Ex Parte Wagle et al

Board of Patent Appeals and Interferences

Jun 24, 2004

09761724 (B.P.A.I. Jun. 24, 2004)

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The opinion in support of the decision being entered
today was not written for publication in a law journal
and is not binding precedent of the Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte LAWRENCE P. WAGLE, DALE KWASNIEWSKI
and JAMES F. ZIECH

Appeal No. 2004-1378
Application No. 09/761,724

ON BRIEF

Before KIMLIN, WARREN and DELMENDO, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1, 2,
5, 6, 9 and 11. Claims 8, 10 and 12 have been allowed by the
examiner. Claim 7, the other claim remaining in the present
application, has been withdrawn from consideration as being
directed to a non-elected species. Claim 11 is illustrative:
11. An inter-axle differential assembly for a vehicular
power transmission unit provided with a supply of lubricant; said
inter-axle differential assembly comprising:
a differential input shaft;
a differential output shaft;
Appeal No. 2004-1378
Application No. 09/761,724
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a first side gear and a second side gear arranged coaxially
relative to said input shaft and rotatable relative to said
differential input shaft;
said first side gear including a sleeve portion receiving
said output shaft for drivingly coupling thereto;
a differential spider drivingly connected to said input
shaft and provided with a plurality of pinion gears rotatably
mounted to said differential spider and drivingly engaging said
first side gear and said second side gear to allow differential
rotation thereof;
a dedicated reversible gerotor lubrication pump for
lubricating components of said differential assembly, said
lubrication pump mounted within said sleeve portion of said first
side gear;
said reversible gerotor lubrication pump including a rotor
drivingly coupled to said input shaft and an impeller coupled to
said first side gear, wherein said pump generates lubrication
flow whenever differential action between said differential input
shaft and said first side gear occurs;
a hydraulic fluid suction passage providing an inlet fluid
communication passage between said supply of lubricant and an
inlet port of said lubrication pump including an inlet passage
formed in said sleeve portion of said first side gear; and
a gallery of fluid passages supplying said lubricant for
lubricating said components of said inter-axle differential
assembly; said gallery of fluid passages fluidly connected to an
outlet port of said lubrication pump.
The examiner relies upon the following references as
evidence of obviousness:
Kwasniewski 5,302,158 Apr. 12, 1994
Dick 5,916,052 Jun. 29, 1999
Ozaki et al. (JP '712) Hei 6-193712 Jul. 15, 1994
(Japanese Kokai patent application)
Appeal No. 2004-1378
Application No. 09/761,724
1 The examiner has withdrawn the rejection of claims 1 and 2
over Plantan (see page 3 of Answer, second paragraph).
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Appellants' claimed invention is directed to an inter-axle
differential assembly for a vehicular power transmission unit.
The assembly includes a lubrication pump which provides flow of
lubricant only during the differential action between the input
and output shafts. The lubrication pump of the present invention
is a gerotor pump that includes a rotor drivingly coupled to the
input shaft and an impeller coupled to a first side gear.
Appealed claims 1, 2, 5, 6, 9 and 11 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over JP '712 in view of
Kwasniewski and Dick.1
Although appellants have set forth three groups of claims at
page 5 of the Brief, the examiner has properly held that all the
appealed claims stand or fall together with claim 11. As
explained by the examiner, the Argument section of appellants'
Brief fails to set forth an argument that is reasonably specific
to any particular claim on appeal. Also, we note that appellants
have not contested the examiner's holding.
We have thoroughly reviewed each of appellants' arguments
for patentability. However, we are in complete agreement with
the examiner that the claimed subject matter would have been
obvious to one of ordinary skill in the art within the meaning of
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Application No. 09/761,724
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§ 103 in view of the applied prior art. Since we fully concur
with the examiner's reasoning underlying the rejection and the
cogent disposition of the arguments raised by appellants, we will
adopt the examiner's reasoning as our own in sustaining the
rejection of record. We add the following for emphasis only.
Appellants do not dispute the examiner's factual
determination that JP '712 discloses all the features of the
claimed assembly for a vehicular power transmission unit with the
exception of the claimed requirement that the lubrication pump be
a gerotor pump. Also, appellants have not refuted the examiner's
rationale with respect to the motivation for one of ordinary
skill in the art for substituting a gerotor pump for the axial-
piston pump of JP '712, namely, "one of ordinary skill in the art
would have recognized that a gerotor pump is of simpler
construction than an axial-piston pump in that it only requires
two relatively rotating pumping members," along with the
"[i]ncidental benefits associated with a construction with fewer
parts [which] include: lower cost for the components, lower
assembly cost, and less likelihood of failure of any one
component" (page 6 of Answer, second paragraph).
The principal argument advanced by appellants is that the
prior art must suggest the desirability for combining their
Appeal No. 2004-1378
Application No. 09/761,724
2 Appellants advance no argument why it would have been
nonobvious to use a gerotor pump in the assembly of JP '712.
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disclosed features, and "[t]he prior art references cited by the
Examiner fail to disclose or suggest the desirability of
replacing the axial-piston lubricating pump of JP '712 with the
gerotor lubricating pump of Kwasniewski or Dick" (page 8 of
Brief, penultimate paragraph).2 However, to the extent it is
appellants' argument that the prior art must expressly suggest
the desirability of combining the features of the references, it
is well settled that such an express teaching is not necessary
for a finding of obviousness under § 103. Rather, it is
axiomatic that a conclusion of obviousness may be drawn from what
the collective teachings of the prior art would have suggested to
one of ordinary skill in the art. In re Keller, 642 F.2d 413,
426, 208 USPQ 871, 882 (CCPA 1981). The collective teachings of
the prior art need only establish, as we find here, a reasonable
expectation of success, not an absolute predictability of such.
In re O'Farrell, 853 F.2d 894, 903-04, 7 USPQ2d 1673, 1681 (Fed.
Cir. 1988).
As a final point, we note that appellants base no argument
upon objective evidence of nonobviousness, such as unexpected
results, which would serve to rebut the inference of obviousness
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Application No. 09/761,724
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established by the examiner. Indeed, as noted by the examiner,
appellants' specification attaches no criticality to the
particular lubrication pump used (see page 11 of specification,
lines 8-11). Appellants' preference for a gerotor pump would
seem to allay any suggestion of criticality.
In conclusion, based on the foregoing and the reasons well-
stated by the examiner, the examiner's decision rejecting the
appealed claims is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
)
CHARLES F. WARREN ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
ROMULO H. DELMENDO )
Administrative Patent Judge )
ECK:clm
Appeal No. 2004-1378
Application No. 09/761,724
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6550 Rock Spring Drive, Suite 240
Bethesda, MD 20817