Ex Parte Bayrakdar et al

Patent Trial and Appeal Board

Mar 28, 2017

13636550 (P.T.A.B. Mar. 28, 2017)

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.
13/636,550 11/19/2012 Ali Bayrakdar 5052.1048 9283
23280 7590 03/30/2017
Davidson, Davidson & Kappel, LLC
589 8th Avenue
16th Floor
New York, NY 10018
EXAMINER
CHANG, CHING
ART UNIT PAPER NUMBER
3748
NOTIFICATION DATE DELIVERY MODE
03/30/2017 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):
ddk @ ddkpatent .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALI BAYRAKDAR, UWE ELFERS,
THOMAS MUELLER, and HOLGER PIEPER
Appeal 2015-005995
Application 13/636,550
Technology Center 3700
Before JOHN C. KERINS, STEFAN STAICOVICI, and LEE L. STEPINA,
Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Ali Bayrakdar et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner’s final decision rejecting claims 11—20, 22, and 23. We
have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We REVERSE.
THE INVENTION
Appellants’ invention relates to a device for changing the relative
angular position of a camshaft with respect to a crankshaft of an internal
combustion engine.
Appeal 2015-005995
Application 13/636,550
Claim 11, the sole independent claim, is representative of the claimed
invention and reads as follows:
11. A device for changing a relative angular position of a
camshaft with respect to a crankshaft of an internal combustion
engine, comprising:
a drive element driven by the crankshaft, wherein the
drive element is mounted rotatably about the camshaft, and
wherein at least two hydraulic chambers are formed between
the drive element and the camshaft, wherein the hydraulic
chambers are pressurizable with a pressurized fluid in order to
set a defined relative rotational position between the drive
element and the camshaft;
a housing element, in which means for controlling the
flow of the pressurized fluid are arranged; and
a pressure reservoir having a pressure chamber for
pressurized fluid, the pressure reservoir being substantially
cylindrical, the pressure reservoir being arranged on the
housing element so that a cylindrical lateral face of the reservoir
abuts a lateral portion of the housing element, at least one fluid
connection being formed between the housing element and the
pressure chamber of the pressure reservoir.
THE REJECTIONS
The Examiner has rejected:
(i) claims 11—15, 18, 20, 22, and 231 under 35 U.S.C. § 102(b) as
being anticipated by Thoma (US 5,189,999, issued Mar. 2, 1993);
1 A rejection of claim 21 under this statutory basis was withdrawn by
the Examiner during the course of this appeal. Ans. 5.
2
Appeal 2015-005995
Application 13/636,550
(ii) claims 16 and 17 under 35 U.S.C. § 103(a) as being
unpatentable over Thoma in view of Sluka (DE 10 2006 052 998 Al,
published July 3, 2008); and
(iii) claim 19 under 35 U.S.C. § 103(a) as being unpatentable over
Thoma and design choice.
ANALYSIS
Claims 11—15, 18, 20, 22, and 23—Anticipation—Thoma
The Examiner finds that Thoma discloses “a housing element (14,
including an element being in front of 13 on the left hand side, without a
reference number, and in direct contact with 40 as shown in the Figure 1).”
Final Act. 2. Based on what the Examiner considers to be a housing
element, the Examiner finds that the pressure reservoir (accumulator 40) of
Thoma is “arranged on the housing element so that a cylindrical lateral face
of the reservoir abuts a lateral portion of the housing element.” Id. at 3.
Appellants take issue with the Examiner’s position and argue that, “in
Thoma, the flat front of accumulator 40 abuts cover 14.” Appeal Br. 4.
In the Answer, the Examiner changes which portion of housing 14 is
being relied upon and notes that, “the right hand side end (along the
longitudinal axis 17) of the cover 14 in Thoma reference is located far
beyond the cylinder lateral face of accumulator 40 (a part of 14), and is
ended inside a generator wheel 33.” Ans. 5—6. Based on this revised
interpretation of Thoma, the Examiner deems that the Thoma reference
discloses “a cylindrical lateral face of accumulator (a pressure reservoir) 40
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Appeal 2015-005995
Application 13/636,550
[that] does abut a lateral portion of cover (a housing element) 14.” Id. at 6
(emphasis omitted).
Appellants reply that the Examiner’s assertion is unfounded. See
Reply Br. 2. Appellants provide an annotated Figure 1 of Thoma, which is
reproduced below, and argue that the “portion inside of generator wheel 33
(i.e., the ‘lateral portion’ that is asserted as abutting the cylindrical lateral
face of the reservoir of Thoma) is spaced from the cylindrical lateral face of
the reservoir of Thoma.” Id at 2—3.
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Appeal 2015-005995
Application 13/636,550
Appellants’ annotated Figure 1 of Thoma depicts a cross-sectional axial
view of a device for adjusting the relative angle of rotation of a shaft to a
drive wheel. Appellants assert that, “the reservoir of Thoma ends radially
outside of the ‘lateral portion’ that is asserted as abutting the cylindrical
lateral face of the reservoir of Thoma.” Id at 2.
Appellants have the better position here. As to the Examiner’s initial
position, although the C-shaped element to the left of reference numeral 13
in Figure 1 of Thoma could be considered as part of housing 14 (see Final
Act. 2), claim 11 requires that the reservoir is on the housing element so that
a face of the reservoir abuts a lateral portion of the housing element. Here,
because the C-shaped element encloses the reservoir, the reservoir is not
“arranged on the housing element,” as recited. As to the Examiner’s revised
position set forth on pages 5 and 6 of the Answer, notwithstanding that the
Examiner does not provide an annotated version of Figure 1 of Thoma to
clarify what the Examiner considers to be the “lateral portion,” the annotated
version of Figure 1 provided by Appellants appears to accurately denote the
lateral portion of the housing. See Reply Br. 3. Therein, it appears that an
end portion of accumulator 40 (reservoir) abuts a lateral portion of housing
14, whereas the claim requires that a lateral face of the reservoir abuts a
lateral portion of the housing element. Appellants’ position that, in Thoma,
the flat front of accumulator 40 abuts cover 14, and thus does not anticipate
claim 1, is supported by the evidence.
As such, we do not sustain the rejection of claims 11—15, 18, 20, 22,
and 23 as anticipated by Thoma.
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Appeal 2015-005995
Application 13/636,550
Claims 16 and 17—Thoma/Sluka
The Examiner does not rely on Sluka in any manner that would
remedy the deficiencies in the rejection based on Thoma discussed above.
See Final Act. 4. Thus, for the same reasons, we do not sustain the rejection
of claims 16 and 17 as unpatentable over Thoma and Sluka.
Claims 19—Thoma/design choice
The Examiner’s reliance on design choice does not remedy the
deficiencies in the rejection based on Thoma discussed above. See Final
Act. 4—5. Thus, for the same reasons, we do not sustain the rejection of
claim 19 as unpatentable over Thoma and design choice.
DECISION
The decision of the Examiner to reject claims 11—20, 22, and 23 is
reversed.
REVERSED
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