Ex Parte Maier et al

Patent Trial and Appeal Board

Dec 31, 2014

11917587 (P.T.A.B. Dec. 31, 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.
11/917,587 12/14/2007 Peter Maier 07-569 7858
34704 7590 01/02/2015
BACHMAN & LAPOINTE, P.C.
900 CHAPEL STREET
SUITE 1201
NEW HAVEN, CT 06510
EXAMINER
KEENAN, JAMES W
ART UNIT PAPER NUMBER
3652
MAIL DATE DELIVERY MODE
01/02/2015 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 PETER MAIER and JURGEN SEUSSLER1
____________________

Appeal 2012-011989
Application 11/917,587
Technology Center 3600
____________________

Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, and
ROBERT L. KINDER, Administrative Patent Judges.

KINDER, Administrative Patent Judge.

DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 1–22, 24, and 25. Claim 23 is
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 According to Appellants, the real party in interest is Peter Maier Leichtbau
GmbH. App. Br. 2.
Appeal 2012-011989
Application 11/917,587

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STATEMENT OF THE CASE
Appellants’ Invention
Appellants’ invention relates to a tailgate lift mechanism powered by
two motors. Claim 1 is the only independent claim on appeal and it is
illustrative of the claimed subject matter:
1. A tailgate for a motor vehicle, comprising a platform (1)
which is connected to a lifting/lowering mechanism (11) via at
least one supporting arm (2.1, 2.2), wherein the platform (1)
forms an axis of rotation (A) with the at least one supporting
arm (2.1, 2.2), and wherein the at least one supporting arm (2.1,
2.2) forms a pivot axis (S) with the lifting/lowering mechanism
(11), characterized in that a first motor (3) is arranged on the
axis of rotation (A) and a second motor (13) is arranged on the
pivot axis (S), the first motor (3) rotating the platform about the
axis of rotation (A) and the second motor (13) rotating the at
least one supporting arm (2.1, 2.2) about the pivot axis (S).

Evidence
Hansen US 1,929,112 Oct. 3, 1933
Elskamp US 4,780,044 Oct. 25, 1988
Hürlimann US 5,020,323 June 4, 1991
Holtom US 5,391,039 Feb. 21, 1995
Chang US 5,588,793 Dec. 31, 1996
Dunlop US 5,641,262 June 24, 1997
Drake US 5,725,348 Mar. 10, 1998
De Boer US 5,941,677 Aug. 24, 1999

Appeal 2012-011989
Application 11/917,587

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Examiner’s Rejections2,3
I. Claims 1–3, 6–10, 13–19, 24, and 25 are rejected under 35
U.S.C. § 103(a) as unpatentable over any of Elskamp, Chang, or De
Boer in view of Dunlop, or alternatively, over Dunlop in view of any
of Elskamp, Chang, or De Boer.
II. Claims 4 and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over any of Elskamp, Chang, or De Boer in view of
Dunlop, or alternatively, over Dunlop in view of any of Elskamp,
Chang, or De Boer, and in further view of Hansen.
III. Claims 11 and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over any of Elskamp, Chang, or De Boer in view of
Dunlop, or alternatively, over Dunlop in view of any of Elskamp,
Chang, or De Boer, and in further view of Holtom.
IV. Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable
over any of Elskamp, Chang, or De Boer in view of Dunlop, or
alternatively, over Dunlop in view of any of Elskamp, Chang, or De
Boer, and in further view of Drake.
V. Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable
over any of Elskamp, Chang, or De Boer in view of Dunlop and
Drake, or alternatively, over Dunlop in view of any of Elskamp,
Chang, or De Boer and Drake, and in further view of Hürlimann.
VI. Claim 5 is rejected under 35 U.S.C. § 103(a)4 as unpatentable

2 The Examiner withdrew the following rejections: (i) the rejection of claim
5 under 35 U.S.C. § 112, first paragraph, and (ii) the rejection of claims 17,
18, and 22 under 35 U.S.C. § 112, second paragraph. Ans. 5.
3 To facilitate our analysis, we set forth the rejections in a different order
than the order presented in the Answer and Briefs.
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Application 11/917,587

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over any of Elskamp, Chang, or De Boer in view of Dunlop, or
alternatively, over Dunlop in view of any of Elskamp, Chang, or De
Boer, and in further view of Hansen.
VII. Claim 5 is rejected under 35 U.S.C. § 112, second paragraph, as
indefinite.

ANALYSIS
Rejection I
We disagree with Appellants’ contentions that claims 1–3, 6–10, 13–
19, 24, and 25 are nonobvious over the combination of prior art cited by the
Examiner.
Claim 1 requires “a first motor” and “a second motor.” Appellants
contend that although Dunlop discloses two distinct types of motors
(electromechanical actuator and rotary hydraulic actuators) for a tailgate lift
apparatus, the disclosed motors of Dunlop do not teach or suggest the
claimed motors because Dunlop’s lift mechanism is hydraulic. App. Br. 14,
15; see also Dunlop, col. 3, ll. 54–60. We agree with the Examiner’s
interpretation of “motor” (Ans. 6), which does not limit “motor” to any
specific type and is included within the broadest reasonable interpretation of
the term. Dunlop’s disclosure of actuators teaches the claimed motors as set
forth in claim 1. See Ans. 5, 6. We find Appellants’ arguments
unpersuasive because no limitation within claim 1 excludes hydraulic

4 The Examiner entered this rejection as a new ground of rejection in the
Answer. Ans. 4. Appellants request the appeal be maintained including the
new ground of rejection. Reply Br. 3.
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systems or motors. Further, Dunlop’s teaching of an electromechanical
actuator indicates that not all embodiments of Dunlop are limited to the use
of a rotary hydraulic actuator as argued by Appellants. See DePuy Spine,
Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir.
2009) (“A reference does not teach away […] if it merely expresses a
general preference for an alternative invention[.]”).
We find no error in the Examiner’s rejection of claim 1 as
unpatentable.
Appellants suggest that the claimed “gear mechanism” of claim 3 is
also not taught or suggested by the combination of references. App. Br. 15.
We reject this argument for the reasons set forth by the Examiner. Ans. 6
(finding “couplings 39A-B of Dunlop as gear mechanisms”).
Appellants make no separate argument for dependent claims 2, 6–10,
13–19, 24, and 25. Therefore, claims 2, 6–10, 13–19, 24, and 25 fall with
claim 1 and we sustain the Examiner’s rejection of claims 1–3, 6–10, 13–19,
24, and 25 under 35 U.S.C. § 103(a).

Rejection II
Claim 22 requires a gear mechanism connected to the first and second
motors via a corresponding connection and wherein a bevel gear which can
be driven manually is provided on the connection. App. Br. 24. The
Examiner relies on Hansen combined with Elskamp to teach a manual gear
mechanism for use with a motor driven mechanism. Ans. 6. Figures 7 and 8
of Hansen depict a manual gear mechanism used to power a lift platform,
and in view thereof, the Examiner finds it obvious to modify “the [Elskamp,
Chang, or De Boer]/Dunlop apparatus with such a feature to provide an
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Application 11/917,587

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alternative means of powering the lift platform in the absence of electric or
hydraulic power.” Final Act. 7 (July 25, 2011). Appellants allege “[t]here
are gaps between the disclosures of Elskamp and Hansen which cannot be
filled,” but Appellants offer no persuasive explanation concerning why the
alleged “gaps” cannot be filled. App. Br. 17. As such, we find Appellants’
arguments unpersuasive and agree the manual gear mechanism of Elskamp
would be combinable with Hansen as explained by the Examiner. See Ans.
6.
Appellants argue claim 4 should stand or fall with claim 1 (App. Br.
17), and for the reasons set forth for claim 1, we find the Examiner has not
erred in rejecting claim 4. We, therefore, sustain the Examiner’s rejection
of claims 4 and 22 under 35 U.S.C. § 103(a).

Rejections III, IV, and V
Because Appellants have offered no persuasive argument as to
Examiner error for the rejections of claims 11, 12, 20, and 21, we sustain the
Examiner’s respective rejections under 35 U.S.C. § 103(a). See App. Br.
16–20.

Rejection VI
Claim 5 is rejected under 35 U.S.C. § 103(a). Claim 5 requires at
least one gear mechanism to be self-locking. The Examiner finds “[t]he
primary references as modified do not show a self-locking gear mechanism,”
but Appellants’ arguments to overcome the withdrawn enablement rejection
of claim 5 serve as an admission that the braking mechanism taught by
Hansen is equivalent to a self-locking gear mechanism. Ans. 4. We
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disagree with the Examiner. Based on the record before us, we cannot
conclude the Examiner has supported the finding that the braking
mechanism of Hansen teaches or suggest the claimed self-locking gear
mechanism. We, therefore, do not sustain the Examiner’s rejection of claim
5 under 35 U.S.C. § 103(a).

Rejection VII
Claim 5 is rejected 35 U.S.C. § 112, second paragraph as indefinite.
Claim 5 recites “[t]he tailgate as claimed in claim 3, characterized in that the
at least one gear mechanism (5.1, 5.2; 14.1, 14.2) is self-locking.” The
Examiner finds a “self-locking” gear mechanism is unclear. Ans. 5.
However, apart from concluding the term is unclear, the Examiner provides
no explanation of this conclusion. Id.
Appellants argue that one of ordinary skill in the art would understand
the meaning of a self-locking gear mechanism. App. Br. 10–13. In
response, the Examiner suggests a “self-locking” gear mechanism is limited
to only “worm and epicyclic gear mechanisms” based on Appellants’
evidence. Ans. 5. However, the Examiner’s concern regarding the “self-
locking” gear mechanism of claim 5 is a matter of breadth, not
indefiniteness. See In re Johnson, 558 F.2d 1008, 1016 n.17 (CCPA 1977).
We, therefore, do not sustain the Examiner’s rejection of claim 5 under 35
U.S.C. § 112, second paragraph.

DECISION
We reverse the Examiner’s rejection of claim 5 under 35 U.S.C.
§ 112, second paragraph, as well as the Examiner’s rejection of claim 5
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Application 11/917,587

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under 35 U.S.C. § 103(a).
We affirm the Examiner’s rejection of claims 1–4, 6–22, 24, and 25
under 35 U.S.C. § 103(a) as unpatentable.

AFFIRMED-IN-PART

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