Ex Parte Helin et al

Patent Trial and Appeal Board

Oct 31, 2016

13250209 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/250,209 09/30/2011
33805 7590 11/02/2016
WEGMAN, HESSLER & VANDERBURG
6055 ROCKSIDE WOODS BOULEVARD
SUITE 200
CLEVELAND, OH 44131
FIRST NAMED INVENTOR
Philip Helin
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.
040158 2074P2 1048
EXAMINER
FABIAN-KOVACS, ARPAD
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
11/02/2016 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):
whvipgroup@wegmanlaw.com
jaworgull@wegmanlaw.com
IntellectualProperty@wegmanlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIP HELIN and RICK BAEHR
Appeal2015-001918
Application 13/250,209
Technology Center 3600
Before: JOHN C. KERINS, STEFAN STAICOVICI, and LEE L. STEPINA,
Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Philip Helin and Rick Baehr (Appellants) appeal under 35 U.S.C.
§ 134 from the Examiner's final decision to reject claims 1-12. 1 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Claim 13 is withdrawn from consideration. Appeal Br. 2 (filed July
14, 2014).
Appeal2015-001918
Application 13/250,209
CLAIMED SUBJECT MATTER
Appellants' invention relates to "a variable speed transmission and
control assembly for a self-propelled lawn mower." Spec. para. 1.
Claims 1 and 6, reproduced below, are illustrative of the claimed
subject matter:
1. A speed control assembly for a self-propelled walk-behind
lawn mower, said speed control assembly comprising:
a casmg;
a speed engagement assembly connected to said casing,
said speed engagement assembly having a plurality of selectively
rotatable levers, wherein rotation of at least one of said levers
causes a transmission assembly of said lawn mower to actuate
between an engaged position and a disengaged position; and
a speed adjustment assembly connected to said casing,
said speed adjustment assembly having a knob, said knob being
selectively rotatable between a plurality of operative positions,
wherein rotation between operative positions causes said
transmission assembly to produce a different rotational speed
output corresponding to each operative position.
6. A speed control assembly for a self-propelled walk-behind
lawn mower, said speed control assembly comprising:
a casmg;
a first lever rotatably connected to said casing;
a second lever rotatably connected to said casing, wherein
said rotation of at least one of said first and second levers actuates
a self-propelled transmission assembly between an engaged
position and a disengaged position; and
a knob rotatably connected to said casing, wherein said
knob is rotatable between a plurality of operative positions for
adjusting said self-propelled transmission assembly between a
plurality of speeds.
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Application 13/250,209
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Baba
Lahey
Levander
US 4,034,835 July 12, 1977
US 2011/0000176 Al Jan. 6, 2011
WO 2010/002298 Al Jan. 7, 2010
REJECTIONS
(I) Claims 1--4, 6-8, 10, and 11 are rejected under 35 U.S.C. § 102(b)
as anticipated by Lahey.
(II) Claims 5, 9, and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lahey and Levander.
(III) Claims 1-12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lahey, Baba, and Levander.
ANALYSIS
Rejection(!)
Claims 1--4
Claim 1 recites, in part, "a casing; a speed engagement assembly
connected to said casing ... and a speed adjustment assembly connected to
said casing." Appeal Br. 22 (Claims App.).
The Examiner finds that Lahey discloses casing/housing 100 and that
"the speed engagement assembly and the speed adjustment assembly (are)
connected to the casing, for example via the cable 42 and/or handle 28."
Ans. 4.
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Application 13/250,209
Appellants argue that "the pair of levers and the knob taught in Lahey
are not attached to the same casing," and rather, "Lahey teaches engaging
levers (52a, 52b) that are attached to a casing (38), and the speed control
lever ( 40) is attached to a cover ( 66) that is a different component than the
casing (38)." Appeal Br. 11. Appellants assert that, "the casing (38) and the
cover ( 66) of Lahey cannot anticipate the casing of the present application,
as they are two separate components," and that "neither of the casing (38)
and cover ( 66) of Lahey can anticipate the casing of the present application
as neither the casing (3 8) nor the cover ( 66) include both a pair of levers and
a knob connected thereto." Id. at 12. Appellants contend that "the
Examiner's claim construction [is] overly broad, and that Lahey fails to
teach a casing to which both a speed engagement assembly and a speed
control assembly are attached." Id. at 15.
In response, the Examiner points out that "the claim does not recite 'a
casing to which a pair of levers and a knob are attached."' Ans. 11. Nor is
the connection "required to be a direct connection, but could be connected to
the casing via another element." Id. The Examiner finds that, "Lahey does
teach the knob or variable speed control assembly (ref. 40) connected to said
casing/housing (100) at least by having a cable ( 42) or handle (28). Id. at
12.
In reply, Appellants reiterate that
'a casing' taught by claims 1, 6, and 10 is a single casing as
shown in the figures and described in the specification, not two
separate casings, or a collection of casings loosely having a cable
or a handle extending in between the two separate casings
thereby ensuring the casings are spaced apart.
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Application 13/250,209
Reply Br. 3.
The Examiner finds that Lahey teaches a casing, namely, housing 100.
See Ans. 4, 12. Lahey discloses that "each of the triggers 52a, 52b can be
rotatably coupled to the housing 100 in various manners." Lahey para. 55;
Fig. 8. Lahey also discloses that "transmission 44 can be selectively
operated between a halt condition and an advancement condition via the
operational trigger 38," which "include one or more triggers 52a, 52b for
selective operation by the hands of the operator." Id. para. 37; see also Ans.
2. As such, Lahey teaches a casing 100 and a speed engagement assembly
38, 52a, 52b connected to casing 100, as recited in claim 1.2 Indeed,
Appellants appear to concede this point by stating that "[i]t is uncontested
that Lahey describes a trigger control system (38) for operating the
engagement and disengagement of a transmission ( 44)." Appeal Br. 9.
However, Appellants fail to appreciate that the Examiner also relies on this
same housing, namely, housing 100, for the proposition that "variable speed
control assembly (ref. 40) (is) connected to said casing/housing (100) at least
by having a cable (42) or handle (28)." Ans. 12. Specifically, variable
speed control assembly 40 is connected to the (same) casing/housing (100)
through cable 42 in that cable 42 provides a connection between speed
adjustment assembly 40 and casing 100. Appellants do not adequately
explain why such indirect connection to the housing is excluded by the
2 Although the Examiner refers to housing 100 of Lahey and Appellants
refer to trigger control system 38 of Lahey, Lahey discloses that housing 100
is part of trigger control system 38. See Lahey, para. 54; Fig. 8. Thus, in
our analysis, reference to element 100 refers to the housing (casing) and
reference to element 38 refers to the trigger control (speed engagement
assembly).
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Appeal2015-001918
Application 13/250,209
claims. As the Examiner correctly notes, claim 1 does not require a direct
connection. See Ans. 11. Nor does claim 1 require any structure that would
imply a direct connection. Although we appreciate that Appellants'
Specification describes knob 42 as located "immediately adjacent to the
upper housing 28" (see Spec. para 50), we must be careful not to read a
particular embodiment appearing in the written description into the claim if
the claim language is broader than the embodiment. See Superguide Corp.
v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). As such,
Appellants do not apprise us of Examiner error as to claim 1, and claims 2--4
depending therefrom. Accordingly, we sustain the Examiner's rejection of
claims 1--4.
Claims 6--8, 10, and 11
Independent claim 6 recites, in part, "a casing; a first lever rotatably
connect to said casing ... and a knob rotatably connected to said casing."
Appeal Br. 23 (Claims App.) Independent claim 10 includes a substantially
similar recitation. See id. at 23-24.
The Examiner states that the rejection of claims 6-8, 10, and 11 is
"already addressed above." Final Act. 5.
Unlike claim 1, claims 6 and 10 each requires "a knob rotatably
connected to said casing." Thus, in claims 6 and 10, more than just a
connection is required, and rather, a rotatable connection is required. In
other words, something that is (i) connected and that is also (ii) rotatable is
not necessarily rotatably connected as required by claims 6 and 10.
Although Lahey's lever 68 (knob) is rotatable, and Lahey's cable 42 (or
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handle 28) is connected to casing 100, the Examiner does not direct our
attention to any objective evidence, or provide technical reasoning
supporting a conclusion that lever 68 (the knob) of Lahey is rotatably
connected to casing 100. In view of this, the Examiner has not established a
prima facie case of anticipation of claims 6 and 10, and of claims 7 and 8
depending from claim 6, and of claim 11 depending from claim 10.
Accordingly, we do not sustain the Examiner's rejection of claims 6-8, 10,
and 11 as being anticipated by Lahey.
Rejection (II)
Claim 5
Appellants rely on the above-noted arguments to address the rejection
of claim 5. See Appeal Br. 8, 19, and 20. For the same reasons discussed
for Rejection (I), we sustain the Examiner's rejection of claim 5 as
unpatentable over Lahey and Levander.
Claims 9 and 12
The Examiner does not rely on Levander in any manner that
overcomes the deficiencies in the rejection of claims 6 and 10 based on
Lahey. For the same reasons discussed supra, we do not sustain the
rejection of claims 9 and 12.
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Rejection (111)
The Examiner's position is that if the claims are "construed more
narrowly than as actually claimed," and are construed so that "the speed
engagement & adjustment (including the knob) assemblies are associated
with single casing/housing defined as being formed of housing members
facing each other, which is attachable and may surround a portion of the
cross bar etc.," then the Examiner finds that "Baba discloses that it is known
in the art to provide in the same housing two control mechanisms, such as
clutch and throttle control mechanism." Final Act. 8-9. The Examiner
concludes:
To one skilled in the art, the speed engagement and
adjustment assemblies of Lahey would have been obvious to be
arranged at the same housing, because:
while each element merely would have performed the
same function as it did separately, however it would be simpler
for the operator (to) operate them when they are closer to each
other, i.e. arranged at the same housing/casing.
Id. at 9-10.
Appellants assert that "Baba discloses a control mechanism including
a single main lever ( 1) which moves the throttle cable ( 5) in order to control
the operational speed (throttle) of a boat," and that Baba' s "control
mechanism further includes an auxiliary lever ( 48) which is connected
through a linkage to the cam plate (25) to effect fine control of the throttle."
Appeal Br. 20. Appellants argue that "Baba does not disclose a pair of
levers for engaging/disengaging a transmission and a knob for adjusting the
speed of the transmission connected to the same casing," and that "it would
not have been obvious to one having ordinary skill in the art to piece
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Application 13/250,209
together components from these combined references to teach a pair of
levers and a knob connected to the same casing without improperly using the
Applicants' specification and performing hindsight reconstruction." Id. at
20-21.
The Examiner responds that "Appellants mischaracterize Baba's
purpose in the 103(a) rejection." Ans. 15. The Examiner contends that
"Baba teaches a more limiting interpretation of the claims; in particular,
controls known to be incorporated into a single casing, so that in
combination with Lahey it has been known to incorporate both the levers
and the knob into a single casing as shown in Appellants' Drawings Figs 2
and 3." Id.
In reply, Appellants note that "Baba teaches the combination of the
main lever (1) and the auxiliary lever ( 48) within one casing (2)," but that
"levers (1, 48) are both throttle control levers." Reply Br. 6 (citing Baba,
col. 2, 11. 22-29 and col. 5, 11. 32-34). Appellants assert that in Baba, "[t]he
entirety of the clutch adjustment is derived automatically by the mechanism
within the casing (2) and is dependent upon the position of the main lever
(1) (see the different main lever (1) positions and resultant clutch actuation
in FIGS. 1, 3, and 4)." Id. Appellants thus argue that "[t]he purpose of the
apparatus as taught by Baba is to shift the clutch automatically to desired
positions based upon the position of the main lever (1) and include an
operator ability to fine tune the throttle with the auxiliary lever (48)," and
that "Baba does not teach separate, operator-maneuvered controls for speed
engagement and speed adjustment functions within one casing." Id.
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We are not persuaded by Appellants arguments because Baba is not
used by the Examiner to teach separate controls for speed engagement and
for speed adjustment. Rather, the Examiner relies on Baba for the general
teaching that "it is known in the art to provide in the same housing two
control mechanisms." Final Act. 9. The Examiner finds that Lahey teaches
a speed engagement control and a speed adjustment control, and that based
on the teachings of Baba, it would have been obvious to arrange these two
control assemblies "at the same housing" because "it would be simpler for
the operator [to] operate them when they are closer to each other, i.e.
arranged at the same housing/casing." Id. at 9-10.
Moreover, notwithstanding that "Appellants mischaracterize Baba's
purpose in the 103(a) rejection" (see Answer 15), we do not find persuasive
Appellants' assertion that Baba does not teach separate controls for speed
engagement and for speed adjustment in the same casing. The Examiner
relies on Baba as disclosing that "it is known in the art to provide in the
same housing two control mechanisms, such as clutch and throttle control
mechanism." Final Act. 9. Specifically, Baba discloses that a first control
mechanism "main lever 1, when turned in a direction A from neutral position
N," causes "clutch operating member 8" to tum in direction A and then
when moved "further toward in the direction A, pulls the inner wire 16 of
the throttle cable alone in the direction F, permitting the boat to advance at a
high speed." Baba, col. 2, 11. 22---65. As such, lever 1 of Baba operates as a
clutch (speed engagement control) that moves from a neutral (disengaged
position) where no power is supplied to move the boat (engine) and an
engaged position wherein forward power is provided to the engine.
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Furthermore, Baba's second control mechanism, namely, lever 48 is a
throttle control lever because Baba discloses that "fine control of the throttle
(is) achieved by the auxiliary lever 48." Id. at col. 5, 11. 32-33. Indeed,
Baba discloses lever 1 that operates as a clutch (speed engagement control)
and auxiliary lever 48 that operates as a throttle (speed) control, and both of
these levers are in the same casing 2.
Appellants further contend that the Examiner relies on impermissible
"hindsight reconstruction" and that "there is no teaching or suggestion in any
of these prior art references to combine a pair of levers that control the
engagement/disengagement of the transmission and a knob that controls the
speed of the transmission into a single assembly and/or connecting them to
the same casing." Appeal Br. 21.
We find Appellants' argument unpersuasive because it appears to hold
the Examiner to the old, rigid TSM standard; however, such a standard is no
longer required. While the requirement of demonstrating a teaching,
suggestion, or motivation (the TSM test established by the Court of Customs
and Patent Appeals) to combine known elements in order to show that the
combination is obvious may be "a helpful insight," it is not used as a rigid
and mandatory formula. KSR International Co. v. Teleflex Inc., 550 U.S.
398, 418--419 (2007). Here, the Examiner's rationale for the modification is
to make it simpler for the operator to operate a speed engagement control
and a speed adjustment control (see Final Act. 10; see also Baba, col. 1, 11.
24--39), which we find to be adequate.
Appellants also assert that "there is no reason to combine (in Lahey)
the casing for the variable speed control apparatus ( 40) with the casing of the
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operational trigger (38) because the lawn mower transmission (44) can be a
single-speed transmission" that has the benefit of "simply removing the
variable speed control apparatus (40) from the lawn mower (see FIG. 13)
when the lawn mower includes a single-speed transmission." Reply Br. 6
(citing Lahey, para. 36).
We are not persuaded by Appellants' assertion because Lahey does
not require conversion of a multi-speed mower to a single-speed mower.
Rather, these two types of mowers are alternative embodiments (see Lahey
paragraph 36). Although we appreciate that a speed control apparatus may
not be needed in a single speed mower, Appellants do not adequately explain
why a single casing would not be useful in a multi-speed mower for the
reason provided by the Examiner.
We have carefully reviewed all of Appellants' arguments for the
patentability of claims 1, 6, and 10, but we find them to be unpersuasive.
Accordingly, we sustain the Examiner's rejection of claims 1, 6, and 10 as
unpatentable over Lahey, Baba, and Levander, and claims 2-5, 7-9, 11, and
12 fall with claims 1, 6, and 10.
DECISION
The rejection of claims 1--4 under 35 U.S.C. § 102(b) as anticipated
by Lahey is affirmed.
The rejection of claims 6-8, 10, and 11under35 U.S.C. § 102(b) as
anticipated by Lahey is reversed.
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The rejection of claim 5 under 35 U.S.C. § 103(a) as unpatentable
over Lahey and Levander is affirmed.
The rejection of claims 9 and 12 under 35 U.S.C. § 103(a) as
unpatentable over Lahey and Levander is reversed.
The rejection of claims 1-12 under 35 U.S.C. § 103(a) as unpatentable
over Lahey, Baba, and Levander 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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