Ex parte Muramatsu

Board of Patent Appeals and Interferences

Aug 27, 1999

08521626 (B.P.A.I. Aug. 27, 1999)

Application for patent filed August 31, 1995. 1
According to appellant, the application is a continuation-in-
part of Application 08/435,433, filed May 10, 1995, now
abandoned.
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 12
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte TATEO MURAMATSU
________________
Appeal No. 98-2082
Application 08/521,6261
________________
ON BRIEF
________________
Before FRANKFORT, STAAB and McQUADE, Administrative Patent
Judges.
STAAB, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s final
rejection of claims 2, 4, 8, 9, 11, 14, 16 and 18-24. Claims
Appeal No. 1998-2082
Application 08/521,626
The drive wheel up-ratio, Ur, is defined on page 5 of2
the specification as:
Ur = [(Ps/Pc) - 1] x 100(%)
where Ps is the pitch or spacing between the sprocket pins on
the drive wheel and Pc is the spacing of the guide lugs
protruding inwardly from the rubber track and engaged by the
sprocket pins.
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5 and 12 have been indicated by the examiner as being
allowable if rewritten in independent form to include all the
limitations of the base claim from which they depend and any
intervening claim. Claims 3, 6, 7, 10, 13 and 15, the only
other claims remaining in the application, have been withdrawn
from further consideration under 37 CFR § 1.142(b) as not
being readable on the elected species. An amendment filed
subsequent to the final rejection has been entered.
Appellant’s invention pertains to a “endless belt crawler
type vehicles and in particular to a positive drive rubber
track for such vehicle that has a sprocket up-ratio that[2]
provides correct engagement between the sprocket pins on the
drive wheel and the regularly spaced guide lugs protruding
inwardly from the rubber track” (specification, page 1).
Independent claim 8, a copy of which is found in the appendix
to appellant’s brief, is illustrative of the appealed subject
Appeal No. 1998-2082
Application 08/521,626
In the final rejection, claims 2, 4, 18, 19, 21 and 223
were also rejected under 35 U.S.C. § 112, second paragraph.
The examiner stated in the advisory action (Paper No. 6) that
the amendment filed subsequent to the final rejection
overcomes the 35 U.S.C. § 112, second paragraph, rejection of
claims 2, 4, 18 and 19. With respect to claims 21 and 22,
since no mention of the 35 U.S.C. § 112, second paragraph,
rejection of these claims has been made by the examiner in the
answer, we presume that the examiner has also withdrawn the
final rejection thereof on this ground. Ex parte Emm, 118
USPQ 180, 181 (Bd. App. 1957).
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matter.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Nagorcka 5,352,029 Oct. 4,
1994
(§ 102(e) date Jun. 10, 1992)
Muramatsu et al. (Muramatsu) 5,447,365
Sept. 5, 1995
(filed Jul. 12, 1993)
Claims 2, 4, 8, 9, 11, 14, 16 and 18-24 stand rejected
under 35 U.S.C. § 103 as being unpatentable over Muramatsu in
view of Nagorcka.3
Appeal No. 1998-2082
Application 08/521,626
In claim 14, next to the last line, there is no proper4
antecedent for “said annular rings” (plural). In claim 23,
“up-ratio, U ” (both instances) should be “up-ratio, Ur” forr
consistency with the remainder of the disclosure and to avoid
confusion with the term “practical up-ratio, U ” of claim 24. r
Likewise, the terms “P ” and “P ” in claim 23 should be changeds c
to “Ps” and “Pc”, respectively, for consistency with the
remainder of the disclosure. In the event of further
prosecution, it would be appropriate to correct these
deficiencies.
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Opinion
In reaching our decision in this appeal, we have given
careful consideration to appellant’s specification and
claims , to the applied prior art references, and to the4
respective positions articulated by appellant and the
examiner. As a consequence of our review, we have concluded
that the examiner’s rejection cannot be sustained. Our
reasons follow.
Independent claim 21 calls for a drive wheel having an
up-ratio in the range of about 0.5% to about 4.0%
enabling an engaging sprocket pin to enter between
adjacent guide lugs without contacting either the
driving wall or the braking wall of the adjacent
guide lugs, to subsequently move toward and engage
the driving wall of one of said adjacent guide lugs
to drive the one adjacent guide lug, and to
disengage the one adjacent guide lug as the drive
wheel rotates. [Emphasis added.]
Appeal No. 1998-2082
Application 08/521,626
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Independent method claim 23 contains similar limitations
in step form. Independent claim 8, while broader than claim
21 in the sense that it does not specify the range of the up-
ratio, nevertheless requires the driving wheel to have an up-
ratio enabling an engaging sprocket pin to enter between
adjacent guide lugs without contacting either the driving wall
or the braking wall of the adjacent guide lugs, as called for
in claims 21 and 23.
Muramatsu, the examiner’s primary reference, pertains to
an endless belt crawler type vehicle having a positive drive
rubber track. Of particular interest to Muramatsu is the
provision of rubber guide projections on the inner surface of
the rubber track which comprise at least one low friction
surface having a coefficient of friction lower than the rubber
material of the remainder of the rubber guide projection.
According to Muramatsu, this prevents the wheels of the
vehicle undercarriage from detracking from the rubber track
during cornering of the vehicle. The examiner acknowledges
that Muramatsu fails to disclose inter alia “a relationship
between the guide lugs [of the rubber track] and the drive
Appeal No. 1998-2082
Application 08/521,626
-6-
wheel such that the claimed ‘up ratio’ exists such that the
pins enter between the walls of the guide lugs without
contacting them . . .” (answer, pages 4-5). The examiner
finds, however, that Nagorcka teaches this principle. In this
regard, the examiner finds that:
The tension adjusting wheel 32 of Nagorcka includes
lugs 11 with angled wall sides (see Figure 5) which
are spaced and sloped, relative to the diameter of
the wheel and the placement of the pins ‘to allow
positioning of the cross drive member 7 before being
fully engaged with the drive lug 11’ (column 6 lines
47 and 48). Nagorcka goes on to explain that the
angle [of the lug wall] is the same as the ‘entry’
and ‘exit’ angle 63 of the cross drive member 7.
[Answer, page 5.]
Based on this finding, the examiner considers that:
It would have been obvious to one skilled in the
art at the time of the invention to have modified
Muramatsu et al to utilize a tension wheel such as
that taught by Nagorcka in order [to] tension the
drive track and have it run more efficiently. In
keeping with Nagorcka, the taught wheel would
include drive lugs with sloped and spaced walls
dimensioned relative to the spacing of the drive
pins such that the drive would enter, or be
positioned between the lugs, without contacting the
lug walls. Furthermore, one skilled in the art
would have been aware of typical formulas to
Appeal No. 1998-2082
Application 08/521,626
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describe the drive lug geometry or would have been
capable of developing algorithms to express this
desired result. The particular algorithm claimed,
and the specific range of the up ratio, is nothing
more than a mathematical expression of the structure
which would provide non contact of the lug wall by
the drive pin, which structure is taught by and
would have been obvious from Nagorcka in order to
achieve track drive efficiency. [Answer, page 5].
We do not agree. Notwithstanding what one of ordinary
skill in the art may or may not deduce from the statement
found in Nagorcka at column 6, lines 46-51, that the examiner
relies upon in framing the rejection, the ordinarily skilled
artisan would not find in Nagorcka a teaching of an up-ratio
like that called for in the appealed claims when considering
the disclosure of Nagorcka in its entirety. This is brought
out by Nagorcka’s express statement at column 8, lines 20-23,
that
[t]he longitudinal spacing of the drive lugs 11
along track 9 must be identical to the spacing of
the cross member 7 on the outer circumference of the
drive wheel 5” (emphasis added).
Nagorcka’s “longitudinal spacing of the drive lugs 11 along
the track 9” corresponds to appellant’s guide lug pitch Pc,
the spacing of the guide lugs protruding inwardly from the
rubber track and engaging the sprocket pins, and Nagorcka’s
Appeal No. 1998-2082
Application 08/521,626
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“spacing of the cross member 7 on the outer circumference of
the drive wheel 5” corresponds to appellant’s pin pitch Ps,
the pitch or spacing between the sprocket pins on the drive
wheel. Accordingly, the above quoted statement of Nagorcka
calls for a pin pitch Ps equal to the guide lug pitch Pc,
which would yield an up-ratio of zero. Appellant’s
specification at page 14, lines 2-4, states that “[i]f the
sprocket or drive wheel has no up-ratio [i.e., a zero up-
ratio] or has a negative up-ratio, the engaging pin first
contacts the lower portion of the driving side wall of the
guide lug . . .” (emphasis added). Hence, to the extent
Nagorcka teaches anything about the up-ratio of the drive
wheel, it teaches away from the up-ratio called for in the
appealed claims.
As to the rationale advanced by the examiner in the final
rejection in support of the standing § 103 rejection, to the
extent this rationale is predicated on the theory that the
claimed up-ratio amounts to the optimization of a result
effective variable, we also will not support the examiner’s
position. There is no teaching in the applied prior art
Appeal No. 1998-2082
Application 08/521,626
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references (Muramatsu and Nagorcka) that the variable in
question (up-ratio) is “known to be result effective.” See In
re Boesch, 617 F.d. 272, 276, 205 USPQ 215, 219 (CCPA 1980).
In order for a claimed parameter to be deemed the result of
obvious experimentation, any such experimentation must come
from within the teachings of the art. In re Waymouth, 499
F.d. 1273, 1276, 182 USPQ 290, 292 (CCPA 1974). Muramatsu and
Nagorcka contain no such teaching.
Accordingly, the rejection of claims 8, 21 and 23, and
claims 2, 4, 9, 11, 14, 16, 18-20, 22 and 24 that depend
thereon, will not be sustained.
REVERSED
CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
LAWRENCE J. STAAB ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Appeal No. 1998-2082
Application 08/521,626
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JOHN P. McQUADE )
Administrative Patent Judge )
Alfred E. Hall
Jones Day Reavis & Rogue
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, TX 75201
LJS/ki