10555199 (B.P.A.I. Feb. 28, 2011)

Ex Parte Graute

Board of Patent Appeals and InterferencesFeb 28, 2011

10555199 (B.P.A.I. Feb. 28, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte LUDGER GRAUTE ____________________ Appeal 2009-007940 Application 10/555,199 Technology Center 3600 ____________________ Before: WILLIAM F. PATE III, LINDA E. HORNER, and MICHAEL W. O’NEILL, Administrative Patent Judges. PATE III, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-007940 Application 10/555,199 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 9- 11, 13-29, 31-34 and 36-38. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The claims are directed to a motor vehicle door lock. Claim 9, reproduced below, is illustrative of the claimed subject matter: 9. A vehicle door latch with a locking mechanism (1, 2) comprising a catch (1) having a first axis of rotation (7); a pawl (2); at least one sensor (4) for detecting the position of said catch (1); and an intermediate element (5) having a second axis of rotation (6); wherein said intermediate element (5) transfers a movement of said catch (1) around said first axis of rotation (7) onto said sensor (4); and said first axis of rotation (7) and said second axis of rotation (6) are not parallel in space with respect to each other. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Bland US 6,305,727 B1 Oct. 23, 2001 Kachouh US 2001/0048227 A1 Dec. 6, 2001 Kiekert DE 297 160 22 Jan. 2, 1998 REJECTIONS Claims 9-11, 13-16, 29 and 31-34 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Kachouh. Ans. 3. Appeal 2009-007940 Application 10/555,199 3 Claim 27 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Kachouh and Bland. Ans. 6. Claims 36-38 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kachouh and Kiekert. Ans. 6. OPINION We have carefully reviewed the rejections on appeal in light of the arguments of the Appellant and the Examiner. As a result of this review, we have determined that the applied prior art neither establishes the lack of novelty of claims 9-11, 13-16, 29 and 31-34, nor the prima facie obviousness of claims 27 and 36-38. Therefore all the rejections on appeal are reversed. Appellant argues on page 6 of the Brief that Kachouh does not teach or recite the limitation of at least one sensor for detecting the position of the catch, and that Kachouh does not teach or recite the limitation of an intermediate element that transfers movement of the catch around a first axis of rotation onto the sensor. The Examiner refers us to paragraph 20 of the Kachouh publication. Answer 3. Kachouh states there is one sensor, switch, or the like that can be used to turn on the motor when the inside handle 13 is actuated. This sensor is not otherwise shown or described. Kachouh further states that a second sensor can be used to turn the motor off after the detent pawl 6 is lifted. Like the preceding sensor, this sensor is neither shown nor otherwise described. Inasmuch as these sensors are not otherwise shown or described, it appears to us that the Examiner’s finding that the sensor could be acted upon by an intermediate element which transfers movement around a first axis of rotation onto the sensor is based on speculation and conjecture. Furthermore, it is unknown from paragraph 20 of the Kachouh publication whether the Appeal 2009-007940 Application 10/555,199 4 undescribed sensors do, in fact, sense the position of the catch as the claim requires, since we do not find support in this paragraph for the Examiner’s assertion that the sensor detects the position of the catch via pawl 6. Answer 3:13-14. In this instance, the feature argued by Appellant as the basis for patentability is admittedly not shown in the drawings nor described with any detail in the written specification of the reference. For these reasons, the Examiner has not sustained his burden of showing that every element of the claimed subject matter is found in Kachouh. With regard to the rejections under 35 U.S.C. § 103, we note that Bland and Kiekert do not ameliorate the difficulties we have found with respect to the Kachouh disclosure. Therefore it is our legal conclusion that the combined teachings of these references and Kachouh do not render the claimed subject matter of claims 27 and 36-38 prima facie obvious. DECISION The rejection of claims 9-11, 13-16, 29 and 31-34 under 35 U.S.C. § 102(b) is reversed. The rejections of claims 27 and 36-38 under 35 U.S.C. § 103(a) are reversed. REVERSED nlk MATTHIAS SCHOLL 14781 MEMORIAL DRIVE SUITE 1319 HOUSTON TX 77079