Ex Parte Gündogan

Patent Trial and Appeal Board

Dec 7, 2017

13887479 (P.T.A.B. Dec. 7, 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.
13/887,479 05/06/2013 Birol Gtindogan 509702 7496
53609 7590 12/11/2017
REINHART BOERNER VAN DEUREN P.C.
2215 PERRYGREEN WAY
ROCKFORD, IL 61107
EXAMINER
EVANS, BRYAN A
ART UNIT PAPER NUMBER
3618
NOTIFICATION DATE DELIVERY MODE
12/11/2017 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):
RockMail@reinhartlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BIROL GUNDOGEN
Appeal 2016-005090
Application 13/887,4791
Technology Center 3600
Before ST. JOHN COURTENAY III, JOHNNY A. KUMAR, and
SCOTT E. BAIN, Administrative Patent Judges.
BAIN, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
1 Appellant identifies the real party in interest as Jung Hebe-Und
Transporttechnik GmbH. App. Br. 2.
Appeal 2016-005090
Application 13/887,479
STATEMENT OF THE CASE
Appellant has filed a Request for Rehearing concerning the Decision
on Appeal (“Decision”) dated August 8, 2017, which affirmed the
Examiner’s decision rejecting claims 1-15.
The Request for Rehearing concerns all pending claims, including
independent claim 1, drawn to a “running gear for transporting a load” and
having various rollers “at a distance” from one another. Req. Reh’g 2; App.
Br. 15 (Claims App’x). The Examiner rejected claims 1-13 under pre-AIA
35 U.S.C. § 103(a) as unpatentable over Le Toumeau and Terhune, and
further rejected claims 14 and 15 as unpatentable over the combination of Le
Toumeau, Terhune, and Willis. Final Act. 2-7. The Board sustained the
rejections. Decision 9.
ANALYSIS
Appellant argues the Board’s Decision overlooked Appellant’s
arguments in two respects, which we address in turn.
First, Appellant argues that it had no duty to provide evidence
supporting its argument that the Examiner’s proposed combination of
references was “unsatisfactory for its intended purpose,” and that the Reply
Briefs citations to “relevant OSHA guidelines” were sufficient support for
its argument. Req. Reh’g 3—4; Reply Br. 7.2 Specifically, Appellant argues
the Examiner’s combination of Le Toumeau and Terhune would be
2 Appellant argued claims 1-13 as a group, App. Br. 5, and we decided the
appeal of those claims based upon representative claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv).
2
Appeal 2016-005090
Application 13/887,479
“unstable” and further, the combined device could not be “steered.” Id. at 3;
see also App. Br. 5-6, 10.
The Board’s Decision, however, fully addressed the foregoing
arguments, and we are not persuaded that any points were misapprehended
or overlooked in our Decision. The OSHA guidelines cited by Appellant
may, as Appellant suggests, reflect the general principle that “stability is
diminished as the center of gravity moves outside the stability triangle
defined by the wheels” of a vehicle. Req. Reh’g 4; Reply Br. 7. The record
before us, however, is devoid of any evidence or indication that the
Examiner’s combination moves the center of gravity in that manner. In
other words, there is no evidence that the combined teachings of Le
Toumeau and Terhune, as relied upon by the Examiner, would result in an
unstable configuration.3 As the Decision explains, neither Appellant’s claim
1 nor the Examiner’s combination of references requires any particular
distance between the rollers. Decision 8. Rather, as the Examiner found,
one of ordinary skill in the art would understand the references together as
teaching a three-wheel configuration may alternatively utilize a single fixed
wheel at the front (handle side) with two rotating wheels behind it, or two
rotating wheels at the front (handle side) with a fixed wheel behind it. Id.
Second, Appellant argues the “Board fails to consider how the
Examiner’s proposed modification of Le Toumeau in view of Terhune
would be steered.” Req. Reh’g 4. As the Examiner found and the Decision
3 See Evidence Appendix: “None.” App. Br. 18. Moreover, Appellant’s
introduction of the OSHA guidelines in the Reply Brief (at 7) appears to be
untimely under our procedural mle, 37 C.F.R. § 41.41(b)(1), and is likewise
inadmissible in the Request (at 4), see 37 C.F.R. § 41.52(a)(1).
3
Appeal 2016-005090
Application 13/887,479
addressed, however, Terhune teaches a three-wheel configuration can be
steered when two rotatable wheels are on the handle side of the device.
Decision 7. Terhune does not recite any particular spacing of the wheels.
See supra.
We note that Appellant’s argument regarding steering has changed
over the course of its briefing. Appellant argued in its Opening Brief that
the Examiner’s proposed combination would not steer properly because of
excessive torque on the handle, App. Br. 11, but as the Decision explained,
this argument was based upon an incorrect understanding of the Examiner’s
reasoning and the teachings relied upon. See Decision 7. Appellant now
argues Terhune teaches “a handle should be provided for each swivel
wheel,” apparently in an attempt to distinguish the Examiner’s proposed
combination involving a device with a single handle. Req. Reh’g 5. This
argument, however, was not timely raised. See 37 C.F.R. § 41.52(a)(1).
Moreover, the Examiner does not rely on the number of handles in Terhune,
but rather the teaching that a pair of rotatable wheels may be placed at the
front (handle side) of a three-wheel configuration. Appellant also asserts,
Req. Reh’g 5, that if a single handle is utilized to pull two rotatable wheels,
as in the Examiner’s combination, “the two wheels must be near to the
handle” in order to steer it, but there is no support in the record for this
assertion.4
4 Appellant’s own disclosure also appears to undercut this argument.
Appellant’s claims do not require the first and second (swiveling) rollers be
near the handle, yet the Specification states, “it [is] possible to steer” this
configuration. Spec. ^ 3.
4
Appeal 2016-005090
Application 13/887,479
DECISION
Appellant’s Request for Rehearing is granted to the extent that the
Decision has been reconsidered in light of the arguments made in the
Request for Rehearing, but is denied in all other respects.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. §41.52(b).
REQUEST FOR REHEARING DENIED
5