11143365 (B.P.A.I. Aug. 12, 2010)

Ex Parte Klann

Board of Patent Appeals and InterferencesAug 12, 2010

11143365 (B.P.A.I. Aug. 12, 2010)

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. 11/143,365 06/02/2005 Horst Klann 71804 9458 23872 7590 08/13/2010 MCGLEW & TUTTLE, PC P.O. BOX 9227 SCARBOROUGH STATION SCARBOROUGH, NY 10510-9227 EXAMINER WILSON, LEE D ART UNIT PAPER NUMBER 3727 MAIL DATE DELIVERY MODE 08/13/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte HORST KLANN ____________________ Appeal 2009-004318 Application 11/143,365 Technology Center 3700 ____________________ Before JOHN C. KERINS, STEFAN STAICOVICI, and KEN B. BARRETT, Administrative Patent Judges. BARRETT, 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 2009-004318 Application 11/143,365 2 STATEMENT OF THE CASE Horst Klann (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 10-18. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellant’s claimed invention pertains to a device for extracting a fuel injection nozzle which is pressed into an engine’s cylinder head. Spec. 1, para. [0002]. Claim 10, reproduced below, is representative of the subject matter on appeal. 10. A device for extracting a nozzle assembly of a fuel injection installation, the nozzle being pressed into a cylinder head of an internal combustion engine, the device comprising: an extraction device including a support cylinder and a separate, support ring detached from said support cylinder, said support cylinder having a front ring surface located at an end thereof, said support ring having a first ring section and a second ring section to be placed on a valve cover in an area surrounding the nozzle assembly, said support ring being arranged between the support cylinder and a valve cover placed on the cylinder head, said first ring section and said second ring section having a first support surface in contact with the valve cover, said first ring section and said second ring section having a radial width greater than a radial width of said front ring surface, said first ring section and said second ring section having a second support surface, said second support surface engaging said front ring surface of said support cylinder during an extraction operation, said first ring section and said second ring section axially supporting said support cylinder during said extraction operation. Appeal 2009-004318 Application 11/143,365 3 THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Mandl US 2,475,040 Jul. 5, 1949 Hoeijenbos US 3,408,724 Nov. 5, 1968 Kobylarz US 4,476,617 Oct. 16, 1984 Tally US 6,990,713 B2 Jan. 31, 2006 The following Examiner’s rejections are before us for review: 1. Claim 10 is rejected under 35 U.S.C. § 102(b) as being anticipated by Hoeijenbos; 2. Claims 11-13 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Hoeijenbos and Kobylarz; 3. Claim 14 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Hoeijenbos and Tally; and 4. Claims 15-18 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Hoeijenbos, Kobylarz, and Mandl. OPINION Claim 10 is the sole independent claim at issue in this appeal. Claim 10 recites a support cylinder and a separate support ring. The support cylinder has a front ring surface at one end which contacts the two ring sections which comprise the support ring. Claim 10 recites: “said first ring section and said second ring section having a radial width greater than a radial width of said front ring surface.” The Examiner construed the term “radial width” as meaning the distance along the radius from the center of the support cylinder or support ring to the outermost surface of the respective cylinder or support. Ans. 3. Appeal 2009-004318 Application 11/143,365 4 Thus, the Examiner has, in effect, construed the “radial width” of a part to mean the outer radius of the part. This construction is unreasonable as it is not consistent with the Specification and is not how a person of ordinary skill in the art would understand the phrase. Appellant’s Specification describes the ring as having a radially broader support surface than the front ring surface so as to distribute the forces imposed on the valve cover by the support cylinder during fuel injection nozzle extraction. See Spec. 9, para. [0028]; 12-13, paras. [0037]-[0038]; 13-14, para. [0041]. The cross- sectional view of Appellant’s Figure 5 depicts the ring sections 5 and 6 as considerably wider in the radial direction than the front ring surface 15. See also Spec, fig. 1. One of ordinary skill in the art would understand the term “radial width” of a ring section to mean the width of a ring section in the radial direction, or, in other words, the difference between the ring section’s outer radius and inner radius. Similarly, the “radial width of said front ring surface” refers to the difference between the front ring surface’s inner and outer radii. The Examiner finds that Figure 2 of Hoeijenbos shows the claimed relative “radial width” dimensions. Ans. 4-5 (referring to Hoeijenbos’s elements 12 and 16). However, even if we were to assume that Figure 2 is drawn to scale, we are unable to find, by a preponderance of the evidence, that the figure shows the radial width of element 16 to be greater than the radial width of element 12 (designated as dimensions b2 and B2, respectively, in App. Br., Annex 1, Fig. 2a). As such, we are constrained to reverse the rejection of claim 10 as anticipated by Hoeijenbos. The remaining claims on appeal depend from claim 10, and the obviousness rejections are based on Hoeijenbos as the primary reference. Appeal 2009-004318 Application 11/143,365 5 The Examiner does not rely on the other cited references in any manner that cures the deficiency of the underlying anticipation rejection of claim 10. As such, we also reverse the rejection of claims 11-13 as obvious over Hoeijenbos and Kobylarz; the rejection of claim 14 as obvious over Hoeijenbos and Tally; and the rejection of claims 15-18 as obvious over Hoeijenbos, Kobylarz, and Mandl. DECISION The decision of the Examiner to reject claims 10-18 is reversed. REVERSED Klh MCGLEW & TUTTLE, PC P.O. BOX 9227 SCARBOROUGH STATION SCARBOROUGH, NY 10510-9227