Ex Parte Ihde et al

Patent Trial and Appeal Board

Feb 27, 2017

12881890 (P.T.A.B. Feb. 27, 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.
12/881,890 09/14/2010 Jeffery Ray Ihde 22973/YOD (ITWO:0425) 1877
52145 7590 03/01/2017
FT FTOTTFR YODFR fTT T TNOTN TOOT WORKS TNO T
EXAMINER
P.O. BOX 692289
HOUSTON, TX 77269-2289
ISKRA, JOSEPH W
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
03/01/2017 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):
docket@fyiplaw.com
sinclair@fyiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFERY RAY IHDE, JOESPH KYLE FINK,
THOMAS DON LAHTI, JAMES LEE UECKER,
RICHARD MARTIN HUTCHISON,
MICHAEL TODD KLEGIN, and GARY ALLEN THYSSEN
Appeal 2015-005088
Application 12/881,890
Technology Center 3700
Before JOHN C. KERINS, STEFAN STAICOVICI, and LEE L. STEPINA,
Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Jeffery Ray Hide et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner’s final decision rejecting claims 1, 3, 5—8, 10, 11, 13—16,
18, 20, and 21. We have jurisdiction over this appeal under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART and enter a NEW GROUND OF
REJECTION UNDER 37 C.F.R. § 41.50(b).
Appeal 2015-005088
Application 12/881,890
THE INVENTION
Appellants’ invention relates to a welding wire feeder.
Claims 1,8, and 14 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A compact wire feeder, comprising:
a housing;
a spool mounting hub disposed in the housing and
configured to receive a wire spool having an outer diameter
equal to approximately 8 inches, an inner diameter equal to
approximately 5 inches, and wire with a diameter of
approximately 5/64” disposed thereon;
a wire drive assembly disposed in the housing and
configured to receive the 5/64” wire from the wire spool and to
drive the 5/64” wire to a welding torch, wherein the wire drive
assembly comprises a motor configured to output a torque of
approximately 50 in-lbs on a shaft of a gearbox sufficient to
drive the 5/64” wire to the welding torch.
THE REJECTIONS
The Examiner has rejected:
(i) claims 1, 5, 6, 8, 10, 13—16, 18, 20, and 21 under 35 U.S.C.
§ 103(a) as unpatentable over Lincoln Electric Operating Manual (LN-25
Portable CV/CC Semiautomatic Wire Feeder, November 2006) (hereafter
“LN-25”), Enyedy (US 2006/0243718 Al, published Nov. 2, 2006), and
Achtner (US 8,026,456 B2, issued Sept. 27, 2011);
(ii) claim 3 under 35 U.S.C. § 103(a) as unpatentable over LN-25,
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Enyedy, Achtner1, and Gahagan (US 6,617,287 B2, issued Sept. 9, 2003);
(iii) claim 7 under 35 U.S.C. § 103(a) as unpatentable over LN-25,
Enyedy, Achtner, and Dressel (US 4,431,063, issued Feb. 14, 1984); and
(iv) claim 11 under 35 U.S.C. § 103(a) as unpatentable over LN-25,
Enyedy, Achtner, Gahagan, and Dressel.
ANALYSIS
Claims 1, 5, 6, 8, 10, 13—16, 18, 20, and 21—§ 103(a)—LN-
25/Enyedy/Achtner
Claims 1, 5, 6, 8, 10, 13—16, 18, and 20
Appellants present the same arguments directed to independent claims
1,8, and 14, and present no arguments for the separate patentability of
dependent claims 5, 6, 10, 13, 15, 16, 18, and 20. Appeal Br. 6—10.
Accordingly, we will take claim 1 as representative, and claims 5, 6, 8, 10,
13—16, 18, and 20 stand or fall with claim 1.
Claim 1 recites, in part, “a spool mounting hub disposed in the
housing and configured to receive a wire spool having an outer diameter
equal to approximately 8 inches, an inner diameter equal to approximately 5
inches, and ... a motor configured to output a torque of approximately 50 in­
lbs on a shaft.”
1 Achtner was not listed in this statement of the rejection. Final Act. 5.
However, because claim 3 depends from claim 1 and the Examiner states
that the rejection is “as applied to claim[s] 1 ... above,” we regard the
omission of Achtner from the listing of references in this rejection as an
inadvertent typographical error. This also applies to omission of Achtner
from Rejections (iii) and (iv).
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Application 12/881,890
The Examiner finds that LN-25 discloses most of the limitations of
independent claims 1, 8, and 14, including a housing, a spool mounting hub
“configured to receive a wire spool having an outer diameter equal to
approximately 8 inches and ... a wire drive assembly.” Final Act. 2 (citing
LN-25, pp. A-l, B-l, and B-4; cover Fig.). The Examiner relies on Enyedy
as teaching various torque values, and concludes that, “it would have been
obvious ... to adapt LN-25 to produce torque ... equal to approximately 50
in-lbs. to provide a predetermined amount of torque to the subject device
based upon various operating parameters (e.g., wire size, spool size, etc.) as
a matter of routine experimentation.” Id. at 3. The Examiner relies on
Achtner for teaching spools in a variety of forms, and states that because
Achtner discloses that, “spool 66 may be increased or decreased in
dimensions ... it would have been obvious ... to adapt LN-25 with the
aforementioned ... numerical value(s) as appropriate to maximize the
portability of the device by minimizing the size of the housing as a result of
a reduced size spool.” Id. at 4 (citing Achtner, col. 5,11. 4—23; Fig. 3).
Appellants argue that because LN-25 “separately lists ranges of wire
diameters” from the spool diameters, “combinations of the different sized
wires and spools are not disclosed in LN-25.” Appeal Br. 7.
The Examiner responds that the “prior art is not limited just to the
references being applied, but includes the understanding of one of ordinary
skill in the art.” Ans. 4 (citing KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398
(2007)). The Examiner states that, “one of ordinary skill in the art would
have possessed the required technical ability at the time of the instant patent
applications filing to combine the elements taught in the LN-25 citation as
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claimed, and additionally, the results of the combination would have been
predictable.” Id. at 4—5.
Although LN-25 discloses a spool diameter of 8 inches and a wire
diameter of 5/64" in different portions of the operating manual, Appellants
have not asserted that using an 8 inch diameter spool with 5/64" diameter
wire would have been beyond the capabilities of a person of ordinary skill in
the art. Absent such an assertion, we “take account of the inferences and
creative steps that a person of ordinary skill in the art would employ,” and
find that a person of ordinary skill in the art would overcome those
difficulties within his or her level of skill. KSR at 418; see also id. at 421
(“A person of ordinary skill is also a person of ordinary creativity, not an
automaton.”). Moreover, we note that as LN-25 constitutes the operating
manual of a specific wire feeder machine, a person of ordinary skill in the art
of welding machines would have readily recognized that the disclosed spool
diameter of 8 inches and wire diameter of 5/64 inches represent examples of
the type of wire diameter and spool diameter than can be employed with the
LN-25 wire feeder machine. LN-25 describes other wire diameters and
spool diameters than can be employed with this same machine. See LN-25,
A1,B4.
Appellants also argue that, “Enyedv does not teach outputting a torque
of approximately 50 in-lbs, ” and that Enyedy generally relates to “ways to
adjust the torque output based on wire feed speed, and not on applying
specific torque values.” Appeal Br. 7. Appellants assert that, “Enyedy
provides one range of actual torque values, which fall between 11 Nm (-97
in-lbs) and 30.8 Nm (-270 in-lbs)” and that “50 in-lbs is entirely outside of
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this range of specific torque values provided in Enyedy.” Id. (citing Enyedy,
paras. 34—35). Appellants also assert that, “Achtner fails to mention any
dimensions other than the ‘total’ (e.g., outer) diameter of the spool.” Id. at
8. Appellants thus argue “that one skilled in the art would not find it
obvious to try the dimensions recited in the independent claims 1, 8, and 14
based on a combination of LN-25, Enyedy, and Achtner.” Id. at 10.
In response, the Examiner reiterates that a torque value equal to
approximately 50 in-lbs. can be determined “as a matter of routine
experimentation.” Ans. 6. The Examiner states that the use of Achtner is
also appropriate because, “a person of ordinary skill would arrive at the
claimed limitations as a matter of routine experimentation and/or as being
obvious to try (rationale discussion presented above is applicable here where
appropriate).” Id. at 7.
In reply, Appellants assert that “the examiner has provided no
objective evidence of the requisite motivation to modify LN-25 in view
Enyedy to teach a wire feeder with a motor torque output of approximately
50 in-lbs,” nor has the Examiner “shown any objective evidence supporting
the assertion that it would be obvious to one of ordinary skill in the art to
teach specific values for the inner diameter and/or for the width of the
welding wire spool.” Reply Br. 3^4.
We are not persuaded by Appellants’ arguments that the references do
not teach the recited values for torque and spool size, because the Examiner
is relying on the references for their broad teachings with respect to torque
and spool sizes. “[WJhere the general conditions of a claim are disclosed in
the prior art, it is not inventive to discover the optimum or workable ranges
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Application 12/881,890
by routine experimentation.” In re Aller, 220 F.2d 454, 456 (CCPA 1955).
In the present case, the Examiner states that it is “inherent that a sufficient
torque is generated by the LN-25 device to drive the 5/64” wire.” Final Act.
2. LN-25 teaches ranges for feed speed, amperage, and wire size, but does
not disclose a particular torque value. LN-25, A-l; see also Final Act. 2.
Nonetheless, the Examiner relies on Enyedy as teaching that “[pjower to the
wire feed motor is based on the amount of voltage and current supplied to
the wire feed motor ... by adjusting the current to the wire feed motor, the
amount of torque generated by the motor can be increased.” Enyedy, para.
7; see also Final Act. 3. Hence, as the “general conditions” of the claim are
disclosed in Enyedy, Appellants have not persuasively shown that the
Examiner erred in determining that the claimed torque value of
approximately 50 in-lbs can be arrived at by routine optimization of the
current supplied to the wire feed motor. See Final Act. 3. Appellants do not
assert that finding the appropriate torque value would have been beyond the
capabilities of a person of ordinary skill in the art.
Similarly, with respect to spool size and Achtner, the Examiner finds
that LN-25 already discloses the outside diameter of the spool is 8 inches for
accommodating 0.045—5/64 in. cored wire. See Final Act. 2; see also LN-
25, B-4. The Examiner relies on Achtner for the teaching that the spool
“may take a variety of forms to accommodate storing and dispensing the
filler material.” Final. Act. 4. Achtner discloses that, “the spool 66 may be
increased or decreased in dimensions to accommodate more or less filler
material 62, or may take a variety of shapes ... [vjarious spool geometries
may be used to minimize wire cast and helix.” Achtner col. 5,11. 16—23; see
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Application 12/881,890
also Final Act. 4. Whereas Achtner uses the term “diameter” to refer to the
outside diameter of the spool, the terms “dimensions” and “geometries” refer
to more than the outside diameter and one of ordinary skill in the art would
understand that these terms would include the inside diameter and the width
of the spool in order to accommodate more or less material. Thus, because
the outside spool diameter is known from LN-25 and because Achtner’s
“dimensions” and “geometries” would include the inside diameter and the
width of the spool, the “general conditions” of the claim are disclosed in the
prior art, and the specific values would be readily determined by routine
experimentation by a person of ordinary skill in the art to accommodate the
wire diameters disclosed by LN-25. Therefore, Appellants’ contention that
the Examiner “has provided no objective evidence” is not persuasive.
Appellants also argue that, “Achtner does not teach a spool disposed
on a spool mounting hub and driven by a wire drive assembly ‘disposed in
the housing,’ as recited in the claims.” Appeal Br. 8. Appellants assert that
the configuration of “Achtner allows for the spool to be more easily
increased or decreased in dimension,” but that LN-25 is limited by space
considerations, and, thus, the spools of LN-25 could not be modified based
on the teachings of Achtner, because “these references are used in entirely
different contexts and are non-analogous.” Id. at 9.
The Examiner responds that LN-25 illustrates a spool in a housing.
See Ans. 8. The Examiner notes that, “the test for obviousness is not
whether the features of one reference may be bodily incorporated into the
other to produce the claimed subject matter but simply what the combination
of references makes obvious to one of ordinary skill in the pertinent art.” Id.
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at 9 (citing In re Bozek, 163 USPQ 545 (CCPA 1969)). Given that the
housing of LN-25 already can accommodate a 12” diameter spool, it is not
apparent how modifying the inner diameter and the width of the 8” diameter
spools of LN-25, as the Examiner proposes, would be limited by space
considerations. Further, Appellants’ conclusory statement that LN-25 and
Achtner are used in entirely different contexts and are non-analogous is not
supported by any evidence.
For the foregoing reasons, none of the arguments advanced by
Appellants for claim 1 apprises us of Examiner error in rejecting that claim
over the combined teachings of LN-25, Enyedy, and Achtner. Accordingly,
the rejection is sustained as to claim 1. Claims 5, 6, 8, 10, 13—16, 18, and 20
fall with claim 1.
Claim 21-NEW GROUND OF REJECTION—§ 112, firstparagraph-
Written Description
Claim 21 is rejected, in a new ground of rejection pursuant to 37
C.F.R. § 41.50(b), as failing to meet the written description requirement in
the first paragraph of 35 U.S.C. § 112.
Claim 21 recites “wherein the spool mounting hub is configured to
receive a wire spool having an outer diameter of only up to approximately 8
inches.” Appeal Br. 17 (Claims App.). Appellants added claim 21 as part of
an Amendment and Response Accompanying RCE Pursuant to 37 C.F.R.
§ 1.114, filed August 22, 2013 (hereinafter “Amendment”). Therein,
Appellants asserted that claim 21 is fully supported in the originally filed
application, and thus, does not introduce new matter, because “the
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application as originally filed only refers to the welding wire spool as having
an outer diameter of 8 inches.” Amendment, 12. Appellants also asserted
that the claim is supported because there is no mention of “the wire feeder
being capable of accommodating a larger spool size,” and because Figure 2
“illustrates only a single size of spool (i.e., 8 inch outer diameter) that the
wire feeder is capable of holding.” Id. Appellants also stated that, “the
specification includes much discussion relating to the compact nature of the
disclosed wire feeder in paragraphs 16, 23, 25, 27, and 28.” Id.
Notwithstanding the general notion that, in predictable arts, broad
claims may properly be supported by a single form of an apparatus or
structure, the inquiry into whether the description requirement is met must
be determined on a case-by-case basis and is a question of fact. In re
Wertheim, 541 F.2d 257, 262 (CCPA 1976). Our reviewing court has
further explained that a specification cannot always support expansive claim
language and satisfy the requirements of 35 U.S.C. § 112 “merely by clearly
describing one embodiment of the thing claimed.” LizardTech, Inc. v. Earth
Resource Mapping, Inc., 424 F.3d 1336, 1346 (Fed. Cir. 2005). The issue is
whether a person skilled in the art would understand applicant to have
invented, and been in possession of, the invention as broadly claimed.
Here, although the size of the housing would appear to have an effect
on the maximum size of the outside diameter of the spool, claim 21 requires
that the hub is “configured to” receive only spools up to 8 inches. In the
preferred embodiment of Figure 2, the housing would appear to limit the
outside diameter to 8 inches, but if the housing were larger, there is no
disclosed structure that would limit the hub to receive only spools up to 8
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Application 12/881,890
inches. Likewise, if the housing were smaller, it would fit spools having
outside diameters of, for example, 5, 6, or 7 inches, and there is no
disclosure that the hub would work equally well for these spool sizes.
Notwithstanding that Appellants’ amendment appears to be an attempt to
distinguish over the 12 inch diameter spool embodiment of LN-25, smaller
sized spools are encompassed by the claimed “up to 8 inches.” Just as the
specification “never mentions the wire feeder being capable of
accommodating a larger spool size” (see Amendment 12), it never mentions
the wire feeder being capable of accommodating a smaller spool size on the
same hub.
As such, we find that Appellants’ Figure 2 does not, nor does any
textual description in the Specification, evidence that Appellants were in
possession of the broader subject matter encompassing an embodiment in
which the hub is “configured to” receive only spools up to 8 inches, as set
forth in claim 21.
Claim 21 is thus rejected under 35 U.S.C. § 112, first paragraph, as
failing to meet the written description requirement thereof. This rejection is
a NEW GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b).
Claim 21-NEW GROUND OF REJECTION—§ 112, secondparagraph-
Indefiniteness
Claim 21 is rejected as being indefinite for failure to particularly point
out and distinctly claim that which Appellants regard as their invention.
The essence of this statutory requirement is that the language of the
claims must make it clear what subject matter they encompass. In re
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Hammack, 421 F.2d 1378, 1382 (CCPA 1970). This has been frequently
stated, in a shortened form, as a requirement that the claims set forth the
“metes and bounds” of their coverage. See, e.g., In re Venezia, 530 F.2d 956,
958 (CCPA 1976); In re Goffe, 526 F.2d 1393, 1397 (CCPA 1975); In re
Watson, 517 F.2d 465, 477 (CCPA 1975); In re Knowlton, 481 F.2d 1357,
1366 (CCPA 1973). This requirement has usually been viewed from the
perspective of a potential infringer, “so that they may more readily and
accurately determine the boundaries of protection involved and evaluate the
possibility of infringement and dominance.” Hammack, 427 F.2d at 1382.
Claim 21 requires that, “the spool mounting hub is configured to
receive a wire spool having an outer diameter of only up to approximately
8 inches.” Appeal Br. 17, Claims App. Appellants’ Specification discloses
that, in a preferred embodiment, “the outer diameter 100 of the wire spool 88
may be approximately 8.” Spec., para. 26. In discussing the hub for
mounting the spool, Appellants disclose:
As shown, the wire feeder 10 includes a wire drive assembly 42
and a spool mounting hub 44. The spool mounting hub 44
includes a retaining nut 46 and a hub tension adjustment knob
48. During use, a retaining ring is removed from the hub 44, a
wire spool is installed such that a hub pin is received by the spool
hole, and the retaining nut 46 is reinstalled.
Id. para. 20. Nowhere in the Specification is mention found of a hub
“configured to receive a wire spool having an outer diameter of only up to
approximately 8 inches,” as claimed. Although we appreciate that the
housing in the embodiment of Figure 2 would appear to limit the outside
diameter to 8 inches, if the hub is sized to only receive a 2.8 inch
(conventional) and/or a 3.2 inch (see claim 14, for example) width spool,
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Application 12/881,890
there is no disclosed structure that would prevent a 12 inch diameter spool
that is only 2.8 or 3.2 inches in width from being used on such a hub, albeit
in a larger housing. As such, although the housing can limit the outside
spool diameter, one cannot reasonably ascertain what structural limitations
are required such that the claimed hub is “configured to” receive only spools
up to 8 inches.
Because a potential infringer would not reasonably be apprised of the
boundaries of protection involved with the scope of claim 21, nor reasonably
be able to evaluate the possibility of infringement and dominance afforded
this claim, the claim is rejected as being indefinite under 35 U.S.C. § 112,
second paragraph.
Claim 21—§ 103(a)—LN-25/Enyedy/Achtner
Because we have concluded that the limitation in claim 21 directed to
the spool mounting hub configured to receive a wire spool having an outer
diameter “of only up to approximately 8 inches” is indefinite, the prior art
rejections of claim 21 must fall because it is necessarily based on a
speculative assumption as to the meaning of the claims. In re Steele, 305
F.2d 859, 862 (CCPA 1962).
We thus do not sustain the rejection of claim 21 under 35 U.S.C.
§ 103(a). It should be understood, however, that our decision in this regard
is based solely on the indefiniteness of the claimed subject matter, and does
not reflect on the adequacy of the prior art evidence applied in support of the
rejection.
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Claim 3—103(a)-LN-25/Enyedy/Achtner/Gahagan
Claim 7—103(a)-LN-25/Enyedy/Achtner/Dressel
Cl a im 11—103(a) —LN-2 5/Enyedy/A chtner/Gah agan/Dressel
Appellants rely solely on the dependency of claims 3 and 7 from
independent claim 1 for their patentability, and rely solely on the
dependency of claim 1 from independent claim 8 for its patentability.
Appeal Br. 12—14. The rejection as to these claims is sustained for the same
reasons presented above.
DECISION
The rejection of claims 1, 5, 6, 8, 10, 13—16, 18, 20, and 21 under 35
U.S.C. § 103(a) as unpatentable over LN- 25, Enyedy, and Achtner is
affirmed as to claims 1, 5, 6, 8, 10, 13—16, 18 , and 20, and is reversed as to
claim 21.
The rejection of claim 3 under 35 U.S.C. § 103(a) as unpatentable
over LN-25, Enyedy, Achtner, and Gahagan is affirmed.
The rejection of claim 7 under 35 U.S.C. § 103(a) as unpatentable
over LN-25, Enyedy, Achtner, and Dressel is affirmed.
The rejection of claim 11 under 35 U.S.C. § 103(a) as unpatentable
over LN-25, Enyedy, Achtner, Gahagan, and Dressel is affirmed.
Claim 21 is rejected under 35 U.S.C. § 112, first paragraph, as failing
to meet the written description requirement thereof. This is a NEW
GROUND OF REJECTION made pursuant to our authority under 37 C.F.R.
§ 41.50(b).
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Claim 21 is rejected under 35 U.S.C. § 112, second paragraph, as
failing to particularly point out and distinctly claim that which Appellants
regard as the invention. This is a NEW GROUND OF REJECTION made
pursuant to our authority under 37 C.F.R. § 41.50(b).
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant
to this paragraph shall not be considered final for judicial review.” Section
41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new Evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the prosecution will be remanded to the
examiner. The new ground of rejection is binding upon the
examiner unless an amendment or new Evidence not previously
of Record is made which, in the opinion of the examiner,
overcomes the new ground of rejection designated in the
decision. Should the examiner reject the claims, appellant may
again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same Record. The request
for rehearing must address any new ground of rejection and state
with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
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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)(l)(iv).
AFFIRMED-IN-PART; 37 C.F.R. $ 41.50(b)
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