Ex Parte Scott

Patent Trial and Appeal Board

Mar 3, 2017

13553747 (P.T.A.B. Mar. 3, 2017)

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.
13/553,747 07/19/2012 Steven Richard Scott 60795-301701 3898
7590 03/06/2017
Patent Law Office of Larry Guernsey
P.O. Box 720247
San Jose, CA 95172-0247
EXAMINER
HONG, DANNY
ART UNIT PAPER NUMBER
3727
MAIL DATE DELIVERY MODE
03/06/2017 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 STEVEN RICHARD SCOTT
Appeal 2015-004905
Application 13/553,747
Technology Center 3700
Before WILLIAM A. CAPP, GEORGE R. HOSKINS, and
ARTHUR M. PESLAK, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the final
rejection of claims 1, 2, 4, and 6 under 35 U.S.C. § 102(b) as anticipated by
Brahler (US 7,267,155 B2, iss. Sept. 11, 2007), and the rejection of claims 7,
8, 11, and 13—15 as unpatentable under 35 U.S.C. § 103(a) over Brahler and
Miller (US 2,822,211, iss. Feb. 4, 1958). We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.
Appeal 2015-004905
Application 13/553,747
THE INVENTION
Appellant’s invention relates to tools for replacing a tire on the wheel.
Spec. 12. Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A bead breaker tool, comprising:
an upper member; and
a lower member, where said upper member and said lower
member which are interleaved together to make a lever
assembly, where said upper member and said lower member are
detachable from each other, and where said detached upper
member and said lower member are configured as tire irons,
wherein said upper member and said lower member both have
rear ends and front ends, where said front ends are formed as
fingers, wherein said lever assembly has an open position and a
closed position and when said lever assembly is in said closed
position, said fingers align to form a narrow wedge.
OPINION
Anticipation of Claims 1, 2, 4, and 6 by Brahler
The Examiner finds that Brahler discloses all of the elements of
claim 1. Final Act. 4—5. In particular, the Examiner finds that Brahler’s
upper member 20 and lower member 22 are detachably interleaved together
in such a manner that, when in the closed position, the front ends are formed
as fingers that align to form a narrow wedge. Id.
Appellant argues that the Examiner errs in finding that Brahler
includes fingers that align to form a narrow wedge. App. Br. 7. Appellant
identifies element 30 on one end of Brahler’s lever arm 20 (or upper
member) as one possible finger. Id. Appellant identifies wings 106
and 108, respectively, on Brahler’s clevis 22, as possible fingers. Id.
Appellant argues that such fingers do not align to form a narrow wedge in
the closed position. Id.
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Appeal 2015-004905
Application 13/553,747
In response, the Examiner provides an annotated excerpt from Braider
Figure 5. Ans. 6. The Examiner then explains that:
Brahler discloses an open position (when the tool is first
inserted) and a closed position (when the user presses
downwards on the tool via lever 20). In the annotated figure
above, the Examiner points out the wedge shape wherein the
fingers 36 pass through the aperture 95.
Id.
Brahler discloses a tire working tool. Brahler, col. 3,11. 12—14. A
lever arm 20 has a first working end and a second working end. Id. col. 6,
11. 7—12. First working end 26, the end we are concerned with here, curves
as it approaches tip 30, creating a curved portion 32 that has a concave
side 34 and a convex side 36. Id. col. 6,11. 13—26. The convex side 36
includes a plurality of indentations 38 that serve as catch points for
manipulating clevis 22. Id. col. 6,11. 17—23. The feature of providing
multiple indentations allows a user to select a position that best suits the job
and also allows for individual user size and technique. Id.
The Examiner identifies Brahler’s lever arm 20 as corresponding to
the upper member of claim 1. Final Action 2. Brahler also discloses a
second, detached member, clevis 22, which the Examiner identifies as
corresponding to the lower member of claim 1. Id. Clevis 22 has an
aperture 95 disposed proximate to its lower edge 78. See Fig 3; col. 7,
11. 40-43. In operation, the first working end 26 of lever arm 20 is inserted
through aperture 95 and is used to manipulate clevis 22. Id. col. 7,11. 61—64.
Brahler’s clevis 22 has wing members comprised of separator
bars 102, 104, and wings 106, 108. See Brahler, Fig. 2, col. 8,11. 4—13. The
separator bars are displaced laterally a distance A between the body and the
wings of the clevis. Id. The wings are curved in a downward direction to
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Appeal 2015-004905
Application 13/553,747
enable the wings to engage a tire bead as a tire is moved over a wheel flange.
Id. col. 8,11. 33—36. In operation, the first working end 26 of lever arm 20 is
placed into and partially through aperture 95 with the user selecting an
appropriate indentation 38 to secure first working end 26 in place. Id. col. 8,
11. 50—53. The user then manipulates lever arm 20 such that it is moved over
the tire and wheel rim. Id. col. 8,11. 53—55.
We have studied Figures 2—6 of Brahler and note that, in operation,
the direction of curvature of first working end 26 of lever arm 20 arcs in a
direction that is opposite the direction of curvature of wing bodies 142, 144.
See Brahler, Fig. 5A. We also observe that working end 26 has a plurality of
indentations 38 along its convex surface and further note that Brahler
instructs the user to select “an appropriate indentation” to secure the working
end 26 into place in aperture 95. Id. col. 8,11. 50-53. It is apparent to us
that use of the various indentations will result in different orientations of the
working end 26 vis-a-vis the wings 106, 108. Taking into account the
respective directions of curvature of the working end 26 of lever arm 20 and
the wing bodies 142, 144 of clevis 22, together with variations of the
orientation of the working end vis-a-vis the clevis due to the location and
orientation of the various indentations on working end 26, we determine that
the Examiner’s finding of fact that Brahler discloses fingers on working
end 26 of lever arm 20 and on clevis 22 that align to form a narrow wedge
when the lever assembly is in the closed position is not supported by a
preponderance of the evidence.
For a prior art reference to anticipate a claim, it must disclose all of
the limitations of the claim, “arranged or combined in the same way as in the
claim.” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1370 (Fed. Cir.
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Appeal 2015-004905
Application 13/553,747
2008). Based on our review of the record, the Examiner erred in finding that
Brahler anticipates claim 1 and, accordingly, we do not sustain the
Examiner’s anticipation rejection of claim 1, and neither do we sustain the
rejection of claims 2, 4, and 6 that depend therefrom.
Unpatentability of Claims 7, 8, 11, and 13—15
over Brahler and Miller
Claim 7 depends from claim 1. Claims App. Claim 8 is an
independent claim and claims 11 and 13—15 depend from claim 8. Id.
Claims 7 and 8 differ from claim 1 in that they each include a limitation
directed to handle portions with crossguards. Id.
The Examiner relies on Miller as disclosing the use of crossguards on
a handle. Final Action. 6. Otherwise, the Examiner, once again, relies on
Brahler as disclosing fingers that align to form a narrow wedge, a finding
that we have determined is erroneous. Id. at 6—7. The Examiner’s error
regarding aligned fingers is not cured by Miller and, consequently, we do
not sustain the rejection of claims 7, 8, 11, and 13—15.
DECISION
The decision of the Examiner to reject claims 1, 2, 4, 6—8, 11,
and 13—15 is reversed.
REVERSED
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