Ex Parte FeddersenDownload PDFPatent Trials and Appeals BoardApr 22, 201311710438 - (D) (P.T.A.B. Apr. 22, 2013) 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. 11/710,438 02/26/2007 Frederick J. Feddersen 6874/CONT 4927 6858 7590 04/22/2013 BREINER & BREINER, L.L.C. 115 NORTH HENRY STREET ALEXANDRIA, VA 22314 EXAMINER HOWELL, DANIEL W ART UNIT PAPER NUMBER 3722 MAIL DATE DELIVERY MODE 04/22/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte FREDERICK J. FEDDERSEN ____________________ Appeal 2011-001132 Application 11/710,438 Technology Center 3700 ____________________ Before LINDA E. HORNER, PATRICK R. SCANLON, and ANNETTE R. REIMERS, Administrative Patent Judges. SCANLON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 1-14. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal 2011-001132 Application 11/710,438 2 THE INVENTION Appellant’s invention relates to “a gun drill guide and gun drill guide assembly.” Spec., para. [0001]. Claims 1, 7, 10, and 13 are the independent claims on appeal. Claims 1 and 13, reproduced below, are illustrative of the claimed subject matter: 1. A guide support for a drill to be rotatably mounted in a support bearing assembly comprising a cylindrical body made of a resilient polymer having an opening extending therethrough, a first radially extending flange means at one end thereof and a second radially extending flange means at the opposite end thereof, said second radially extending flange means including a gradually angled shoulder portion. 13. A stabilizer assembly for a gun drill comprising a male section having means for attachment to a drill guide and a female metal section having means for attachment to a drill guide; said male and female sections further each having cooperating means for connection to each other. REFERENCES The Examiner relies upon the following prior art references: Muthler McClennan Weiblen Labinka Cruchandeu1 US 3,317,216 US 3,361,014 US 4,591,300 US 5,181,812 FR 2,261,828 May 2, 1967 Jan. 2, 1968 May 27, 1986 Jan. 26, 1993 Oct. 24, 1975 1 This reference is referred to as “French ‘828” in the Appeal Brief and the Examiner’s Answer. See, e.g., App. Br. 4; Ans. 5. Appeal 2011-001132 Application 11/710,438 3 REJECTIONS The following rejections are before us on appeal: claims 1-3 under 35 U.S.C. § 102(b) as being anticipated by Labinka; claims 7 and 9-11 under 35 U.S.C. § 102(b) as being anticipated by Cruchandeu; claims 13 and 14 under 35 U.S.C. § 102(b) as being anticipated by Weiblen; claims 4-6 under 35 U.S.C. § 103(a) as being unpatentable over Labinka; claim 8 under 35 U.S.C. § 103(a) as being unpatentable over Cruchandeu and Muthler; and claim 12 under 35 U.S.C. § 103(a) as being unpatentable over Cruchandeu and McClennan. ANALYSIS Rejection of claims 1-3 The Examiner finds that Labinka discloses the guide support of claim 1, including a flange 67 having a gradually angled shoulder as shown in Figures 1 and 2. Ans. 3. Appellant argues that Labinka does not disclose a flange including a gradually angled shoulder portion as required by claim 1. App. Br. 7. Specifically, Appellant indicates that Figure 2 of Labinka shows a perspective view of the drill guide 54 in partial cross-section, and the portion of the drawing showing the flange 67 not in cross-section does not depict a gradually angled shoulder portion. Id. Appellant apparently concedes that the portion of the flange 67 shown in cross-section appears to have a gradually angled shoulder, stating the partial cross-section of the flange 67 “appears somewhat angled only because it is incomplete.” App. Appeal 2011-001132 Application 11/710,438 4 Br. 8. Appellant also argues that Figure 1 of Labinka “is so small and not to scale that it is impossible to determine the nature of the shoulder portion.” Id. In our view, the portion of Labinka’s Figure 2 shown in cross-section clearly shows that the flange 67 has a gradually angled shoulder. The fact that Figure 2 is only a partial, or “incomplete,” cross-section does not detract from its clear depiction of an angled shoulder. Moreover, we disagree with Appellant’s contention that the non-sectioned portion of the drawing shows the flange 67 as lacking a gradually angled shoulder. While this portion of the drawing may be somewhat cluttered by the presence of phantom lines depicting the hidden portions of the central opening 70, the curved lines representing the outside corners of the flange 67 are shown such that the corner at the end of the cylindrical body member 54 has a smaller diameter than the other corners. This depicts an angled shoulder, unlike the curved lines depicting the outside corners of the flat flange 58 that are shown to have the same diameter. We thus agree with the Examiner that at least Figure 22 of Labinka shows the flange 67 as having a gradually angled shoulder. Appellant also argues that “drawings are not drawn to scale and may not be relied upon for specific dimensions absent a disclosure in the 2 We agree that the small scale of Labinka’s Figure 1 makes determining the shape of the flange 67 of guide means 48 difficult. However, we note that Figure 1 shows another guide means 86 that more clearly shows an end flange having a gradually angled shoulder. It also appears that guide means 86 is intended to be structurally similar to guide means 48. See Labinka, col. 5, ll. 12-14 (stating “the herein described guide means [i.e., guide means 48] can support the drill rod intermediate its ends” when beginning discussion of guide means 86). Appeal 2011-001132 Application 11/710,438 5 specification.” App. Br. 7-8 (citing Kloster Speedsteel AB v. Crucible Inc., 793 F.2d 1565, 1571 (Fed. Cir. 1986) overruled by Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp., 383 F.3d 1337 (Fed. Cir. 2004); In re Meng, 492 F.2d 843 (CCPA 1974)). This argument is not persuasive because, as noted by the Examiner, the drawings of Labinka are relied on only for the shape that they show, and not scale or dimensions. Ans. 6. Appellant further relies on Kloster Speedsteel and Meng for the proposition that “[t]he fact that non-scale drawings appear to disclose a specific structure cannot anticipate when the public is not taught the significance of the structure.” Reply Br. 2. Our review of the two cited decisions does not support Appellant’s position. In Kloster Speedsteel, the court ruled that anticipation cannot be established by measuring a dimension in a patent figure. Kloster Speedsteel, 793 F.2d at 1571. In Meng, the court held that patent drawings showing a limited offset between adjacent product slices did not teach or suggest an offset sufficient to provide “gripping portions” as claimed. Meng, 492 F.2d at 847. Neither case stands for the proposition that patent drawings cannot anticipate structure shown in the drawings, regardless of whether the public is taught the significance of the structure. In fact, “a claimed invention may be anticipated . . . by a drawing in a reference, whether the drawing disclosure be accidental or intentional.” Id.; see also In re Aslanian, 590 F.2d 911, 914 (CCPA 1979) (“a drawing in a utility patent can be cited against the claims of a utility patent application even though the feature shown in the drawing was unintended or unexplained in the specification of the reference patent.”). Accordingly, Appellant’s arguments do not apprise us of error, and we sustain the rejection of claim 1 as being anticipated by Labinka. We also Appeal 2011-001132 Application 11/710,438 6 sustain the rejection of claims 2 and 3, which depend from claim 1 and for which Appellant does not advance separate argument. Rejection of claims 4-6 The Examiner concludes that claims 4-6 would have been obvious over Labinka. Ans. 4-5. Appellant advances no separate argument in connection with claim 4, instead relying only on the claim’s dependency from claim 1 for patentability. App. Br. 9; Reply Br. 3. As we find no deficiency in the Examiner’s rejection of claim 1 as being anticipated by Labinka for the reasons discussed supra, we sustain the rejection of claim 4 for the same reasons. With respect to claims 5 and 6, Appellant argues that the limitations recited in each of these two claims are not disclosed or suggested by Labinka. App. Br. 9; Reply Br. 3-4. This argument is not persuasive because it does not address the Examiner’s rationale for concluding the claims would have been obvious. The Examiner is not asserting that Labinka discloses or suggests the subject matter of claims 5 and 6; rather, the Examiner contends that in light of the teachings of Labinka, one of ordinary skill in the art would have arrived at the values recited in claims 5 and 6 through routine experimentation. Ans. 4-6. Accordingly, we also sustain the rejection of claims 5 and 6. Rejection of claims 7 and 9-11 Independent claim 7 calls for a chip deflector assembly for attachment to a drill guide comprising (1) a cap member arranged to attach to the drill guide and (2) a metal disc member arranged to seat in the cap member. Independent claim 10 calls for a chip deflector cap for a drill guide Appeal 2011-001132 Application 11/710,438 7 comprising (1) a body portion having means for attachment to a drill guide and (2) means for receiving a disk member in the cap. The Examiner finds that Cruchandeu discloses “a chip deflector/cap 1” having “a sleeve/annular ring 6,” “a drill guide 2, 3,” and “a stamped metal disc 16 that seats in the cap member.” Ans. 4. The Examiner’s position thus appears to be that element 1 and/or element 6 of Cruchandeu corresponds to the cap member of claim 7 and the body member of claim 10, elements 2, 3 correspond to the drill guide, and element 16 corresponds to the disc member. The English Abstract of Cruchandeu indicates that element 1 is a ring that serves as an axial guide for a bit, element 2 is a fixed outer sleeve within which the ring 1 rotates freely, and element 3 is a bearing race. As such, the Examiner has erred in finding that the outer sleeve 2 and bearing race 3 of Cruchandeu define a drill guide. To the extent Cruchandeu discloses a drill guide, it is the ring 1. We agree with Appellant that Cruchandeu does not disclose a cap member arranged to attach to a drill guide and a metal disk member constructed and arranged to seat in the cap member. App. Br. 11. The disc 16 is seated in the ring 1, but the ring 1 is not arranged to attach to a drill guide because it is the drill guide. In other words, Cruchandeu discloses a single structural element—the ring 1—that functions as a guide and receives the disc 16. Accordingly, Cruchandeu fails to disclose a cap member arranged to attach to a drill guide as called for by claim 7. Cruchandeu also fails to disclose a body portion having means for attachment to a drill guide as called for by claim 10. Appeal 2011-001132 Application 11/710,438 8 We thus do not sustain the Examiner’s rejection of claims 7 and 10, and of claims 9 and 11 depending therefrom, as being anticipated by Cruchandeu. Rejections of claims 8 and 12 The Examiner’s rejections of claim 8 as obvious over Cruchandeu and Muthler and claim 12 as obvious over Cruchandeu and McClennan each rely on the same erroneous finding noted supra that Cruchandeu discloses a cap member or body portion arranged to attach to a drill guide. Neither Muthler nor McClennan cures this deficiency of Cruchandeu. Accordingly, we do not sustain the Examiner’s decision to reject claim 8 as obvious over Cruchandeu and Muthler and claim 12 as obvious over Cruchandeu and McClennan for the same reasons stated supra with respect to claims 7 and 10. Rejection of claims 13 and 14 The Examiner relies on two different interpretations in finding that Weiblen anticipates independent claim 13. First, the Examiner finds “[d]rill guide 21 has a stabilizer assembly 24 having male section 48, female section 34, and a screw/thread means 49 for connecting them together.” Ans. 4. Second, the Examiner finds “[d]rill guide 22 has a stabilizer assembly 1 having male section 24, female section 21, and a screw/thread means 35 for connecting the male and female sections together.” Id. Weiblen discloses a lubricating-oil supply device (LOSD) 1 for a deep-drilling machine having a tool 2. Weiblen, col. 2, ll. 59-61. The LOSD 1 includes a housing 21 that is secured to a carrier plate 22 and a stuffing box 24 threaded onto the housing 21. Id. at col. 3, ll. 21-30. The stuffing box 24 includes a bushing 34 with an external thread 35 and a Appeal 2011-001132 Application 11/710,438 9 bearing box 48 disposed in the bushing 34 and held in position by a threaded pin 49. Id. at col. 4, ll. 3-16; fig. 2. Regarding the first interpretation, the Examiner states it is reasonable to call the housing 21 a “drill guide” because the tool extends through it, and it is reasonable to call stuffing box 24 a “stabilizer assembly” because it prevents lateral deflection of the tool. Ans. 9. The Examiner also asserts that “it is reasonable to say that male member 48 is attached to both drill guide 21 and female member 34.” Id. However, claim 13 requires that the male section and the female section both have a “means for attachment to a drill guide.” Even if the Examiner’s statements are correct3, the Examiner has not provided any reasoning as to how both the “male member 48” and the “female member 34” have means for attachment to a drill guide (i.e., the housing 21). Thus, the Examiner has not established by a preponderance of the evidence that Weiblen anticipates claim 13 based on the first interpretation. The Examiner’s second interpretation of Weiblen is also flawed. In this case, there is no showing that the “male section 24” and the “female section 21” both have the claimed means for attachment to a drill guide. The Examiner does not provide any reasoning to establish that the stuffing box 24 and the housing 21 both have means for attachment to the carrier plate 22. Moreover, we disagree with the Examiner that it is reasonable to call the carrier plate 22 a drill guide because “it aids in locating” the tool. Ans 10. 3 Given Weiblen’s failure to disclose male and female sections both having a means for attachment to a drill guide, we make no judgment with respect to the Examiner’s findings that the housing 21 is a “drill guide,” the stuffing box 24 is a “stabilizer assembly,” and the bearing box 48 is attached to both the housing 21 and the bushing 34. Appeal 2011-001132 Application 11/710,438 10 The carrier plate 22 is connected to the machine frame and supports the housing 21. Weiblen, col. 3, ll. 21-23. The plate’s role in “locating” Weiblen’s tool 2 is tenuous at best and does not suggest any role in guiding the tool. For the above reasons, we do not sustain the Examiner’s rejection of claim 13, and of claim 14 depending therefrom, as being anticipated by Weiblen. DECISION We affirm the decision of the Examiner rejecting claims 1-6. We reverse the decision of the Examiner rejecting claims 7-14. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136 (a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART mls Copy with citationCopy as parenthetical citation