Ex Parte Lashua

Board of Patent Appeals and Interferences

Dec 11, 2008

10956539 (B.P.A.I. Dec. 11, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN A. LASHUA
____________

Appeal 2007-3835
Application 10/956,539
Technology Center 2800
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Decided: December 11, 2008
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Before KENNETH W. HAIRSTON, ROBERT E. NAPPI
and KARL D. EASTHOM, Administrative Patent Judges.

HAIRSTON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1 to 20. We have jurisdiction under 35 U.S.C. § 6(b).
We will sustain the anticipation rejection of claim 1, sustain the
obviousness rejections of claims 7 to 9, 15 to 17, and 19, and reverse the
obviousness rejections of claims 2 to 6, 10 to 14, 18, and 20.
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Application 10/956,539

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Appellant has invented a plow control system housing that is mounted
to a component in a cab of a vehicle via a strap mounting system (Figs. 1A,
2A, 5, and 8; Spec. 4, 5, 7, and 8).
Claim 1 is representative of the claims on appeal, and it reads as
follows:
1. An ergonomic plow control system comprising a housing capable
of being mounted to a component in a cab of a vehicle; a switch pad having
control keys, said pad mounted in the housing such that said keys are readily
accessible to an operator of the vehicle while shifting and/or steering during
plowing; and a securing member having an attached strap mounting system,
wherein the housing, switch pad, and securing member are assembled to be
compact such that the same can be stored in a glove box of the vehicle.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ciula US 5,361,519 Nov. 8, 1994
Bulkeley US 5,461,936 Oct. 31, 1995
Struck US 5,524,368 Jun. 11, 1996
Bonn US 6,491,319 B2 Dec. 10, 2002
(filed Feb. 28, 2000)
Bonn PCT/DE00/00673 Feb. 28, 2000
The Examiner rejected claim 1 under 35 U.S.C. § 102(b) based upon
the teachings of Ciula.
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The Examiner rejected claims 2 to 8 under 35 U.S.C. § 103(a) based
upon the teachings of Ciula and the PCT application by Bonn1.
The Examiner rejected claims 9 to 16 under 35 U.S.C. § 103(a) based
upon the teachings of Ciula, the PCT application by Bonn, and Struck.
The Examiner rejected claims 17 and 19 under 35 U.S.C. § 103(a)
based upon the teachings of Ciula and Bulkeley.
The Examiner rejected claims 18 and 20 under 35 U.S.C. § 103(a)
based upon the teachings of Ciula, Bulkeley, and the PCT application by
Bonn.

ISSUES
Anticipation
Appellant argues that the applied reference to Ciula does not teach an
ergonomic plow control system with a strap mounting system (App. Br. 3).
Thus, the issue before us is has the Appellant rebutted the Examiner’s
findings (Ans. 3, 4, and 7 to 9) that Ciula describes an ergonomic plow
control system with a strap mounting system?
Obviousness
Appellant argues inter alia that the applied references lack a teaching
or a suggestion of a “flexible” housing for a plow control system (App. Br.
6). Accordingly, the issue is has the Appellant rebutted the Examiner’s
finding that the applied references teach or would have suggested to the
skilled artisan a flexible housing for a plow control system?

1 In view of the Declaration submitted by Appellant to swear behind the U.S
Patent No. 6,491,319 B2 to Bonn, we will rely on the PCT application
PCT/DE00/00673 by Bonn in the rejections on appeal (App. Br. 5).
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Application 10/956,539

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FINDINGS OF FACT
1. As indicated supra, Appellant describes and claims a housing 10
for a plow control system 100 that is mounted to a component in the cab of a
vehicle via a strap mounting system 31. The housing may be made of a
flexible material (Spec. 7). A strap is used to secure the housing to a
component in the cab of the vehicle.
2. According to Appellant, the strap can be: “flexible” with “fastening
contrivance(s) to assist in mounting” (Spec. 8); “single or dual member
arrangement with fastening contrivance(s) . . . and so forth and the like”
(Spec. 10); or “any suitable fastening arrangement” (Spec. 11).
3. Ciula describes a plow control system 200 that comprises a housing
210 capable of being mounted to a component (e.g., a dashboard 232) in a
cab of a vehicle (Figs. 1, 4, and 7 to 9; col. 6, ll. 4 to 16). The housing is
described as being constructed from a suitable plastic or sheet metal (col. 5,
ll. 27 to 31). As indicated in Figures 1 and 3 of Ciula, the front and side
walls of the housing 210 serve as a switch pad for control keys that are
readily accessible to an operator of the vehicle while shifting or steering the
vehicle during a plowing operation (col. 5, ll. 31 to 61). A securing
member/mounting bracket 240, 248 (Figs. 7 and 9) functions as an attached
strap for strapping the housing to the component in the cab of the vehicle.
The housing, switch pad, and the securing member assembly is compact
enough to be stored in a glove box of the vehicle.
4. The PCT application by Bonn describes a steering wheel 1 that has
elastic horn contacts 21 and 22 buried under the airbag unit 10 and airbag
gas generator 12 assembly (Figs. 7 and 8). The horn in the vehicle is
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Application 10/956,539

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activated when the contacts 21 and 22 are pushed together by pressing on the
airbag assembly (p. 14). According to Bonn, the elasticity in the contacts 21
and 22 permits greater contact between the contacts (p. 5), and leads to
reduce wear between the contacts (p. 14).
5. Struck describes wireless and remote control of a snowplow (Figs.
1 and 2; col. 3, ll. 50 to 67).
6. Bulkeley describes a tubular mounting bracket for mounting a
device onto a tubular surface (e.g., a handlebar) (Abstract).

PRINCIPLES OF LAW
Anticipation
Anticipation is established when a single prior art reference discloses
expressly or under the principles of inherency each and every limitation of
the claimed invention. Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342,
1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir.
1994).
Obviousness
The Examiner bears the initial burden of presenting a prima facie case
of obviousness, and the Appellant has the burden of presenting a rebuttal to
the prima facie case. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
The Supreme Court stated in KSR Int’l Co. v. Teleflex Inc., 127 S. Ct.
1727, 1741 (2007) “(‘[R]ejections on obviousness grounds cannot be
sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness’).”
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The test for obviousness is what the combined teachings of the
references would have suggested to the artisan. Accordingly, one cannot
show nonobviousness by attacking references individually where the
rejection is based on a combination of references. In re Keller, 642 F.2d
413, 426 (CCPA 1981).

ANALYSIS
Anticipation
As indicated supra, Appellant argues that Ciula does not teach an
ergonomic plow control system with a strap mounting system (App. Br. 3).
We disagree with Appellant’s argument. Ciula describes a plow
control system with control keys that are placed on the housing so that the
operator of the vehicle can conveniently reach them during operation of the
plow control system (Finding of Fact 3). Thus, Ciula ergonomically mounts
the plow control system housing in the cab of the vehicle so that the operator
can reach the control keys while shifting and/or steering the vehicle during a
plowing operation (Finding of Fact 3). The Ciula housing assembly is
compact enough to be stored in a glove box of the vehicle (Finding of Fact
3). Appellant’s argument (App. Br. 3) that Ciula does not disclose a strap
mounting system is without merit since Ciula, like the disclosed and claimed
invention, describes “suitable fastening arrangements” that are “flexible”
“fastening contrivance(s)” “and the like” “to assist in mounting” a plow
control housing in a vehicle (Findings of Fact 2 and 3).
Appellant’s declaration (App. Br. 3) is ineffective to overcome a prior
art rejection under 35 U.S.C. § 102(b).
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In summary, the anticipation rejection is sustained because all of the
limitations of claim 1 are found in the teachings of Ciula. Atlas Powder Co.
v. IRECO Inc., 190 F.3d at 1347; In re Paulsen, 30 F.3d at 1478-79.
Obviousness
Turning to the obviousness rejection of claim 2, we find that Ciula is
silent as to whether the plastic or sheet metal creates a “flexible” “housing”
(Findings of Fact 2 and 3). The PCT application by Bonn describes flexible
contacts, but not a “flexible” housing (Finding of Fact 4). According to the
Examiner (Ans. 4) “[i]t would have been obvious to one of ordinary skill in
the art at the time the invention was made to make resilient housing (i.e.
elastic) in Ciula et al., as taught by Bonn, so that it is comfortable for the
operator” (emphasis added). We find that this statement by the Examiner is
nothing more than a conclusory statement without any rational underpinning
in the record in light of the complete silence by the reference teachings
concerning a “flexible” housing, and the lack of any mention in Ciula of the
lack of comfort of the housing. KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. at
1741. Thus, the obviousness rejection of claim 2, and the claims that depend
therefrom (i.e., 3 to 6 and 10 to 14), is reversed. In light of Appellant’s
“resilient” housing arguments (App. Br. 10 and 11), the obviousness
rejection of claims 18 and 20 is likewise reversed.
Turning next to claims 7 and 8, the obviousness rejection of these
claims is sustained because the skilled artisan after reviewing the plow
teachings of Ciula would have recognized the need for different switches in
different layouts for the two well-known kinds of plows (i.e., straight plow
and V-plow) that can be mounted on the front of the vehicle (App. Br. 6).
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Appellant’s arguments (App. Br. 7 and 8) concerning the individual
shortcomings in the teachings of each of the applied references is not
convincing of the nonobviousness of the claimed subject matter set forth in
claims 9, 15, and 16. In re Keller, 642 F.2d at 426. The obviousness
rejection of claims 9, 15, and 16 is sustained because Struck clearly teaches
that the plow control system can be “wireless and remote” (Finding of Fact
5).
Turning lastly to claims 17 and 19, we find that the gearshift mounted
housing in Figure 9 of Ciula, whether considered alone or with Bulkeley’s
teachings of a tubular mounting bracket for mounting a device on a tubular
surface (Finding of Fact 6), teaches or would have suggested to the skilled
artisan the “suitably shaped mounting channel” of claim 17 and the
“cannulated” interior mounting channel of claim 19 for a gearshift lever.
Appellant’s argument (App. Br. 8 to 10) that Bulkeley is non-analogous art
because it is directed to a motorcycle handlebar is without merit since the
problem of mounting a control device on a rounded surface (e.g., a steering
wheel, a gearshift lever, or handlebars) is not limited to motorcycles or
snowplows.
In conclusion, the Appellant’s Declaration evidence of
nonobviousness of claims 7 to 9, 15 to 17, and 19 does not outweigh the
evidence of obviousness. In re Oetiker, 977 F.2d at 1445.

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CONCLUSIONS OF LAW
Anticipation of the claimed subject matter set forth in claim 1 has
been established by the Examiner because Ciula discloses each and every
limitation set forth in these claims.
Obviousness of the claimed subject matter set forth in claims 7 to 9,
15 to 17, and 19 has been established by the Examiner, but such a case has
not been made by the Examiner for claims 2 to 6, 10 to 14, 18, and 20.

ORDER
The anticipation rejection of claim 1 is affirmed, and the obviousness
rejections of claims 7 to 9, 15 to 17, and 19 are affirmed. The obviousness
rejections of claims 2 to 6, 10 to 14, 18, and 20 are reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a)(1)(iv).

AFFIRMED-IN-PART

KIS

Christopher John Rudy
209 Huron Avenue
Suite 8
Port Huron, MI 48060