Ex Parte Tomasson

Board of Patent Appeals and Interferences

Sep 28, 2009

11031893 (B.P.A.I. Sep. 28, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KRIS TOMASSON
____________

Appeal 2009-002333
Application 11/031,893
Technology Center 3600
____________

Decided: September 28, 2009
____________

Before LINDA E. HORNER, STEVEN D.A. McCARTHY, and
MICHAEL W. O'NEILL, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Kris Tomasson (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s final decision rejecting claims 1-20. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).

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SUMMARY OF DECISION
We AFFIRM.

THE INVENTION
The Appellant’s claimed invention is an exterior vehicle architecture
having tandem design cues on the front and rear ends of the vehicle to
produce a strengthened design theme, and a method of designing the same.
Spec. 3:29-4:3. Claim 1, reproduced below, is representative of the subject
matter on appeal.
1. A vehicle architecture comprising:
a vehicle exterior including a front end and a
rear end,
the front end having one or more front end
design cues,
the rear end having one or more rear end
design cues,
one of the front and rear end design cues
having commonality to produce a common design
cue to reinforce the brand identity of the vehicle,
and
the common design cue extending
substantially through and forming a part of two or
more components of the vehicle front and rear
ends and extending through substantially the entire
length of the vehicle front and rear ends.

THE EVIDENCE
The Examiner relies upon the following evidence:
Loftin US 3,110,515 Nov. 12, 1963
Hoelzel US D494,891 S Aug. 24, 2004
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THE REJECTIONS
The Appellant seeks review of the following rejections by the
Examiner:
1. Rejection of claims 1, 3, 4, 6-10, and 12-20 under 35 U.S.C. § 102(b)
as anticipated by Loftin.
2. Rejection of claims 2, 5, and 11 under 35 U.S.C. § 103(a) as
unpatentable over Loftin and Hoelzel.

ISSUES
Anticipation Rejection
The Appellant argues claims 1, 3, 4, 6-10, 12, and 20 as one group.
App. Br. 4-5. We select claim 1 as the representative claim, and claims 3, 4,
6-10, 12, and 20 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii)
(2008). The Appellant contends the Examiner erred in rejecting claim 1
because the three lower parts numbered 52 of Loftin do not form a part of
two or more components of the vehicle front and rear ends as required by
claim 1.
The Appellant argues claim 13 separately and contends the Examiner
erred in rejecting claim 13 because Loftin does not disclose designing the
front and rear ends in tandem to produce a common design cue extending
substantially through and forming a part of two or more components of the
vehicle front and rear ends as required by claim 13. App. Br. 5.
The Appellant argues claims 14, 15, and 16 as another group. App.
Br. 4-5. We select claim 14 as the representative claim, and claims 15 and
16 stand or fall with claim 14. 37 C.F.R. § 41.37(c)(1)(vii). The Appellant
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argues that Loftin does not disclose a common design configuration
extending through and forming a part of two or more components of the
vehicle front and rear ends as required by claim 14. App. Br. 6.
The Appellant argues claims 17 and 19 as another group. App.
Br. 4-5. We select claim 17 as the representative claim, and claim 19 stands
or falls with claim 17. 37 C.F.R. § 41.37(c)(1)(vii). The Appellant argues
that Loftin does not disclose a common design cue on the vehicle front and
rear end extending substantially through and forming a part of two or more
components of the vehicle front and rear ends as required by claim 17. App.
Br. 6.
The Appellant argues claim 18 under a separate heading and contends
that Loftin does not disclose a “design configuration” as the common design
cue, as required by claim 18. App. Br. 18.
The issues before us for the first rejection are:
Has the Appellant shown the Examiner erred in finding that the three
lower parts numbered 52 of Loftin form a part of two or more components
of the vehicle front and rear ends, as called for in claim 1?
Has the Appellant shown the Examiner erred in finding that Loftin
discloses designing the front and rear ends in tandem to produce a common
design cue extending substantially through and forming a part of two or
more components of the vehicle front and rear ends, as called for in
claim 13?
Has the Appellant shown the Examiner erred in finding that Loftin
discloses a common design configuration extending through and forming a
part of two or more components of the vehicle front and rear ends, as called
for in claim 14?
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Has Appellant shown the Examiner erred in finding that Loftin
discloses a common design cue on the vehicle front and rear end extending
substantially through and forming a part of two or more components of the
vehicle front and rear ends, as called for in claim 17?
Has Appellant shown the Examiner erred in finding that Loftin
discloses a “design configuration” as the common design cue, as called for
in claim 18?
Obviousness Rejection
The Examiner found that Loftin discloses the limitations of claim 2
“except for the two or more components of the front end being a pair of
headlights and a grille and the two or more components of the rear end being
a pair of taillights and a gate.” Ans. 6. The Examiner took Official Notice
that the use of headlights and a grille on the front of vehicles and the use of
taillights and gates on the rear of vehicles was old and well known in the art.
The Examiner concluded that the subject matter of claim 2 would have been
obvious in view of Loftin and Official Notice.1 Ans. 6.
The Appellant argues that the proposed combination does not teach or
suggest the two components of the front end being a pair of headlights and a
grille, and the two or more components of the rear end being a pair of
taillights and a gate as required by claim 2. App. Br. 7.
The Examiner concluded that the subject matter of claim 5 would
have been obvious in view of Loftin and Hoelzel. Ans. 6. Specifically, the

1 Although the heading states the rejection is over Loftin and Hoelzel, the
Examiner does not appear to rely on any specific teachings from Hoelzel in
the rejection of claim 2 (claim 5 does rely on Hoelzel). We note, however,
that Hoelzel shows the use of headlights and a grille on the front of a vehicle
and the use of taillights and a gate on the rear of a vehicle (see figs. 1 and 5),
and thus substantiates the Examiner’s taking of Official Notice.
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Examiner relied on Hoelzel to show a common design cue used to form
various parts of a vehicle such as the headlights, grille, rear tail lights,
fenders, and rear valance. Ans. 7.
The Appellant argues that the proposed combination does not teach or
suggest a common design cue integrated with each of the pair of headlights,
the grille, the pair of taillights, and the gate. App. Br. 8.
The Examiner found that Loftin discloses the limitations of claim 11
“except the vehicle being a minivan.” Ans. 7. The Examiner took Official
Notice that minivan style vehicles are old and well known in the art. The
Examiner concluded that the subject matter of claim 11 would have been
obvious in view of Loftin and Official Notice.
The Appellant argues that the proposed combination does not teach or
suggest a common design cue forming a part of two or more components of
the vehicle front and rear ends. App. Br. 8.
The issues before us for the second rejection are:
Has the Appellant shown the Examiner erred in concluding that the
proposed combination would have resulted in the two components of the
front end being a pair of headlights and a grille and the two or more
components of the rear end being a pair of taillights and a gate, as called for
in claim 2?
Has the Appellant shown the Examiner erred in concluding that the
proposed combination would have resulted in a common design cue forming
two or more components of the vehicle front and rear ends, as called for in
claim 11, and more specifically a common design cue integrated with each
of the pair of headlights, the grille, the pair of taillights, and the gate, as
called for in claim 5?
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FINDINGS OF FACT
We find that the following enumerated facts are supported by at least
a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422,
1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. The Appellant’s Specification does not provide a lexicographic
definition of “component” as used in claims. Spec. passim.
2. The word “component” is commonly understood to mean “a part.”
Webster’s New Universal Unabridged Dictionary (Deluxe 2d ed.
1983) (“component,” noun, entry 2, def. 1).
3. Loftin discloses a collision-resistant construction for automobiles.
Loftin, col. 1, ll. 8-12. The collision resistant construction may be
applied to the usual side wall skin or may constitute the actual wall
of the vehicle. Loftin, col. 3, ll. 51-55.
4. Loftin discloses that members 50 extend horizontally in unbroken
arrangement around the front wall 18, rear wall 20, and side walls 22
of the vehicle in vertically-spaced, adjacent rows. Loftin, col. 2,
l. 33; col. 3, l. 72 to col. 4, l. 5; figs. 2, 5, 6. Members 50 are
comprised of a convex fender element comprising a web 52 having
adjacent mounting flanges 54 above and below the web. Loftin,
col. 3, ll. 59-64; fig. 7.
5. Loftin discloses an embodiment with four vertical rows of members
50. Loftin, figs. 2, 5.
6. The Appellant presents no argument or evidence that the
modification of Loftin to add headlights, a grille, taillights, and a
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gate, as was well known in the art, is beyond the skill of a person of
ordinary skill in the art. The Appellant presents no evidence that the
further modification to add the teaching of Hoelzel to form various
parts of the vehicle such as headlights, a grille, taillights, fenders,
and a rear valance with a common design cue, is beyond the skill of
a person of ordinary skill in the art. App. Br. passim.
7. Hoelzel discloses an ornamental design for a surface configuration
of a vehicle. Hoelzel depicts the vehicle with features that accent
two horizontal, spaced apart bars in various portions of the vehicle,
such as: the headlights, grille, and taillights. The combined length
of the horizontal, spaced apart bars of the headlights and the grille
runs approximately the entire length of the front end of the vehicle.
Hoelzel, figs. 1, 3, 4, 5. Figure 1 of Hoelzel is reproduced below.

Figure 1 of Hoelzel depicts a front view of a vehicle with an
ornamental design for a surface configuration, and is annotated to
include four arrows indicating the horizontal, spaced apart bars.

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PRINCIPLES OF LAW
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006) (“On appeal to the Board, an applicant can overcome a rejection
[under § 103] by showing insufficient evidence of prima facie obviousness
or by rebutting the prima facie case with evidence of secondary indicia of
nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir.
1998)).
“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., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art,
(3) the level of skill in the art, and (4) where in evidence, so-called
secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18
(1966). See also KSR, 550 U.S. at 407 (“While the sequence of these
questions might be reordered in any particular case, the [Graham] factors
continue to define the inquiry that controls.”)

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ANALYSIS
Rejection of claims 1, 3, 4, 6-10, and 12-20 under 35 U.S.C. § 102(b) as
anticipated by Loftin
Claims 1, 3, 4, 6-10, 12, and 20
Before making a determination of patentability, we must construe the
word “component” as used in the claims. Claim 1 does not recite that the
two or more “components” must be of different types, or serve different
functions. Nor does the Appellant’s Specification provide a lexicographical
definition of “component” that would support such an interpretation (Fact 1).
A common definition of component is “a part” (Fact 2). The Appellant’s
Specification provides examples of components by describing that the front
end of a vehicle is comprised of “a number of components, including, but
not limited to, hood 12, left front quarter panel 14, right front quarter panel
16, bumper 18, left vent 20, middle vent 22, right vent 24, left headlight 26,
grille 28, and right headlight 30.” Spec. 7:23-27 (emphasis added); fig. 3.
In this example, components of the vehicle that serve the same function, but
are located in different positions (i.e. left and right headlights) are listed as
separate components. Giving claim 1 the broadest reasonable interpretation
consistent with the Specification, a person of ordinary skill in the art would
understand “component” to mean a vehicle part, and the parts need not be
different types or serve different functions.
The Appellant makes three interrelated contentions in support of the
argument that the three lower parts numbered 52 of Loftin do not form a part
of two or more components of the vehicle front and rear ends as required by
claim 1. App. Br. 4-5. First, the Appellant contends that the portion of
Loftin recited by the Examiner is “a part of a single vehicle component, i.e.,
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an outwardly protruding fender element.” App. Br. 4. Second, the
Appellant asserts that if part 52 acts as a bumper, as asserted by the
Examiner, then the bumper acts as only one component of the vehicle front
and rear ends. App. Br. 4. Third, the Appellant asserts the term component
must be read in light of the context that the claim requires two or more
components on the front and read ends of the vehicle, and would not include
structures that are not located on the vehicle front and rear ends. App. Br. 5.
We look to Loftin’s disclosure, and then address the Appellant’s contentions
in turn.
Loftin discloses a collision resistant construction for automobiles that
may be added over the vehicle’s side wall, or serve as the side wall (Fact 3).
Loftin discloses that members 50 extend horizontally around the front, rear,
and side walls of the vehicle in vertically spaced rows (Fact 4). One
embodiment includes four vertical rows of members 50, so that the vehicle’s
front and rear walls have four rows of members 50 (Facts 4, 5).
Each of the Appellant’s contentions is unconvincing. The Appellant
interprets “component” too narrowly. As we discussed above, the plain
meaning of the word “component” and the use of the term within
Appellant’s Specification, does not necessitate that the claimed two or more
components must be different types or serve different purposes. While
Loftin’s members 50 are all a single type of vehicle component, Loftin
discloses an embodiment with members 50 installed in four vertically-
spaced rows around the front, rear, and side of the vehicle, which includes
the required two or more components. Similarly, even if members 50 serve
collectively as a bumper on the front and rear of the vehicle, this fact does
not lead to the conclusion that members 50 combine to form only one, rather
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than the required two or more components. Further, Loftin discloses that
members 50 are mounted along the front, rear, and side of the vehicle in four
rows (Facts 4, 5), meeting the limitation that the components are on the front
and rear ends of the vehicle.
The Appellant has failed to demonstrate error by the Examiner in the
rejection of claim 1. Claims 3, 4, 6-10, 12, and 20 fall with claim 1.
Claim 13
Independent method claim 13 requires that a common design cue form
a part of two or more components of the vehicle front and rear ends. Quite
similarly to the argument against the rejection of claim 1, here, the
Appellant’s argument is based on the premise that Loftin discloses a single
vehicle “component” as defined by the claim. App. Br. 5. For the reasons
explained in the analysis of claim 1, supra, claim 13 likewise does not
support such a narrow interpretation of “component,” and we find that each
of Loftin’s members 50 is a separate “component” so that Loftin discloses
two or more components having a common design cue on the vehicle front
and rear ends. The Appellant has failed to demonstrate error by the
Examiner in the rejection of claim 13.
Claim 14, 15, and 16
We are unpersuaded by the Appellant’s argument that Loftin does not
disclose a common design configuration extending through and forming a
part of two or more components of the vehicle front and rear ends as
required by claim 14. Loftin discloses four vertical rows of members 50 on
the vehicle front and rear ends (Facts 4, 5). We find that these four vertical
rows are a common design configuration extending through and forming
part of two or more components of the vehicle front and rear ends. The
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Appellant has failed to demonstrate error by the Examiner in the rejection of
claim 14, and claims 15 and 16 fall with claim 14.
Claims 17 and 19
Independent claim 17 requires that a common design cue form a part
of two or more components of the vehicle front and rear ends. Again, the
Appellant’s argument is premised on an unjustifiably narrow interpretation
that the claimed “components” must serve different purposes. For the same
reasons explained in the analysis of claim 1, supra, the Appellant has failed
to demonstrate error by the Examiner in the rejection of claim 17. Claim 19
falls with claim 17.
Claim 18
Claim 18 depends from claim 17 and adds the limitation that the
common design cue is a design configuration.
The Appellant asserts, without explanation, that Loftin does not
disclose a “design configuration.” App. Br. 18. The Appellant has failed to
carry the burden to demonstrate error by the Examiner in the rejection of
claim 18. See 37 C.F.R. § 41.37(c)(1)(vii) (“A statement which merely
points out what a claim recites will not be considered an argument for
separately patentability of the claim.”).

Rejection of claims 2, 5, and 11 under 35 U.S.C. § 103(a) as unpatentable
over Loftin and Hoelzel
Claim 2
Claim 1 requires that the common design cue extend substantially
through and form a part of two or more components of the vehicle front and
rear ends. Claim 2 depends from claim 1 and adds the limitation that the
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two or more components of the front end are a pair of headlights and a grille,
and the two or more components of the rear end are a pair of taillights and a
gate. In other words, claim 2 requires that the common design cue extend
substantially through and form a part of the headlights and grille on the
vehicle front and the taillights and gate of the vehicle rear. Claim 5, which
depends from claim 2, contains the further limitation that the design cue is
integrated within the specified components (headlights, etc). Based on claim
differentiation, claim 2 then does not require that the design cue be
integrated into the specified components, but rather requires only that the
design cue to a part of the component. See generally Laitram Corp. v.
Rexnord, Inc., 939 F.2d 1533, 1538 (Fed. Cir. 1991) (Differences among
claims can also be a useful guide in understanding the meaning of particular
claim terms.).
The Appellant argues that the rejection does not meet the subject
matter of claim 2 because it does not address the claimed structural
relationship between the common design cue and the vehicle components.
App Br. 7. The Examiner explains that when a person of ordinary skill in
the art integrates the headlights, grille, taillights, and gate into the vehicle of
Loftin, it would result in the structure claimed since the common design cue
(the four vertical rows of members 50) extends completely around and
encompasses the entire circumference of the vehicle. Ans. 10.
We agree with the Examiner. A person of ordinary skill could add
headlights to the front end of Loftin’s vehicle by placing the lights between
two of the horizontal members 50 in the area of the adjoining flanges 54, so
that the adjacent webs 52 could form the top and bottom edges of the
headlights. In this manner, the design cue of Loftin, the four horizontal rows
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of members 50, would extend substantially through the headlights (the webs
52 would border the entire length of the headlight) and form a part of the
headlights (the top and bottom edges). The grille, taillight, and gate could
be integrated in like manners. The Appellant has presented no evidence
such a modification is beyond the skill of a person of ordinary skill in the art
(Fact 6). See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) ("A
person of ordinary skill is also a person of ordinary creativity, not an
automaton.").
The Appellant has failed to carry the burden to demonstrate error by
the Examiner in the rejection of claim 2.
Claim 5
Claim 5 depends from claim 2 and adds the limitation that the
common design cue is integrated within each of the pair of headlights, the
grille, the pair of taillights, and the gate.
We disagree with the Appellant’s contention that Hoelzel does not
teach or suggest a common design cue extending substantially the entire
length of the vehicle front and rear ends. See App. Br. 8.
Hoelzel discloses an ornamental design for a surface configuration of
a vehicle that incorporates two horizontal, spaced apart bars, and is included
into such parts as the headlights, grille, and taillights (Fact 7). Hoelzel
depicts that the combined length of the horizontal, spaced-apart bars of the
headlights and the grille extends substantially the entire length of the vehicle
front end (Fact 7). The Examiner found it would have been obvious to make
a like modification to the headlights, taillights, grille, and gate of the
modified Loftin vehicle, as suggested by Hoelzel. Ans. 7. The Appellant
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has presented no evidence such a modification is beyond the skill of a person
of ordinary skill in the art (Fact 6).
The Appellant has failed to carry their burden to demonstrate error by
the Examiner in the rejection of claim 5.
Claim 11
Claim 11 depends from claim 1 and adds the limitation that the
vehicle is a minivan.
The Appellant argues that claim 11 is patentable for the reasons
asserted against the rejection of claim 1. App. Br. 8. For the reasons
explained in the analysis of claim 1, supra, the Appellant has failed to
demonstrate error by the Examiner in the rejection of claim 11.

CONCLUSIONS
The Appellant has failed to show the Examiner erred in rejecting
claim 1 because the three lower parts numbered 52 of Loftin form a part of
two or more components of the vehicle front and rear ends.
The Appellant has failed to show the Examiner erred in rejecting
claim 13 because Loftin discloses designing the front and rear ends in
tandem to produce a common design cue extending substantially through
and forming a part of two or more components of the vehicle front and rear
ends.
The Appellant has failed to show the Examiner erred in rejecting
claim 14 because Loftin discloses a common design configuration extending
through and forming a part of two or more components of the vehicle front
and rear ends.
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The Appellant has failed to show the Examiner erred in rejecting
claim 17 because Loftin discloses a common design cue on the vehicle front
and rear end extending substantially through and forming a part of two or
more components of the vehicle front and rear ends.
The Appellant has failed to show the Examiner erred in rejecting
claim 18 because Loftin discloses a “design configuration” as the common
design cue.
The Appellant has failed to show the Examiner erred in the rejection
of claim 2 because the proposed combination would have resulted in the two
components of the front end being a pair of headlights and a grille and two
or more components of the rear end being a pair of taillights and a gate.
The Appellant has failed to show the Examiner erred in the rejection
of claim 5 because the proposed combination would have resulted in a
common design cue integrated with each of the pair of headlights, the grille,
the pair of taillights, and the gate.
The Appellant has failed to show the Examiner erred in the rejection
of claim 11 because the proposed combination would have resulted in a
common design cue forming two or more components of the vehicle front
and rear ends.
DECISION
We AFFIRM the Examiner's decision to reject claims 1-20.
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) (2007).

AFFIRMED
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