Ex Parte Richter

Patent Trial and Appeal Board

Apr 23, 2013

11475439 (P.T.A.B. Apr. 23, 2013)

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.
11/475,439 06/27/2006 Harald Richter RI 209 2048
7590 04/23/2013
KLAUS J. BACH & ASSOCIATES
4407 TWIN OAKS DRIVE
MURRYSVILLE, PA 15668
EXAMINER
LE, TAN
ART UNIT PAPER NUMBER
3632
MAIL DATE DELIVERY MODE
04/23/2013 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 HARALD RICHTER
____________________

Appeal 2011-001626
Application 11/475,439
Technology Center 3600
____________________

Before: JAMES P. CALVE, SCOTT A. DANIELS, and
JEREMY M. PLENZLER, Administrative Patent Judges.

DANIELS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-001626
Application 11/475,439

2
STATEMENT OF CASE
Harald Richter (Appellant) appeals under 35 U.S.C. § 134 from a
rejection of claims 1-3 and 5-7. Claim 1 is the sole independent claim, and
claim 4 is canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The claims are directed to a vacuum suction holder with a release
position locking structure. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A vacuum suction holder comprising a
suction housing (1) with a guide housing (4), the
suction housing (1) having a base opening, a
suction membrane (2) extending across the suction
housing (1) at the base opening, a membrane
operating mechanism including a shaft (2')
connected to the suction membrane (2) and being
disposed in the guide housing (4) so as to be
movable together with the suction membrane (2)
between a release position, in which the suction
membrane extends flatly across the base opening
of the suction housing (1), and an operative
position, in which the suction membrane (2) is
pulled into the suction housing (1), said membrane
operating mechanism including an operating lever
(6) with an eccentric cam (7) engaging the suction
housing (1) for moving the operating shaft 2'
together with the suction membrane (2) into the
operative position of the suction membrane (2) and
said eccentric cam (7) having a counter cam
structure (9) abutting a bracket (8) disposed on the
guide housing (4) and holding the operating shaft
(2') together with the membrane (2) in the release
position in which it extends flat across the suction
housing opening.

Appeal 2011-001626
Application 11/475,439

3
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Tsay US 7,007,908 B2 Mar. 7, 2006

REJECTIONS
The Examiner made the following rejections:
Claims 1-3 and 5-7 stand rejected under 35 U.S.C §102(e) as being
anticipated by Tsay. Ans. 3.

ANALYSIS
Appellant argues claims 1-3, 6 and 7 as a group, where claim 1 is the
only independent claim, and present separate arguments as to dependent
claim 5. See App. Br. 2, 4-6. We initially select claim 1 as representative of
the group where claims 2, 3, 6 and 7 stand or fall with claim 1. See 37
C.F.R. 41.37(c)(1)(vii) (2011).

Claims 1-3 and 5-7 stand rejected under 35 U.S.C §102(e) as being
anticipated by Tsay.1
Claims 1-3, 6 and 7.

The Examiner found that Tsay’s suction disk discloses each of the
limitations of claim 1 inter alia, a suction housing 21, a suction membrane

1 Appellant requests that we consider the final amendment of March 20,
2009, to claim 1, which was not entered by the Examiner. See Advisory
Action of April 1, 2009. This relates to a matter that is petitionable to the
Director under 37 C.F.R. § 1.181, and thus is not within the jurisdiction of
the Board. See Manual of Patent Examining Procedure (MPEP) § 1201 (8th
Ed., Rev. 8, Jul. 2010) (the Board will not ordinarily hear a question that is
reviewable by petition); In re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002).
Appeal 2011-001626
Application 11/475,439

4
11 covering a base opening in the suction housing 21, an operative position
(Tsay fig. 4), a release position (Tsay fig. 3), and an eccentric cam 22 having
a counter cam structure defined as the “long flat portion below 22 and
opposite portion 22.” Ans. 3-4 and see Tsay fig. 4. The Examiner further
found that in Tsay the counter cam structure abuts a bracket, and in doing so
holds the operating shaft and the hence the membrane 11 in the release
position “flat across the suction housing opening” (Tsay fig. 3) as called for
in claim 1. Ans. 3.
Appellant argues that Tsay does not disclose all of the features of the
claimed invention, specifically that “[n]o structure is provided for positively
holding the disk 11 in the flat release position other than the spring 5.” App.
Br. 4. Appellant asserts that different from Tsay, with the presently claimed
arrangement, the suction membrane is positively forced into the release
position so that the membrane extends flat across the base opening defined
by the suction housing. App. Br. 5, Reply Br. 2-3. In this way Appellant
explains,
the membrane cannot remain in a curved position and
cannot permanently assume a curved position which would
result in a reduced engagement force when vacuum-attached
subsequently to a flat surface since air would be present
between the membrane and the flat mounting surface so that a
substantially lower vacuum and accordingly only a reduced
vacuum force for retaining the device on the flat surface could
be obtained.

Id. Appellant argues specifically that Tsay does not disclose a bracket on
the guide housing nor a counter cam on the operating lever which adjusts the
operating shaft, and hence the suction membrane, to align flat across the
suction housing opening in a release position. Id.
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Appeal 2011-001626
Application 11/475,439

6
than the spring 5” does not apprise us of error in the Examiner’s findings.
The Examiner has pointed to specific structure in Tsay which is
commensurate with Appellant’s claim language and Appellant has provided
no technical reason nor evidence which contradicts the Examiner’s specific
findings with respect to Tsay’s disclosed structure.
Turning to Appellant’s argument that the suction member is positively
forced into the release position in which the membrane extends flat across
the base opening, “so that the membrane cannot remain in a curved position
and cannot permanently assume a curved position which would result in a
reduced engagement force when vacuum-attached subsequently to a flat
surface” (App. Br. 5), this argument is not commensurate in scope with the
claim language. Claim 1 merely recites that in the release position the
membrane (2) “extends flat across the suction housing opening.” Moreover,
Tsay’s Figure 3 indicates a release position with the membrane 11 extending
flat across the opening of the suction housing where the abutment of the
bracket and flat, counter-cam structure adjacent cam edge 22 maintain the
membrane 11 in the release position disclosed in Tsay’s Figure 3. See Tsay,
col. 2, ll. 25-27 (Fig. 3 is initial application stage); col. 2, l. 66 to col. 3, l. 7.
Appellant has failed to demonstrate a patentably distinguishable structural
difference between the claimed invention and Tsay. See In re Spada, 911
F.2d 705, 708 (Fed. Cir. 1990) (“when the PTO shows sound basis for
believing that the products of the applicant and the prior art are the same, the
applicant has the burden of showing that they are not”). We are not apprised
of error in the Examiner’s findings and thus we sustain the Examiner’s
rejection of claim 1, where claims 2, 3, 6 and 7 fall therewith.

Appeal 2011-001626
Application 11/475,439

7
Claim 5.
Appellant argues that claim 5 further defines the counter cam structure
as having “a flat surface area where it abuts the retaining brackets 8 in the
release position.” App. Br. 5, Reply Br. 2. Appellant asserts that this feature
of a flat surface on the cam abutting the bracket 8 is a simple and
inexpensive locking means not disclosed by Tsay. Again, this argument does
not address the Examiner’s specific structural findings of the flat surface
portion of cam edge 22 as discussed supra, nor provide any technical
reasoning or evidence which apprises us of error in the Examiner’s finding.
Accordingly, we also sustain the Examiner’s rejection of claim 5 as
anticipated by Tsay.

DECISION
For the above reasons, the Examiner’s rejection of claims 1-3 and 5-7
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)(1)(iv) (2009).

AFFIRMED

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