Ex Parte Reznar

Board of Patent Appeals and Interferences

Sep 22, 2011

11235640 (B.P.A.I. Sep. 22, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/235,640 09/26/2005 Jason Reznar DAS-12303/50 3225
25006 7590 09/22/2011
GIFFORD, KRASS, SPRINKLE,ANDERSON & CITKOWSKI, P.C
PO BOX 7021
TROY, MI 48007-7021
EXAMINER
ADAMS, GREGORY W
ART UNIT PAPER NUMBER
3652
MAIL DATE DELIVERY MODE
09/22/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte JASON REZNAR
________________

Appeal 2009-014782
Application 11/235,640
Technology Center 3600
________________

Before ROBERT A. CLARKE, CHARLES N. GREENHUT and
MICHAEL L. HOELTER, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-014782
Application No. 11/235,640

2
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a), from a final
rejection of claims 1-7, 9-13, 15, 16 and 21-241. Claims 8, 14 and 17-20
have been canceled. The real party in interest is Dura Global Technologies,
Inc. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The Claimed Subject Matter
The claimed subject matter is directed to a tire handling system that
includes a wheel retainer having a housing and at least one extending
member rotatable from a retracted position to an extended position.
Independent claim 1 is illustrative of the claims on appeal and is reproduced
below:
1. A spare tire handling system adapted for moving a spare tire
relative to a vehicle, the device comprising, in combination:
a winch apparatus;
a flexible member having one end attached to the winch and the
other end detachably engageable with the tire, the tire being
displaceable from an accessible position to a stored position in
response to the rotation of the winch in one direction and from the
stored position to the accessible position in response to the rotation of
the winch in the opposite direction;
a wheel retainer member adjacent to the other end of the
flexible member, the wheel retainer member having a housing and at
least one extending portion being rotatable from a retracted position to
an extended position;
a secondary lock assembly attached to the housing, the
secondary lock engageable to assist a primary lock assembly in
retaining the tire;

1 Claim 25 is objected to and will not be addressed (Final Office Action p.
5).
Appeal 2009-014782
Application No. 11/235,640

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a stop adjacent the housing, the stop preventing over-rotation of
the at least one extending portion beyond the extended position; and
a biasing member urging the at least one extending portion
toward the extended position.

Reference Relied on by the Examiner
Raz US 6,435,479 B1 Aug. 20, 2002

The Rejection on Appeal
Claims 1-7, 9-13, 15, 16 and 21-24 are rejected as being anticipated
under 35 U.S.C. § 102(b) in view of Raz (Ans. 3).

ISSUE
Does Raz disclose a tire handling system having a wheel retainer that
includes a housing and an extending portion rotatable from a retracted
position to an extended position?

FINDINGS OF FACT
1. Raz discloses a device for securing “a spare tire for a vehicle” (Raz
1:8-10).
2. Raz discloses a housing and a wheel retainer designed to pass through
the bore of a spare tire’s wheel (Raz 1:57-61, 4:37-40 and Figs. 1 and 6-8).
3. Raz discloses a lever pivotally mounted in the housing (Raz 1:67 to
2:1, 4:18-19).
4. Raz’s lever pivots between first and second positions (Raz 2:2-6,
4:24-27 and Figs. 1 and 6).

Appeal 2009-014782
Application No. 11/235,640

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PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co., 814 F.2d 628, 631 (Fed.
Cir. 1987).
“A reference does not fail as an anticipation merely because it does
not contain a description of the subject matter of the appealed claim in
ipsissimis verbis” (In re May, 574 F.2d 1082, 1090 (CCPA 1978) citing In
re Schaumann, 572 F.2d 312, 317 (CCPA 1978)).

ANALYSIS
Appellant argues independent claims 1, 12 and 21 as a group (App.
Br. 10, Reply Br. 1). We select claim 1 for review. Appellant also presents
arguments directed to dependent claim 4 which will be addressed.
Dependent claims 2, 3, 5-7, 9-11, 13, 15, 16 and 22-24 are not separately
argued and stand or fall with claim 1. 37 C.F.R. 41.37(c)(1).
Independent Claim 1
Claim 1 is directed to a device for securing a spare tire to a vehicle.
Claim 1 requires “a wheel retainer member adjacent to the other end of the
flexible member, the wheel retainer member having a housing and at least
one extending portion being rotatable from a retracted position to an
extended position.” The Examiner provides a Claim Comparison Chart
listing the claimed features of the instant application and identifies where
such features can be found in Raz (Ans. 6-7, see also 3-4). With respect to
the claimed wheel retainer, the Examiner refers to Raz’s housing 32 and its
bulbous portion 40, pivotal lever 46 and its camming surface 56, pivot 48,
Appeal 2009-014782
Application No. 11/235,640

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opening 44 and wheel retainer 62, the latter providing the “intervening
connection” between Raz’s housing and wheel (Ans. 3-4, 6-10).
Appellant submits a “DECLARATION UNDER 37 CFR 1.132” by a
non-inventor which has been reviewed by the Examiner as stated on page 6
of the Final Office Action mailed Dec. 27, 2007. This Declaration provides
a definition of “wheel retainer” as this term is known “to one of skill in the
art of tire carriers” (Decl. 2 ¶ 6). As stated, a wheel retainer “is a member
that includes a flange or support structure that mates with a rim of a tire to
support the tire. The wheel retainer may be positioned about a hole or
opening in the rim of the tire” (Decl. 2 ¶ 6).
Appellant contends “The wheel retainer of the Raz reference does not
include a portion that rotates from a retracted to an extended position” (App.
Br. 11, see also Reply Br. 1-2). Further, Appellant contends that Raz’s
items “40, 42 are not a wheel retainer as defined in the specification of the
Raz reference” (App. Br. 11-12). Appellant concludes that the Examiner has
“not addressed that the Raz reference specifically identifies item 62 as a
wheel retainer” and that the “Raz reference fails to teach a wheel retainer
member that includes a housing and at least one extending portion” (App.
Br. 11-12, Reply Br. 3).
The industry wide definition of “wheel retainer” as set forth in the
Declaration (supra) is consistent with Appellant’s Specification which states
that “As shown in Fig. 3, the illustrated wheel retainer 30 includes a housing
32, a first extending portion 34, a second extending portion 38, a pivot pin
40 and a biasing member 45” (Spec. 5 ¶ [0017]). Both the Declaration and
Appellant’s Specification use the term “wheel retainer” to be a member that
includes a support that mates with a tire rim.
Appeal 2009-014782
Application No. 11/235,640

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The Examiner also adopts this definition stating that “The cited prior
art discloses the definition supplied by Appellant” (Ans. 10). The Examiner
cites to Raz’s disclosure of a member that includes a support that mates with
a tire rim (Ans. 9). More specifically, see the Examiner’s Claim
Comparison Chart and the Examiner’s reference to other wheel retainer
member components such as Raz’s support that provides the “intervening
connection” between the housing and the tire rim (Ans. 3, 7 and 9). The
Examiner also identifies Raz’s pivotal lever that is mounted in Raz’s
housing identified above (Ans. 7).
The Examiner’s reference to multiple components disclosed in Raz
that teach the claimed wheel retainer is consistent with Appellant’s similar
reference to multiple components that form Appellant’s claimed wheel
retainer (Spec. 5 ¶ [0017] and Fig. 3, item 30, see also App. Br. 10 and
Reply Br. 1). In view of the above, we are not persuaded by Appellant to
limit Raz’s disclosure of the claimed wheel retainer to the single item which
Raz has described in light of the multi-component definition of “wheel
retainer” asserted by Appellant in the instant proceeding and followed by the
Examiner in considering Raz.
Appellant further contends that Raz’s “structure 56 is a part of a
secondary latching mechanism and is not a wheel retainer as understood by
one of skill in the art” (Reply Br. 3). Raz’s structure 56 is part of the
secondary mechanism that “breaks the fall” of the spare tire should the
primary tire support (i.e. the cable) rupture (Raz 5:3-8). However, structure
56 is also part of Raz’s lever which is mounted in the housing and pivots
between a retracted and an extended position (Raz 1:67 to 2:6, 4:18-27 and
Figs. 1 and 6). The Examiner has referenced Raz’s lever and its rotation, as
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Application No. 11/235,640

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well as this housing, as disclosing part of the claimed wheel retainer (Ans.
7). We agree with the Examiner that Raz discloses the claimed limitation of
a wheel retainer “having a housing and at least one extending portion being
rotatable from a retracted position to an extended position.”
Based on the record before us, we adopt the Examiner’s remaining
findings and we sustain the Examiner’s rejection of claims 1-3, 5-7, 9-13,
15, 16 and 21-24 as being anticipated by Raz.
Dependent Claim 4
Claim 4 depends directly from claim 1 and further requires ”the wheel
retainer being insertable into the aperture when the at least one extending
portion is in the retracted position and being sized greater than the aperture
when the extending portion is moved by the biasing member toward the
extended position.” The Examiner states that Raz discloses this limitation
(Ans. 4). Appellant contends that Raz “does not include a portion that
rotates from a retracted to an extended position to allow passage of the
wheel retainer through the hole in the rim and then extend out to support the
rim” (App. Br. 11 and Reply Br. 2).
Claim 4 is directed to the wheel retainer (not the extended portion)
“being insertable into the aperture” and “being sized greater than the
aperture when the extending portion is moved by the biasing member toward
the extended position.” Raz’s wheel retainer includes a portion that is
insertable into the rim aperture as claimed (see Raz Fig. 1). Raz’s wheel
retainer is also “sized greater than the aperture” (see portion 62 which mates
with the rim) as claimed whether the extending portion is rotated or not
(Raz’s Figs 1 and 6). Accordingly, we sustain the Examiner’s rejection of
claim 4.
Appeal 2009-014782
Application No. 11/235,640

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CONCLUSION OF LAW
Raz discloses a tire handling system having a wheel retainer that
includes a housing and an extending portion rotatable from a retracted
position to an extended position.

DECISION
The rejection of claims 1-7, 9-13, 15, 16 and 21-24 as being
anticipated under 35 U.S.C. § 102(b) in view of Raz 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).

AFFIRMED

MP