Ex Parte Pontanari et al

Patent Trial and Appeal Board

Mar 28, 2013

11968756 (P.T.A.B. Mar. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MARCO PONTANARI, MARCO BASSI,
GIOVANNI BELLOMI, and ROBERTO GIANONE
____________________

Appeal 2011-001509
Application 11/968,756
Technology Center 3600
____________________

Before JOHN C. KERINS, EDWARD A. BROWN, and
WILLIAM V. SAINDON, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Marco Pontanari et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the decision of the Examiner rejecting claims 1-26. App. Br. 4. We
have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

CLAIMED SUBJECT MATTER
Claims 1, 9, and 16 are independent. Claim 1, reproduced below, is
illustrative:
1. A differential locking mechanism for a drive
axle comprising:
a differential including a differential gear
assembly supported within a differential case
having a first case half that is to support a ring gear
and a second case half that supports a differential
spider;
a pair of axle shafts driven by said
differential gear assembly for rotation about an
axis;
a shift collar movable between an unlocked
position where speed differentiation between axle
shafts is permitted and a locked position wherein
said shift collar directly engages said second case
half of said differential case such that said
differential case, said shift collar, and said pair of
axle shafts are fixed for rotation together; and
an electronic actuator responsive to an
electronic signal to move said shift collar from said
unlocked position to said locked position.

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REJECTIONS
1. Claims 1-3, 9-12, 15-18, 20, and 21 are rejected under 35
U.S.C. § 103(a) as unpatentable over Keller (US 5,030,181; iss. Jul. 9, 1991)
and Campbell (US 4,271,722; iss. Jun. 9, 1981).
2. Claims 4-8, 13, 14, and 19 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Keller, Campbell, and Petzold (US 6,886,425
B2; iss. May 3, 2005).1
3. Claims 1-3, 9-12, 15-18, 20-22, 25, and 26 are rejected under
35 U.S.C. § 103(a) as unpatentable over Keller and McColl (US 2,876,658;
iss. Mar. 10, 1959).
4. Claims 4-8, 13, 14, and 19 are rejected under 35 U.S.C. §
103(a) as unpatentable over Keller, McColl, and Petzold.
5. Claim 23 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Keller, McColl, and Blessing (US 4,781,078; iss. Nov. 1, 1988).
6. Claim 24 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Keller, McColl, Blessing, and Slesinski (US 5,342,255; iss. Aug. 30,
1994).

ANALYSIS
Rejection of claims 1-3, 9-12, 15-18, 20, and 21 – Keller and Campbell
Claim 1 recites a differential locking assembly comprising, inter alia,
“a differential case having a first case half that is to support a ring gear and a
second case half that supports a differential spider . . . [and] a shift collar . . .

1 We note that Appellants list claim 21 as also being rejected under this
ground of rejection. App. Br. 4. However, the Examiner did not include
claim 21 under this ground. Ans. 11.
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wherein said shift collar directly engages said second case half of said
differential case.” The Examiner found that Keller discloses a differential
locking mechanism comprising a shift collar and a differential case having
first and second case halves, but that Keller does not disclose the shift collar
engaging the second case half. Ans. 6. The Examiner found that Campbell
discloses a differential mechanism having two shift collars on two axles, and
therefore teaches that one of ordinary skill in the art would be able to
position the shift collar on either side of the differential case. Id. at 7. The
Examiner concluded that it would have been obvious to one of ordinary skill
in the art to modify the differential mechanism of Keller such that the shift
collar would directly engage the second case half in view of Campbell
because it has been held that rearranging parts of an invention involves only
routine skill in the art. Id.
Appellants contend that Campbell is directed to an axle disconnect
wherein two clutch collars are either both engaged or disengaged with side
gears. App. Br. 5. Appellants contend that there is no disclosure or
suggestion found in Campbell to indicate only one collar is used on either
side of a differential, and that Campbell discloses that both clutch collars are
required to engage and disengage the side gears together in order for
Campbell to operate as intended. Id. at 5-6. We agree.
Campbell discloses a differential 10 having two clutch collars 50 each
positioned concentrically about an axle shaft 22. Campbell, col. 2, ll. 65-67.
The clutch collars 50 mate with corresponding side gears 42. Id. at col. 3, ll.
5-9. A lever arm 80 achieves mutual inward and outward movement of the
clutch collars 50 to simultaneously engage or disengage them from the side
gears 42. Id. at col. 4, ll. 12-15. The Examiner did not identify any support
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for the finding that Campbell teaches that only one of the clutch collars 50
may be engaged with a corresponding side gear at a given time.
Accordingly, we do not sustain the rejection of claim 1 and its dependent
claims 2, 3, and 21 over Keller and Campbell.
Claims 9 and 16 contain limitations similar to claim 1 regarding a
differential case including two case halves for supporting a ring gear and
differential gear assembly, and a shift collar that directly engages the case
half opposite the ring gear. Thus, for similar reasons to those discussed
supra for claim 1, we also do not sustain the rejection of claims 9 and 16,
and their dependent claims 10-12, 15, 17, 18, and 20, over Keller and
Campbell.

Rejection of Claims 4-8, 13, 14, and 19 – Keller, Campbell, and Petzold
Claims 4-8, 13, 14, and 19 ultimately depend from one of claims 1, 9,
and 16. The Examiner’s application of Petzold does not cure the
deficiencies of Keller and Campbell with respect to claims 1, 9, and 16, as
discussed supra. See Ans. 11-13. Thus, we do not sustain the rejection of
claims 4-8, 13, 14, 19, and 21 over Keller, Campbell, and Petzold for similar
reasons as those discussed supra for claims 1, 9, and 16.

Rejection of claims 1-3, 9-12, 15-18, 20-22, 25, and 26 – Keller and McColl
Claims 1, 9, 10, and 15-18
Appellants argue claims 1, 9, 10, and 15-18 as a group, and present
specific arguments only for claim 1. App. Br. 11-12. We select claim 1 as
representative of the grouping, and claims 9, 10, and 15-18 stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
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The Examiner’s findings in regard to Keller for claim 1 are the same
as those discussed supra. Ans. 14. The Examiner found that McColl
teaches a differential mechanism having a shift collar (differential locking
collar 57) located on a second case half. Id. The Examiner concluded that it
would have been obvious to one of ordinary skill in the art to modify the
differential mechanism of Keller such that the shift collar would directly
engage the second case half in view of McColl because it has been held that
rearranging parts of an invention involves only routine skill in the art. Id. at
14-15.
The Examiner provided an annotated copy of Figure 1 of Keller
(shown on page 4 of the Examiner’s Answer) that indicates a differential
first case half (clutch part 24), a differential second case half (labeled as
reference letter “C”), and a ring gear (labeled as reference letter “Z”)
supported by the first case half. Ans. 4, 14. First, Appellants contend that
Keller fails to disclose first and second case halves as claimed, and instead
discloses a ring gear and a differential housing. App. Br. 5. Appellants
contend that element Z and clutch part 24 together comprise a ring gear, and
that element Z merely points to the teeth of the ring gear. Reply Br. 2.
Appellants additionally note that Keller cites that clutch part 24 is a clutch
wheel. Id. (citing Keller, col. 4, l. 56).
Appellants do not provide a persuasive reason why Keller’s clutch
part 24 cannot be considered to correspond to the claimed first case half. To
the extent that Appellants may be contending that the claimed first case half
and ring gear must be separate pieces, claim 1 does not recite any limitation
that requires such a structure. Rather, claim 1 only requires that the first
case half “is to support a ring gear.” Appellants do not explain why the
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clutch part 24 does not, in fact, support the structure corresponding to the
“ring gear (Z).” Accordingly, Appellants’ contention is not persuasive.
Appellants also contend that neither Keller nor McColl discloses a
shift collar directly engaged to a second case half of a differential. App. Br.
11-12; Reply Br. 8-9. Appellants contend that Keller discloses a sleeve 18
that engages a clutch wheel 24, and that McColl discloses a shift collar 57
that directly engages a collar 53. Reply Br. 8-9. The Examiner responds
that McColl is not used to teach “direct engagement,” but rather that the shift
collar may be on the second case half side of the differential. Ans. 34.
McColl discloses a differential carrier 17 formed in two halves, a first
half of the carrier supporting a ring gear (crown gear 18), and a second half
of the carrier splined to a collar 53. McColl, col. 2, ll. 17-18 and 27-30; fig.
1. Shift collar 57 provides engagement/disengagement with collar 53 on a
side of the differential carrier opposite the ring gear. Id. at col. 2, ll. 29-35;
fig. 1. Appellants contend that one of ordinary skill in the art, modifying
Keller with the teachings of McColl, would replace Keller’s shift collar 18
with McColl’s collars 53/57 such that the shift collar would still not be in
direct engagement with any part of the differential case. Reply Br. 9.
However, Appellants are construing the teachings of McColl too narrowly.
The Examiner provided an annotated copy of Figure 1 of Keller (Ans. 5) that
shows how Keller would be modified as suggested by McColl, in which the
differential locking mechanism of Keller is moved so that it is provided for
direct engagement with a differential case half C instead of clutch part 24.
The Examiner is not relying on McColl for teaching how the shift collar
engages a differential case, but rather relies on McColl solely for its teaching
of what side of the differential case the shift collar is located. Ans. 34.
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Appellants have provided no persuasive argument why the Examiner’s
reliance on this broad teaching of the position of the locking mechanism
necessitates further reliance on the teaching of the structure of the locking
mechanism disclosed by McColl. Thus, Appellants’ contentions are not
persuasive.
Finally, Appellants contend that Keller teaches away from modifying
the location of the differential locking mechanism. App. Br. 11-12; Reply
Br. 9. Appellants contend that Keller teaches that providing an insert
bushing and lock mechanism as shown in Figure 1 is beneficial, and that
nothing in Keller suggests that the insert bushing assembly could be just as
easily used on the opposite side of the differential. App. Br. 11. Appellants
do not, however, explain what specific benefits are provided by the
illustrated configuration of Keller, or how they would be diminished by the
modified locking mechanism location. Appellants have not otherwise
shown how Keller criticizes, discredits or otherwise discourages a
modification that would relocate the differential locking mechanism. See In
re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004); In re Gurley, 27 F.3d 551,
553 (Fed. Cir. 1994). Appellants also do not adequately explain how the
Examiner’s modified configuration would change the principle of operation
of the device, or render Keller’s device unsatisfactory for its intended
purpose. Id. at 12. Thus, Appellants’ contentions are not persuasive.
In view of the above, we sustain the rejection of claims 1, 9, 10, and
15-18 as unpatentable over Keller and McColl.
Claims 2, 3, 11, 12, and 20
Appellants argue claims 2, 3, 11, 12 and 20 as a group, and present
specific arguments only for claim 2. App. Br. 12. We select claim 2 as
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representative of the grouping, and claims 3, 11, 12, and 20 stand or fall with
claim 2.
Claim 2 depends from claim 1 and recites that “said electronic
actuator includes a coil mounted to a fixed axle component and surrounding
said shift collar wherein said electronic signal powers said coil to move said
shift collar.” Appellants contend that element 16 of Keller is not a coil
mounted to an axle component as defined in claim 2, and Keller instead
discloses mounting a magnet within the locking mechanism itself. App. Br.
12. This contention is not persuasive.
The Examiner found that element 16 is an annular magnet having an
electrical supply provided by cables 29 and 30. Ans. 27 (citing Keller, col.
4, ll. 36-37 and 65-67). To the extent that Appellants are contending that
Keller’s annular magnet 16 does not include a coil, Appellants have not
provided any persuasive argument or evidence to support this contention. In
addition, the Examiner found that Keller discloses that annular magnet 16
sits against shoulder 12, and that shoulder 12 corresponds to a claimed “axle
component.” Ans. 15. In the alternative, the Examiner found that bushing
10 of Keller houses the coil 16, and that the bushing 10 is fixed to a housing
2 that corresponds to the claimed axle component. Ans. 35. Appellants
have not provided any persuasive argument why one of ordinary skill in the
art would consider “an axle component” as defined in claim 2 as excluding
either the shoulder 12 or housing 2. Appellants also fail to explain how the
magnet 16 is not mounted to either of these components. Accordingly, we
sustain the rejection of claims 2, 3, 11, 12, and 20 as unpatentable over
Keller and McColl.

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Claim 21
Claim 21 depends from claim 1 and recites “wherein said first and
second case halves are fastened together.” Appellants contend that Keller
fails to disclose first and second case halves for the reasons set forth with
regard to claim 1. App. Br. 12; Reply Br. 8, 10. Accordingly, for reasons
similar to those discussed supra for claim 1, we sustain the rejection of
claim 21 over Keller and McColl.
Claims 22 and 25
Appellants argue claims 22 and 25 as a group, and present specific
arguments only for claim 22. App. Br. 13; Reply Br. 10-11. We select
claim 22 as representative of the grouping, and claim 25 stands or falls with
claim 22.
As to claim 22, which depends from claim 21, Appellants rely on the
same contentions made supra with regard to claim 1 for patentability. Reply
Br. 10-11. Thus, for reasons similar to those discussed supra regarding
claim 1, we find these contentions unpersuasive and sustain the rejection of
claims 22 and 25 over Keller and McColl.
Claim 26
Claim 26 depends from claim 25 and recites “fastening the coil to an
axle housing.” Appellants argue that Keller discloses that the magnet 16 sits
against a shoulder 12 of the bushing, and is not fastened to an axle housing.
App. Br. 13; Reply Br. 11. The Examiner responds that the magnet 16 is
fixed to an axle housing 2 via a groove 9/collar 11 connection. Ans. 36.
Appellants provide no persuasive reasoning for why the magnet 16 is not
“fastened” to the shoulder 12 of the bushing 10, or fastened to the axle
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housing 2 via the bushing 10. Thus, we find Appellants’ contention
unpersuasive and sustain the rejection of claim 26 over Keller and McColl.

Rejection of claims 4-8, 13, 14, and 19 – Keller, McColl, and Petzold
Claims 4, 13, 14, and 19
Appellants argue claims 4, 13, 14, and 19 as a group, and present
specific arguments only for claim 4. App. Br. 14. We select claim 4 as
representative of the grouping, and claims 13, 14, and 19 stand or fall with
claim 4.
Claim 4 depends from claim 1 and recites “wherein said electronic
actuator includes . . . a resilient member for automatically returning said
shift collar to said unlocked position when said coil is not powered . . . said
resilient member surrounding said shift collar.” The Examiner found that
Keller discloses a resilient member 26, but that Keller and McColl do not
disclose a resilient member surrounding a shift collar. Ans. 20. The
Examiner found that Petzold discloses an electromagnetic shift arrangement
including a resilient member (plate spring 46) that surrounds an outer end
portion 44 of a shift collar (shift dog 18), and reacts between a coil
(electromagnetic device 40) and a washer (disc 22) mounted to the shift
collar. Ans. 20; see also Petzold col. 3, ll. 21-27, 38-41, 58-61; fig. 2. The
Examiner found that both Keller and Petzold teach methods of biasing a
shift collar that is electromagnetically actuated, and concluded that it would
have been obvious “to substitute one method for the other to achieve the
predictable result of biasing the shift collar.” Ans. 20. The Examiner
provided an annotated copy of Figure 1 of Keller showing the resilient
member in a modified location surrounding the shift collar. Ans. 25.
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Appellants present multiple arguments for claim 4. App. Br. 7-9, 14;
Reply Br. 5-6, 11. Appellants contend that there is no motivation or reason
for one of ordinary skill in the art to modify Keller in the manner proposed
by the Examiner, as this would defeat the beneficial pre-assembly
arrangement taught by Keller. App. Br. 7-8. The Examiner found that
positioning the spring in the modified location would result in no difference
in the operation of the device, and that the new location would result in a
more compact assembly by allowing the spring to be preassembled with the
coil and shift collar. Ans. 29. The Examiner also found the alignment of the
bushing in the housing would be easier because there would no opportunity
for misalignment with a shaft 1 and spring 26 with the spring in the modified
location. Id. Appellants do not persuasively respond to these findings of the
Examiner. Accordingly, we find Appellants’ contention unpersuasive.
Appellants also contend that Petzold does not identify any particular
benefit to locating a spring to surround a shift collar in a differential, and
that Keller’s configuration was not deficient or in need of modification.
App. Br. 8. The Examiner responds that the rationale for combining the
teachings of Keller and Petzold did not rely on a benefit taught by Petzold or
a deficiency found in Keller, but on a simple substitution of spring positions
that each would allow for the predictable result of biasing the shift collar.
Ans. 30. Appellants do not persuasively respond to this reasoning by the
Examiner. Accordingly, we find Appellants’ contention unpersuasive.
Appellants also contend that Keller teaches away from the Examiner's
modification, and cite to portions of Keller that describe the benefits of the
configuration of Keller in Figure 1 as support for this contention. App. Br.
8. Appellants contend that Keller’s configuration: ensures the drive gears
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will not accidentally engage when no current is flowing through the magnet;
facilitates concentric installation of a single spring of the shaft and makes
using a particularly short sliding sleeve possible; and minimizes an air gap
between an armature and the magnet that facilitates starting and saves
electricity. App. Br. 8; Reply Br. 5-6. Keller’s configuration also ensures
that the magnet 16 and armature plate 19 are separated when the clutch is
unengaged. Reply Br. 5-6.
We disagree with Appellants that Keller teaches away from the
modified spring location. First, Appellants have provided no persuasive
argument or evidence as to why placing a resilient member between the
magnet 16 and armature plate 19 in Keller would not allow for separation of
the drive gears when the magnet 16 is not actuated (i.e., retain the function
of spring 26), or would prevent the magnet 16 and armature plate 19 from
being separated when the drive gears are disengaged. See Reply Br. 5-6 and
Ans. 31. Second, Appellants have not adequately explained why the
Examiner’s modified spring location would not allow a shortened sliding
sleeve. See Reply Br. 6 and Ans. 31. Third, the minimized air gap benefit is
derived from an alternate embodiment disclosed by Keller that the Examiner
did not rely on. Ans. 31. See Reply Br. 6. Thus, Appellants’ contentions as
to why Keller is asserted to teach away from a modified spring location are
unpersuasive.
Appellants finally contend that that a person of ordinary skill in the art
would not have reasonably looked to Petzold to solve problems related to
axle differentials, as Petzold concerns a shift dog in a transmission. App. Br.
14. The Examiner found that Petzold is analogous art as it teaches a shift
collar that is axially movable via an electromagnetic force and returned via a
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spring force. Ans. 31. We agree with the Examiner that Petzold is
analogous art, as Petzold is directed to how to bias a shift collar in a vehicle
subassembly, which is the same problem addressed by Keller and reasonably
pertains to the claimed subject matter.
In view of the above, we sustain the rejection of claims 4, 13, 14, and
19 over Keller, McColl, and Petzold.
Claim 5
Claim 5 depends from claim 4 and recites “wherein said resilient
member reacts directly between said coil and an outboard end of said shift
collar.” Appellants argue that Keller teaches away from the Examiner’s
modified spring location suggested by McColl. App. Br. 5. For reasons
discussed supra regarding claim 4, we find this contention unpersuasive.
Appellants also argue that Petzold itself fails to disclose a spring that reacts
between a coil and an outboard end of a shift collar as claimed, and that
modifying Keller with the teaching of Petzold would not result in the
claimed configuration. Id. However, this argument attacks the applied
references separately, and non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references. See In re Keller, 642 F.2d 413,
425 (CCPA 1981). The Examiner found that Keller already discloses an
outboard end of a shift collar (the point on shift collar 18 at which armature
plate 19 is attached), and the modified spring location suggested by Petzold
would result in placing the spring between the coil 16 and plate 19 in Keller.
Ans. 25, 32. Accordingly, we sustain the rejection of claim 5 over Keller,
McColl, and Petzold.

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Claim 6
Claim 6 depends from claim 5 and recites “a washer fixed to said
outboard end for reacting with said resilient member.” Appellants contend
that one of ordinary skill in the art would not reasonably consider element 19
of Keller as corresponding to the claimed washer. App. Br. 15. The
Examiner responded that element 19 is an annular armature plate, which by
definition is also a washer. Ans. 38. Appellants provide no persuasive
argument or evidence as to why the Examiner’s finding is incorrect.
Accordingly, we find Appellants’ contention unpersuasive.
Appellants also contend that Petzold’s washer 22 is not fixed to an
outboard end of a shift collar as claimed. App. Br. 15. However, the
Examiner relied on Keller’s washer and shift collar arrangement as showing
this feature of claim 6. Ans. 38. Thus, we find Appellants’ contention
unpersuasive and we sustain the rejection of claim 6 over Keller, McColl,
and Petzold.
Claims 7 and 8
Appellants argue claims 7 and 8 as a group, and present specific
arguments only for claim 7. App. Br. 15-16. We select claim 7 as
representative of the grouping, and claim 8 stands or falls with claim 7.
Claim 7 depends from claim 2 and recites “wherein said shift collar
includes . . . an outboard end for supporting a resilient member.”
Appellants’ contentions for claim 7 are the same as those for claims 1, 2, and
4. App. Br. 10, 15-16; Reply Br. 7, 12. Accordingly, for reasons similar to
those discussed supra regarding those claims, we sustain the rejection of
claims 7 and 8 over Keller, McColl, and Petzold.

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Rejection of claim 23 – Keller, McColl, and Blessing
Claim 23 depends from claim 11 and recites “wherein said coil
includes at least one mount portion through which said coil is mounted an
axle housing with at least one fastener.” The Examiner found that the
combination of Keller and McColl does not include a coil having at least one
mounting portion through which said coil is mounted to an axle housing
with at least one fastener. Ans. 22. The Examiner found that Blessing
teaches a coil 187 that includes at least one mount portion through which
said coil is mounted to an axle housing 112 with at least one fastener, and
concluded that it would have been obvious to one of ordinary skill in the art
to substitute the means for fixing a coil to the axle housing taught by
Blessing for the fixing means taught by Keller. Id. at 22-23. We agree with
Appellants that the Examiner did not adequately explain how, in Keller, the
coil 16 would be mounted to the housing 2 using the particular means taught
by Blessing, or why one of ordinary skill in the art would find it desirable to
use this means. See Reply Br. 12-13; Ans. 22-23. Accordingly, we do not
sustain the rejection of claim 23 over Keller, McColl, and Blessing.

Rejection of claim 24 – Keller, McColl, Blessing, and Slesinski
Claim 24 depends from claim 23. The Examiner’s application of
Slesinski does not cure the deficiencies of Keller, McColl and Blessing. See
Ans. 23. Thus, we do not sustain the rejection of claim 24 over Keller,
McColl, Blessing, and Slesinski for reasons similar to those for claim 23.

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DECISION
1. The rejection of claims 1-3, 9-12, 15-18, 20, 21 as unpatentable
over Keller and Campbell is REVERSED.
2. The rejection of claims 4-8, 13, 14, and 19 as unpatentable over
Keller, Campbell, and Petzold is REVERSED.
3. The rejection of claims 1-3, 9-12, 15-18, 20-22, 25, and 26 as
unpatentable over Keller and McColl is AFFIRMED.
4. The rejection of claims 4-8, 13, 14, and 19 as unpatentable over
Keller, McColl, and Petzold is AFFIRMED.
5. The rejection of claim 23 as unpatentable over Keller, McColl,
and Blessing is REVERSED.
6. The rejection of claim 24 as unpatentable over Keller, McColl,
Blessing, and Slesinski is REVERSED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. §
1.136(a)(1)(iv).

AFFIRMED-IN-PART

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