Ex Parte Bayrakdar et alDownload PDFPatent Trial and Appeal BoardMar 28, 201713636550 (P.T.A.B. Mar. 28, 2017) Copy Citation 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 3 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. 4 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. 5 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 6 Copy with citationCopy as parenthetical citation