Ex Parte Muskos

Patent Trial and Appeal Board

Jun 29, 2016

13261082 (P.T.A.B. Jun. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/261,082
2529 7590
MARK P, STONE
FILING DATE FIRST NAMED INVENTOR
12/12/2011 PerMuskos
07/01/2016
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.
HT-165 6274
EXAMINER
400 Columbus Avenue HICKS,EMORYT
Valhalla, NY 10595
ART UNIT PAPER NUMBER
3612
NOTIFICATION DATE DELIVERY MODE
07/01/2016 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):
stone92349@msn.com
aleitner.stonelaw@msn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PER MUSKOS
Appeal2014-005304
Application 13/261,082
Technology Center 3600
Before LYNNE H. BROWNE, MARK A. GEIER, and
GORDON D. KINDER, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Per Moskos (Appellant) appeals under 35 U.S.C. § 134 from the
rejection of claims 1-5. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to a bumper for a vehicle. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. Bumper for a vehicle, comprising a bumper beam and two
crash boxes with closed profile, characterised in that the bumper
beam comprises a central beam (11) and two outer beams (12,
Appeal2014-005304
Application 13/261,082
13), the ends of the central beam and adjacent ends of the outer
beams being curved and welded together to form the crash boxes
(14, 15).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Roll
Gamweidner
US 7,357,432 B2
EP 0908356 Al
REJECTIONS
Apr. 15, 2008
Apr. 14, 1999
I. Claims 1, 2 and 5 are rejected under 35 U.S.C. 102(b) as being
anticipated by Gamweidner. 1
II. Claims 3 and 4 rejected under 35 U.S.C. 103(a) as being
unpatentable over Gamweidner and Roll.
DISCUSSION
Claims 1 and 2
Appellant argues claims 1 and 2 together. See Appeal Br. 3---6. We
select independent claim 1 as the representative claim, and claim 2 stands or
falls with claim 1.
The Examiner finds that Gamweidner discloses each and every
limitation of claim 1. See Final Act. 2. In particular, the Examiner finds that
Gamweidner discloses "two outer beams (5), and the ends (3) of the central
1 The statement of the rejection under 35 U.S.C. § 102(b) omits claim 5;
however, the explanation of the rejection includes claim 5. Accordingly, we
consider the omission of claim 5 from the statement of the rejection to be a
typographical error.
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Application 13/261,082
beam (1) and the adjacent ends of the outer beams (5) are curved and welded
together (7) to form the crash boxes (Fig. 2; English translation [0016])." Id.
Appellant contests the Examiner's finding "that elements 5 of the
Gamweidner publication are 'beams', let alone 'outer beams," because
"[e]lements 5 [are] identified in [Gamweidner's] Specification as[] arcuate
extruded profile part[ s]." Appeal Br. 3.
Responding to this argument, the Examiner notes that "an applicant is
free to be his or her own lexicographer but in this case the appellant's
disclosure does not provide a more specific definition for the term 'beam."'
Ans. 2. Consulting a dictionary, the Examiner finds that:
In the context of vehicle engineering, term "beam" can
reasonably be defined as "any of various relatively long pieces
of metal, wood, stone, etc., manufactured or shaped especially
for use as rigid members or parts of structures or machines" or
"a rigid member or structure supported at each end, subject to
bending stresses from a direction perpendicular to its length."
Id. (citing Merriam-Webster Online, http://www.merriam-
webster.com/dictionary/beam). Applying this definition, the Examiner
determines that "the term 'beam' would clearly include 'arcuate extruded
profile parts' such as Gamweidner element 5." Id.
Appellant does not proffer a different definition of beam or explain
why Gamweidner' s elements 5 are not beams. See Appeal Br. 3; Reply Br.
1. Thus, Appellant does not apprise us of error.
Noting that "[i]t is clear from each of the drawing figures of the
Gamweidner publication that the elements 5 merge with the outer regions 4
of the central beam 1 inside of the ends of the central beam 1 and the outer
regions 4 thereof," Appellant further argues that "elements 5, even if
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Application 13/261,082
considered to be beams, cannot be reasonably interpreted as 'outer beams'."
Appeal Br. 4.
Noting that "Appellant's argument seems to presume the term 'outer
beam' inherently means a beam located outward of the entirety of the central
beam," the Examiner applies the broadest reasonable interpretation of the
term "outer beam" and concludes that as elements 5 "are located outward
relative to the vast majority of the central beam 1 (Fig. 1 )," they are outer
beams. Ans. 3.
Responding to the Examiner's conclusion, Appellant "submits that a
person skilled in the relevant art will consider beam 1 to be the outer beam
and element 5 to be the inner beam," because "a structure such as that
disclosed by Gamweidner, having two beams extending different distances
from the center of the structure, must have an outer beam and an inner
beam." Reply Br. 2.
Appellant's argument is unconvincing because claim 1 does not set
forth a relative framework within which outer and inner are to be designated.
See Appeal Br., Claims App. Rather, claim 1 requires a central beam and
two outer beams. Id. Thus, given the breadth of the claim language at issue,
we see no error in the Examiner's determination that elements 5 correspond
to the claimed outer beams.
Noting that "[i]ndependent claim 1 expressly recites that the central
beam and adjacent ends of the outer beams are curved and welded together
to form crash boxes," Appellants contend that "[t]he structure and structural
arrangement disclosed by the Gamweidner et al. publication does not teach
any structural arrangement in which ends of a central beam and adjacent
ends of two outer beams are curved and welded together to form crash
boxes." Appeal Br. 5; see also Reply Br. 4.
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Application 13/261,082
Appellant's contention is not well taken. As the Examiner explains:
Gamweidner clearly discloses outer beam elements 5 are
connected via a welded joint 7 to the leg portions 3 at each end
of the central beam (Fig. 2, illustrating the cross-section at AA).
Leg portion 3 of Gamweidner most closely corresponds to the
outer end of the central beam of the appellant's claimed
invention.
Ans. 3. The Examiner provides a marked-up copy of Gamweidner' s Figure
4 to illustrate the areas considered to correspond to the claimed crash boxes.
Id. at 5. Although, Gamweidner does not label these portions as "crash
boxes," a reference need not describe a limitation in haec verba. See In re
Bode, 550 F.2d 656, 660 (CCPA 1977). Accordingly, Appellant's argument
. . .
1s unconvmcmg.
Noting that Gamweidner "illustrates an embodiment in which a
separate deformable element designated by reference numeral 9 is disposed
between the central bumper and a supporting plate 6," Appellant argues that
Gamweidner "teaches against forming an integrated crash box from the ends
of a central beam and adjacent ends of two outer beams being curved and
welded together." Appeal Br. 5. However, teaching away is not relevant to
anticipation. See Seachange Int'!., Inc. v. C-COR, Inc. 413 F.3d 1361, 1380
(Fed. Cir. 2005).
For these reasons, we sustain the Examiner's decision rejecting
independent claim 1, and claim 2, which falls therewith.
Claim 5
Noting that "it is apparent from Figure 1 of the Gamweidner et al.
drawing that element 5 does not contiguously abut against any other element
(e.g., elements 3 or 4) for more than about one half of the length of
extension of element 5," Appellant argues that Gamweidner "simply does
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Application 13/261,082
not teach or suggest that the portions of a central beam and outer beams
forming crash boxes are contiguously abutting throughout substantially the
entire length of the crash boxes." Appeal Br. 7; see also Reply Br. 4.
Appellant's argument is unconvincing, because claim 5 only requires
that "the portions of the central beam and the outer beams forming the crash
boxes are contiguously abutting throughout substantially the entire length of
the crash boxes." Appeal Br., Claims App. Claim 5 does not require that
the entire length of the outer beam abut the central beam. Accordingly,
Appellant does not apprise us of error.
We sustain the Examiner's decision rejecting claim 5.
Rejection II
Appellant does not present separate arguments for the patentability of
claims 3 and 4. See Appeal Br. 8. Accordingly, we sustain the Examiner's
decision rejecting these claims.
DECISION
The Examiner's rejections of claims 1-5 are AFFIRMED.
AFFIRMED
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