Ex Parte PhillipsDownload PDFPatent Trial and Appeal BoardJan 31, 201814191597 (P.T.A.B. Jan. 31, 2018) 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. 83393807 5059 EXAMINER WILLIAMS, THOMAS J ART UNIT PAPER NUMBER 3657 MAIL DATE DELIVERY MODE 14/191,597 02/27/2014 117396 7590 01/31/2018 FGTL/Burgess Law Office, PLLC P.O. Box 214320 Auburn Hills, MI 48321-4320 Brian Phillips 01/31/2018 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 BRIAN PHILLIPS Appeal 2017-001764 Application 14/191,597 Technology Center 3600 Before ERIC S. FRAHM, JOHN A. EVANS, and AARON W. MOORE, Administrative Patent Judges. MOORE, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellant seeks rehearing of the August 24, 2017 Decision on Appeal (the “Decision”), wherein we affirmed the rejection of claims 1—6, 10, 11, 15, and 18 as anticipated by Pawelek, claims 10, 11, 15, and 18 as anticipated by Sanford, and claims 1—9, 12—14, 16, 17, 19, and 20 as unpatentable over Sanford and Krause. We have reconsidered the Decision in light of Appellant’s October 23, 2017 Request for Rehearing (the “Request”), but are not persuaded any points were misapprehended or overlooked. See 37 C.F.R. § 41.52. Appeal 2017-001764 Application 14/191,597 ANALYSIS Appellant argues we “overlooked or misapprehended the disclosure of Sanford” and, in particular, that our “statement ‘the conduit does not vary in length,’ is problematic” because (1) “it is not the physical length of the conduit that changes, but the effective length of the cable and conduit” that changes; and (2) our “interpretation of the disclosure of Sanford ignores Fig. 3 disclosing use of the conduit to actuate the brake lever 32.” (Request 2—3.) We have reviewed the record in detail in light of these contentions, but do not agree that anything was missed. “Effective Length ” Regarding Appellant’s first point, we are not persuaded by the argument that “if the conduit 42 were directly connected to the lever 32 of Sanford, any movement between the respective rear wheels 14, 18 would change the effective length of the cable and conduit and result in a variation of brake application.” (Request 2.) Sanford states that the Figure 2 embodiment employs “flexible cables” running in “flexible conduits” that “compensate for movements of the wheels . . . due to spring deflections.” (Sanford 1:93—2:2.) We continue to agree with the Examiner that the reference thus describes the use of flexible cables and conduit to account for wheel movement, and that the same mechanism would account for wheel movement were the conduit attached to lever 32 instead of bracket 43. We find Appellant’s argument that the movement “would change the effective length of the cable and conduit and result in a variation of brake application” to lack evidentiary support in the record. In particular, it is not clear (1) what the difference is between the “physical length” and the “effective length,” (2) why, how, or to what extent the “effective length” 2 Appeal 2017-001764 Application 14/191,597 would change due to wheel movement, and (3) why or how a change in the “effective length” would cause a material variation in the braking force. Interpretation of Sanford We first note that Appellant’s argument based on Figure 3 was not made earlier (see App. Br. 3—10; Reply Br. 1 4) and, thus, is not properly presented in a rehearing request. See 37 C.F.R. § 41.52(a). Even if the argument had been timely made, however, it would not be persuasive. Sanford states that “[i]n Figure 3 the power applied to forward and rearward brakes is equalized by connecting to lever 32 the rear end of a conduit 44 secured to the chassis frame, and connecting to lever 34 the rear end of a cable 46 passing through the conduit 44 and connected at its forward end to lever 28.” (Sanford 2:3—8.) Then, “[t]he tension on the cable 46 applies the [rear] brake 20, and the reaction on the conduit 44 applies the [front] brake 16.” {Id. at 2:9-11.) This indicates that tension in the cable causes a reaction on the conduit that pulls lever 32 forward. We do not agree that this sufficiently supports Appellant’s argument that relative movement of the wheels, which would primarily be an up and down movement allowed by the springs, would cause a material and undesirable variation in braking force in the embodiment of Figure 2 if modified to move the forward end of the conduit to lever 32. This is particularly true given that the Figure 2 cable and conduit are both flexible and have slack. We note that in the Examiner’s modification the forward end of the cable is not loose—it is fixed to lever 32. Appellant’s argument seems to be that relative movement of the front and back wheels would move the flexible cable and conduit in a way that would create forces at lever 32 that would 3 Appeal 2017-001764 Application 14/191,597 have a material effect on the braking. We do not find support for such a theory in the record. DECISION We grant Appellant’s request to reconsider our Decision, but deny the request that the Decision be modified. Our Decision is final for purposes of judicial review. See 37 C.F.R. § 41.52(a)(1). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). DENIED 4 Copy with citationCopy as parenthetical citation