Ex Parte Montabaur

Patent Trial and Appeal Board

Sep 26, 2016

11603915 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
11/603,915 11122/2006 Werner Montabaur
535 7590 09/28/2016
KFROSS PC
311 E York St
Savannah, GA 31401-3814
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
23602 1012
EXAMINER
KARLS, SHAYLYNN
ART UNIT PAPER NUMBER
3723
NOTIFICATION DATE DELIVERY MODE
09/28/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
savannah@kfrpc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WERNER MONTABAUR
Appeal2014-009245
Application 11/603,915
Technology Center 3700
Before EDWARD A. BROWN, ANNETTE R. REIMERS, and
CARL M. DEFRANCO, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEivIENT OF THE CASE
Werner Montabaur (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner's decision rejecting claims 11-13 and 15-18. We have
jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
CLAIMED SUBJECT MATTER
Claims 11 and 18 are independent claims. Claim 11, reproduced
below, illustrates the claimed subject matter:
11. A power-brush apparatus comprising:
a housing;
Appeal2014-009245
Application 11/603,915
a brush rotatable on the housing about a brush axis in a
working direction and having bristles made of steel wire,
extending generally radially of the axis, and having tips defining
on rotation of the brush a circular orbit centered on the axis, the
tips being engageable at a location with a workpiece surface and
each being bent forward relative to the respective bristle in the
working direction;
a blocking element fixed relative to the housing and
positioned radially inside the orbit immediately upstream
between 25° and 45° relative to the axis and to the working
direction of the brush from the location; and
drive means for rotating the brush in a working direction
about the axis relative to the housing at a predetermined angular
speed in the direction and thereby orbiting the tips of the bristles
about the axis such that the bristles engage the blocking element,
are slowed thereby, and when released thereby snap back to
engage the workpiece surface at a greater peripheral speed than
the angular speed with the bent-forward bristle tips striking and
hammering the workpiece surface generally perpendicularly at
the location.
Appeal Br. 13 (Claims App.).
REJECTION
Claims 11-13 and 15-18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Montabaur (US 5,386,608, issued Feb. 7, 1995) and
Turner (US 2,751,616, issued June 26, 1956).
ANALYSIS
As to claim 11, the Examiner finds Montabaur discloses a power-
brush comprising a brush 2 having wire bristles 4 that "are engageable at a
location with a workpiece surface and the bristles tips are bent forward
relative to the respective bristle in the working direction." Final Act. 2
2
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Application 11/603,915
(citing Montabaur, Fig. 1 ). The Examiner finds Montabaur does not teach a
blocking element, as claimed. Id. at 3. The Examiner finds Turner teaches a
rotating brush 26 with a blocking element 28. Id. at 3. The Examiner finds
Turner's "bristles engage the blocking element and are slowed thereby, and
when released they snap back to engage the workpiece surface at a greater
peripheral speed than the angular speed." Id. (citing Turner, col. 2, 1. 55-
col. 3, line 1; Fig. 2).
The Examiner concludes it would have been obvious to combine
Montabaur's brush with Turner's blocking element "to create a brush that
has bristles that are capable of contacting a surface at a higher than normal
wiping force to allow for better abrasion." Final Act. 4 (citing Turner, col.
2, 1. 70-col. 3, 1. 1). The Examiner also states because Turner's "bristles are
released at an accelerated rate it is clear they would 'strike' the surface being
cleaned" (Ans. 5---6), and "[a] force that is more than a normal wiping force
is clearly stronger and will create an action that is similar to the appellant's
striking or hammering force" (id. at 6).
Appellant contends Montabaur does not show a blocking element
positioned 25° to 45° upstream of the location at which the bristle tips
perpendicularly engage the workpiece to hammer it. Appeal Br. 6.
Appellant asserts that "replacing the soft wiping bristles of Turner with
steel-wire bristles as now claimed would be unobvious and totally contrary
to the gentle wiping action needed by the Turner system." Id. at 8.
Appellant also asserts that it would not have been obvious to replace
Montabaur's bent-steel wires with Turner's straight soft bristles. Id.
These assertions are not persuasive because the Examiner's rejection
modifies Montabaur' s brush apparatus, which includes forwardly-bent
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Application 11/603,915
bristles, with Turner's flicking bar. The Examiner does not propose to
replace Montabaur's wire bristles with Turner's bristles. Rather, Turner "is
used solely for the teaching of the flicking bar and not for the surface it
cleans or the direction the bristles are bent or the material of the bristles."
Ans. 5.
Appellant also contends that "the combination of the blocking element
and the angled tips of the bristles ensures that the bristles ... which
otherwise would meet the surface at an acute angle, strike the surface being
abraded 'perpendicularly' with a 'hammering' action." Appeal Br. 10.
Appellant contends that "the bristles of Turner will, because of the blocking
element, meet the surface at a more acute angle and will therefore have more
of a wiping and less of a hammering action." Id. According to Appellant,
there is no "perpendicular" "hammering" in Turner. Id.
The Examiner responds that Turner "is not being used to teach
perpendicular hammering. Instead, that is being taught by Montabaur.
Montabaur with the flicking bar of Turner teaches the perpendicular
hammering as claimed." Ans. 6 (emphasis added).
Claim 11 calls for "the bent-forward bristle tips striking and
hammering the workpiece surface generally perpendicularly at the location."
The Examiner does not, however, identify any disclosure in Montabaur that
shows the bent-forward tips of bristles 4 provide such "perpendicular
hammering."
Regarding the brush bristles, Montabaur describes that:
When such a brush is rotated it has been found that the
brush collar bulges outward between the tongues, creating lobes
that give the normally cylindrical outer surface of the brush a
lobular shape that causes the bunches of bristles to strike the
4
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Application 11/603,915
object being abraded in a pulsating or vibratory manner, unlike
the continuous rubbing of the prior art. This vibration gives
substantially greater abrasion, making the system of this
invention much more effective than the prior-art systems.
Montabaur, col. 2, 11. 3-11 (emphasis added). This description does not
indicate the tips of bristles 4 "strik[ e] and hammer[] the workpiece surface
generally perpendicularly." In fact, we are unable to find any disclosure in
Montabaur that the bent-forward tips of bristles 4 strike the workpiece
surface at any particular angle.
"The Patent Office has the initial duty of supplying the factual basis
for its rejection. It may not, because it may doubt that the invention is
patentable, resort to speculation, unfounded assumptions or hindsight
reconstruction to supply deficiencies in its factual basis." In re Warner, 379
F.2d 1011, 1017 (CCPA 1967) (emphasis added). The Examiner has not
provided a factual basis to support the position Montabaur teaches
perpendicular hammering.
The Examiner's position appears to be adding Turner's rod 28 to
Montabaur' s power brush apparatus would increase the force that the bristles
strike and perpendicularly hammer the workpiece surface. However, the
Examiner has not shown that combining Turner's rod 28 with Montabaur
would result in the bent-forward tips of bristles 4 "striking and hammering
the workpiece surface generally perpendicularly at the location." Turner
discloses, as a result of contacting the flicking member, the brush bristles
"contact the plate with more than normal wiping force." Turner, col. 2, 1.
65---col. 3, 1. 1. The Examiner also has not shown Turner discloses or
suggests that the tips of the bristles strike the plate surface "generally
perpendicularly." As such, the Examiner has not explained how "Montabaur
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Application 11/603,915
with the flicking bar of Turner teaches the perpendicular hammering as
claimed." "Obviousness does not require absolute predictability, but a
reasonable expectation of success is necessary." See In re Clinton, 527 F.2d
1226, 1228 (CCPA 1976). Here, the Examiner has not established the
required reasonable expectation of success for the proposed modification of
Montabaur in view of Turner.
As the Examiner's position is not supported by sufficient evidence,
we do not sustain the rejection of claim 11 and dependent claims 12, 13, and
15-1 7 as unpatentable over Montabaur and Turner.
Claim 18 recites a method of abrading a workpiece, which comprises,
inter alia, that the bristle tips "snap back to engage the workpiece surface at
a greater peripheral speed than the angular speed and with the tips striking
and hammering the workpiece surface generally perpendicularly at the
location." Appeal Br. 15 (Claims App., emphasis added). For reasons
similar to those discussed above for claim 1, we do not sustain the rejection
of claim 18 as unpatentable over Montabaur and Turner.
DECISION
We reverse the Examiner's decision to reject claims 11-13 and 15-18.
REVERSED
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