Kraeutler, Wilhelm et al.

Patent Trials and Appeals Board

Sep 18, 2020

2018005491 (P.T.A.B. Sep. 18, 2020)

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.
13/480,088 05/24/2012 Wilhelm Kraeutler LSG12313 8732
145572 7590 09/18/2020
MCCOY RUSSELL LLP
806 SW BROADWAY
SUITE 600
PORTLAND, OR 97205-3335
EXAMINER
CAMPOS, JR, JUAN J
ART UNIT PAPER NUMBER
3654
NOTIFICATION DATE DELIVERY MODE
09/18/2020 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):
usptomail@mccrus.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte WILHELM KRAEUTLER and EUGEN SCHOBESBERGER
_________________

Appeal 2018-005491
Application 13/480,088
Technology Center 3600
__________________

Before MICHAEL C. ASTORINO, KENNETH G. SCHOPFER, and
BRADLEY B. BAYAT, Administrative Patent Judges.

BAYAT, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the decision to
reject claims 1–12, 14–17, 19, and 20, which constitute all the claims
pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). A
hearing was held on September 11, 2020.
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies “Liebherr-Werk Nenzing GmbH”
as the real party in interest. Appeal Br. 3 (filed May 5, 2016).
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2
STATEMENT OF THE CASE
The present disclosure relates to a crane, in particular an
offshore crane, having a slewing gear and a hydraulic slewing
gear drive, wherein the slewing gear is held in its position via a
holding torque applied by the hydraulic slewing gear drive, and
wherein an overload safety device is provided having at least
one detection means for detecting the outreach and/or the
position of the crane hook and having at least one pressure
relief valve, with the system pressure applied to the hydraulic
slewing gear drive via at least one pressure relief valve can be
regulated in dependence on the outreach and/or on the position
of the crane hook.
Spec., Abstract.
Claimed Subject Matter
Claims 1 and 12, which are the only independent claims on appeal, are
reproduced below. See Appeal Br., Claims App.
1. A crane, comprising:
a slewing gear;
a hydraulic slewing gear drive, wherein the slewing gear
is held in position via a holding torque applied by the hydraulic
slewing gear drive;
a crane hook; and
an overload safety device having at least one detection
device for detecting an outreach and/or a position of the crane
hook and having at least one pressure relief valve, the overload
safety device further comprising a control unit including a
processor and non-transitory memory with instructions stored
therein for detecting the outreach and/or the position of the
crane hook with the at least one detection device and adjusting
a system pressure applied to the hydraulic slewing gear drive
via the at least one pressure relief valve in proportion to the
detected outreach and/or the detected position of the crane
hook.

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12. A crane, comprising:
a slewing gear;
a hydraulic slewing gear drive, wherein the slewing gear
is held in position via a holding torque applied by the hydraulic
slewing gear drive;
a crane hook; and
an overload safety device having at least one detection
device for detecting an outreach and/or a position of the crane
hook; at least one pressure relief valve, the at least one pressure
relief valve comprising at least one pressure cartridge valve,
and at least one pressure limiting valve, the overload safety
device further comprising a control unit including a processor
and non-transitory memory with instructions stored therein for
detecting the outreach and/or the position of the crane hook
with the at least one detection device, adjusting a system
pressure applied to the hydraulic slewing gear drive via the at
least one pressure relief valve in proportion to the detected
outreach and/or the detected position of the crane hook,
switching an outlet pressure of the at least one pressure limiting
valve as a control pressure to the at least one pressure relief
valve.

Rejections2
I. Claims 1–12, 14–17, 19, and 20 are rejected under 35 U.S.C.
§ 112 (pre-AIA), first paragraph, as failing to comply with the written
description requirement.
II. Claims 1–12, 14–17, 19, and 20 are rejected under 35 U.S.C.
§ 112 (pre-AIA), second paragraph, as being indefinite for failing to
particularly point out and distinctly claim the subject matter the Appellant
regards as the invention.

2 The separate rejections of claims 4, 7, 14, 17, and 20 under § 112, first and
second paragraphs, are withdrawn. See Ans. 3.
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III. Claims 1–12, 14–17, 19, and 20 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Dixon (US 3,690,387, iss. Sept. 12,
1972), Miller (US 3,814,265, iss. June 4, 1974), and Official Notice.
OPINION
Rejection I
In rejecting independent claims 1 and 12 as failing to comply with the
written description requirement, the Examiner finds the claim limitation “a
control unit including a processor and non-transitory memory with
instructions [stored therein] for detecting the outreach and/or the position of
the crane hook with the at least one detection device” constitutes new matter
because “[t]he specification does not disclose 1) non-transitory memory and
2) the processor and non-transitory memory doing the underlined function.”
Non-Final Act. 3.
With regard to the recitation of “non-transitory memory,” Appellant
argues support for this feature is found in original claim 12, which recites in
part, “the overload safety device further including instructions stored in non-
transitory memory.” Appeal Br. 8.
We agree with Appellant that the recitation of “non-transitory
memory” in original claim 12 provides written description support. The
Specification, at paragraph 30, supplements this support by disclosing that
overload safety device 95 includes a control unit 97 comprising a processor and
memory. Appellant’s disclosure as originally filed, which includes original
claim 12, conveys with reasonable clarity to those skilled in the art that the
claimed overload safety device comprises a control unit including non-
transitory memory.
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As for the recitation of “a control unit including a processor and non-
transitory memory with instructions stored therein for detecting the outreach
and/or the position of the crane hook with the at least one detection device,”
Appellant argues that this feature is described in paragraph 30 of the
Specification. We agree.
Paragraph 30 discloses that the overload safety device includes a
control unit, which
may include a processor and memory, including instructions for
carrying out the various control actions described herein . . . one
example method carried out by the system of the present
disclosure includes, as the ship 90 is moved laterally, thus
increasing load on the crane, the control unit can detect this
lateral movement at the hook
(Emphasis added). Paragraph 9 of the Specification also discloses that an
overload safety device “has at least one sensor or other detection device for
detecting the outreach and/or position of the crane hook.” Thus, Appellant’s
disclosure, as originally filed, conveys to those skilled in the art that a
control unit and a detection device of an overload safety device may detect
the outreach and/or the position of the crane hook.
In response to Appellant’s arguments, the Examiner states that “there
is no disclosed link between the sensors (i.e. detection devices) and
instructions because the instructions and sensors are disclosed separately.”
Ans. 4. We agree that the sensors and instructions are disclosed separately,
but we find at least one portion of the Specification that describes a direct
link between a sensor and the control unit of the overload safety device. The
Specification discloses that “the overload safety device includes an outreach
sensor which detects the outreach of the crane 10, i.e. the horizontal distance
of the hoist rope 50 running off the tip of the boom 40 from the vertical axis
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of rotation A of the crane 10 and communicates it to the control unit of the
overload safety device.” Spec. ¶ 28 (emphasis added). Because the sensor
detects the outreach of the crane and communicates that detection to the
control unit of the overload safety device, there is a disclosed link between
the detection device and the instructions, which are included as part of the
control unit.
For these reasons, the Examiner’s findings of facts do not support a
lack of written description as to the limitation “a control unit including a
processor and non-transitory memory with instructions stored therein for
detecting the outreach and/or the position of the crane hook with the at least
one detection device,” as recited in independent claims 1 and 12.
Accordingly, we do not sustain the Examiner’s rejection as failing to
comply with the written description requirement.
Rejection II
Independent claims 1 and 12
Claim 1 recites, in part,
an overload safety device having at least one detection device
for detecting an outreach and/or a position of the crane hook . .
. the overload safety device further comprising a control unit
including a processor and non-transitory memory with
instructions stored therein for detecting the outreach and/or the
position of the crane hook with the at least one detection
device.
Appeal Br., Claims App. (emphasis added). Claim 12 recites a similar
limitation.
The Examiner determines, and we agree, that claims 1 and 12 are
rendered indefinite because the claims are “unclear as to whether the
detection device detects an outreach and/or a position of the crane hook, the
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processor and non-transitory memory detects an outreach and/or a position
of the crane hook, or both structures detect[] an outreach and/or a position of
the crane hook.” Non-Final Act. 5.
Section 112 requires “claims particularly pointing out and distinctly
claiming subject matter which the inventor or joint inventor regards as the
invention.” In determining whether a claim is definite under 35 U.S.C.
§ 112, in examining an application, the Examiner “is obliged to test the
claims for reasonable precision.” In re Packard, 751 F.3d 1307, 1313 (Fed.
Cir. 2014). “[A] claim is indefinite when it contains words or phrases whose
meaning is unclear.” Id. at 1322; Ex Parte McAward, No. 2015-006416, 11
(PTAB Aug. 25, 2017) (precedential) (quoting In re Packard, 751 F.3d at
1314). Section 112 places the burden of precise claim drafting on
applicants. See Packard, 751 F.3d at 1313.
As the Examiner correctly observes, the claims require the detection
device and the control unit of the overload safety device to perform the same
claimed function of detecting the outreach and/or the position of the crane
hook. Moreover, the control unit is further recited as detecting . . . with the
at least one detection device, which introduces further ambiguity in the
claims. As discussed in the written description section, Appellant’s
Specification discloses that “the overload safety device includes an outreach
sensor which detects the outreach of the crane 10 . . . and communicates it to
the control unit of the overload safety device.” Spec. ¶ 28 (emphasis added).
Therefore, the Specification makes clear that the detection device (e.g.,
outreach sensor) functions to detect an outreach and/or a position of the
crane hook, and the control unit including a processor and non-transitory
memory with instructions stored therein functions to receive the detected
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outreach and/or the position of the crane hook from the at least one detection
device.
After the filing of the Notice of Appeal, Appellant filed an
amendment “to clarify the relationship between the claimed detection
device, processor, non-transitory memory, and the detection performed.”
Appeal Br. 14. However, that amendment has not been entered into the
record, and is not before us for review.
Accordingly, we sustain the rejection of independent claims 1 and 12
as indefinite, including dependent claims 2–11, 14–17, 19, and 20, as to the
“detecting” limitations.
Independent claim 12
Claim 12 recites, in part, “at least one pressure relief valve, the at least
one pressure relief valve comprising at least one pressure cartridge valve,
and at least one pressure limiting valve.” Appeal Br., Claims App.
The Examiner determines, and we agree, that this recitation of the
claim is unclear and renders the claim indefinite. Non-Final Act. 5. As the
Examiner observes, it “is unclear as to how a valve (such as a pressure relief
valve) can comprise two valves (the at least one pressure cartridge valve and
the at least one pressure limiting valve” (id.) because the Specification
discloses that a “pressure relief valve can be designed as a valve cartridge or
as a so-called cartridge valve” (Spec. ¶ 19).
As Figure 2 further shows, the lead side 120 of the control
pressure line of the hydraulic motor 110 is connected to a pressure
relief valve 130 which is a so-called pressure cartridge valve in
the embodiment shown and is connected at the inlet side to the
feed pressure line 120' of the hydraulic motor 110.
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Id. ¶ 32; see also id. ¶ 33. In other words, the recited limitation is unclear
and not supported by the disclosure.
Similarly here, Appellant filed an amendment to clarify these claim
features “by replac[ing] all instances of ‘at least one pressure relief valve’
with ‘at least one pressure cartridge valve’” (Appeal Br. 15 (filed Nov. 30,
2016)), but the amendment is not entered into the record, and is not before
us.
Accordingly, we sustain the rejection of independent claim 12 as
indefinite, including dependent claims 14–17, 19, and 20, as to the “pressure
relief valve” limitation.
Rejection III
Before a proper review of the rejection under § 103(a) can be made,
the subject matter encompassed by the claims on appeal must be reasonably
understood without resort to speculation. Because the claims fail to satisfy
the requirements under 35 U.S.C. § 112, we are constrained to reverse, pro
forma, the Examiner’s rejection under 35 U.S.C. § 103(a). See In re Steele,
305 F.2d 859, 862 (CCPA 1962) (A prior art rejection cannot be sustained if
the hypothetical person of ordinary skill in the art would have to make
speculative assumptions concerning the meaning of claim language).
It should be understood that our decision to reverse the rejection under
35 U.S.C. § 103(a) is based solely on the indefiniteness of the claims, and
does not reflect on the merits of the underlying rejection.
CONCLUSION
Rejection I under 35 U.S.C. § 112, first paragraph, is reversed.
Rejection II under 35 U.S.C. § 112, second paragraph, is affirmed.
Rejection III under 35 U.S.C. § 103(a) is reversed pro forma.
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Decision Summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–12, 14–
17, 19, 20
112, ¶ 1 Written
Description
1–12, 14–
17, 19, 20
1–12, 14–
17, 19, 20
112, ¶ 2 Indefiniteness 1–12, 14–
17, 19, 20

1–12, 14–
17, 19, 20
103(a) Dixon, Miller,
Official Notice
1–12, 14–
17, 19, 20
Overall Outcome 1–12, 14–
17, 19, 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)(1)(iv).

AFFIRMED