Ex Parte Iannello

Board of Patent Appeals and Interferences

Jul 30, 2008

10910393 (B.P.A.I. Jul. 30, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOSEPH P. IANNELLO
____________

Appeal 2008-1697
Application 10/910,393
Technology Center 3600
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Decided: July 30, 2008
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Before JENNIFER D. BAHR, LINDA E. HORNER, and
STEVEN D.A. McCARTHY, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Joseph P. Iannello (Appellant) seeks our review under 35 U.S.C.
§ 134 of the final rejection of claims 8-13 and 27, which are all of the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b) (2002). We
affirm-in-part.
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THE INVENTION
The Appellants’ claimed invention is directed to a mechanical
cleaning device for mounting on a cutting blade that includes an expandable
metal clamp, at least one bolt to constrict the metal clamp, and a replaceable
brush head (Spec. 5:7-9). Claim 8, reproduced below, is representative of
the subject matter on appeal.
1. A mechanical cleaning device for mounting on a cutting
blade associated with a mowing deck, said mechanical cleaning
device comprising:
an expandable metal clamp;
an attachment device; and
a removable brush head;
said removable brush head including a plurality of
bristles;
said expandable metal clamp including,
a body section,
a first flange,
a second flange,
an attachment site, and
a bolt and nut system;
said bolt and nut system having a bolt and a nut such that
a head of the bolt engages said first flange and the nut engages
said second flange;
said bolt and nut system causing said expandable metal
clamp to constrict;
said attachment device engaging said attachment site to
attach said removable brush head to said expandable metal
clamp.
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THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Stepper US 2,666,221 Jan. 19, 1954
The following rejections are before us for review:
1. Claims 8, 9, and 27 are rejected under 35 U.S.C. § 102(b) as
anticipated by Stepper.
2. Claims 10-13 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Stepper.

ISSUES
The first issue before us is whether the Appellant has met his burden
of showing that the Examiner erred in rejecting claims 8, 9, and 27 as
anticipated by Stepper. This issue turns on whether Stepper discloses an
attachment device engaging an attachment site to attach a removable brush
head to an expandable metal clamp.
The second issue before us is whether the Appellant has met his
burden of showing that the Examiner erred in rejecting claims 10-13 as
unpatentable over Stepper. This issue turns on whether one having ordinary
skill in the art would have had a reason to have bristles bent in an L-shape in
view of the teachings of Stepper.

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FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Stepper discloses a broom or brush holder that securely encases
and grips a broom or brush back and rigidly supports a handle shaft
(Stepper, col. 1, ll. 9-11).
2. Stepper’s holder includes an elongated saddle S shaped from sheet
metal to fit over the convex back 10 of a sweeping tool (Stepper,
Fig. 2, col. 1, ll. 40-44 and col. 2, ll. 3-9).
3. Thus, Stepper’s holder is an expandable metal clamp.
4. Stepper discloses that the back 10 of the sweeping tool is provided
with tufts of bristles which are secured in sockets of the back 10 by
cement or lacing means (Stepper, col. 1, ll. 47-53).
5. Thus, the lower portion of the convex back 10, which includes the
sockets in which the ends of the tufts of bristles are secured,
comprises a brush head removable from the saddle S.
6. The saddle S includes a back plate 14 (body section) and a pair of
opposed depending flanges 16 (first flange) and 18 (second flange)
integral therewith, so that the tool back 10 is attached to the saddle
S by compressing the flanges together by use of a draw bolt 26
having a head 28 and a thumb nut 30 (bolt and nut system)
(Stepper, col. 2, ll. 3-4 and 29-49).
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7. As shown in Figure 2, the head 28 of the bolt 26 engages the first
flange 16, and the nut 30 engages the second flange 18 and the
system causes the holder to constrict when tightened (Stepper,
Fig. 2).
8. In particular, when the thumb nut 30 is tightened, the tool back 10
is securely gripped through the flexing or bowing of the back plate,
the biting-in of ridges 24 on back plate 14, and the tight
engagement of the flanges 16 and 18 with the front and back faces
of the tool back 10 (Stepper, col. 2, ll. 44-49).
9. Thus, the upper portion of the tool back 10 is an attachment device,
because it engages an attachment site 24 on the expandable metal
clamp S to join the removable brush head (the lower portion of the
back 10) to the expandable metal clamp S.
10. Stepper discloses that the bristles are flared out from the socket
end of the bristles to the lower end (Stepper, col. 1, l. 54 – col. 2,
l. 2).
11. Stepper does not disclose an L-shape bend in each bristle.
12. The ordinary meaning of “attach” is to fasten, secure, or join. The
American Heritage Dictionary of the English Language (4th ed.
2000).
13. The ordinary meaning of “device” is a contrivance serving a
particular purpose, especially a machine used to perform one or
more relatively simple tasks. The American Heritage Dictionary
of the English Language (4th ed. 2000).
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14. Thus, the ordinary meaning of attachment device is a contrivance
serving to join two things.
15. The Appellant’s Specification does not provide any lexicographic
definition of attachment device or use the phrase at all.

PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727,
1734 (2007). The question of obviousness is resolved on the basis of
underlying factual determinations including (1) the scope and content of the
prior art, (2) any differences between the claimed subject matter and the
prior art, (3) the level of skill in the art, and (4) where in evidence, so-called
secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18
(1966). See also KSR, 127 S. Ct. at 1734 (“While the sequence of these
questions might be reordered in any particular case, the [Graham] factors
continue to define the inquiry that controls.”)

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ANALYSIS
Rejection of claims 8, 9, and 27 under 35 U.S.C. § 102(b) as anticipated by
Stepper
The Appellant confines his argument to independent claim 8 (App.
Br. 4-6). As such, we treat claim 8 as representative and claims 9 and 27
will stand or fall with claim 8. 37 C.F.R. § 41.37(c)(1)(vii) (2007).
The Examiner found that Stepper discloses each and every element of
claim 8 (Ans. 4-5). The Examiner provided an annotated version of Figure 2
from Stepper in which each element of claim 8 was noted in the Figure, as
reproduced below:

Figure 2 of Stepper as annotated by the Examiner
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In particular, the Examiner found that Stepper discloses an attachment
device (10), a removable brush head including bristles (citing, col. 1, ll. 40,
49), and an expandable metal clamp (S). The Examiner further found that
Stepper discloses the expandable metal clamp having a body section (S),
first and second flanges (16 and 18), an attachment site (24, 14), and a bolt
and nut system as claimed (28, 30). The Examiner also found that the
attachment device 10 engages the attachment site (24, 14) (Ans. 5).
The Appellant contends that the Examiner erred in finding that
Stepper anticipates the invention of claim 8 because “Stepper fails to teach
an attachment device engaging an attachment site to attach the removable
brush head to the expandable metal clamp” (App. Br. 5). In particular, the
Appellant argues that (1) Stepper fails to disclose that the alleged removable
brush head is attached to the expandable metal clamp (Reply Br. 4), (2) item
10 of Stepper is the back of a removable brush and is not an attachment
device separate from the removable brush head (App. Br. 5-6), and (3) the
tightening of the draw bolt (26) and nut (30) provide the rigid attachment of
the removable broom brush to the saddle (S) (Reply Br. 5). We are not
persuaded by the Appellant’s arguments of error in the Examiner’s rejection
of claim 8.
Stepper discloses a broom or brush holder that securely encases and
grips a broom or brush back and rigidly supports a handle shaft (Fact 1).
Stepper’s holder includes an elongated saddle S shaped from sheet metal to
fit over the convex back 10 of a sweeping tool (Fact 2). Thus, Stepper’s
holder is an expandable metal clamp as claimed (Fact 3).
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Claim 8 does not state from what the “removable brush head” must be
removable. Instead, the language is broad enough to cover a brush head
removable from the expandable metal clamp. Stepper discloses that the
back 10 of the sweeping tool is provided with tufts of bristles which are
secured in sockets of the back 10 by cement or lacing means (Fact 4). Thus,
the lower portion of the tool back 10, including the sockets provided in the
under face of the back and the tufts of bristles secured in the sockets,
comprises a brush head removable from the saddle S (Fact 5).
The saddle S includes a back plate 14 (body section) and a pair of
opposed depending flanges 16 (first flange) and 18 (second flange) integral
therewith, so that the tool back 10 including the lower portion of the back is
attached to the saddle S by compressing the flanges together by use of a
draw bolt 26 having a head 28 and a thumb nut 30 (bolt and nut system)
(Fact 6). As shown in Figure 2, the head 28 of the bolt 26 engages the first
flange 16, and the nut 30 engages the second flange 18 and the system
causes the holder to constrict when tightened (Fact 7). In particular, when
the thumb nut 30 is tightened, the tool back 10 is securely gripped through
the flexing or bowing of the back plate, the biting-in of ridges 24 on back
plate 14, and the tight engagement of the flanges 16 and 18 with the front
and back faces of the tool back 10 (Fact 8).
The critical question before us is whether the upper portion of the tool
back 10 meets the claimed attachment device. In order to make this
determination, we must construe the claim limitation of an “attachment
device.” During examination of a patent application, pending claims are
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given their broadest reasonable construction consistent with the
specification. In re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am.
Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The ordinary
meaning of “attach” is to fasten, secure, or join (Fact 12). The ordinary
meaning of “device” is a contrivance serving a particular purpose, especially
a machine used to perform one or more relatively simple tasks (Fact 13).
Thus, the ordinary meaning of attachment device is a contrivance serving to
join two things (Fact 14).
The Appellant’s Specification does not provide any lexicographic
definition of attachment device or use the phrase at all (Fact 15). Rather, the
Specification describes, with reference to the brush embodiment of Figures 5
and 6, “[t]he replaceable brush head 50 is mounted to the permanent metal
body 65 using two or more bolts 60. Each bolt 60 passes through a hole in
the replaceable brush head 50 and terminates in a threaded fitting on the
permanent metal body 65” (Spec. 10:7-10). The Specification further
describes “[t]he replaceable brush head 50 contains two or more bolts 60
that are used to attach the replaceable brush head 50 to the permanent metal
body 65” (Spec. 11:11-13). Thus, in the brush head embodiment of
Appellant’s Specification, bolts are used to join the replaceable brush head
with the metal body. However, by using the broader term “attachment
device” in the claims, the Appellant’s claims are not limited to the bolts
described in the embodiment of the Specification. See Superguide Corp. v.
DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (“Though
understanding the claim language may be aided by the explanations
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contained in the written description, it is important not to import into a claim
limitations that are not a part of the claim. For example, a particular
embodiment appearing in the written description may not be read into a
claim when the claim language is broader than the embodiment.”) Rather,
we broadly construe “attachment device” in view of its use in the claims and
in view of the Specification to mean any contrivance used to join the
removable brush head to the expandable metal clamp.
As described supra, the lower portion of the tool back 10 forms the
removable brush head (Facts 4 & 5). Thus, we agree with the Examiner that
the upper portion of the tool back 10 is an attachment device as claimed,
because it engages an attachment site (24) on the expandable metal clamp
(S) to join the removable brush head (the lower portion of the back 10) to the
expandable metal clamp (S) (Facts 8 & 9). As such, we sustain the
Examiner’s rejection of claims 8, 9, and 27 as anticipated by Stepper.

Rejection of claims 10-13 under 35 U.S.C. § 103(a) as unpatentable over
Stepper
The Appellant argues the Examiner erred in rejecting claim 10 as
unpatentable over Stepper because “Stepper fails to teach or suggest
L-shaped bristles” (App. Br. 7). We agree. Claim 10 recites that “each
bristle is bent in an L shape.” Stepper discloses only that the bristles are
flared out from the socket end of the bristles to the lower end (Fact 10).
Stepper does not, however, disclose an L-shape bend in each bristle
(Fact 11), nor does the Examiner provide a reason why one having ordinary
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skill in the art would have modified the flared out bristles in Stepper to form
an L-shaped bend in each bristle. As such, we do not sustain the rejection of
claim 10 as unpatentable over Stepper.
The Appellant does not present any separate arguments for
patentability of claims 11-13. Although the Appellant includes claims 11-13
in the opening sentence of the section of its Brief on the obviousness
rejection (App. Br. 6), all of the arguments presented thereafter relate to the
L-shaped bristle limitation of claim 10. Claims 11-13 depend directly from
claim 8 and do not include the limitation of claim 10. As such, the
Appellant has not sustained its burden of showing error in the Examiner’s
rejection of these claims, which depend from claim 8. Accordingly, we
sustain the rejection of these claims for the reasons provided by the
Examiner and further provided supra for claim 8.

CONCLUSIONS
We conclude the Appellant has failed to show that the Examiner erred
in rejecting claims 8, 9, and 27 under 35 U.S.C. § 102(b) as anticipated by
Stepper and claims 11-13 under 35 U.S.C. § 103(a) as unpatentable over
Stepper. The Appellant has, however, shown that the Examiner erred in
rejecting claim 10 under 35 U.S.C. § 103(a) as unpatentable over Stepper.

DECISION
The decision of the Examiner to reject claims 8, 9, 11-13, and 27 is
affirmed. The decision of the Examiner to reject claim 10 is reversed.
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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) (2007).

AFFIRMED-IN-PART

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