Ex Parte Omann et al

Patent Trial and Appeal Board

Sep 19, 2016

13033955 (P.T.A.B. Sep. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/033,955 02/24/2011
513 7590 09/21/2016
WENDEROTH, LIND & PONACK, LLP,
1030 15th Street, N.W.,
Suite 400 East
Washington, DC 20005-1503
FIRST NAMED INVENTOR
Christian OMANN
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.
2011_0285A 9878
EXAMINER
WRIGHT, KIMBERLEY S
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
09/21/2016 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):
ddalecki@wenderoth.com
eoa@wenderoth.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTIAN OMANN and WOFGANG BOHLE
Appeal2014-005666
Application 13/033,955
Technology Center 3600
Before JENNIFER D. BAHR, EDWARD A. BROWN, and
FREDERICK C. LANEY, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Christian Omann and Wofgang Bohle (Appellants) appeal under 35
U.S.C. § 134(a) from the Examiner's decision rejecting claims 16-32. We
have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
Appeal2014-005666
Application 13/033,955
THE CLAIMED SUBJECT MATTER
Claim 16, reproduced below from page i of the Claims Appendix to
Appellants' Appeal Brief, with italics added to emphasize pertinent
limitations, is illustrative of the claimed subject matter.
16. A drive device for moving a flap of an article of furniture,
said drive device comprising:
an actuating arm to be connected to the flap;
a spring device configured to act on said actuating arm so
as to move the flap; and
an ejector device for moving the flap through a first
opening angle range from a closed position in an opening
direction toward an open position;
wherein said spring device is configured to exert
substantially no force on said actuating arm as said ejector device
moves the flap through the first opening angle range, and said
spring device is configured to exert force on said actuating arm
and thereby move the flap in the opening direction through a
second opening angle range adjacent to the first opening
angle range.
REJECTIONS
I. Claim 16 stands rejected under 35 U.S.C. § 102(b) as anticipated
by Brustle (US 2008/0122332 Al, pub. May 29, 2008).
II. Claims 16-22, 24-28, and 30-32 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Karg (US 2008/0048538 Al, pub.
Feb. 28, 2008) and Brustle.
III. Claim 23 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Karg, Brustle, and Herper (WO 2008/022673 Al, pub. Feb.
28, 2008). 1
1 The Examiner relies on Herper '175 (US 8,282,175 B2, iss. Oct. 9, 2012)
as an English-language equivalent of Herper. Final Act. 7.
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Application 13/033,955
IV. Claim 28 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Karg, Brustle, and Gasser (US 2007/0180654 Al, pub. Aug.
9, 2007).
V. Claim 29 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Karg, Brustle, and Bol (US 3,376,088, iss. Apr. 2, 1968).
DISCUSSION
Independent claim 16 requires "[a] drive device for moving a flap,"
the drive device comprising, in pertinent part, "an actuating arm to be
connected to the flap," a spring device configured to act on the arm to move
the flap, "an ejector device for moving the flap through a first opening angle
range from a closed position in an opening direction," wherein the "spring
device is configured to exert substantially no force on said actuating arm as
said ejector device moves the flap through the first opening angle range."
Appeal Br., Claims App. i (emphasis added). In light of Appellants'
Specification, we understand this language to mean that the spring device is
configured (i.e., designed and operationally connected with other elements
of the drive device) so that it exerts, at most, a slight incidental force that
may arise from imperfections in manufacturing and/or assembly within
conventional tolerances in the art. See Spec. 2, 11. 9-11, 15-18 (explaining
that "the spring device exerts substantially no force on the flap so that the
ejector device, for ejection of the flap, has to overcome substantially only
the moment of inertia of the flap" and that "[i]t is only towards the end of
the ejection stroke movement of the ejector device - preferably subsequently
to that ejection stroke movement-that the spring device begins to act"); id.
at 3, 11. 20-22 (disclosing that "[i]t would at most even be possible to
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Appeal2014-005666
Application 13/033,955
tolerate a slight closing force on the part of the spring device as long as the
opposite force of the ejector is correspondingly greater"). Claims 17-32
either depend from, or otherwise incorporate, the limitations of claim 16.
Appeal Br., Claims App. i-iii.
The Examiner finds that Brustle' s "spring device ( 4) is configured to
exert substantially no force on said actuating arm (3, until after the N
position, ... ) as said ejector device [(electric drive 5)] moves the flap (2)
through the first opening angle range (equivalent to Ml)" and "is configured
to exert force on said actuating arm (3)" to move flap 2 "in the opening
direction through a second opening angle range (equivalent to S2) adjacent
to the first opening angle range (M 1 ). " Final Act. 2-3 (citing Brustle, para.
45). All of the Examiner's rejections are predicated on this finding. See
Final Act. 4 (acknowledging that Karg lacks a spring device as called for in
claim 16 and relying on Brustle for this feature); id. at 7-8 (relying on the
combination of Karg and Brustle applied to claim 16 in rejecting claims 23,
28, and 29).
Appellants point out that Brustle' s spring device 4 presses actuating
arm 3, and hence flap 2, into the closed position, over pivoting range S 1 to
the internal end position (i.e., the fully closed position of flap 2), when
actuating arm 3 is transferred from the external end position (i.e., the fully
open position of flap 2), once actuating arm 3 is moved past neutral position
N in the closing direction. Appeal Br. 4 (citing Brustle, para. 45).
Appellants emphasize Brustle's teaching that "[e]lectric drive 5 supports the
closing process of flap 2 beyond neutral position N so that actuating arm 3 is
moved freely into the closed position, without further aid of electric drive 5,
but by being pressurized [sic] by spring device 4." Id. at 5 (quoting Brustle,
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Appeal2014-005666
Application I3/033,955
para. 45, 11. 30-33). According to Appellants, "[t]here is no suggestion in
[Brustle] that the force applied by the spring device 4 through the second
pivoting range SI (i.e., the final closing range) during closing of the flap 2 is
not also continuously applied during opening of the flap 2." Id.
The Examiner does not dispute Appellants' contention that Brustle
does not suggest the force applied by spring device 4 through second
pivoting range SI during closing will cease to exist over the pivoting range
SI during opening, nor does the Examiner even assert, much less proffer any
technical reasoning or evidence to show, that the force spring device 4
applies through pivoting range SI during closing would somehow stop being
applied through pivoting range SI during opening.2 See Ans. 3--4. Rather,
the Examiner finds that Brustle's Figures 8a-8c show that Touch-Latch
device 34 "initially opens the flap from a closed position to a 'first opening
angle range' before the electric drive (5) and actuation arm (3) are
activated." Id. (citing Brustle, paras. 40--4I).
According to the Examiner, Touch-Latch device 34 "can be activated
by pressing or pulling the flap" and "once the door begins to open[,] an
actuation device (35) sends a [signal] to the electric drive [(5)], which then
triggers the actuation arm (3)." Id. at 4 (citing Brustle, paras. 44--45). The
Examiner then deduces that Brustle' s spring device is configured to exert
substantially no force in this first opening angle range because only Touch-
2 Neither does the Examiner assert, or make any attempt to show, that the
force exerted by Brustle' s spring device 4, through the closing portion of
pivoting range SI would be viewed by those skilled in the art as
insubstantial - that is, the type of slight incidental force that may arise from
imperfections in manufacturing and/or assembly within conventional
tolerances in the art.
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Application 13/033,955
Latch device 34 operates in this first opening angle range. Id. This analysis
is unavailing, at the outset, because the Examiner's rejection reads the
claimed ejector device on Brustle's electric drive 5, not on Touch-Latch
device 34. Final Act. 2.
We find nothing in the portions of Brustle cited by the Examiner (i.e.,
Figures 8a-8c and paragraphs 40, 41, 44, and 45), or elsewhere in Brustle,
supporting the Examiner's finding that there is any first opening angular
range of movement ofBrustle's flap 2 prior to (i.e., inward of) the range Ml
over which electric drive 5 acts to move actuation arm 3. See Reply Br. 2
(arguing essentially same). To the contrary, Brustle discloses that
"provision is made for electric drive 5 to be active in the opening process of
flap 2, radiant from the fully closed position of flap 2. 3 Brustle, para. 45
(boldface omitted, emphasis added). Thus, the Examiner's finding that
Brustle' s "spring device ( 4) is configured to exert substantially no force on
said actuating arm (3[)] until after the N position ... as said ejector device
[(electric drive 5)] moves the flap (2) through the first opening angle range
(equivalent to Ml)" is premised on an unsupported finding regarding
Brustle' s disclosure.
Moreover, even assuming that Brustle's Touch-Latch device 34 does
move flap 2 in the opening direction prior to movement of actuating arm 3
(i.e., that flap 2 is movable from the fully closed position to some degree in
the opening direction without any rotation of actuating arm 3), spring device
3 Both range Ml (the range over which electric drive 5 acts on actuating arm
3 to move flap 2 from the fully closed position toward the open position) and
range S 1 (the range over which spring device 4 presses actuating arm 3 to
move flap 2 to the fully closed position) extend from/to the fully closed
position of flap 2. See Brustle, Fig. 11.
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Application 13/033,955
4 nonetheless would still apply a closing force to actuating arm 3 during
such movement of flap 2. Thus, even if correct, the Examiner's finding as to
how Brustle's Touch-Latch device 34 operates fails to establish, by a
preponderance of the evidence, that spring device 4 "is configured to exert
substantially no force on said actuating arm as said ejector device moves the
flap through the first opening angle range," as required in claim 16. This
deficiency fatally taints all of the Examiner's rejections, which we,
therefore, do not sustain.
DECISION
The Examiner's decision rejecting claims 16-32 is reversed.
REVERSED
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