Ex Parte Gerards et al

Patent Trial and Appeal Board

Oct 1, 2012

11209372 (P.T.A.B. Oct. 1, 2012)

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.
11/209,372 08/23/2005 Hans Gerards 175.8258USU 2174
7590 10/01/2012
Paul D. Greeley, Esq.
Ohlandt, Greeley, Ruggiero & Perle, L.L.P.
10th Floor
One Landmark Square
Stamford, CT 06901-2682
EXAMINER
COLEMAN, KEITH A
ART UNIT PAPER NUMBER
3783
MAIL DATE DELIVERY MODE
10/01/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HANS GERARDS, TOBIAS WAGNER,
and STEPHAN CHASSEE
____________

Appeal 2010-009461
Application 11/209,372
Technology Center 3700
____________

Before STEVEN D.A. McCARTHY, MICHELLE R. OSINSKI, and JILL
D. HILL, Administrative Patent Judges.

HILL, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-009461
Application 11/209,372

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Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1, 2, and 5-10. We have jurisdiction under 35 U.S.C. § 6(b). We
AFFIRM-IN-PART.

STATEMENT OF THE CASE
The claimed subject matter relates to an exhaust flap housing in which
a stop element is provided in a simple manner in a defined position.
Claims 1, 2, and 6 stand finally rejected under 35 U.S.C. § 102(b) as
anticipated by Burger (US 3,788,072, iss. Jan. 29, 1974). Ans. 3. Claim 5
stands rejected under 35 U.S.C. § 103(a) as unpatentable over Burger and
Curphy (US 2,420,700, iss. May 20, 1947). Ans. 7. Claims 1 and 6 are
independent claims. Appellants argue claims 1, 2, and 6 as a group. App.
Br. 4-7. Independent claim 6 is selected as the representative claim, and
claims 1 and 2 will stand or fall with claim 6. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011). Claim 6 is reproduced below with the key
disputed limitation emphasized:
6. An exhaust flap means for motor vehicles,
comprising:
an exhaust flap disposed in an exhaust flap housing, said
exhaust flap housing comprising: at least one stop element for
an exhaust flap, wherein said at least one stop element is an
integral part of the exhaust flap housing, the stop element being
produced by bending the stop element into the exhaust flap
housing like a tongue,
a flap shaft connected with the exhaust flap, which is
supported in at least one bearing element connected with the
exhaust flap housing, and
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Application 11/209,372

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a passage opening for the passage of a flap shaft, wherein
said first stop element[1] is formed directly adjacent to the
passage opening.

Claims 7-10 stand finally rejected under 35 U.S.C. § 102(b) as
anticipated by Hess (US 3,181,451, iss. May 4, 1965). Ans. 5. Appellants
argue claims 7-10 as a group. App. Br. 7-9. Independent claim 7 is selected
as the representative claim, and claims 8-10 will stand or fall with claim 7.
37 C.F.R. § 41.37(c)(1)(vii). Claim 7 is reproduced below with the key
disputed limitations emphasized:
7. An exhaust flap means for motor vehicles,
comprising:
an exhaust flap housing having a housing wall and an
inner passage,
a first annular passage through the housing wall,
a first portion of the housing wall being bent into the
inner passage to define a first u-shaped slot through the housing
wall, the first u-shaped slot being positioned at a first side of the
first annular passage so that the first portion defines a first stop
element in the inner passage adjacent to the first annular
passage and the first u-shaped slot and first annular passage
form a continuous opening through the housing wall,
an exhaust flap being disposed in the exhaust flap
housing, and
a flap shaft being connected with the exhaust flap, the
flap shaft having one end received by the first annular passage
so that the exhaust flap abuts the first stop element in a first
position.

1 We assume for purposes of this appeal only that “said first stop element”
recited in the second last line of claim 6 as reproduced above is the same
element earlier identified as “the stop element” and “said at least one stop
element.”
Appeal 2010-009461
Application 11/209,372

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ANALYSIS
Representative Claim 6
The Examiner contends that Burger discloses all of the elements of
claim 6, including the stop element being formed “adjacent to” the passage
opening. Ans. 4. Appellants argue that Burger does not disclose the stop
element being formed “directly adjacent to” the passage opening. App. Br.
5. While Appellants are correct that claim 6 recites “directly adjacent to”
rather than “adjacent to” as addressed by the Examiner, Appellants have not
proffered a definition for the term “directly adjacent to.” Appellants merely
state that Burger’s stop element and passage opening are “radially and
vertically offset” from each other. App. Br. 5-6. In the Advisory Action
dated June 8, 2009, the Examiner defines adjacent as “lying near, close, or
contiguous.”
During patent examination, the pending claims must be given their
broadest reasonable interpretation consistent with the specification as it
would be interpreted by one of ordinary skill in the art. Phillips v. AWH
Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc).
In determining the ordinary and customary meaning of the term
“adjacent” as viewed by a person of ordinary skill in the art, it is appropriate
to consult a general dictionary definition for guidance. Comaper Corp. v.
Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010). An ordinary meaning of
“adjacent” taken from a general dictionary includes the following
alternatives: “Next to or very near something else; neighbouring; bordering,
contiguous; adjoining.” OXFORD ENGLISH DICTIONARY
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Application 11/209,372

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(http://www.oed.com/view/Entry/2414?redirectedFrom=adjacent#eid) (last
visited Sep. 21, 2012). Appellants point to nothing in the Specification
inconsistent with this usage of the term “adjacent.”
Appellants have not explained the effect that the modifier “directly”
has on the term “adjacent.” “Directly” is best understood as a term of
degree. The Specification states that “[i]t is particularly preferred to provide
the stop element in the region of a passage opening for leading through a
flap shaft.” Spec. 2. The Specification also states that the preferred
manufacturing process “has the advantage that the position of the stop
element is defined relative to the passage opening.” Spec. 2-3. Neither of
these statements implies that the term “directly” narrows the term “adjacent”
to such a degree as to exclude the relationship depicted in Figures 1 and 2 of
Burger between the stop element 17 and the closer of the two passage
openings through the body 10 which receive the ends of the pivot 15.
Therefore the Examiner correctly found that Burger discloses a passage
opening for the passage of a flap shaft, wherein the stop element is formed
directly adjacent to the passage opening.
We therefore affirm the rejection of claims 1, 2, and 6 under 35
U.S.C. § 102(b) as anticipated by Burger. Appellants do not advance any
argument suggesting that claim 5 might be patentable over Burger and
Curphy if claim 6 is anticipated by Burger. Reply Br. 4. We therefore
affirm the rejection of claim 5 under 35 U.S.C. § 103(a) as unpatentable over
Burger and Curphy.

Appeal 2010-009461
Application 11/209,372

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Representative Claim 7
The Examiner contends that Hess teaches all of the elements of claim
7, including the first u-shaped slot and the first annular passage forming a
continuous opening through the housing wall. The Examiner explains that
Hess discloses:
a first annular passage through the housing wall (tabs 40 in
housing wall 10 form a continuous passage), a first portion of
the housing wall being bent into the inner passage to define a
first u-shaped slot through the housing wall (10 forms a u-
shaped slot), the first u-shaped slot being positioned at a first
side of the first annular passage (34) so that the first portion
defines a first stop element (40 is a stop element, See Col. 4,
Lines 25-30) in the inner passage adjacent to the first annular
passage (34, See Figure 1) . . . .
Ans. 5.
Because the first annular passage is defined in claim 7 to receive the
flap shaft, the first annular passage of Hess must be the “passage” for pin 18
if the Examiner’s reading of Hess is correct. Passage 34 is not a passage for
pin 18, and is therefore not the claimed first annular passage. Similarly, the
passage extending through Hess’s louvers 40, 42 is not a passage for pin 18,
and is therefore not the claimed first annular passage. Further, Hess’s first
u-shaped slot must be the slot caused by formation of louver 40 or the slot
caused by formation of louver 42. Because neither the slot caused by
formation of louver 40 nor the slot caused by formation of louver 42 forms a
continuous opening through the housing wall with the first annular passage
as defined above, Hess does not disclose all of the limitations of claim 7.
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Application 11/209,372

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We therefore reverse the rejection of claims 7-10 under 35 U.S.C. §
102(b) as anticipated by Hess.
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-IN-PART

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