Ex Parte Kizaki et alDownload PDFPatent Trial and Appeal BoardOct 30, 201311892802 (P.T.A.B. Oct. 30, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ISAMU KIZAKI and MASAHIRO ASAHI ____________________ Appeal 2011-008067 Application 11/892,802 Technology Center 3600 ____________________ Before: JENNIFER D. BAHR, NEIL T. POWELL, and BEVERLY M. BUNTING, Administrative Patent Judges. POWELL, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-008067 Application 11/892,802 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 8. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing in accordance with 37 C.F.R. § 41.47 was held on October 17, 2013. We AFFIRM-IN-PART. THE CLAIMED SUBJECT MATTER Independent claim 1, reproduced below, is illustrative of the appealed subject matter. 1. A vehicle bumper structure comprising: a pair of vehicle forward-directed left and right crush cans having a closed cross section and attached respectively to forward ends of left and right front side frames; a bumper beam attached to forward ends of said left and right crush cans to extend therebetween in a vehicle widthwise direction; an energy absorbing member attached to a front side of said bumper beam at least in an area excluding left and right end portions thereof in the vehicle widthwise direction, said energy absorbing member having lower stiffness than said bumper beam and said crush cans; and a bumper face disposed in front of said energy absorbing member; wherein each of said crush cans has an outside wall facing outward in the vehicle widthwise direction and an inside wall facing inward in the vehicle widthwise direction, the inside wall having higher stiffness in a vehicle longitudinal direction than the outside wall. Appeal 2011-008067 Application 11/892,802 3 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Shibuya US 5,727,827 Mar. 17, 1998 Le US 5,853,195 Dec. 29, 1998 REJECTION Appellants seek our review of the rejection of claims 1-8 under 35 U.S.C. § 103(a) as unpatentable over Le and Shibuya. ANALYSIS Claim 1 Appellants dispute the Examiner’s finding that Le discloses the claim 1 limitations “crush cans . . . wherein each of said crush cans has an outside wall facing outward in the vehicle widthwise direction and an inside wall facing inward in the vehicle widthwise direction, the inside wall having higher stiffness in a vehicle longitudinal direction than the outside wall.” Ans. 4; App. Br. 9-11; Reply Br. 6. The Examiner finds that Le’s C-shaped member 28 constitutes an “outside wall,” as recited in the claim. Ans. 4. Additionally, the Examiner finds that the assembly formed by Le’s C-shaped member 26 and plate 30 constitutes an “inside wall,” as recited in the claim. Id. The Examiner further finds that the inside wall formed by Le’s C-shaped member 26 and plate 30 has a higher stiffness in a vehicle longitudinal direction than the outside wall formed by Le’s C-shaped member 28. Id. Appellants contend that Le does not meet the limitation that the inside wall has higher stiffness in a vehicle longitudinal direction than the outside wall. App. Br. 11. Because Le discloses the same number and positioning Appeal 2011-008067 Application 11/892,802 4 of convolutions on the inside wall as on the outside wall, Appellants argue, the inside wall would not have a higher stiffness than the outside wall. Id. Appellants add that Le’s plate 30 does not constitute an “inside wall” having higher stiffness than the “outside wall,” since the plate 30 is secured at attachment points between the convolutions of C-shaped members 26, 28, so that it does not interrupt the natural mode of sequential deformation of the rail. Reply Br. 6. The Examiner’s contentions are more persuasive than Appellants’ arguments. Appellants do not identify, and we do not recognize, any reason that the broadest reasonable interpretation of the claimed “inside wall” would not read on the combination of Le’s C-shaped member 26 and plate 30. Basic mechanical principles would suggest that these two structural members 26, 30 together would have higher longitudinal stiffness than the single C-shaped outside member 28. This appears particularly true due to Le’s indication that the members 26, 30, 28 individually have similar stiffness, suggesting that the combination of the two members 26, 30 would have significantly greater stiffness than a single member 28. See Le, col. 3, ll. 1-8. Accordingly, the Examiner has a sound basis for the finding that Le meets the claim limitation regarding the inside wall having a higher stiffness than the outside wall. Appellants’ arguments do not apprise us of error in this finding. Appellants’ observation regarding Le’s convolutions might support an argument that C-shaped member 26 by itself does not have higher stiffness than C-shaped member 28, but it does not provide a reason to doubt that the combination of C-shaped member 26 and plate 30 has a higher stiffness than C-shaped member 28. See App. Br. 11. Appellants’ argument that the plate Appeal 2011-008067 Application 11/892,802 5 30 by itself does not meet the stiffness limitation associated with the “inside wall” similarly fails to provide any reason to doubt that the combination of C-shaped member 26 and plate 30 has higher stiffness than C-shaped member 28. See Reply Br. 6. Furthermore, Appellants do not apprise us of error by merely observing that Le discloses its plate 30 connects to C-shaped member 26 in a manner that does not interrupt the sequential mode of deformation. See id. While this suggests that the plate 30 connects in a manner ensuring that any deformation that occurs will progress sequentially, it does not negate that the plate 30 would appear to contribute stiffness that would make the combination of C-shaped member 26 and plate 30 stiffer than C-shaped member 28. Appellants also argue that “convolutions 38, 40 of Le do not correspond to the unstiffening bead portions of the present invention.” App. Br. 10. This argument does not apprise us of error in the rejection of claim 1 because it is not commensurate in scope with the limitations of claim 1, which does not recite any unstiffening bead portions. Appellants further state that “arguably the rail of Le does not correspond to the crush can of claim 1.” App. Br. 11. This conclusory argument does not apprise us of any substantive reason to believe the Examiner erred in finding that Le’s rail constitutes a “crush can” as recited in claim 1. See Ans. 4. Appellants also argue that “[a] patentable invention may lie in the discovery of the source of a problem even though the remedy may be obvious once the source of the problem is identified.” App. Br. 12 (citing In re Zurko, 111 F.3d 887, 890 (Fed. Cir. 1997)). In connection with this argument, Appellants assert that the cited references do not discuss the Appeal 2011-008067 Application 11/892,802 6 problem of preventing damage to the front frame side from an offset impact, and that the references do not discuss the solution recited in claim 1. These arguments do not apprise us of error for multiple reasons. First, as noted above, Appellants do not apprise us of error in the Examiner’s finding that Le discloses a crush can where the inside wall has higher stiffness than the outside wall, which Appellants identify as the solution to the problem. See, e.g., Spec., 2-3, 10. Accordingly, Appellants do not persuade us that the references fail to disclose Appellants’ solution to the problem (even if the references do not discuss the problem). Second, Appellants do not provide any evidence that others did not recognize the problem they sought to address. The Specification discusses the fact that the problem existed, but it does not state that the inventors discovered the problem or that others did not know of the problem. See id. This does not support Appellants’ position that discovery of the source of the problem patentably distinguishes the claimed invention over the prior art. See In re Wiseman, 569 F.2d 1019, 1022-1023 (CCPA 1979) (Attorney arguments for nonobviousness based on discovery of problem were not supported by portion of Specification that discussed problem but did not clearly and persuasively assert that the problem was discovery of appellants). For the foregoing reasons, Appellants’ arguments do not apprise us of error in claim 1. Accordingly, we sustain the rejection of claim 1. Claim 2 Appellants dispute the Examiner’s finding that Le discloses the claim 2 limitation “wherein a plurality of vertically extending unstiffening bead Appeal 2011-008067 Application 11/892,802 7 portions are formed only in the outside wall of each of said crush cans.” Ans. 4; App. Br. 13; Reply Br. 4-5. Appellants argue that Le does not meet the claim language because Le discloses convolutions 38, 40 on both the inside and outside walls, not only on the outside wall. App. Br. 13. The Examiner contends that Le meets the claim language because its “unstiffening bead portions 40 are formed only in the outside wall.” Ans. 4. This dispute raises a question regarding the correct interpretation of the claim language. Appellants appear to assume the term “only” in the disputed claim language means that each of said crush cans does not have any vertically extending unstiffening bead portions anyplace other than the outside wall. On the other hand, the Examiner appears to assume the claim language means each crush can includes a plurality of unstiffening bead portions that are formed in and do not extend beyond the outside wall, but each crush can may include vertically extending unstiffening bead portions on the inside wall. Appellants have the better position. The Specification discloses an embodiment, shown in Figures 1-9, that includes vertically extending unstiffening bead portions 17a, 17b on the outside wall 17 of each crush can 10 and does not have vertically extending unstiffening bead portions on any other wall of either crush can 10. Spec., 6-7, 11, figs. 1-9. The Specification discloses that “no bead portions like the unstiffening bead portions 17a, 17b of the outside wall are formed in the inside wall 18 of each crush can 10.” Id. at 7. The Specification discloses that this configuration provides the inside wall 17 with higher stiffness than the outside wall 18 because “the plurality of vertically extending unstiffening bead portions 17a, Appeal 2011-008067 Application 11/892,802 8 17b are formed only in the outside wall 17 of each crush can 10.” Id. at 11 (emphasis added). This suggests that, in this particular embodiment, the higher stiffness of the inside wall 17 results from the omission of vertically extending unstiffening bead portions from the inside wall 17. It simultaneously suggests that a recitation that “vertically extending unstiffening bead portions are formed only in the outside wall of each of said crush cans” means the other portions of each crush can do not include any vertically unstiffening bead portions. In sum, we believe the correct interpretation of the disputed claim language excludes vertically extending unstiffening bead portions from any portion of the crush can other than the outside wall. Consequently, Appellants’ observation that Le discloses convolutions on the inside wall of each rail apprises us of error in the Examiner’s finding that Le meets the limitation of claim 2. Accordingly, we do not sustain the rejection of claim 2, or of claim 8, which depends from claim 2. Claim 3 Appellants dispute the Examiner’s finding that Le discloses the claim 3 limitation “wherein a plurality of vertically extending outside unstiffening bead portions are formed in the outside wall of each of said crush cans and a smaller number of vertically extending inside unstiffening bead portions are formed on the inside wall of each of said crush cans.” Ans. 5; App. Br. 13; Reply Br. 5-6. The Examiner states that Le discloses a “plurality of vertically extending outside unstiffening bead portions are formed in the outside wall 40 of each of said crush cans 18, 20 and a smaller number of Appeal 2011-008067 Application 11/892,802 9 vertically extending inside unstiffening bead 28 portions are formed in the inside wall of each of said crush cans 18, 20.” Ans. 5. As Appellants note, Le’s reference numeral 28 corresponds to an outside C-shaped rail member, not vertically extending unstiffening bead portions on an inside wall. Le, col. 2, ll. 39-43, figs. 3, 5; Reply Br. 5. Accordingly, the Examiner’s citation of reference number 28 in no way supports the finding that Le discloses “a smaller number of vertically extending inside unstiffening bead portions are formed in the inside wall of each of said crush cans,” as required by claim 3. And the Examiner does not otherwise support this finding. Consequently, we do not sustain the rejection of claim 3. Claims 4-7 Appellants traverse the rejection of claims 4-7 only by referring to their claim 1 arguments. App. Br. 13. Because Appellants’ claim 1 arguments do not apprise us of error, we sustain the rejection of claims 4-7. DECISION We affirm the Examiner’s decision rejecting claims 1 and 4-7. We reverse the Examiner’s decision rejecting claims 2, 3, and 8. 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-IN-PART Klh Copy with citationCopy as parenthetical citation