Schober, Martin et al.

Patent Trials and Appeals Board

Aug 26, 2020

2019002240 (P.T.A.B. Aug. 26, 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.
13/643,726 02/06/2013 Martin Schober 3181-123283 3048
28289 7590 08/26/2020
THE WEBB LAW FIRM, P.C.
ONE GATEWAY CENTER
420 FT. DUQUESNE BLVD, SUITE 1200
PITTSBURGH, PA 15222
EXAMINER
KUHFUSS, ZACHARY L
ART UNIT PAPER NUMBER
3617
NOTIFICATION DATE DELIVERY MODE
08/26/2020 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):
patents@webblaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARTIN SCHOBER, ALEXANDER ORELLANO,
ANDREAS TIETZE, MARCO WEISE, and STEFAN STEILEN

Appeal 2019-002240
Application 13/643,726
Technology Center 3600
____________

Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–14, and 16–19. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
Bombardier Transportation GmbH. Appeal Br. 3.
Appeal 2019-002240
Application 13/643,726

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STATEMENT OF THE CASE
Claimed Subject Matter
Claims 1 and 17 are the independent claims on appeal. Claim 1,
reproduced below with added emphasis, is illustrative of the claimed subject
matter.
1. A vehicle comprising:
a wagon body which is supported on at least one running
gear, wherein
said wagon body defines a vehicle longitudinal direction,
a vehicle transverse direction and a vehicle height direction,
said wagon body has a body section and an adjacent head
section,
said head section is configured to form a free vehicle end
during operation,
said head section, along said vehicle longitudinal
direction, tapers at least in said vehicle height direction towards
said free vehicle end,
said head section further has an outer skin and a flow
separation unit extending in said vehicle longitudinal direction,
said vehicle height direction, or both said vehicle longitudinal
direction and said vehicle height direction for reducing
sensitivity of said vehicle to crosswind,
wherein
said flow separation unit comprises a roof-like protrusion
formed by said outer skin, wherein
said roof-like protrusion, in said vehicle transverse
direction, is spaced from a vehicle longitudinal center plane,
said roof-like protrusion has a first roof section facing
towards said vehicle longitudinal center plane, a second roof
section on a first side of said first roof section distal to said
vehicle longitudinal center plane facing away from said vehicle
longitudinal center plane, a ridge section forming a transition
between said first roof section and said second roof section, and
a third roof section on a second side of said first roof section
proximal to said vehicle longitudinal center plane and facing
away from said vehicle longitudinal center plane,
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said first roof section being located between said second
roof section and said third roof section in a sectional plane
perpendicular to said vehicle longitudinal direction,
said first roof section and said second roof section run
inclined to one another such that, at a nominal operating speed
of said rail vehicle and with an oblique flow against said roof-
like protrusion by an air flow coming from said vehicle
longitudinal center plane, said ridge section forms a flow
separation edge for said air flow,
said first roof section is configured to impose, in a
vehicle transverse plane running perpendicular to said vehicle
longitudinal direction, in a first region adjacent to said ridge
section, and upon a flow in said vehicle transverse direction
coming from said vehicle longitudinal center plane, a first
tangential direction on said air flow,
said second roof section is configured to impose, in said
vehicle transverse plane, in a second region adjacent to said
ridge section, and upon a flow in said vehicle transverse
direction towards said vehicle longitudinal center plane, a
second tangential direction on said air flow,
said first tangential direction and said second tangential
direction define a roof angle of said roof-like protrusion, and
said roof angle, over a first edge region extending in said
vehicle longitudinal direction, is less than 150°.

Rejections
Claim 1, 3–6, 8–14, and 17–19 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Käßmaier (DE 19600038 A1, pub. July 11, 1996)2,
Girardy et al. (US Des. 164,921, iss. Oct. 23, 1951) (“Girardy”), and
Buckley Jr. (US 4,245,862, iss. Jan. 20, 1981) (“Buckley”). Ans. 3.

2 The Appellant filed an Information Disclosure Statement (“IDS”) on
March 6, 2013. The IDS included the Käßmaier reference and an English-
language Abstract (“Käßmaier English Abstract”). Also, the Examiner
mailed a machine translation of Käßmaier on October 9, 2014 (“Käßmaier
Translation”).
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Application 13/643,726

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Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Käßmaier, Girardy, Buckley, and Iden (US 8,215,239 B2, iss. July 10,
2012). Ans. 3; see Appeal Br. 20.
Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Käßmaier, Girardy, Buckley, and Säntti et al. (US 6,945,176 B2, iss.
Sept. 20, 2005). Ans. 3; see Appeal Br. 20.

ANALYSIS
The Examiner’s rejection of claims 1 and 17, includes the following
determination:
Käßmaier does not specifically teach that the third roof
section is facing away from said vehicle longitudinal center
plane. However, Girardy teaches a central roof section that is
contoured outward (i.e. convex) so that the section faces away
from the vehicle longitudinal center plane, while maintaining
ridge-like sections on the sides of the vehicle (Fig. 1). It would
have been obvious to one of ordinary skill in the art before the
effective filing date of the claimed invention, to try contouring
the center portion of the roof outward on the locomotive of
Käßmaier, as taught by Girardy, in order to provide the vehicle
operator more room inside the cabin.
Final Act. 4, 14.
The Appellant argues that the Examiner’s reasoning is flawed because
it does not consider the entirety of Käßmaier’s and Girardy’s teachings. See
Appeal Br. 14–16; Reply Br. 2–3. The Appellant points out Käßmaier’s
“center section (i.e., ‘third surface’) faces towards the longitudinal center
plane, rather than away from the longitudinal center plane, as required by
independent claims 1 and 17.” Appeal Br. 15. Notably, Käßmaier compares
the overall shape and design of the locomotive’s head section to a coal
shovel. See id.; Ans. 5. The Appellant also points out that Käßmaier’s head
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section has a flat front surface, which is expressly distinguished from a head
section with a conventional oviform (i.e., convex or egg-shaped) surface.
See Appeal Br. 15.
More importantly, the Appellant points out that Käßmaier
distinguishes air side pressure characteristics of the different surfaces. See
id. at 15–16. Indeed, Käßmaier teaches that the overall coal shovel shape of
its head section scoops air upwards and over the roof when travelling. See
Käßmaier English Abstract. Käßmaier distinguishes its design from head
sections with conventional oviform (i.e., aerodynamic egg shapes) designs,
which carry away air sideways. See Käßmaier Translation. Käßmaier
teaches that the conventional oviform design aggravates air side pressure at
high speeds and produces air pressure shocks that are very unpleasant for
passengers, whereas Käßmaier’s coal shovel design exposes train cars to
much lower air pressure side forces, and therefore, less stress. Id.
Additionally, Käßmaier’s coal shovel design is more cost-effective, which
results in significant competitive advantages. Id.
In response, the Examiner explains that by modifying Käßmaier’s
third roof section (i.e., the roof section proximal to said vehicle longitudinal
center plane) from a flat or coal-shovel design to a contoured outward or
convex surface, the side ridge sections of Käßmaier’s head section would
still enable air to be scooped up and over the top of the locomotive. See
Ans. 5.
In view of the Examiner’s response, we are unclear as to the proposed
result of the Examiner’s proposed modification. Generally, two scenarios
seem to be possible. First, the modification of Käßmaier’s third roof section
in view of Girardy’s teachings could result in a third roof section with a
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convex shape having a maximum height that is greater than the first and
second sections that are lateral thereto. This scenario does not appear
consistent with the Examiner’s statement “the side ridge sections of the
locomotive still enable air to be scooped up and over the top of the
locomotive.” Ans. 5. At the very least, the statement seems to heavily rely
on speculation. See Appeal Br. 16; Reply Br. 3. Second, the modification of
Käßmaier’s third roof section in view of Girardy’s teachings could result in
a third roof section with a convex shape having a maximum height that is
less than the first and second sections that are lateral thereto. This scenario
does not appear consistent with Girardy’s teaching, which shows the
maximum height of the third section as greater than the sections that are
lateral thereto (i.e., first and second roof like sections). See Appeal Br. 16;
Reply Br. 3. In view of the foregoing, we determine that the Examiner fails
to provide adequate articulated reasoning with rational underpinning, on this
record, to support the conclusion of obviousness.
The Examiner fails to rely on the teachings of Buckley in any manner
which would remedy the deficiency in the Examiner’s rejection as discussed
above. Thus, we do not sustain the Examiner’s rejection of independent
claims 1 and 17 and dependent claims 3–6, 8–14, 18, and 19.
Further, the Examiner fails to rely on the teachings of Iden or Säntti in
any manner which would remedy the deficiency in the Examiner’s rejection
of independent claim 1 as discussed above. Thus, we do not sustain the
Examiner’s rejections of dependent claims 7 and 16, which depend from
claim 1.

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1, 3–6, 8–
14, 17–19
103(a) Käßmaier, Girardy,
Buckley

1, 3–6, 8–
14, 17–19
7 103(a) Käßmaier, Girardy,
Buckley, Iden
7
16 103(a) Käßmaier, Girardy,
Buckley, Säntti
16
Overall
Outcome
1, 3–14,
16–19

REVERSED