Ex Parte Reimers et alDownload PDFPatent Trial and Appeal BoardDec 9, 201411744662 (P.T.A.B. Dec. 9, 2014) 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. 11/744,662 05/04/2007 Kirk W. Reimers CUSM E496D1 9274 127767 7590 12/09/2014 Polster, Lieder, Woodruff & Lucchesi, L.C. 12412 Powerscourt Drive, Suite 200 St. Louis, MO 63131-3615 EXAMINER TORRES, ALICIA M ART UNIT PAPER NUMBER 3671 MAIL DATE DELIVERY MODE 12/09/2014 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 KIRK W. REIMERS and DAMMIKA WEERATUNGA ____________ Appeal 2012-008938 Application 11/744,6621 Technology Center 3600 ____________ Before: MICHAEL C. ASTORINO, JUSTIN T. ARBES, and GEORGE R. HOSKINS, Administrative Patent Judges. HOSKINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Kirk W. Reimers and Dammika Weeratunga (“Appellants”) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–16. The Board has jurisdiction over this appeal under 35 U.S.C. § 6(b). The Examiner’s decision is AFFIRMED. 1 The Appeal Brief identifies Textron Innovations Inc. as the real party in interest. See Appeal Br. 1. Appeal 2012-008938 Application 11/744,662 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of the claims on appeal: 1. A self-propelled riding mower comprising: a frame; a plurality of ground engaging wheels supporting the frame; an internal combustion engine supported by the frame; a generator operatively coupled to the internal combustion engine for providing electrical power; a hydraulic drive system including an electronically actuated hydrostatic transmission for controlling driving of at least one of the ground engaging wheels, said hydraulic drive system operatively coupled [to] and driven by the internal combustion engine to power the hydraulic drive system; and a plurality of reel-included lawn mowers supported from the frame, one of the plurality of reel-included lawn mowers preceding each of the plurality of ground engaging wheels, each reel-included lawn mower comprising a cutting reel and an electric motor operable to rotatably drive the cutting reel, said electric motor operatively coupled with said generator for receiving electrical power from said generator. Appeal Br., Claims App. REJECTIONS Appellants request our review of the following rejections. Appeal Br. 4. Claims 1, 2, 4–8, 11, 13, and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable over Clapper (US 2,057,417, iss. Oct. 13, 1936), Berrios (US 4,920,733, iss. May 1, 1990), and Dornfeld (US 4,082,013, iss. Apr. 4, 1978). Appeal 2012-008938 Application 11/744,662 3 Claims 3 and 12 are rejected under 35 U.S.C. § 103(a) as unpatentable over Clapper, Berrios, Dornfeld, and Aldred (US 4,878,338, iss. Nov. 7, 1989). Claims 9, 10, 15, and 16 are rejected under 35 U.S.C. § 103(a) as unpatentable over Clapper, Berrios, Dornfeld, and Tubbs (US 2,993,323, iss. July 25, 1961). ANALYSIS A. Obviousness Rejection based upon Clapper, Berrios, and Dornfeld Appellants do not argue for the patentability of claims 2, 4–8, 11, 13, and 14 separately from claim 1. See Appeal Br. 4–10; Reply Br. 1–3. Therefore, in accordance with 37 C.F.R. § 41.37(c)(1)(vii) (2011), we select claim 1 to decide the appeal of the rejection of these claims, with the other claims standing or falling with claim 1. Appellants contend the cited references fail to disclose, individually or in combination, a self-propelled riding mower with a generator that provides electrical power to a plurality of reel-included lawn mowers supported on a frame, and a hydraulic drive system including an electronically actuated hydrostatic transmission to control driving of at least one ground engaging wheel, with the generator and hydraulic drive system coupled to an internal combustion engine, as recited in claim 1. Appeal Br. 4–5. This contention is not persuasive. The Examiner found correctly that Clapper discloses a self-propelled riding mower with generator 206, coupled to an internal combustion engine, to provide electrical power to a plurality of reel-included lawn mowers supported on frame 200. See Ans. 4 (citing Clapper, Fig. 12, 7:51–54, 8:4–9). The Examiner further found correctly that Berrios Appeal 2012-008938 Application 11/744,662 4 discloses a lawn mower with hydraulic drive system 34, 35, and 71–76, coupled to internal combustion engine 21, and including hydrostatic transmission 71–76 to drive ground engaging wheels 12 and 13 on the mower. See id. at 6; Berrios, 2:61–3:6, 3:26–35. The Examiner moreover found correctly that Dornfeld discloses an electronically actuated hydrostatic transmission. See Ans. 7 (citing Dornfeld’s electronic control 58); Dornfeld, 2:11–25, 2:56–57, Fig. 1. Appellants also contend Clapper, Berrios and Dornfeld “teach away from combining the references with one another,” because: (a) Clapper discloses a tractor riding mower having wheels propelled by an internal combustion engine, whereas Berrios discloses “a walk behind mower that includes a simple hydraulic pump drive” for propelling the wheels; and (b) Dornfeld “illustrates a complex heavy equipment hydrostatic transmission control,” whereas Clapper and Berrios are simple lawn mowers. Appeal Br. 5; Reply Br. 1–2. This contention is not persuasive. To teach away, a reference must actually criticize, discredit, or otherwise discourage the claimed solution. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellants have pointed out differences among the three references, but have not established that Clapper criticizes, discredits, or discourages using a “hydraulic drive system,” as claimed, in its riding mower; or that Berrios criticizes, discredits, or discourages using a hydraulic transmission in a “riding mower,” as recited in the claim preamble; or that Dornfeld criticizes, discredits, or discourages using an “electronically actuated hydrostatic transmission,” as claimed, in a lawn mower. Appellants further contend the Examiner fails to provide any explicit reasoning why the combination of Clapper, Berrios, and Dornfeld would Appeal 2012-008938 Application 11/744,662 5 have been obvious, and instead provides conclusory statements with no rational underpinning to support the rejection. Appeal Br. 6–10 (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007)); Reply Br. 2. This contention is not persuasive. The Examiner states “[i]t would have been obvious . . . to substitute the hydraulic wheel-driving system of Berrios for the [internal combustion engine] wheel-drive system of Clapper in order to provide a mower drive mechanism that is promptly responsive to the user’s commands.” Ans. 7 (emphasis added); see also Berrios, 1:26–35 (describing hydraulic drive control operating “so that the mower’s movement over the ground is promptly responsive to the user’s commands”). The Examiner further states it would have been obvious, in light of Dornfeld, to include an electronic control of the hydrostatic transmission on the riding mower of Clapper and Berrios, “in order to provide an accurate and slow acting control to hydrostatic transmissions, . . . thereby avoiding abrupt changes of ratio and subsequent shocks to the power train.” Ans. 7; see also id. at 10 (same analysis); Dornfeld, 1:1–13. Those statements provide an explicit reasoning with a rational underpinning for the combination. Appellants moreover rely on the decision in Ex Parte Janson & Baldwin, Appeal 2010-009939 (BPAI Nov. 5, 2010). Appeal Br. 7–8; id. Ex. G (copy of decision); Reply Br. 1–2. That non-precedential decision, however, was grounded on the Examiner’s failure to articulate how a person having ordinary skill in the transmission art would combine a geared automatic transmission with a belted constant variable transmission (CVT) to reach the claimed invention. See Appeal Br., Ex. G, at 4. The present case does not involve transmission gear shifting. Moreover, as already discussed above, the Examiner in this case has in fact discussed the Appeal 2012-008938 Application 11/744,662 6 interrelated teachings of the cited prior art, which was not done in Ex Parte Janson & Baldwin. For these reasons, that prior case has little applicability here. Appellants also contend, in the Appeal Brief, that the Examiner failed to articulate why one skilled in the art would add a hydraulic drive to Clapper’s internal combustion drive system, because “[t]he addition of the redundant hydraulic drive adds substantial cost to the Clapper device.” Appeal Br. 8–9 (emphases added). This contention is misplaced, because the basis for the rejection is that one of ordinary skill would have substituted a hydraulic wheel drive system, such as taught by Berrios, for Clapper’s engine wheel drive system, leaving no redundancies. Ans. 7, 10. In the Reply Brief, Appellants additionally contend that the Examiner’s substitution would be incapable of driving an electric generator with an internal combustion engine, as claimed. Reply Br. 2. This contention is unpersuasive, because Berrios’s hydraulic wheel drive system includes an internal combustion engine. See Berrios, 2:24–27, 2:61–3:6. Appellants further contend the Examiner failed to articulate how one could modify the “simple design” of a hydraulic drive system such as taught by Berrios to include Dornfeld’s “extremely complex” electronic actuator for heavy duty equipment, “which requires a substantial amount of electrical power to run,” when Berrios does not include any electrical power. Appeal Br. 9–10; Reply Br. 2–3. This contention is not persuasive. As set forth above, the Examiner provided a reason why it would have been obvious to add an electronic actuator to control a hydrostatic transmission in a lawn mower. Ans. 7; see also id. at 11 (expounding on reasoning). Appellants’ attempted rebuttal fails to establish that it would require more than ordinary Appeal 2012-008938 Application 11/744,662 7 skill to implement a suitable electronic control of a lawn mower hydraulic system in light of Dornfeld, or explain sufficiently why the Examiner’s reasoning is incorrect. For the foregoing reasons, we sustain the Examiner’s rejection of claims 1, 2, 4–8, 11, 13, and 14 as unpatentable over Clapper, Berrios, and Dornfeld. B. Obviousness Rejection based upon Clapper, Berrios, Dornfeld, and Aldred Appellants contend this rejection of dependent claims 3 and 12 is improper because “the Examiner has provided a naked conclusion as to the combination of” the four references. Appeal Br. 10. This contention is not persuasive. Appellants fail to discuss the Examiner’s analysis of the Aldred disclosure in relation to the claims, or the Examiner’s proffered reason for the combination. See Ans. 7–8. This rejection is therefore sustained. C. Obviousness Rejection based upon Clapper, Berrios, Dornfeld, and Tubbs Appellants contend this rejection of dependent claims 9, 10, 15, and 16 is improper because “the Examiner has provided a naked conclusion as to the combination of” the four references. Appeal Br. 11. This contention is not persuasive. Appellants fail to discuss the Examiner’s analysis of the Tubbs disclosure in relation to the claims, or the Examiner’s proffered reason for the combination. See Ans. 8–9. This rejection is therefore sustained. Appeal 2012-008938 Application 11/744,662 8 DECISION The Examiner’s decision is AFFIRMED. 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 Ssc Copy with citationCopy as parenthetical citation