Ex Parte Landgraf et al

Patent Trial and Appeal Board

Oct 6, 2014

12493863 (P.T.A.B. Oct. 6, 2014)

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.
12/493,863 06/29/2009 Michael Marvin Landgraf 81195515 1150
28395 7590 10/06/2014
BROOKS KUSHMAN P.C./FGTL
1000 TOWN CENTER
22ND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
WALTERS, JOHN DANIEL
ART UNIT PAPER NUMBER
3618
MAIL DATE DELIVERY MODE
10/06/2014 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 MARVIN LANDGRAF,
JOSEPH MATTHEW MCCANN, THANH PHAM,
ROBERT STEVEN THOMAS,
and THOMAS ERIC SVENSON
____________________

Appeal 2012-008553
Application 12/493,863
Technology Center 3600
____________________

Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
MICHAEL L. WOODS, Administrative Patent Judges.

WOODS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Michael Marvin Landgraf et al. (“Appellants”) seek our review under
35 U.S.C. § 134 of the final rejection of claims 1–20. Appeal Br. 3. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2012-008553
Application 12/493,863

2
CLAIMED SUBJECT MATTER
The Appellants’ invention is directed to a vehicle fluid intake system.
Spec. 1, para. 1. Independent claim 1 is illustrative and is reproduced below
with emphasis on a key contested claim limitation.
1. An air intake system, comprising:
a hood;
an engine intake channel positioned underneath the hood
and attached to an air filter system;
a fascia positioned with respect to the hood;
a shield coupled to the fascia; and
an air inlet defined by a bottom surface of the shield and
a bottom surface of the engine intake channel;
wherein the air inlet defines a slope equal to a vertical
distance between the bottom surface of shield and the bottom
surface of the engine intake channel, divided by a longitudinal
distance between the shield and engine intake channel.

THE REJECTIONS
The Examiner has rejected (see Answer 4–7):
(i) claims 1, 8–12, 14, 15, 17, and 19 under 35 U.S.C. § 102(b) as
being anticipated by Omote (US 4,420,057, issued Dec. 13, 1983);
(ii) claims 2–4, 6, 13, 16, 18, and 20 under 35 U.S.C. § 103(a) as
being unpatentable over Omote; and
(iii) claims 5 and 7 under 35 U.S.C. § 103(a) as being unpatentable
over Omote and further in view of Trabert (US 4,597,603, issued July 1,
1986).
ANALYSIS
Claims 1–8
Claims 1 and 8 are rejected as being anticipated by Omote and claims
2–7 are rejected as being obvious over Omote alone or in combination with
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Trabert. Nevertheless, the Appellants argue claims 1–8 together. Appeal
Br. 6–13 (see also Appeal Br. 5 where Appellants argue the definition of the
claim term “air inlet” found in each of claims 1–8). The Appellants have not
presented persuasive arguments for the patentability of claims 2–8 apart
from their reliance on claim 1. Id. at 13. In particular, the Appellants state
that “[c]laims 2–8 depend from . . . claim 1 and are also patentable for the
[same] reasons.” Id. Although the Appellants also state the Examiner has
not established a prima facie case of obviousness, and that claims 2–8 are
patentable for these reasons, we note that the Appellants have not provided
any argument or explanation supporting their contention. Id. Therefore, we
select claim 1 as the representative claim to decide the appeal of the
rejection of these claims, with claims 2–8 standing or falling with claim 1.
See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner determines that Omote discloses, inter alia, an air
intake system including fascia (grille) 16, shield (obstructing member) 20,
air inlet (air passage) 25, and engine intake channel (air intake duct) 14, as
recited in claim 1.1 Answer 5.

1 Paranthetical nomenclature refers to nomenclature used in Omote.
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Appeal 2012-008553
Application 12/493,863

5
Although the claims are interpreted in light of the Specification,
limitations from the Specification are not read into the claims. In re Van
Geuns, 988 F.2d 1181 (Fed. Cir. 1993).  Furthermore, it is well established
that limitations not appearing in the claims cannot be relied upon for
patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
Here, we are not persuaded by the Appellants’ argument that because
Omote’s system does not allegedly contribute towards reducing unwanted
particles that enter the engine intake channel, that Omote’s air passage 25
cannot be construed as the claimed “air inlet.” See Appeal Br. 8. Here,
there is nothing in claim 1 that precludes Omote’s air passage 25 from
meeting the limitations of the claim.
Next, the Appellants argue that obstructing members 19, 20 of Omote
unnecessarily increase part costs, assembly time, and the overall weight of
the vehicle. Id. at 10.
First, the Appellants’ contention amounts to unsupported attorney
argument, and thus is entitled to little, if any, weight. See In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984) (Arguments and conclusions
unsupported by factual evidence carry no evidentiary weight.). Second, as
discussed, supra, limitations not appearing in the claims cannot be relied
upon for patentability. See In re Self, 671 F.2d at 1348. For the same
reasons discussed above, the Appellants’ contention is not persuasive.
The Appellants further argue that “[o]bstructing members 19 and 20
also teach away from a smooth or laminar flow path into the engine intake
channel. . . . Thus any air inlet disclosed in Omote is defined by structure
between the exterior of the vehicle and . . . the grille 16.” Id. at 10
(emphasis added).
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As teaching away is irrelevant to anticipation, we do not address this
argument further with respect to the rejection of claim 1 as being anticipated
by Omote. See Seachange Intern., Inc. v. C-COR, Inc. 413 F.3d 1361, 1380
(Fed. Cir. 2005).
The Appellants then argue that the “plain and ordinary meaning of a
fluid inlet further supports a definition of air inlet that would exclude the
structure of Omote.” Appeal Br. 11. The Appellants explain that the
Webster’s College Dictionary definition of “inlet” is “an entrance,” and, as
such, is “not a path or structure defining a point subsequent to the entrance
of that path.” Id. (citing Random House Webster’s College Dictionary
definition of “inlet”). The Appellants further argue that because “Omote
teaches an air inlet that is defined by grille 16[, Omote’s system does not
disclose] ‘a bottom surface of the shield and a bottom surface of the engine
intake channel’ as recited in claim 1.’” Id. at 12. In the Reply Brief, the
Appellants expand on their argument by stating that “[t]he Examiner
implements an unreasonable interpretation of the term ‘inlet’ as a general air
path” and that “Appellant [instead] defines inlet as . . . ‘the opening or
orifice through which air enters into the engine intake channel 130.’” Reply
Br. 7 (citing Spec., para. 30).
We are not persuaded by the Appellants’ argument and instead agree
with the Examiner’s finding that the “definition of inlet is consistent with a
path taken by air traveling from an exterior of a vehicle to an engine air
intake channel, as shown by arrows A and C in figure 3 of Omote.” Answer
8 (citing Collins English Dictionary). Furthermore, we note that the
Appellants’ own Figure 8 depicts air inlet 570 that is downstream of
horizontal ribs 530. See Spec., Fig. 8. We also note that the Appellants’
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7
proposed construction of the claimed term “air inlet,” which Appellants
apparently argue must be “between the exterior of the vehicle and . . .the
grille,” appears to be inconsistent with the embodiment shown here. See id.;
see also Appeal Br. 10–12. Stated differently, Omote’s air passage 25 and
the Appellants’ air inlet 570 are both positioned downstream of their
respective grills. We find nothing in claim 1, the Specification, or in the
dictionary definition provided by the Appellants that persuades us that the
Examiner erred in construing Omote’s air passage 25 as the claimed “air
inlet.” Answer 5.
For these reasons, we do not agree with the Appellants’ argument that
the claimed term “air inlet” must instead be defined by the exterior and the
grille. See Appeal Br. 10–12.
The Appellants also argue that Omote’s second obstructing member
20 cannot be “interpreted to be the same as the recited shield in claim 1 at
least because element 20 defines a fluid obstruction and not an air inlet.”
Appeal Br. 13 (emphasis added).
We are not persuaded by the Appellants’ argument and note that the
Appellants’ own Specification describes “[s]hield 140 [as] restrict[ing] air
flow underneath the hood 30 and into the vehicle intake chamber 40.” Spec.
p. 6; see also Figs. 2, 3, and 5–8. Therefore, we find that the Examiner’s
construction of the claimed term “shield” is consistent with the Specification
and it was reasonable for the Examiner to construe Omote’s obstructing
member 20 as the claimed “shield.”
For these reasons, we are not apprised of error in the rejection of
claim 1 and sustain the rejection under 35 U.S.C. § 102(b) as being
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8
anticipated by Omote. Furthermore, we sustain the rejection of claims 2–8,
which stand or fall with claim 1, as discussed above.
Claims 9–12 and 14
The Appellants have not presented arguments for the patentability of
claims 10–12 and 14 apart from claim 9. Appeal Br. 13–15. Therefore, we
select claim 9 as the representative claim to decide the appeal of the
rejection of these claims, with claims 10–12 and 14 standing or falling with
claim 9.
With respect to claim 9, the Appellants argue that “the Examiner erred
. . . [in] treat[ing] the air passage or flow path taught in Omote as a fluid
inlet.” Id. at 13. In particular, the Appellants argue that Omote’s air passage
25 cannot be construed as the claimed “fluid inlet” and that “the inlet of
Omote is [instead] naturally defined by the grille 16.” Id. at 15.
We note that the Appellants present the same arguments with respect
to claim 9 as they made with claim 1 and, for the same reasons discussed,
supra, we are not persuaded. Instead, we agree with the Examiner’s
construction of the claimed term “fluid inlet” to include Omote’s air passage
25. In particular, the Appellants have not persuaded us that the “fluid inlet”
must instead be defined by the grille. Id.
For these reasons, we are not apprised of error in the rejection of
claim 9 and sustain the rejection under 35 U.S.C. § 102(b) as being
anticipated by Omote. Furthermore, we sustain the rejection of claims
10–12 and 14, which stand or fall with claim 9, as discussed above.
Claims 13 and 16
With respect to claims 13 and 16, the Appellants argue that, “[w]ith a
§ 103 rejection all claim language must either be taught or suggested in the
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prior art, otherwise a prima facie case of obviousness has not been
established.” Appeal Br. 15 (first emphasis added).
As the Appellants have not provided any argument or explanation to
support their contention, we are not apprised of error in the rejection of
claims 13 and 16 and sustain the rejection under 35 U.S.C. § 103(a) as being
unpatentable over Omote.
Claim 15
With respect to claim 15, the Appellants argue that “[i]n Omote the
grille 16 simply does not define the slope relationship recited in claim 15[,
because the] grille 16 defines the air inlet . . . [and] has the same longitudinal
and vertical position.” Appeal Br. 15. The Appellants then argue that the
“the slope of the fluid inlet would be undefined having zero in its
denominator.” Id.
We are not persuaded by the Appellants’ argument that Omote’s grille
16 must be construed as the claimed “air inlet.” As discussed, supra, we
agree with the Examiner’s finding that Omote’s obstructing member 20, air
passage 25, and intake duct 14 can reasonably be construed as the claimed
shield, air inlet, and intake channel, respectively. Answer 5. We also agree
with the Examiner that, based on these interpretations, the claimed “slope” is
not undefined with a zero denominator. See id. at 8–9.
For these reasons, we are not apprised of error in the rejection of
claim 15 and sustain the rejection under 35 U.S.C. § 102(b) as being
anticipated by Omote.
Claim 17
With respect to the anticipation rejection of claim 17, the Appellants
argue that the Examiner erred in construing Omote’s air passage 25 as the
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claimed “air inlet” and that because grille 16 should instead be construed as
the claimed “air inlet,” “the slope of the air inlet would be . . . zero.” Appeal
Br. 17.
For the reasons discussed, supra, with respect to the Appellants’
arguments for claims 1 and 15, we are not apprised of error in the rejection
of claim 17 and sustain the rejection under 35 U.S.C. § 102(b) as being
anticipated by Omote.
Claims 18–20
With respect to claims 18–20, the Appellants argue that “[w]ith a §
103 rejection all claim language must either be taught or suggested in the
prior art, otherwise a prima facie case of obviousness has not been
established.” Appeal Br. 17 (first emphasis added). We note for clarity that
claim 19 was rejected as being anticipated by Omote and not obvious over
Omote as were claims 18 and 20. Answer 4 and 6.
As the Appellants fail to present any explanation or argument to
support their contention, we are not apprised of error in the rejections of
claims 18–20 and sustain the rejection of claim 19 under 35 U.S.C. § 102(b)
as being anticipated by Omote and of claims 18 and 20 under 35 U.S.C.
§ 103(a) as being unpatentable over Omote.
SUMMARY
The Examiner’s decision to reject claims 1, 8–12, 14, 15, 17, and 19
under 35 U.S.C. § 102(b) as being anticipated by Omote is affirmed.
The Examiner’s decision to reject claims 2–4, 6, 13, 16, 18, and 20
under 35 U.S.C. § 103(a) as being unpatentable over Omote is affirmed.
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The Examiner’s decision to reject claims 5 and 7 under 35 U.S.C.
§ 103(a) as being unpatentable over Omote and further in view of Trabert is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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