Ex Parte Van Der Sluis et al

Patent Trial and Appeal Board

Jun 13, 2017

14130006 (P.T.A.B. Jun. 13, 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.
14/130,006 12/30/2013 Francis Maria Antonius Van Der Sluis 2002-1046 8245
466 7590 06/15/2017
YOUNG fr THOMPSON
EXAMINER
209 Madison Street RIEGELMAN, MICHAEL A
Suite 500
Alexandria, VA 22314 ART UNIT PAPER NUMBER
3654
NOTIFICATION DATE DELIVERY MODE
06/15/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
DocketingDept@young-thompson.com
y andtpair @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANCIS MARIA ANTONIUS VAN DER SLUIS,
JOOST JOHANNES CORNELIS JONKERS,
DIRK JOHANNES DE KUYPER, ARIE VAN DER VELDE,
ELENA LOREDANA DELADI, IRINEL COSMIN FARAON, and
INGMARUS GEERT HUPKES
Appeal 2016-005034
Application 14/130,006
Technology Center 3600
Before LARRY J. HUME, JUSTIN BUSCH, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
AMUNDSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1—19, i.e., all pending claims.1 We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the real party in interest as Robert Bosch GmbH.
App. Br. 2.
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Application 14/130,006
STATEMENT OF THE CASE
The Invention
According to the Specification, the invention relates to “a drive belt
for a continuously variable transmission, which is in particular destined to be
arranged around two pulleys of the transmission.” Spec. 1:4—6.2 The drive
belt includes “a plurality of discrete transverse elements or members for
contacting the transmission pulleys” and “one or more endless carriers for
carrying the transverse members for supporting and guiding the transverse
members in between the pulleys.” Id. at 1:6—9. The Specification explains
that “the efficiency of such a transmission is improved when not all
transverse members . . . take part in the frictional contact with the
transmission pulleys.” Abstract. The Specification also explains that an
improved “drive belt can naturally be realized by applying both wider, i.e.
pulley sheave contacting, and narrower, i.e. non-contacting, transverse
members therein.” Spec. 2:16—18.
Exemplary Claim
Independent claim 1 exemplifies the subject matter of the claims
under consideration and reads as follows:
1. A drive belt (3) comprising:
an endless carrier (31); and
transverse members (30) provided slidably on the endless
carrier (31), the transverse members (30) including at least a
2 This decision uses the following abbreviations: “Spec.” for the
Specification, filed December 30, 2013; “Final Act.” for the Final Office
Action, mailed May 4, 2015; “Adv. Act.” for the Advisory Action, mailed
August 27, 2015; “App. Br.” for the Appeal Brief, filed October 26, 2015;
“Ans.” for the Examiner’s Answer, mailed February 9, 2016; and
“Reply Br.” for the Reply Brief, filed April 11, 2016.
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first transverse member type (I) and a second transverse
member type (II), the first and second type transverse member
types (I, II) being of mutually different shape,
wherein the first transverse member type (I) has a largest
axial width dimension (Wi) larger than a largest axial width
dimension (Wn) of the second transverse member type (II).
App. Br. 29 (Claims App.).
The Rejection on Appeal
Claims 1—19 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over applicant admitted prior art (“AAPA”) in view of Mott (US 4,516,963,
issued May 14, 1985). Final Act. 2—6.
The Applicant Admitted Prior Art
The Specification states that “Figure 3 provides a schematic top-view
of a section of the known drive belt,” while “Figure 4 provides a schematic
top-view of a section of a drive belt in accordance with the present
invention.” Spec. 3:8—11. Figures 3 and 4 are reproduced below:
31 30 31 31 30 31
PRIOR ART
FIG. 3 FIG. 4
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Figure 3 depicts a plurality of transverse members 30 arranged along
an endless carrier 31 where each transverse member 30 has the same
width W between its pulley-contacting faces 33. See Spec. 4:10-22.
Figure 4 depicts two types of transverse members arranged along an endless
carrier 31 where a first type of transverse member 301 has the width Wi
between its pulley-contacting faces 33 and a second type of transverse
member 3011 has the width Wn between its faces 35. See id. at 4:23—5:2.
The width Wi exceeds the width Wn. Id. at 4:28—30.
ANALYSIS
We have reviewed the rejection of claims 1—19 in light of Appellants’
arguments the Examiner erred. For the reasons explained below, we
disagree with Appellants’ assertions regarding error by the Examiner. We
adopt the Examiner’s findings in the Final Office Action (Final Act. 2—6),
Advisory Action (Adv. Act. 2), and Answer (Ans. 2—6). We add the
following to address and emphasize specific findings and arguments.
The Rejection of Claims 1—19 Under 35 U.S.C. § 103(a)
Alleged Nonanalogous Art
Appellants argue the Examiner wrongly relied on Mott to reject
independent claims 1 and 8 for obviousness because “the drive belt
according to the present invention is of a fundamentally different nature and
technical working principle than that of Mott.” App. Br. 18. In particular,
Appellants contend Mott concerns a pull-type belt where tensioning on a
chain-belt causes torque transmission from the drive pulley to the driven
pulley. Reply Br. 2—3. Appellants contend Mott’s transverse members are
(1) “locked in the [chain-belt’s] direction of rotation,” (2) “completely
restrained in all directions” by the chain-belt, and (3) “not loaded” when
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crossing from the drive pulley to the driven pulley. App. Br. 20—21
(emphasis omitted); Reply Br. 2—3 (emphasis omitted). In contrast to Mott’s
pull-type belt, Appellants contend that claims 1 and 8 concern push-type
belts where a plurality of transverse members (1) “form a continuous array,”
(2) “push each other forward in the direction of rotation,” and (3) “are
loaded by a compression” when crossing from the drive pulley to the driven
pulley. Reply Br. 3 (emphasis omitted); see App. Br. 21. Appellants assert
a person of ordinary skill in the continuously variable transmission (“CVT”)
art “would recognize that essential differences exist[] between” Mott and the
claimed invention and “would not consider the Mott system as being a
‘similar power transmission system’” to the prior-art system in Specification
Figures 1—3. App. Br. 17, 19. Based on those assertions, Appellants
contend a person of ordinary skill in the art would not consult Mott when
“trying to reduce noise levels” in the prior-art system in Specification
Figures 1—3. Id. at 21.
Appellants’ contentions do not persuade us of Examiner error. The
scope of analogous art includes references “from the same field of endeavor”
as the invention and references “reasonably pertinent to the particular
problem with which the inventor is involved.” In re Bigio, 381 F.3d 1320,
1325 (Fed. Cir. 2004); see In re Wood, 599 F.2d 1032, 1036 (CCPA 1979).
The Examiner finds Mott concerns the same field of endeavor as the
invention because both relate to belts for continuously variable
transmissions. Ans. 3, 4. Consistent with that, the preambles in claims 1
and 8 broadly refer to “[a] drive belt.” App. Br. 29, 31 (Claims App.). The
Specification explains that a push-type belt’s transverse members contact
pulley flanges to permit the transfer of drive torque and rotational movement
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from the drive pulley to the driven pulley. Spec. 2:3—6, Abstract.
Transverse members contact pulley flanges in pull-type belts as well as
push-type belts. See, e.g., Mott 1:41—61, Figs. 1—2; Spec. Figs. \-A. Both
belt types include transverse members arranged along a loop-like (endless)
carrier to form a flexible belt that encircles the drive pulley and the driven
pulley. See, e.g., Mott 1:5—27, 3:9-25, Figs. 1—3, Abstract; Spec. 1:11—2:21,
Fig. 1, Abstract. Both belt types include wider, pulley-contacting transverse
members and narrower, pulley-noncontacting transverse members. See, e.g.,
Mott 3:66-4:54, Figs. 3—7, Abstract; Spec. 4:23—5:2, Fig. 4, Abstract.
That pull-type belts and push-type belts employ somewhat different
loop-like carriers to support the transverse members does not mean that the
belts are from different fields of endeavor. That transverse members for
pull-type belts and push-type belts experience different loads when crossing
from the drive pulley to the driven pulley also does not mean that the belts
are from different fields of endeavor. As Appellants acknowledge, Mott
discusses in the Background of the Invention both pull-type belts and push-
type belts. See App. Br. 18; Mott 1:41—65.
Moreover, Mott explains in the Background of the Invention that
drive belts for continuously variable transmissions “operate[] under severe
temperature, vibration and other adverse conditions.” Mott 1:30—33.
Consistent with the vibration produced by both pull-type belts and push-type
belts, the Examiner finds both pull-type belts and push-type belts produce
noise when transverse members impact pulleys. Ans. 3, 4—5; see Mott
1:66—68, 5:23—32. Appellants do not address the Examiner’s finding that
both belt types produce noise when transverse members impact pulleys.
See Reply Br. 1—5. The Examiner further finds “the beneficial results from
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Mott, designed for a pull type belt with a plurality of tra[ns]verse members
and CVT pulleys, would have the same beneficial results when applied to a
push type belt with a plurality of tra[ns]verse members and CVT pulleys.”
Ans. 3, 5; see Mott 1:66-68, 5:23—32. Accordingly, the Examiner
determines Mott is reasonably pertinent to a problem confronting
Appellants. Appellants identify no evidence refuting the Examiner’s finding
that Mott’s beneficial results apply to both belt types. See App. Br. 22—24;
Reply Br. 1—5.
For these reasons, we disagree with Appellants and agree with the
Examiner that Mott constitutes analogous art.
Transverse Members Slidable Along an Endless Carrier
Appellants argue the Examiner erred in rejecting claims 1 and 8
because Mott “does not describe individual transverse members free to
slide/move in [a] longitudinal direction relative to the endless carrier, as
used in the present invention and in push type belts.” Reply Br. 4—5; see
App. Br. 20-21. Appellants’ argument does not persuade us of Examiner
error because the prior-art system in Specification Figures 1—3 includes
transverse members slidable along an endless carrier. See Final Act. 3;
Spec. 3:15—4:22, Figs. 1—3. The Examiner relies on Mott for teaching two
types of transverse members: a first type with greater width so that its edge
surfaces contact pulley flanges and a second type with lesser width so that its
edge surfaces do not contact pulley flanges. See Ans. 3, 4; Mott 3:66-4:54,
Figs. 4—7; see also Final Act. 4, Adv. Act. 2. For instance, Mott instructs
that load block 45 includes “a plurality of plates 45A, 45B and 45C, with the
outermost plates wider than the central plate,” i.e., “with the center plate
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45B of a lesser width than the plates 45 A and 45C.” Mott 4:4—5, 4:18—20,
Fig. 4. Mott Figure 4 is reproduced below:
—...tj: cznrd
Figure 4 depicts a plurality of plates 45 A, 45B, and 45C in load block 45
with wider plates 45A and 45C having pulley-contacting faces 50A and 50C,
respectively. Mott 4:4—11.
Reasonable Expectation of Success
Appellants assert the Examiner erred in rejecting claims 1 and 8
because “the skilled person would have no expectation of success
beforehand, that design solutions taught by Mott for a pull-belt system
would have the same effect in the push-belt system.” App. Br. 24.
Appellants further assert the Examiner failed to explain why “the skilled
person” would expect that Mott’s improvement for a pull-type belt “will
work equally or even comparably” for a push-type belt. Id. at 22.
Appellants’ assertions do not persuade us of Examiner error.
Obviousness requires “a reasonable expectation of success,” not “absolute
predictability of success.” In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir.
1988); see In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009). Obviousness
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“cannot be avoided simply by a showing of some degree of unpredictability
in the art so long as there was a reasonable probability of success.” Pfizer,
Inc. v. Apotex, Inc., 480 F.3d 1348, 1364 (Fed. Cir. 2007). In the Answer,
the Examiner finds “[a] person of ordinary skill in the art would have
reasonable expectation for success if they were to incorporate tra[ns]verse
members of mutually different shape, as described by Mott, to a push type
belt with tra[ns]verse members for a CVT.” Ans. 5. In the Reply Brief,
Appellants do not address the Examiner’s finding regarding a reasonable
expectation of success. See Reply Br. 1—5.
In the Appeal Brief, Appellants argue Mott’s improvement for a pull-
type belt “can reasonably be expected to be counterproductive” for a push-
type belt and “would actually increase noise levels” because the transverse
members having lesser width have increased “freedom of movement”
relative to the endless carrier. App. Br. 23—24. But Appellants identify no
evidence supporting their “freedom of movement” argument. Id. at 22—24.
Attorney argument “cannot take the place of evidence.” In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974); see In re Geisler, 116 F.3d 1465, 1471
(Fed. Cir. 1997). Hence, we consider Appellants’ argument unpersuasive.
Further, Appellants’ argument appears to conflict with Specification
Figures 1—4. As illustrated in those figures, transverse members according
to the disclosed invention do not appear to have increased “freedom of
movement” relative to the endless carrier compared to prior-art transverse
members. Compare Spec. Fig. 4, with id. Fig. 3.
Mott’s Age
Appellants argue “Mott is a 30 year old patent directed to a power
transmission chain-belt system no longer in use.” App. Br. 17; see Reply
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Br. 6. Appellants also argue Mott’s age “is itself an indication that Mott
does not teach to provide two transverse member types” to the prior-art
system in Specification Figures 1—3 “to reduce the noise generated when”
the transverse members engage pulley flanges. App. Br. 16, 25 (emphasis
omitted); see Reply Br. 5—7.
Appellants’ age-based arguments do not persuade us of Examiner
error. See Ans. 5. “Absent a showing of long-felt need or the failure of
others, the mere passage of time without the claimed invention is not
evidence of nonobviousness.” Iron Grip Barbell Co. v. USA Sports, Inc.,
392 F.3d 1317, 1325 (Fed. Cir. 2004). The mere age of a reference is not
persuasive of nonobviousness. In re Wright, 569 F.2d 1124, 1127 (CCPA
1977). Because Appellants identify no evidence of long-felt need or the
failure of others, we consider Appellants’ age-based arguments
unpersuasive. See App. Br. 25; Reply Br. 5—7.
The Basis for Combining the Prior Art
Appellants assert the Examiner erred in rejecting claims 1 and 8
because “the Examiner hasn’t made sufficient findings of fact to support the
rejection and rather relies on mere conclusory statements.” App. Br. 24; see
id. at 25. Appellants concede Mott teaches using “differently dimensioned”
transverse members to reduce noise when a pull-type belt’s transverse
members engage pulley flanges. Id. at 19-20, 22. Appellants assert,
however, “Mott does not mention” a noise problem in push-type belts or
using “differently dimensioned” transverse members to “change any
generated noise in a push-type belt.” Id. at 22. Appellants further assert a
person of ordinary skill in the art would not have been motivated to apply
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Mott’s teachings to the prior-art system in Specification Figures 1—3. Reply
Br. 5.
Appellants’ assertions do not persuade us of Examiner error. An
obviousness analysis “need not seek out precise teachings directed to the
specific subject matter of the challenged claim” because the analysis “can
take account of the inferences and creative steps that a person of ordinary
skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007). “A person of ordinary skill is also a person of ordinary
creativity, not an automaton.” Id. at 421.
Consistent with that holding, the Examiner reasons that an explicit
suggestion in Mott “is not necessary for a person of ordinary skill in the art
to combine the features in a known way to solve a known problem.” Ans. 4.
The Examiner finds that both pull-type belts and push-type belts produce
noise when transverse members impact pulleys. Ans. 3, 4—5; see Mott 1:66—
68, 5:23—32. Appellants do not address the Examiner’s finding that both
belt types produce noise when transverse members impact pulleys. See
Reply Br. 1—5. Because both belt types produce noise, a person of ordinary
skill in the art would have been motivated to apply Mott’s teachings to the
prior-art system in Specification Figures 1—3. See Final Act. 4; Mott 2:15—
19, 2:58—61, 4:21—25, 5:24—32, Abstract. Further, as noted above, the
Examiner finds that Mott’s beneficial results apply to both belt types.
Ans. 3, 5; see Mott 1:66—68, 5:23—32.
“[T]he law does not require that the references be combined for the
reasons contemplated by the inventor.” In re Beattie, 974 F.2d 1309, 1312
(Fed. Cir. 1992). An obviousness analysis should not “look only to the
problem the patentee was trying to solve” because “the problem motivating
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the patentee may be only one of many addressed by the patent’s subject
matter.” KSR, 550 U.S. at 420. Hence, “any need or problem known in the
field of endeavor at the time of invention and addressed by the patent can
provide a reason for combining” references. Id. Here, Mott instructs that
wider and narrower transverse members according to the claims address a
noise problem. See, e.g., Mott 2:15—61, 3:66-4:54, 5:24—32, Abstract.
Moreover, the Examiner reasons that “[a] person of ordinary skill in
the art searching for methods for reducing noise generated in a push type
belt for a CVT, would know to examine known solutions developed for pull
type belts for CVTs.” Ans. 4, 5. Accordingly, the Examiner provides
“articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” See In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006); see also KSR, 550 U.S. at 415.
Summary for Independent Claims 1 and 8
For the reasons discussed above, Appellants’ arguments have not
persuaded us the Examiner erred in rejecting claim 1 for obviousness based
on applicant admitted prior art and Mott. Hence, we sustain the rejection of
claims 1 and 8.
Dependent Claims 2,3,6, and 9-19
Appellants do not make any substantive or separate patentability
arguments for dependent claim 2, 3, 6, and 9-19. App. Br. 14—28; Reply
Br. 1—7. Because Appellants do not argue the claims separately, we sustain
the obviousness rejection of claims 2, 3, 6, and 9-19 for the same reasons as
claims 1 and 8. See 37 C.F.R. § 41.37(c)(l)(iv).
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Dependent Claims 4,5, and 7
Claim 4 depends from claim 1 and specifies that “the transverse
members (30) of the first transverse member type (I) and the transverse
members (30) of the second transverse member type (II) are included in the
drive belt (3) in approximately equal amounts.” App. Br. 30 (Claims App.).
Claim 5 depends from claim 1 and specifies that “the transverse members
(30) of the first transverse member type (I) and the transverse members
(30) of the second transverse member type (II) are included in the drive belt
(3) in a mutually alternating pattern.” Id.
Appellants assert the Examiner erred in rejecting claims 4 and 5
because every example in Mott has either one wide plate per three-plate load
block or two wide plates per three-plate load block. App. Br. 26. Based on
that assertion, Appellants contend Mott does not teach equal numbers of
pulley-contacting and pulley-noncontacting plates or a mutually alternating
pattern. Id. In addition, Appellants contend Mott teaches away from a
regular pattern because Mott states “white, irregular or arrhythmic noise is
less noticeable and annoying than a noise which contains recognizable pure
tones or a single frequency.” Id. at 27 (emphasis omitted) (quoting Mott
1:67-2:12).
Appellants’ arguments do not persuade us of Examiner error because,
as the Examiner notes in the Answer, those arguments disregard Mott’s
disclosure. See Ans. 6 (citing Mott 2:51). In particular, Mott discloses the
“load blocks can be assembled in a uniform pattern, or in a random mixture
. . . .” Mott 2:50—52; see Ans. 6; Mott 4:60—63. Also, Mott explains
“[wjhile the illustrations show block assemblies of three plates, it is to be
understood that two plates, or more than three plates, can be used in one
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block assembly.” Mott 4:55—57. Thus, Mott teaches or suggests the subject
matter of claims 4 and 5, e.g., a uniform pattern of two-plate load blocks
where each load block includes a wider plate and a narrower plate. See Mott
2:50-52, 4:55—57, 4:60-63. Because Mott discloses the “load blocks can be
assembled in a uniform pattern,” the Examiner finds that Mott does not teach
away from claims 4 and 5. Ans. 6 (citing Mott 2:51). In the Reply Brief,
Appellants do not address Mott’s disclosure regarding uniform patterns. See
Reply Br. 1—5. Accordingly, Appellants’ arguments have not persuaded us
the Examiner erred in rejecting claims 4 and 5 for obviousness based on
applicant admitted prior art and Mott. Thus, we sustain the rejection.
Claim 7 depends from claim 4. App. Br. 31 (Claims App.).
Appellants do not make any separate patentability arguments for claim 7.
App. Br. 26—28; Reply Br. 1—7. Consequently, we sustain the obviousness
rejection of claim 7 for the same reasons as claim 4. See 37 C.F.R.
§ 41.37(c)(l)(iv).
DECISION
We affirm the Examiner’s decision to reject claims 1—19.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See
37 C.F.R. §41.50(f).
AFFIRMED
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