly and Ellis; the rejection of claims 12 and 26-28 as unpatentable over
Grunert and Luck; and the rejection of claims 29-31 as unpatentable over
Pauly and Luck.
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)(1)(iv).
AFFIRMED

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