Ex Parte Soyez et al

Patent Trials and Appeals Board

Jun 24, 2019

14377760 - (D) (P.T.A.B. Jun. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/377,760 08/08/2014
24972 7590 06/26/2019
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
NEW YORK, NY 10019-6022
FIRST NAMED INVENTOR
Guido Soyez
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.
BOSC.P8917US/1000196453 2466
EXAMINER
KRCHA, MATTHEW D
ART UNIT PAPER NUMBER
1798
NOTIFICATION DATE DELIVERY MODE
06/26/2019 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):
nyipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GUIDO SOYEZ, FRANK STANGLMEIER, JENS SCHNEIDER,
and ECKART REIHLEN
Appeal2018-007940 1
Application 14/377,760
Technology Center 1700
Before JEFFREY T. SMITH, JEFFREY R. SNAY, and BRIAND. RANGE,
Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 17-19, 21, 22, 24--32, and 36. 2 We have jurisdiction under 35 U.S.C.
§ 6.
We AFFIRM.
1 Appellant and the real party in interest Robert Bosch GmbH. (App. Br. 2.)
2 Claims 27-32 are withdrawn from consideration. (Final Act. 1.)
Appeal2018-007940
Application 14/377,760
Appellant's invention is directed generally to a stopper for exhaust gas
sensors that seals the housing and through which at least one connecting
cable is led out from or into the housing. (Spec. 1, 11. 1-7.) Of the currently
rejected claims, claims 1 7 and 22 are independent. See Claim Appendix.
Claim 1 7 illustrates the subject matter on appeal and is reproduced from the
Appeal Brief below:
17. A stopper for sealing a housing of an exhaust gas sensor,
compnsmg:
a basic body containing a fluoroelastomer;
at least one axial through-channel provided in the basic body
for guiding through a connecting cable; and
at least one outer seal situated radially externally in a
longitudinal extension on the basic body, wherein the at least
one outer seal contains at least one thermoplastically processed
fluoropolymer-containing material having a melting point
between 170°C and 320°C;
wherein in the exhaust gas sensor there is an inner seal, on an
inner contour of the basic body, covering the basic body at least
partly in its longitudinal extension, and wherein the outer seal,
which is situated radially outwardly on the basic body, covers
the outer surface of the basic body at least partly in its
longitudinal extension,
wherein the outer sealing material is formed so that there is at
least a materially
bonded connection between the basic body and the material of
the at least one outer seal, and so that there is at least a
materially bonded connection between the material of the at
least one outer seal and the housing,
wherein the inner seal is formed as a layer over the inner
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Appeal2018-007940
Application 14/377,760
contour of the basic body, wherein the inner seal contains at
least one thermoplastically processed fluoropolymer-containing
material having a melting point between 170°C and 320°C,
wherein the basic body makes up at least about 80% of a mass
of the stopper, and
wherein the at least one outer seal and/ or the outer sealing
material makes up at most about 20% of the mass of the
stopper.
The following rejections are presented for our review:
Claims 17-19, 22, 24--32, and 36 are rejected under 35 U.S.C.
§ I03(a) as unpatentable over Wild et al. (US 2007/0033986 Al, pub. Feb.
15, 2007), Tsuji et al. (US 5,900,129; issued (May 4, 1999), and Takashi.
(JP 2001-242128 A, issued Sept. 7, 2001) as evidenced by "Fatigue and
Tribological Properties of Plastic and Elastomers" (2nd Edition) Chapter 11,
Page 252, Table 11.2 Melting Point Ranges of Various Fluoroplastics3•
Claim 21 is rejected under pre-AIA 35 U.S.C. §I03(a) as unpatentable
over Wild, Tsuji, and Takashi as applied to claim 19 above, and further in
view of Katz (US 4,628,003, issued Dec. 9, 1986).
The complete statement of the rejections on appeal appear in the Final
Office Action. (Final Act. 3-9.)
OPINI0N4
3 Entered in the record September 16, 2015 and cited in the July 16, 2015
notice of cited references. (hereinafter "Fatigue and Tribological
Properties")
4 Appellant limits the arguments to independent claim 1 7. Appellant has not
presented arguments addressing separately claims 17-19, 22, 24--32, and 36
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Appeal2018-007940
Application 14/377,760
Appellant in the principal Brief initially reproduces the features of
independent claims 1 7 and 22 and concludes with the statement "as provided
for in the context of the presently claimed subject matter, are nowhere
disclosed by the primary reference or any of the applied references whether
taken alone or in combination."5 (App. Br. 9-11.) Appellant also argues the
present record lacks the required factual findings to establish a proper prima
facie case, the rejection is premised on hindsight, and the Examiner is
employing an obvious to try standard as the basis of the rejection. (App. Br.
12-13.)
Appellant's arguments are not persuasive of reversible error.
Appellant has not specifically refuted the Examiner's factual findings in the
cited references. Contrary to Appellant's arguments, the Examiner has
provided the requisite facts and analysis to establish a prima facie case of
obviousness. (See Final Act. 3-9.)
The Examiner found Wild teaches a stopper for sealing the housing of
an exhaust gas sensor, comprising all of the elements required for the
claimed invention. (Final Act. 3; Wild Fig. 9.) The Examiner found Wild
differs from the claimed invention by failing to disclose the basic body
contains a fluoroelastomer and the inner and outer seals contain
thermoplastically processable fluoropolymer. (Final Act. 3--4.) The
Examiner found Tsuji and Takashi described the fluoro polymer materials
suitable for the basic body and the inner and outer seals. (Final Act. 4;
Tsuji, col. 1: 51---62; Takashi ,r 23.). The Examiner cited Fatigue and
or separate I y rejected claims 21. (App. Br. 8-14.) We limit our discussion
to the independent claim 1 7.
5 Appellant repeats these arguments in the Reply Brief. (Reply Br. 2-8.)
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Appeal2018-007940
Application 14/377,760
Tribological Properties for describing the melting point properties of the
fluoropolymer PF A containing material as having a melting point between
170°C and 320°C as required by the claimed invention. (Final Act. 4.) The
Examiner found the stopper of Wild has a materially bonded connection
between the basic body and the material of the outer seal. (Final act 4--5.)
The Examiner determined that the claimed ratio of the amount of basic body
and the amount of the outer seal would have been obvious to a person of
ordinary skill in the art. (Final Act. 5.) Appellant has failed to provide a
technical explanation indicating error in the Examiner's findings and
conclusions.
Appellant does not present persuasive argument or evidence refuting
the Examiner's finding that the stopper of Wild has a materially bonded
connection between the basic body and the material of the outer seal.
According to the Specification "[a] materially bonded connection is a
connection in which a holding together of the joining partners takes place
through forces that become effective at the molecular level." Appellant has
not explained why the description of fusing the welding tube (26) as
described by Wild does not form a materially bonded connection. (Wild ,r
16.)
Appellant also does not adequately identify error in the Examiner's
determination that the claimed ratio of the amount of basic body and the
amount of the outer seal would have been obvious to a person of ordinary
skill in the art. A person of ordinary skill in the art would have had
sufficient skill to determine the size of the stopper relative to the exhaust gas
sensor. Appellant has not explained why the claimed ratio would have been
unobvious to a person of ordinary skill in the art. Appellant has not
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Appeal2018-007940
Application 14/377,760
established the claimed ratio is shown to (1) solve a stated problem, (2)
result in a difference in function, or (3) provide unexpected results, as
compared to the relied-upon prior art. See In re Kuhle, 526 F.2d 553, 555
( CCP A 197 5) ( finding that the use of the claimed feature "would be an
obvious matter of design choice" when it "solves no stated problem" and
"presents no novel or unexpected result" over the disclosed alternatives); In
re Rice, 341 F.2d 309, 314 (CCPA 1965) (stating that "Appellants have
failed to show that the change in the [ aspects at issue as compared to the
prior art] result in a difference in function or give unexpected results") and
stating that ( such changes in design of the various features are no more than
obvious variations consistent with the principles known in that art).
Accordingly, we sustain the Examiner's rejections under 35 U.S.C. §
103(a) for the reasons given by the Examiner and presented above.
DECISION
The Examiner's prior art rejections of claims 17-19, 21, 22, 24--32,
and 36 under 35 U.S.C. § 103(a) are 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)(l )(iv).
AFFIRMED
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