10854864 (B.P.A.I. Oct. 28, 2008)

Ex Parte Potter

Board of Patent Appeals and InterferencesOct 28, 2008

10854864 (B.P.A.I. Oct. 28, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE 1 ____________________ 2 3 BEFORE THE BOARD OF PATENT APPEALS 4 AND INTERFERENCES 5 ____________________ 6 7 Ex parte LAURENCE JOHN POTTER 8 ____________________ 9 10 Appeal 2008-2413 11 Application 10/854,864 12 Technology Center 3600 13 ____________________ 14 15 Decided: October 28, 2008 16 ____________________ 17 18 19 Before JENNIFER D. BAHR, LINDA E. HORNER, and 20 JOHN C. KERINS, Administrative Patent Judges. 21 22 HORNER, Administrative Patent Judge.23 24 25 DECISION ON APPEAL 26 27 STATEMENT OF CASE 28 Laurence John Potter (Appellant) appeals the rejection of claims 1, 8, 29 and 9 under 35 U.S.C. § 134 (2002). Claims 1, 6, and 7-23 are pending in 30 the present application. Claims 6 and 7 are objected to as being dependent 31 upon a rejected base claim; however, the Examiner has indicated these 32 Appeal 2008-2413 Application 10/854,864 2 claims would be allowable if rewritten in independent form. Claims 6 and 7 1 are not rejected and thus are not before us in this appeal. Claims 1 and 6-9 2 are also objected to because of an informality in independent claim 1. The 3 Examiner withdrew the rejection of claims 10, 11, 15-17, and 21-23 (Ans. 4 5). Claims 12-14 and 18-20 were objected to as being dependent upon 5 rejected base claims (claims 10 and 17); however because the rejections of 6 the independent claims have been withdrawn, the related objections are also 7 withdrawn. We have jurisdiction under 35 U.S.C. § 6(b) (2002). 8 9 SUMMARY OF DECISION 10 We reverse. 11 12 THE INVENTION 13 Appellant’s claimed invention relates to a brake system for a road 14 vehicle. The only independent claim under appeal reads as follows 15 (paragraphing added): 16 1. A brake system for a road vehicle, the brake system 17 comprising 18 an actuator 19 a mechanical linkage, 20 a first part associated with a chassis of the vehicle and 21 a second part associated with a wheel support part of the 22 vehicle and moveable relative to the chassis, 23 wherein the mechanical linkage is connected to the first 24 part and second part to cause movement of the actuator in 25 response to movement of the chassis relative to the wheel 26 support part, 27 Appeal 2008-2413 Application 10/854,864 3 wherein a suspension element is disposed between the 1 chassis and the wheel support part, the suspension element 2 being controllable by supplying pneumatic or hydraulic 3 pressure thereto to provide ride cushioning and, to apply a 4 braking force, being controllable to lower the chassis relative to 5 the wheel support part such that the weight of the vehicle is 6 transmitted via the mechanical linkage to the actuator to 7 provide a braking force. 8 9 THE REJECTION 10 The prior art relied upon by the Examiner in rejecting the claims on 11 appeal is: 12 Kelley US 2,824,713 Feb. 25, 1958 13 The Examiner rejected claims 1, 8, and 9 under 35 U.S.C. § 102(b) 14 (2002) as anticipated by Kelley. 15 16 ISSUE 17 Appellant contends the rejection of claims 1, 8, and 9 is improper 18 because Kelley fails to disclose several elements of claim 1 (App. Br. 5). 19 The issue before us is whether Appellant has shown that the Examiner erred 20 in rejecting claims 1, 8, and 9 under 35 U.S.C. § 102(b) as anticipated by 21 Kelley. This issue turns on whether Kelley discloses a suspension element 22 that is controllable to lower a chassis relative to a wheel support part such 23 that the weight of the vehicle is transmitted via a mechanical linkage to an 24 actuator to provide a braking force. 25 Appeal 2008-2413 Application 10/854,864 4 FINDINGS OF FACT 1 We find that the following enumerated facts are supported by at least 2 a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 3 1427 (Fed.Cir. 1988) (explaining the general evidentiary standard for 4 proceedings before the Office). 5 1. Kelley discloses a brake for a vehicle, such as an airplane, 6 including a valve device 7 comprised of casing 42 attached to 7 frame 20 (chassis) with elongated piston 44 slidably mounted in 8 the vertical piston bore of the casing 42. The lower end of 9 piston 44 is connected to an upper end of wheel-support rod 8 10 (wheel support part). The lower end of the wheel-support rod 8 11 is attached to axle 2 that supports wheel 1. Elongated piston 44 12 operates within pressure chamber 45, which is closed at the 13 upper end by head 43 (Kelley, col. 3, l. 69 to col. 4, l. 17 and 14 col. 4, ll. 62-69). 15 2. Valve device 7 operates with hydraulic fluid to lower 16 frame (chassis) 20 relative to wheel-support rod 8. When 17 the airplane (vehicle) is airborne, elongated piston 44 and 18 the connected wheel-support rod 8 are at the lower end of 19 casing 42 (Kelley, col. 5, l. 69-73). Upon landing, "as 20 the airplane frame 20 gradually settles, upon decrease in 21 wing lift, it causes the casing 42 and head 43 rigidly 22 associated therewith to move downwardly relative to the 23 support rod 8" (Kelley, col. 6, ll. 22-30). 24 Appeal 2008-2413 Application 10/854,864 5 3. Appellant admits that the fluid in the valve device 1 operates to dampen (ride cushion)1 (Reply Br. 2). 2 4. Kelley does not disclose the sump 11, accumulator 9, or 3 pump 10, nor any other element of the device, as able to 4 control valve device 7 to lower the frame (chassis) 5 relative to the wheel-support rod 8 (Kelley, col. 1, l. 64 to 6 col. 2, l. 5). 7 5. Kelley discloses that the braking force applied to a wheel 8 of a vehicle is "controllable according to the weight 9 supported by such wheel" (Kelley, col. 1, ll. 17-18). In 10 other words, valve device 7 operates passively to lower 11 the frame 20 (chassis) relative to the wheel-support rod 8 12 in response to weight of the aircraft (vehicle) being 13 transferred to the wheel (Kelley, col. 8, ll. 38-56). 14 15 PRINCIPLES OF LAW 16 “A claim is anticipated only if each and every element as set forth in 17 the claim is found, either expressly or inherently described, in a single prior 18 art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 19 628, 631 (Fed. Cir. 1987), cert denied, 484 U.S. 827 (1987). 20 21 1 The Examiner initially referred to element 45 of Kelley as the suspension element, then later clarified that "element 45 forms a part of the overall device 7" (Answer 4-6). In fact, element 45 of the Figure of Kelley refers to the pressure chamber of the valve device 7 (not "overall" device 7). Appellant concedes the device of Kelley provides damping (ride cushioning), and it is so disclosed (Kelley, col. 3, l. 69 to col. 4, l. 17). Appeal 2008-2413 Application 10/854,864 6 ANALYSIS 1 Our analysis begins with the claim. Claim 1 recites that the 2 suspension element must be: 3 controllable to lower the chassis relative to the 4 wheel support part such that the weight of the 5 vehicle is transmitted via the mechanical linkage to 6 the actuator to provide a braking force. 7 The Examiner found that the valve device of Kelley is controllable by 8 supplying hydraulic pressure "to lower the chassis relative to the wheel 9 support part such that the weight of the vehicle is transmitted via the 10 mechanical linkage to the actuator to provide a braking force" (Ans. 4-5). 11 Appellant contends that Kelley does not disclose a suspension element 12 (App. Br. 8). Appellant further contends that the mechanism the Examiner 13 refers to as a suspension element does not read on the claimed suspension 14 element simply because they perform the similar function of damping 15 (Reply Br. 2). 16 The valve device of Kelley operates to lower the chassis relative to the 17 wheel support part, performing ride cushioning or damping (Facts 1-3). 18 Kelley does not disclose any element of the device capable of controlling the 19 valve device to lower the chassis relative to the wheel support (Fact 4). The 20 device of Kelley lowers the chassis relative to the wheel support part in 21 response to weight on the wheels, i.e., passively, not controllably (Fact 5). 22 Appellant’s claim 1 requires the suspension element to be controllable 23 to lower the chassis relative to the wheel support part. Because the valve 24 device of Kelley is not controllable to lower the chassis relative to the wheel 25 support part, Kelley does not teach each and every element of the claimed 26 device. Therefore, Kelley does not anticipate the claimed device and the 27 Appeal 2008-2413 Application 10/854,864 7 rejection of claim 1 was improper. Further analysis of differences between 1 the prior art and the invention at hand are not required. Because claims 8 2 and 9 are dependent on claim 1, their rejection was also improper. 3 4 CONCLUSION 5 The Appellant has shown that the Examiner erred in rejecting claim 1, 6 8, and 9 under 35 U.S.C. § 102(b) as anticipated by Kelley. 7 8 DECISION 9 The decision of the Examiner to reject claims 1, 8, and 9 is reversed. 10 11 REVERSED 12 13 14 vsh 15 16 WESLEY W. WHITMYER, JR. 17 ST. ONGE STEWARD JOHNSTON & REENS, LLC 18 986 BEDFORD STREET 19 STAMFORD, CT 06905-5619 20