Ex Parte Papanikolaou et alDownload PDFPatent Trial and Appeal BoardApr 30, 201511164369 (P.T.A.B. Apr. 30, 2015) Copy Citation 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. 11/164,369 11/21/2005 KOSTANDINOS D. PAPANIKOLAOU 81126584 5368 28415 7590 04/30/2015 PRICE HENEVELD LLP FORD GLOBAL TECHNOLOGIES, LLC 695 KENMOOR S.E. P. O. BOX 2567 GRAND RAPIDS, MI 49501-2567 EXAMINER WILLIAMS, MARK A ART UNIT PAPER NUMBER 3675 MAIL DATE DELIVERY MODE 04/30/2015 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 KOSTANDINOS D. PAPANIKOLAOU, JAMES J. LOSCHIAVO, TIMOTHY O. GOODCHILD, and VENKATESH KRISHNAN ____________________ Appeal 2013-000461 Application 11/164,369 Technology Center 3600 ____________________ Before: LINDA E. HORNER, MICHELLE R. OSINSKI, and ANNETTE R. REIMERS, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Kostandinos D. Papanikolaou et al. (Appellants)1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 20–25, 29, 30, and 33–36. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellants, the real party in interest is Ford Global Technologies, LLC. Appeal Br. 2. Appeal 2013-000461 Application 11/164,369 THE CLAIMED SUBJECT MATTER Claims 20, 21, 22, 35, and 36 are independent. Claim 22 is illustrative of the claimed subject matter and is reproduced below. 22. A vehicle side door entry system comprising: a vehicle door having a door latch having a first release member connected thereto and a door handle having a second release member connected thereto; and a passive entry side door latch release system comprising a movable linkage assembly engageable with the release members, a motor engaged with the linkage assembly to linearly move the linkage assembly along a line to pull the first release member to unlatch the door latch, and an electronic control unit for controlling the motor, the electronic control unit operating the motor upon receiving an actuation signal; the second release member being engaged with the linkage assembly to linearly move the linkage assembly to pull the first release member via the linkage assembly to unlatch the door latch upon actuation of the door handle. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Yamagishi US 4,848,031 July 18, 1989 REJECTIONS I. Claims 22–25, 29, 30,2 and 33–36 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Yamagishi. Ans. 5–7. 2 Even though the Examiner failed to include reference to claim 30 in the heading for this rejection (see Ans. 5), the Examiner makes reference to the language of claim 30 within the body of the rejection by referring to “first release member (39 or 40) defining an elongated axis forming a first line . . . and . . . a second release member (56, 57) defining an elongated axis forming a second line . . . [and] the linkage assembly [being moved] along the first and second lines . . . ”). See also Final Act. 3 (“The first release 2 Appeal 2013-000461 Application 11/164,369 II. Claims 20 and 21 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Yamagishi. Ans. 7–8. OPINION Rejection I The Examiner rejected independent claims 22, 35, and 36 as anticipated by Yamagishi. Ans. 5–7. The Examiner identified elements 39, 40 as a first release member, elements 56, 57 as a second release member, and elements 38, 29, 38b as a movable linkage assembly. Id. at 5. The Examiner found that motor 26 is engaged with the linkage assembly to linearly move the linkage assembly along a line to pull the first release member, and the second release member is engaged with the linkage assembly to linearly move the linkage assembly to pull the first release member. Id. Appellants argue that Yamagishi does not disclose a linearly moving linkage assembly. Appeal Br. 7–9. The Examiner responds that “[w]hen considering element 40 to be part of the linkage assembly, and element 47 to be part of the release member, element 40 has both a rotational component of motion as well as a linear component of motion.” Final Act. 6; Ans. 8–9. Appellants argue that such a linear component of motion of an element does not satisfy the claim language. Appeal Br. 8. We agree with Appellants that the claim language “to linearly move the linkage assembly along a line” as member moves along a first line; the second release member moves along a second line; and the first line and the second line are not co-linear.”). We consider the Examiner’s oversight in the heading to be a typographical error, and therefore, we list claim 30 as being subject to this ground of rejection based on anticipation by Yamagishi. Appellants appear to have notice of the rejection of claim 30 as Appellants state “[t]he rejection of claims 20-25, 29, 30, and 33-36 are the subject of this appeal.” Appeal Br. 2. 3 Appeal 2013-000461 Application 11/164,369 recited in claim 22, “the linkage assembly moving linearly” as recited in claim 35, and “the linkage assembly being actuated to move linearly” as recited in claim 36 is limited to a linkage assembly which moves along a straight path. If any direction of movement may be considered linear because it has a linear component, then the term “linearly” ceases to limit the linkage assembly of claims 22, 35, and 36, and the term “linearly” becomes superfluous. Our reviewing court disfavors any claim interpretation which renders a claim term superfluous. Stumbo v. Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007). Consequently, a reasonable interpretation of the term “linearly” must be limited to movement along a straight path. Elements 38, 29, 38b of Yamagishi, identified by the Examiner as the linkage assembly, comprise a pivotal arm and circular rotating plate that do not move along a straight path. Yamagishi, 5:17, 45– 46, 61. Rod 40 of Yamagishi, also identified by the Examiner as part of the linkage assembly, includes a rotational component of motion in that it is connected to pivotal arm 38. Id. at 5:46–47. Yamagishi’s rod 40, therefore, does not move along a straight path. Accordingly, Yamagishi fails to disclose a linkage assembly that linearly moves to pull the first release member as recited in independent claims 22, 35, 36. For the foregoing reasons, the Examiner erred in finding that Yamagishi discloses all of the limitations recited in independent claims 22, 35, 36, and we do not sustain the rejection of independent claims 22, 35, and 36 and their dependent claims 23–25, 29, 30, 33, and 34 under 35 U.S.C. § 102(b) as anticipated by Yamagishi. 4 Appeal 2013-000461 Application 11/164,369 Rejection II The Examiner rejected independent claims 20 and 21 under 35 U.S.C. § 103(a) over Yamagishi. Ans. 7–9. The Examiner found that Yamagishi teaches all of the limitations of independent claims 20 and 21, except for explicitly teaching a second release cable, as opposed to a rod (40, 39). Id. at 7. In addressing the limitations of independent claims 20 and 21, the Examiner first took Official Notice, in the Non-Final Office Action mailed March 1, 2011 (page 6), that rods and cables are art-recognized equivalent structures and are interchangeable. The Examiner then asserted in the Non- Final Office Action that “[i]t would have been obvious to modify the device [to utilize a cable in place of rod 40, 39 in Yamagishi] for the purpose of providing an alternative arrangement that would have functioned at least equally as well.” Id. at 7. To adequately traverse Official Notice, Appellants must specifically point out the supposed errors in the Examiner’s assertions, which includes stating why the noticed fact is not considered to be common knowledge or well-known in the art. Compare In re Knapp-Monarch Co., 296 F.2d 230, 232 (CCPA 1961) (considering challenge to taking of judicial notice by Trademark Trial and Appeal Board); see also 37 C.F.R. § 1.111(b). Appellants appear to have adequately traversed the Examiner’s taking of Official Notice of the interchangeability of rods and cables by explaining that a cable would not be able to push link 47 within Yamagishi, like a rod would be able to do. Response to Non-Final Office Action mailed May 26, 2011 (page 10). The different functionality of rods and cables with respect to their ability to push (as opposed to merely pull) is sufficient explanation 5 Appeal 2013-000461 Application 11/164,369 by Appellants as to why the noticed fact is not considered to be common knowledge or well known in the art. The Examiner maintained Official Notice of the interchangeability of rods and cables in the Final Office Action. Final Act. 4. The Examiner explained only that “it is the position of the [E]xaminer that one skilled in the art would know to design the device of the applied art in a manner to allow for the effective use of cables as well known and established in the art” and that “[s]uch modifications would be considered obvious art recognized equivalent modifications and are well within t[he] scope of the knowledge of one having ordinary skill in the art.” Id. at 6. The Examiner provided, however, no explanation regarding how cables could be effectively used in place of rods, despite the identified difference in functionality. It was incumbent upon the Examiner to provide documentary evidence in the next Office Action to maintain the rejection in light of Appellants’ traverse of Official Notice. See In re Zurko, 258 F.3d 1379, 1386 (Fed. Cir. 2001) (“[T]he Board [or Examiner] must point to some concrete evidence in the record in support of these findings” to satisfy the substantial evidence test.). The Examiner’s continued reliance on Official Notice without documentary evidence in the Final Office Action, and subsequently in the Answer,3 is not proper. Appellants have adequately traversed the Examiner’s assertion of Official Notice of the alleged fact that rods and cables are art-recognized 3 Although the Examiner argues in the Answer that “equivalency [between rods and cables] applies since only a pulling motion is required of element 40, as clearly suggested by the return spring 51” (Ans. 9, 10), this does not remedy the failure of the Examiner to provide documentary evidence in support of the Examiner’s conclusion. 6 Appeal 2013-000461 Application 11/164,369 equivalent structures. Because the Examiner’s conclusion of obviousness is premised exclusively on this alleged fact, the Examiner has failed to provide sufficient articulated reasoning with a rational underpinning to support the legal conclusion of obviousness. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)) (“[R]ejections on obviousness grounds . . . [require] some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.”). In other words, without official notice being properly taken of the asserted fact that cables are interchangeable with rods and function equally as well as rods, there is no other explanation provided by the Examiner as to why one having ordinary skill in the art would have been led to replace Yamagishi’s rod with a cable. For the foregoing reasons, the Examiner erred in concluding that Yamagishi renders obvious the subject matter of independent claims 20 and 21, and we do not sustain the rejection of claims 20 and 21 under 35 U.S.C. § 103(a) as obvious over Yamagishi. DECISION The Examiner’s decision to reject claims 22–25, 29, 30, and 33–36 under 35 U.S.C. § 102(b) as anticipated by Yamagishi is REVERSED. The Examiner’s decision to reject claims 20 and 21 under 35 U.S.C. § 103(a) as being unpatentable over Yamagishi is REVERSED. REVERSED hh 7 Copy with citationCopy as parenthetical citation