Ex Parte ANTICUAR et alDownload PDFPatent Trial and Appeal BoardAug 7, 201814924798 (P.T.A.B. Aug. 7, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/924,798 10/28/2015 27572 7590 08/09/2018 HARNESS, DICKEY & PIERCE, P.L.C. P.O. BOX 828 BLOOMFIELD HILLS, MI 48303 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR David G. ANTICUAR 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 0739D-000151-US-DVD 9150 EXAMINER GUAN, GUANG H ART UNIT PAPER NUMBER 3631 NOTIFICATION DATE DELIVERY MODE 08/09/2018 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): troymailroom@hdp.com sto-ptomail@hdp.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID G. ANTICUAR, ANDREW JOSHUA SIMMS, KARL SPONSLER, SETH KIRKENDALL, SAP AN MAHENDRA POPTANI, and ARMIN MICHEL Appeal2017-009746 Application 14/924,798 Technology Center 3600 Before WILLIAM A. CAPP, JILL D. HILL, and JEREMY M. PLENZLER, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants 1 seek our review under 35 U.S.C. § 134(a) of the final rejection of claims 1, 4--11, 14, and 16-18. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellants identify Fisher & Company, Incorporated as the real party in interest. Appeal Br. 2. Appeal2017-009746 Application 14/924,798 THE INVENTION Appellants' invention relates to a locking mechanism for a seat-track assembly. Spec. ,r 2. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A seat-track assembly comprising: a first track member having a series of locking features; a second track member slidably supported by said first track member for relative movement along an axis; and a locking mechanism disposed at least partially between said first track member and said second track member and including four locking pawls each of which is movable between a locked state wherein the locking pawl is engaged with said locking features to restrict relative movement between said first track member and said second track member and an unlocked state wherein the locking pawl is disengaged from said locking features, wherein relative movement between said first track member and said second track member is permitted when all of said four locking pawls are in said unlocked state, each of said four locking pawls having only two oppositely extending locking elements oriented transversely to said axis that are received within respective ones of said series of locking features when in said locked state, each of said series of locking features having a first width and each of said locking elements having a second width that is no more than half of the first width, the first and second widths extending along said axis, and individual biasing means for separately biasing each of said four locking pawls toward said locked state; wherein each of said four locking pawls is movable independently from said unlocked state to said locked state; and further wherein the locking elements of said four locking pawls are equally spaced along said axis. 2 Appeal2017-009746 Application 14/924,798 THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: Moradell Flick Kojima us 6,113,051 US 6,648,292 B2 JP 2008080905 (A) Sept. 5, 2000 Nov. 18, 2003 Sept. 27, 2006 The following rejections are before us for review: 1. Claims 8-11 and 14 are rejected under 35 U.S.C. § 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. 2. Claims 1, 4--11, and 14 are rejected under 35 U.S.C. § 103 as being unpatentable over Flick and Kojima. 3. Claims 16-18 are rejected under 35 U.S.C. § 103 as being unpatentable Flick, Kojima, and Moradell. OPINION Section 112 (b) Indefiniteness of Claims 8-11 and 14 The Examiner rejects claims 8, 10, and 14 on account of certain linear dimension limitations being claimed as "substantially equal" to other linear dimensions. Final Action 5. Claims 9 and 11 are rejected on account of their dependency from claims 8 and 10 respectively. Id. Appellants argue that prevailing law permits the use of "substantially" in connection with a claimed linear dimension without causing an indefiniteness problem. Appeal Br. 5-7. The Examiner maintains that there is not enough information in the Specification to apprise a person of ordinary skill in the art of the amount of "tolerance" that is contemplated by using the term "substantially." Ans. 3. 3 Appeal2017-009746 Application 14/924,798 Appellants' brief cites to the correct and applicable principle of law. Id. 6. Words of approximation, "such as 'generally' and 'substantially,' are descriptive terms commonly used in patent claims to avoid a strict numerical boundary to the specified parameter." Anchor Wall Systems, Inc. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1310-11 (Fed. Cir. 2003). The Examiner provides no persuasive reason as to why the general rule enunciated by the Federal Circuit in Anchor Wall Systems should not apply under the facts and circumstances of this case. Id. Accordingly, we do not sustain the Examiner's indefiniteness rejection of claims 8-11 and 14. Claim 1 Unpatentability of Claims 1, 4-11, and 14 over Flick and Kojima The Examiner finds that Flick discloses the invention substantially as claimed except for oppositely extending locking portions, for which the Examiner relies on Kojima. Final Action 8-12. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time of the invention to combine the teachings of Flick and Kojima to achieve the claimed invention. Id. at 12. According to the Examiner, a person of ordinary skill in the art would have been motivated to do so to enhance the ability of the assembly to absorb the energy from a crash. Id. at 12. Appellants argue that Kojima only has a single locking pawl with eight locking elements (four on each side). Appeal Br. 8. This argument is viewed as an individual attack on one reference in a section 103 obviousness combination. However, it is well-established that non-obviousness cannot be established by attacking references individually where the rejection is 4 Appeal2017-009746 Application 14/924,798 based upon the teachings of a combination of references. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413,425 (CCPA 1981). Similarly, Appellants also argue that Flick's locking plates each have six locking teeth 15 ( three on each side). Appeal Br. 7. This argument is not persuasive as it amounts to another individual attack on one reference in a combination rejection and fails to account for modifications that a person of ordinary skill in the art would have made to the prior art. Merck, supra. Appellants also argue that Flick has three (not four) locking plates. Appeal Br. 7. This argument lacks support in the record, Flick expressly teaches the use of four separately identifiable locking pawls with locking elements on opposing sides. Flick, col. 5, 11. 23-30. 2 We agree with the Examiner that a person of ordinary skill in the art would have found it obvious to combine and modify Flick and Kojima to achieve the claimed invention. Flick teaches the use of three or four locking plates or pawls. Kojima teaches a single pawl, albeit with 8 teeth (four on each side). The fact that Flick' s pawls have three teeth each on opposing sides, instead of only one, does not strike us as a patentably significant distinction. "A person of ordinary skill is also a person of ordinary creativity, not an automaton." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Design incentives and other market forces can prompt variations in a prior art work and if a person of ordinary skill can implement 2 We do not view the number of individual teeth on each ofFlick's locking plates as patentably significant. In re Harza, 274 F.2d 669, 671 (CCPA1960) (The mere duplication of parts has no patentable significance unless a new and unexpected result is produced). Similarly, it has not been shown here that reducing the number of teeth on each pawl from 3 to 1 results in a new or unexpected result. 5 Appeal2017-009746 Application 14/924,798 a predictable variation, Section 103 likely bars its patentability. See KSR, at 417. The obviousness analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ. Id. at 418. In the instant case, we view the use of four locking pawls, each with one set of opposing elements ( or teeth), as a predictable and obvious variation of the combined teachings of Flick and Kojima. Appellants provide neither evidence nor persuasive technical reasoning that tends to show that modifying Flick so that each pawl has only one tooth ( or arm or element) on each side entails more than ordinary skill or otherwise achieves unexpected results. Next, Appellants argue that Flick features uneven spacing between its locking elements. Appeal Br. 9. Appellants argue that such spacing is critical to Flick as it enables the first and third pawls to engage slots 16, while blocking and preventing the second pawl from engaging. Id. The Examiner responds with citations to the record that evidence equal spacing between Flick's pawls. Ans. 6 (citing Flick, Figs. 3-5). We have reviewed Figures 3 through 5 of Flick and find that the Examiner's findings of fact on this issue are supported by a preponderance of the evidence. Id. Furthermore, the fact that spacing between the pawls may result in some of the pawls being blocked from engagement is not persuasive evidence of uneven spacing between the pawls. Appellants' own invention purports to have equal spacing between the pawls, and yet some of the pawls are blocked or "out of phase" with the locking features on the lower track. See Spec. ,r,r 68, 69, Figs. 14--16. 6 Appeal2017-009746 Application 14/924,798 The Examiner's position is supported by a preponderance of the evidence and the Examiner's conclusion ofunpatentability is well-founded. We sustain the Examiner's unpatentability rejection of claim 1. Claims 4-6 These claims depend, directly or indirectly, from claim 1 and are not separately argued. Claims App. They fall with claim 1. We sustain the Examiner's Section 103 rejection of claims 4---6 over Flick and Kojima. See 37 C.F.R. § 4I.37(c)(l)(iv) (failure to separately argue claims). Claim 7 Claim 7 depends from claim 6, and indirectly from claim 1, and adds the limitation: "wherein said series of locking features are spaced apart along said axis by a first distance and wherein all of the locking elements of said four locking pawls are spaced apart along said axis by said first distance." Claims App. The claimed "lockingfeatures" correspond to element 32 in the Specification. Spec. ,r,r 67, 68, Figs. 16, 17. These locking features are spaced apart by a ''first distance" represented by the linear length of projections 34. Id. The claimed "locking elements" correspond to element 54 (locking arm) on element 46 (locking pawl). The claim, in other words, means that both the locking features (element 32) and the locking arms (element 54) are spaced apart by the same distance (i.e., the "first distance" or the length of projection 34). In claim 1, from which claim 7 depends, the locking element (locking arm element 54) is no more than one-half of the width of locking feature ( element 32). Spacing apart the locking elements and locking features by the same distance, given their differing widths, results in some locking pawls being out of phase with other pawls. See Spec. ,r,r 68, 69, Figs. 14--16. 7 Appeal2017-009746 Application 14/924,798 Appellants argue that Flick's locking elements 15 are spaced apart by twice the distance of the spacing between the locking features. Appeal Br. 10. 3 In response, the Examiner points out, correctly, that Appellants have failed to take into consideration that the rejection is based on combining the teachings of Flick and Kojima. Ans. 6. According to the Examiner, the spacing limitation is met by reference to the Kojima reference. Id. "[T]he locking elements are the locking elements (Kojima: 33, 34, fig 1) of Kojima, which are spaced apart by a distance between the locking pawls (Flick: 21) of Flick after modification." Id. Appellants' arguments are directed to Flick individually and do not apprise us of error when considered in light of the Examiner's proposed combination/modification of the prior art. Merck, 800 F .2d at 1097. We sustain the Examiner's Section 103 rejection of claim 7 over Flick and Kojima. Claim 8 Claim 8 depends directly from claim 7, and indirectly from claim 1, and adds the limitation: "wherein said first width is substantially equal to said first distance." Claims App., claim 8. The "first width" corresponds to the width of locking feature 32. Id. Claim 1. The "first distance" corresponds to the width of projection 34. Id. Claim 7. In other words, lower track 18 features an alternating sequence of projections ( element 34) 3 Our governing rules require that each claim or claim sub-group that is argued separately, must be argued under a separate sub-heading that identifies the claim(s) by number. See 37 C.F.R. § 4I.37(c)(1)(4). Appellants' Brief does not comply with our rules as the arguments for claims 7 and 8 are argued under the same heading as all other claims under the Section 103 grounds of rejection. 8 Appeal2017-009746 Application 14/924,798 and recesses (locking features element 32) where elements 32 and 34 have the substantially the same width. See e.g., Fig .. 1 7. Appellants argue that Flick's first width dimension is twice the length of its first distance. Appeal Br. 10-11. 4 In response, the Examiner points out that Flick's elements, as modified by the rejection, are "substantially" equal in linear dimension. The Examiner refers us to an annotated version of Figure 4 of Flick featuring annotations of "D 1" corresponding to the claimed "first distance" and "14a" as corresponding to the claimed "first width." Ans. 7, Final Action 14--15. The Examiner maintains that these two dimensions are "substantially equal" in length using a broad but reasonable interpretation of the claim language. Ans. 7. Appellants' argument is not persuasive. Appellants' argument is based solely on a single drawing. However, Flick' s specification discloses multiple embodiments with variations in width between its teeth and its tooth like slots. Flick, col. 2, 11. 30-37 (openings on rail have the same width as the teeth on the locking plate); col. 3, 11. 49--52 (width of the slots is usually calculated so that the teeth of two plates will be in engagement); col. 4, 11. 22-31 (teeth of left locking plate rests against left edge of the slot and teeth of right locking plat rests against the right edge of the slot). Moreover, it is well established that patent drawings do not define the precise proportions of the elements and may not be relied on to show particular sizes if the specification is completely silent on the issue. Hockerson-Halberstadt, Inc. v. Avia Group Int'!, Inc., 222 F.3d 951,956 (Fed. Cir. 2000), citing In re Wright, 569 F.2d 1124, 1127 (CCPA 1977). 4 Appellants' argument regarding claim 8 does not comply with our briefing rules. See footnote 3 supra. 9 Appeal2017-009746 Application 14/924,798 Having successfully argued that use of the term "substantially equal" is not indefinite, Appellants' arguments do not persuade us that the width of Flick's alternating projections and recesses are not "substantially equal." See Flick, Fig. 4, Final Action 14. We sustain the Examiner's Section 103 rejection of claim 8 over Flick and Kojima. Claims 9--11 and 14 These claims depend, directly or indirectly, from claim 1 and are not separately argued. Claims App. They fall with claim 1. We sustain the Examiner Section 103 rejection of claims 9-11 and 14 over Flick and Kojima. 37 C.F.R. § 4I.37(c)(l)(iv). Unpatentability of Claims 16-18 over Flick, Kojima, and Moradel! These claims depend, directly or indirectly, from claim 1. Claims App. They are not separately argued and, therefore, fall with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv) (failure to separately argue claims). DECISION The decision of the Examiner to reject claims 8-11, and 14 under Section 112 as indefinite is reversed. The decision of the Examiner to reject claims 1, 4--11, 14, and 16-18 under Section 103 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 10 Copy with citationCopy as parenthetical citation