11232667 (P.T.A.B. Jan. 30, 2013)

Ex Parte Kunz

Patent Trial and Appeal BoardJan 30, 2013

11232667 (P.T.A.B. Jan. 30, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/232,667 09/22/2005 Michael Kunz P-US-PR 1150 6256 7590 01/31/2013 Michael P. Leary Sr. Group Patent Counsel Black & Decker Corporation 701 E. Joppa Rd, Mail Stop TW199 Towson, MD 21286 EXAMINER LOPEZ, MICHELLE ART UNIT PAPER NUMBER 3721 MAIL DATE DELIVERY MODE 01/31/2013 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 PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte MICHAEL KUNZ ____________________ Appeal 2011-000052 Application 11/232,667 Technology Center 3700 ____________________ Before JENNIFER S. BISK, BRIAN J. MCNAMARA, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000052 Application 11/232,667 2 STATEMENT OF THE CASE Michael Kunz (Appellant) appeals under 35 U.S.C. § 134(a) from a decision finally rejecting claims 1-4, 6-10, and 12-19. Claims 5 and 11 were previously cancelled. We have jurisdiction under 35 U.S.C. § 6(b)(1). We reverse. The Claimed Subject Matter According to Appellant, the claimed invention “relates to a hammer drill and in particular, a chipper.” Spec. 1, para. [0001]. Claim 12 is illustrative of the claimed subject matter and is reproduced below with emphasis added. 12. A hammer drill comprising: a body having at least one support handle; an electric motor mounted within the body; an electric switch, capable of being switched on and off by a trigger button connected to it, to activate or deactivate respectively the electric motor, wherein the trigger button is moveable between two positions, an off-position where the electric switch is off and an on-position where the electric switch is on; a locking arm moveably mounted on the electric switch which, when the trigger button is located in its second position, is moveable between two positions, a disengaged position where it is disengaged from the trigger button and a locked position where it engages with the trigger button and holds the trigger button in its on-position; and wherein the locking arm is held in the disengaged position and prevented from moving to the locked position when the trigger button is located in the off-position. Appeal 2011-000052 Application 11/232,667 3 Evidence The Examiner relies upon the following prior art references: Houser Jung US 4,097,703 US 6,489,578 B1 Jun. 27, 1978 Dec. 3, 2002 Rejections The Examiner makes the following rejections: I. Claims 1-4, 6, 8-10, 12-15, and 17-19 are rejected under 35 U.S.C. § 102(b) as anticipated by Jung. II. Claims 7 and 16 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Jung and Houser. OPINION Anticipation requires that “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., Inc. v. Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987). Independent claim 12 requires that the “locking arm is held in the disengaged position and prevented from moving to the locked position when the trigger button is located in the off-position.”1 This Appeal turns on whether Jung discloses this limitation. The Examiner states that Jung discloses this limitation because the Jung “locking arm 12/22 is held in its first ‘unlocked’ position by the biasing force of the spring 20[.]” Ans. 4. But, the Examiner concedes, as Appellant 1 Independent claim 1 includes a similar limitation, using different terminology. Appeal 2011-000052 Application 11/232,667 4 has argued, that “Jung’s locking arm is capable of being moved against the biasing force of the spring (20), when the trigger button (5) is located at either its first-off position or its second-on position[.]” Ans. 8. The Examiner, however, maintains that the limitation “only require[s] the locking arm to has [sic, have] the capability of being maintained in the first ‘unlocked’ position, if desired, when the trigger button is in the first-off position.” Ans. 4-5 (emphasis added). We disagree with the Examiner’s claim interpretation. “During examination, ‘claims . . . are to be given their broadest reasonable interpretation consistent with the specification, and . . . claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art.’” In re American Academy Of Science Tech Center, 367 F.3d 1359, 1364 (Fed. Cir. 2004) (quoting In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990)). The Examiner’s interpretation is unreasonable in light of the Specification, which is concerned with preventing the power tool from starting in the “lock on” mode when the power tool is off. Spec. ¶ [0053]. We do not find any support in the Specification for interpreting “prevented from moving” as not moving when desired. Accordingly we cannot sustain the rejection of independent claim 12, the rejection of independent claim 1, which includes a limitation very similar to that of claim 12, or the rejection of claims 2-4, 6-10, and 13-19, which ultimately depend from either claim 1 or 12. Although claims 7 and 16 were rejected as obvious over Jung and Houser, the Examiner’s reliance on Houser does not cure the deficiency of Jung. Appeal 2011-000052 Application 11/232,667 5 DECISION The Examiner’s decision to reject claims 1-4, 6-10, and 12-19 is reversed. REVERSED cu