Ex Parte Hendron et al

Patent Trials and Appeals Board

Jul 10, 2013

12044255 - (D) (P.T.A.B. Jul. 10, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte SCOTT SVEND HENDRON, JEFFREY ALAN BAUER, and
ROBERT CHARLES MOORE
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Appeal 2011-007691
Application 12/044,255
Technology Center 3600
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Before: JAMES P. CALVE, WILLIAM A. CAPP, and
JEREMY M. PLENZLER, Administrative Patent Judges.

PLENZLER, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
decision rejecting claims 1-19 and 21-31. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
Claims 1, 12, 18, and 23 are independent. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A vehicle including:
a chassis;
a ground engaging mechanism configured to support and
propel the chassis;
a blade coupled to the chassis;
at least one hydraulic angling cylinder coupled to the
blade and configured to control angling of the blade right and
left;
a hydraulic pitch cylinder coupled to the blade and
configured to control pitching of the blade forward and
backward; and
a hydraulic circuit configured to provide pressurized fluid
to the at least one hydraulic angling cylinder to adjust the pitch
and to the hydraulic pitch cylinder to adjust the pitch and
configured to restrict pressurized fluid from operating the
hydraulic pitch cylinder during adjustment of the angle.

REJECTIONS
1. Claims 1-4, 6, 7, 12-16, 18, 19, 21, 23-25, and 28-31 are rejected
under 35 U.S.C. § 103(a) as being unpatentable over Frisbee (US 4,201,268;
iss. May 6, 1980) and Hoffart (US 6,955,229 B1; iss. Oct. 18, 2005); and
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2. Claims 5, 8-11, 17, 22, 26, and 27 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Frisbee, Hoffart, and Bauer (US
6,273,198 B1; iss. Aug. 14, 2001).

OPINION
Claim 1
The Examiner finds that Frisbee discloses each of the features of
claim 1 except a hydraulic cylinder that is exclusive to pitch movements of
the blade. Ans. 4-5. The Examiner finds that Hoffart teaches the pitch
cylinder and reasons that it would have been obvious to add a pitch-only
cylinder to Frisbee in order to provide greater control of the blade during
pitch adjustment. Ans. 5.
Appellants argue that the Examiner is ignoring the fact that Hoffart
includes a pitch cylinder 60 without the need to directly extend/retract the
angling cylinders 70, 72. App. Br. 12-13. Appellants contend that Hoffart
teaches away from operating the pitch cylinder 60 and the angling cylinders
70, 72 to adjust blade pitch. App. Br. 12-13 and Reply Br. 2-3 (citing
Hoffart, col. 1, ll. 43-61). While Hoffart explains that conventional systems
that include “all the way” operability are “complex, bulky and difficult to
utilize in an accurate manner,” we are not convinced that this amounts to a
teaching away as suggested by Appellants. Appellants have not pointed to
anything in Hoffart that criticizes, discredits, or discourages investigation
into the claimed invention. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir.
2004) (A reference does not teach away by merely disclosing an alternative
invention without criticizing, discrediting, or otherwise discouraging
investigation into the claimed invention.). Thus, we are not convinced that
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Hoffart’s statement that adjusting pitch with angling cylinders is complex
and difficult teaches away from including an additional cylinder in Frisbee
that is exclusive to pitch control.
Appellants further argue that neither Frisbee nor Hoffart teaches
providing pressurized fluid to the hydraulic angling cylinder and the
hydraulic pitch cylinder to adjust blade pitch. App. Br. 12-13. These
arguments are not persuasive because they attack the references individually
rather than the combination proposed by the Examiner including the pitch
cylinder 60 from Hoffart and the angling cylinders 38, 39 from Frisbee with
the control system of Frisbee providing pressurized fluid to both the pitch
cylinder 60 and the angling cylinders 38, 39 during a blade pitch operation.
See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In
re Keller, 642 F.2d 413, 425 (CCPA 1981)) (“Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.”).
Appellants do not further challenge the Examiner’s findings or
reasoning. For the reasons set forth above, we are not apprised of Examiner
error and we sustain the rejection of claim 1. Claims 3-9 and 28 depend
from claim 1 and are not argued separately. See App. Br. 13; see also 37
C.F.R. § 41.37(c)(1)(vii) (2011). We also sustain the rejection of these
claims.

Claim 2
Claim 2 depends from claim 1 and further recites that the hydraulic
angling cylinder and the hydraulic pitch cylinder operate in port-to-port
hydraulic arrangement. The Examiner explains that the hydraulic pitch
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cylinder 60 from Hoffart and the hydraulic angling cylinders 38, 39 from
Frisbee would operate in a port-to-port hydraulic arrangement in view of the
proposed modifications. Ans. 6, 10. Appellants argue that the port-to-port
operation would not have been obvious because Hoffart teaches away from
operating the angling cylinders during pitch adjustment. App. Br. 14.
We are not convinced that Hoffart teaches away from the claimed
arrangement for the reasons set forth above regarding claim 1 and we sustain
the rejection of claim 2.

Claim 10
Claim 10 depends from claim 9 (and ultimately from claim 1) and
further recites pitch and angling switches within an operator station of the
vehicle with adjustment of pitch being enabled when both the pitch
activating switch and the angling switch are engaged. The Examiner finds
that Bauer discloses the claimed pitch and angling switches and explains that
it would have been obvious to use the control switches from Bauer as an
effective means of controlling the hydraulic system. Ans. 8.
Appellants argue that the rejection fails to address each limitation of
the claim because Bauer fails to disclose that pitch adjustment is enabled
when both the pitch and angling switches are engaged. App. Br. 15. This
argument is not persuasive because the Examiner explains that Bauer is
simply used to disclose switches in an operator station that control the pitch
and angling cylinders. Ans. 10. The Examiner further explains that the
combination of Frisbee, Hoffart, and Bauer discloses that both the switch
associated with the angling cylinder and the switch associated with the pitch
cylinder would be engaged during pitching movements in view of the
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combination of Frisbee and Hoffart, providing activation of both the angling
and pitch cylinders during pitching movements (as explained in the rejection
of claim 1). Id.
Thus, we are not apprised of Examiner error and we sustain the
rejection of claim 10.

Claim 11
Claim 11 depends from claim 1 and further recites that the hydraulic
circuit includes a three-position directional control valve configured to direct
pressurized fluid to the angling and pitch cylinders during pitch adjustment.
The Examiner finds that Bauer discloses that three-position directional
control valves are known and explains that it would have been obvious to
use a three-position directional control valve as an effective means of
controlling the hydraulic system. Ans. 8.
Appellants argue that the rejection is improper because Bauer does not
teach directing pressurized fluid to the angling and pitch cylinders during
pitch adjustment. App. Br. 15-16. Again, Appellants are arguing the
references individually. The Examiner does not rely on Bauer alone for
teaching the claimed arrangement. Rather, the Examiner cites Bauer as
teaching that three-position directional control valves are known and
explains that the combination of Frisbee and Hoffart (discussed above
regarding the rejection of claim 1) with Bauer would include a three way
control valve in the hydraulic circuit from the combination of Frisbee and
Hoffart to provide the claimed control of both the angling and the pitch
cylinders during blade pitch adjustment. Ans. 11.
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For these reasons, we are not apprised of Examiner error and we
sustain the rejection of claim 11.

Claim 29
Claim 29 depends from claim 1 and further recites that the angling
and pitch cylinders are each mounted directly to the blade. The Examiner
explains that the proposed modifications to Frisbee based on the
combination of Hoffart and Frisbee would include the pitch cylinder 60 from
Hoffart coupled directly to the blade at lugs 48 in Frisbee. Ans. 7.
Appellants argue that the Examiner failed to address how the pitch
cylinder would be directly coupled to the blade 20 of Frisbee and did not
provide any rationale for the direct mounting. App. Br. 16. This argument
is unpersuasive because the Examiner explains that the pitch cylinder 60
would be coupled to the lugs 48 in Frisbee. See Ans. 7. The Examiner
further explains that Frisbee discloses that all cylinders are mounted directly
to the blade and that the pitch cylinder would also be directly mounted in
order to provide a mounting arrangement without requiring additional
support structure. Ans. 11. Appellants explain that it would not have been
obvious to provide the direct mounting for the pitch cylinder in the
combination because the pitch cylinder 60 is coupled to a separate support
structure 36 in Hoffart. App. Br. 16. This argument is also unpersuasive
because it attacks the references individually rather than the combination
relied on by the Examiner.
Thus, we are not apprised of Examiner error and we sustain the
rejection of claim 29.

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Claims 12 and 23
Claims 12 and 23 are independent. In response to the rejection of
claims 12 and 23, Appellants argue that Hoffart teaches away from the
Examiner’s proposed combination and that the references individually fail to
teach providing pressurized fluid to both the angling cylinder and the pitch
cylinder to adjust blade pitch, similar to the arguments made regarding the
rejection of claim 1. App. Br. 17-19, 23-25. These arguments are
unpersuasive for the reasons set forth above regarding the rejection claim 1.
For these reasons, we sustain the rejection of claims 12 and 23.
Claims 17 and 30 depend from claim 12 and claims 25-27 depend from
claim 23 and are not argued separately. See App. Br. 19, 25. We also
sustain the rejection of these claims.

Claims 17 and 27
Claim 17 depends from claim 12 and claim 27 depends from claim 23.
In response to the rejection of claims 17 and 27, Appellants argue that Bauer
does not disclose that pitch adjustment is enabled when both the pitch and
angling switches are engaged, similar to the arguments made regarding the
rejection of claim 10. App. Br. 19-20, 26. These arguments are
unpersuasive for the reasons set forth above regarding the rejection claim 10.
For these reasons, we sustain the rejection of claims 17 and 27.

Claims 24 and 30
Claim 24 depends from claim 23 and claim 30 depends from claim 12.
In response to the rejection of claims 24 and 30, Appellants argue that
Hoffart teaches away from operating the angling cylinders during pitch
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adjustment. App. Br. 20, 25. These arguments are unpersuasive for the
reasons set forth above regarding the rejection of claims 1 and 2.
For these reasons, we sustain the rejection of claims 24 and 30.

Claim 18
Claim 18 is independent and is directed to a vehicle including “a first
hydraulic cylinder coupled to the blade laterally from the vertical plane, the
first hydraulic cylinder configured to provide a first input to the blade to
adjust the pitch” and “a second hydraulic cylinder coupled to the blade along
the vertical plane and configured to provide a second input to the blade
along the vertical plane to adjust the pitch” with the vertical plane dividing
the vehicle along its central axis. The Examiner finds that Frisbee discloses
each of the features of claim 1 except a hydraulic cylinder that is exclusive
to pitch movements of the blade and that Hoffart teaches the pitch cylinder,
similar to the rejection of claim 1. Ans. 4-5.
Appellants argue that although the pitch cylinder 60 in Hoffart is
located in the vertical plane, it does not provide an input to the blade along
that same vertical plane. App. Br. 21. Appellants explain that, instead, the
pitch cylinder 60 in Hoffart provides an input to the blade through the
angling cylinders 70, 72, which are located laterally offset from the vertical
plane. Id. Appellants appear to contend that the claim requires a direct
input to the blade in the vertical plane from the pitch cylinder when no such
limitation is present in the claim. The claim simply requires that the pitch
cylinder is configured to provide an input to the blade along the vertical
plane. As the Examiner explains, the pitch cylinder 60 provides an input to
the connecting member 62 in the vertical plane and this input is ultimately
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transferred to the blade by the angling cylinders 70, 72. Ans. 14. Thus, the
pitch cylinder at least provides an indirect input to the blade in the vertical
plane.
In response, Appellants explain that connecting member 62 is not a
hydraulic cylinder and that the angling cylinders 70, 72 are laterally offset
from the vertical plane. Reply Br. 3-4. This explanation does not address
the fact that the pitch cylinder 60 provides at least an indirect input to the
blade in the vertical plane in Hoffart.
Appellants have not apprised us of Examiner error and we sustain the
rejection of claim 18. Claims 19, 22, and 31 depend from claim 18 and are
not argued separately. See App. Br. 22. We also sustain the rejection of
these claims.

Claim 21
Claim 21 depends from claim 18 and further recites that the first and
second hydraulic cylinders operate in a port-to-port hydraulic arrangement
during pitch adjustment of the blade. Appellants’ arguments regarding the
rejection of claim 21 are similar to those presented in response to the
rejection of claim 2. See App. Br. 22. These arguments are not persuasive
for the reasons set forth above regarding the rejection of claim 2.

DECISION
We AFFIRM the Examiner’s decision to reject claims 1-19 and 21-31.

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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