Oskar Myhre. Broberg et al.

Patent Trials and Appeals Board

Oct 7, 2019

14660275 - (D) (P.T.A.B. Oct. 7, 2019)

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.
14/660,275 03/17/2015 Oskar Myhre BROBERG Q218451 3895
23373 7590 10/07/2019
SUGHRUE MION, PLLC
2000 PENNSYLVANIA AVENUE, N.W.
SUITE 900
WASHINGTON, DC 20006
EXAMINER
DABNEY, PHYLESHA LARVINIA
ART UNIT PAPER NUMBER
2655
NOTIFICATION DATE DELIVERY MODE
10/07/2019 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):
PPROCESSING@SUGHRUE.COM
USPTO@sughrue.com
sughrue@sughrue.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte OSKAR MYHRE BROBERG,
JORGEN MEJNER OLSEN, and KENNIE FALK HAVN

Appeal 2018-002784
Application 14/660,275
Technology Center 2600
____________

Before BRADLEY W. BAUMEISTER, SHARON FENICK, and
DAVID J. CUTITTA II, Administrative Patent Judges.

CUTITTA, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–10. We have jurisdiction under
35 U.S.C. § 6(b). Oral arguments were heard on September 9, 2019. A
transcript of that hearing will be added to the record in due time.
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
WIDEX A/S. Appeal Br. 2.
Appeal 2018-002784
Application 14/660,275
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STATEMENT OF THE CASE
Introduction
Appellant’s invention is described as a hearing aid having a one-piece
pre-stressed spring for contacting a battery. See Spec. 3:6–16.2
Illustrative Claim
Independent claim 1 is illustrative of the claimed subject matter and is
reproduced below with formatting modified for clarity and limitations at
issue emphasized:
1. A hearing aid comprising:
a battery compartment prepared for receiving a
battery and two contacts arranged to draw an electrical
current from an inserted battery in order to power
electrical parts of the hearing aid,
at least one of said contacts being loaded by a pre-
stressed spring,
said pre-stressed spring comprising a body part
and a torque part, said body part being arranged in a
first fixed attachment in a first end from where it extends
to the point of battery contact in a second end, wherein
said torque part is adapted to provide a torque to the
point of contact.

Appeal Br. 11 (Claims Appendix).

2 Throughout this Decision, we refer to: (1) Appellant’s Specification filed
March 17, 2015 (“Spec.”); (2) the Final Office Action (“Final Act.”) mailed
July 29, 2016; (3) the Appeal Brief filed June 30, 2017 (“Appeal Br.”);
(4) the Examiner’s Answer (“Ans.”) mailed November 17, 2017; and the
Reply Brief filed January 17, 2018 (“Reply Br.”).
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Application 14/660,275
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REFERENCES AND REJECTIONS
Claims 1–7, 9, and 10 stand rejected under pre-AIA 35 U.S.C.
§ 102(b) as anticipated by Olsen (WO 98/47319, published Oct. 22, 1998).
Final Act. 2–3.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Olsen, Giannetti (WO 86/06919, published Nov. 20,
1986) and Vignini (US 3,701,862, issued Oct. 31, 1972). Final Act. 4–5.
Our review in this appeal is limited to the above rejections and the
issues raised by Appellant. Arguments not made are waived.
37 C.F.R. § 41.37(c)(1)(iv).
ISSUE
Whether the Examiner errs in finding Olsen discloses a pre-stressed
spring “comprising a body part and a torque part, said body part being
arranged in a first fixed attachment in a first end from where it extends to the
point of battery contact in a second end, wherein said torque part is adapted
to provide a torque to the point of contact,” as recited in illustrative claim 1.
DISCUSSION
Appellant’s claimed invention recites a hearing aid having a one-piece
pre-stressed spring 1 for securing a battery. See Spec. 3:6–16. The pre-
stressed spring 1 includes a body part 2 and a torque part 3. Id. at 4:21–24.
The body part 2 has a first fixed end 6 and a second end 4 that contacts the
battery. Id. at 5:5–12. Fixing a tip 5 of torque part 3 back towards a
horizontal plane of body part 2 generates a torque on the second end 4 of
body part 2 for securing the battery. Id. at 5:9–13.

Appeal 2018-002784
Application 14/660,275
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Appellant’s Figure 1 is reproduced below with annotations added for
clarity:

Appellant’s Figure 1 shows a one-piece pre-stressed spring 1
including a torque part 3, and a body part 2 having a first fixed end 6 and a
second end 4 for contacting the battery.
Appellant’s Figure 2b, depicting a battery spring from a side view, is
reproduced in part below with annotations added for clarity:

Appellant’s Figure 2b shows how moving and securing the tip 5 of
torque part 3 back towards the plane of the body part 2 generates a torque on
Appeal 2018-002784
Application 14/660,275
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the second end 4 of body part 2 to provide the battery with a higher
mechanical load than a conventional spring. Spec. 5:1–24.
Olsen’s Figure 7 is reproduced below with additional annotations
included by the Examiner:

Olsen’s Figure 7 shows socket part 11 having lugs 19 formed with
integral terminals 22.
The Examiner finds Olsen’s socket part 11, having protruding resilient
lugs (“lugs”) 19 formed with integral battery terminals (“terminals”) 22,
discloses the pre-stressed spring, as recited in claim 1. Final Act. 2–3 (citing
Olsen Fig. 1, items 64, 66, and 70). Specifically, the Examiner finds Olsen’s
lugs 19 disclose the claimed “body part” and Olsen’s terminals 22 disclose
the claimed “torque part.” Final Act. 2.
Appellant argues the Examiner errs in finding Olsen discloses the
limitations at issue because “the examiner considers the lug 19 of Olsen to
be the claimed body part and the lug 22 of Olsen to be the claimed torque
part,” but according to Appellant, lug 19 does not contact the battery.
Appeal Br. 5. That is, Appellant argues that because claim 1 requires the
body part to be fixed at a first end and to include a point of battery contact at
Appeal 2018-002784
Application 14/660,275
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a second end, lug 19 does not disclose the body part because it does not
contact the battery. Id.
The Examiner finds Appellant’s argument unpersuasive because
Olsen’s lugs 19 and terminals 22 are integrally formed and thus Olsen’s lugs
make contact with the battery via terminals 22. Ans. 4 (“‘lugs 19 . . . may
suitably be formed with integral battery terminals 22’. The lugs 19 via the
terminals 22 . . . contact the battery 23”).
Appellant responds,
The only part that satisfies the claim requirement for the body
part is the lower arm of the Olsen’s lug, but the examiner has
identified the lower arm as the claimed torque part. The end
result is that the examiner has now identified the lower arm of
the lug 19 as both the body part and the torque part, which is
not a reasonable reading of the claim language, nor is it a
reasonable reading of Olsen.
Reply Br. 5.
We find Appellant’s arguments persuasive. “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 California, 814 F.2d 628, 631 (Fed. Cir.
1987). “[D]ifferences between the prior art reference and a claimed
invention, however slight, invoke the question of obviousness, not
anticipation.” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371
(Fed. Cir. 2008). Here, the Examiner does not sufficiently explain how
Olsen’s terminals 22 disclose both the “body part” and the “torque part” of
claim 1. Furthermore, the Examiner does not demonstrate, in view of the
finding that lugs 19 contact the battery “via the terminals 22,” how Olsen’s
terminals 22 apply a torque to an end of lugs 19 that contact the battery, as
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Application 14/660,275
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required by the claim (“said torque part is adapted to provide a torque to the
point of contact”). Ans. 4.
Because we agree with at least one of the dispositive arguments
advanced by Appellant for claim 1, we need not reach the merits of
Appellant’s other arguments. Based on the record before us, we do not
sustain the Examiner’s 35 U.S.C. § 102 rejection of independent claim 1, or,
for the same reasons, the rejection of dependent claims 2–7, 9, and 10.

35 U.S.C. § 103(a) Rejection of Claim 8
We do not sustain, for similar reasons, the Examiner’s 35 U.S.C.
§ 103(a) rejection of claim 8, which depends from claim 1 and, thus, also
recites the limitation at issue.

CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
1–7, 9, and 10 § 102(b) Olsen 1–7, 9, and
10
8 § 103(a), Olsen,
Giannetti, Vignini
8
Overall
Outcome
1–10

REVERSED