Ex Parte Vinadio

Board of Patent Appeals and Interferences

Oct 29, 2003

09592578 (B.P.A.I. Oct. 29, 2003)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte AIMONE BALBO DI VINADIO
____________
Appeal No. 2003-1806
Application No. 09/592,578
____________
ON BRIEF
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Before COHEN, STAAB, and NASE, Administrative Patent Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 7 to 10,
which are all of the claims pending in this application.
We REVERSE.
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Application No. 09/592,578
Page 2
1 In determining the teachings of Wilms, we will rely on the translation of record provided by the
USPTO.
BACKGROUND
The appellant's invention relates to hinges for an opening door or window frame
(specification, p. 1). A copy of the claims under appeal is set forth in the appendix to
the appellant's brief.
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Green et al. (Green) 5,755,011 May 26, 1998
Wilms DE 26 28 951.01 Jan. 5, 1978
Balbo WO 98/41720 Sept. 24, 1998
Claims 7 to 10 stand rejected under 35 U.S.C. § 103 as being unpatentable over
Balbo in view of Wilms and Green.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejection, we make reference to the final
rejection (Paper No. 8, mailed January 29, 2002) and the answer (Paper No. 13, mailed
October 21, 2002) for the examiner's complete reasoning in support of the rejection,
Appeal No. 2003-1806
Application No. 09/592,578
Page 3
and to the brief (Paper No. 12, filed July 24, 2002) for the appellant's arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. Upon evaluation of
all the evidence before us, it is our conclusion that the evidence adduced by the
examiner is insufficient to establish a prima facie case of obviousness with respect to
the claims under appeal. Accordingly, we will not sustain the examiner's rejection of
claims 7 to 10 under 35 U.S.C. § 103. Our reasoning for this determination follows.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established by presenting evidence that would have led one of ordinary skill in the art to
combine the relevant teachings of the references to arrive at the claimed invention.
See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988) and In re
Lintner, 458 F.2d 1013, 1016, 173 USPQ 560, 562 (CCPA 1972).
Appeal No. 2003-1806
Application No. 09/592,578
Page 4
2 After the scope and content of the prior art are determined, the differences between the prior art
and the claims at issue are to be ascertained. Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ
459, 467 (1966).
Claim 7, the only independent claim on appeal, reads as follows:
A hinge for an opening door or window frame having a general plane and
including a movable frame and a fixed frame, said hinge comprising one first and
at least one second knuckle part each provided with a leaf for fixing it to said
movable frame and to said fixed frame respectively of the door or window, a pin
which connects said first and second knuckle parts together such that they can
rotate, and adjustment means allowing adjustments to be made between said
first and second knuckle parts in a direction perpendicular to the general plane of
the door or window, said adjustment means including a sleeve which is
adjustably mounted in said second knuckle part for angular adjustment about a
longitudinal axis of the sleeve and has an eccentric cylindrical cavity into which
said pin is inserted, wherein said sleeve has a bottom wall which closes off the
cavity at the bottom thereof, said bottom wall and the end of the pin that faces it
both having an essentially hemispherical and mutually complementary shape,
and further comprising means for adjusting the height of the first knuckle part
relative to the second knuckle part, said means including a lower support for said
sleeve engaged inside said second knuckle part such that the lower support can
move axially, wherein said support and said sleeve have surfaces that come into
mutual axial contact and are hemispherical in shape with the hemispherical
surfaces of the bottom wall and the support being concave with the concavity of
each facing toward each first knuckle part.
In the rejection under 35 U.S.C. § 103 before us in this appeal (final rejection,
pp. 2-3), the examiner (1) set forth the pertinent teachings of the applied prior art;
(2) ascertained2 that the differences between Balbo and the claims at issue were
(a) "mutually complementary spherical shaped surfaces of the hinge pin and sleeve"
(i.e., said bottom wall and the end of the pin that faces it both having an essentially
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Application No. 09/592,578
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3 The examiner did not respond to this argument in the answer.
hemispherical and mutually complementary shape) and (b) "means for adjusting the
height including a support" (i.e., means for adjusting the height of the first knuckle part
relative to the second knuckle part, said means including a lower support for said
sleeve engaged inside said second knuckle part such that the lower support can move
axially, wherein said support and said sleeve have surfaces that come into mutual axial
contact and are hemispherical in shape with the hemispherical surfaces of the bottom
wall and the support being concave with the concavity of each facing toward each first
knuckle part); and (3) concluded that it would have been obvious to have modified
Balbo's hinge to include (a) complementary spherical shaped surfaces on the hinge pin
22 and sleeve 28 as suggested and taught by Wilms and (b) means for adjusting the
height of the first knuckle part relative to the second knuckle part as suggested and
taught by Green.
The appellant argues (brief, p. 6) that while the patent to Green discloses means
for adjusting the height of the first knuckle part relative to the second knuckle part,
Green's adjusting means fails to include hemispherical surfaces on the bottom wall of
the sleeve and on the support which are concave with the concavity of each facing
toward the first knuckle part.3 We agree. At best, Green's means for adjusting the
height of the first knuckle part relative to the second knuckle part includes
Appeal No. 2003-1806
Application No. 09/592,578
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hemispherical surfaces on the bottom wall of the sleeve and on the support which are
concave with the concavity of each facing away from the first knuckle part. Thus, even
if it would have been obvious at the time the invention was made to a person of
ordinary skill in the art to have modified Balbo's hinge to include both complementary
spherical shaped surfaces on the hinge pin and sleeve as suggested and taught by
Wilms and means for adjusting the height of the first knuckle part relative to the second
knuckle part as suggested and taught by Green such would not arrive at the claimed
invention.
For the reasons set forth above, the decision of the examiner to reject
independent claim 7, and claims 8 to 10 dependent thereon, under 35 U.S.C. § 103 is
reversed.
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Application No. 09/592,578
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CONCLUSION
To summarize, the decision of the examiner to reject claims 7 to 10 under 35
U.S.C. § 103 is reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
Appeal No. 2003-1806
Application No. 09/592,578
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