Kueper GmbH & Co. KG

Patent Trials and Appeals Board

Dec 3, 2020

2020002720 (P.T.A.B. Dec. 3, 2020)

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.
15/762,902 04/05/2018 Roland KUEPER KUEPER - 5 PCT US 7949
25889 7590 12/03/2020
COLLARD & ROE, P.C.
1077 NORTHERN BOULEVARD
ROSLYN, NY 11576
EXAMINER
MCGOWAN, JAMIE LOUISE
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
12/03/2020 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):
uspto@collardroe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte ROLAND KUEPER
___________________

Appeal 2020-002720
Application 15/762,902
Technology Center 3600
____________________

Before PHILLIP J. KAUFFMAN, ANNETTE R. REIMERS, and
TARA L. HUTCHINGS, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–9. Final Act. 2–4. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Kueper
GmbH & Co. KG. Appeal Br. 1.
Appeal 2020-002720
Application 15/762,902

2
CLAIMED SUBJECT MATTER
The claimed invention relates to a clearing strip for the clearing blade
of a snowplow. Spec. 1:1–5. The invention addresses the problem of better
protecting the hard-material element of a clearing strip by including a
resilient buffer space in the rubber-elastic layer, above the hard-material
element. Spec. 2:22–3:10.
Claim 1 is the sole independent claim on appeal. We reproduce claim
1 below.
1. A clearing strip (1) for the clearing blade of a snowplow,
which strip has, in a sandwich design, a steel base plate (2), a steel
cover plate (3), and a rubber-elastic layer (5) that lies between them,
having at least one embedded hard-material element (6), whereby the
steel base plate (2) and the steel cover plate (3) tightly seal the region
above the hard-materials elements (6) toward the outside in such a
way that the rubber-elastic layer (5) cannot move upwards when the at
least one embedded hard-material element moves,
wherein
at least one resilient buffer space (7) is provided in the rubber-
elastic layer (5) above the hard-material elements (6).

REJECTION
Claims 1–9 are rejected under 35 U.S.C. § 103 as unpatentable over
Küper ʼ726 (US 7,765,726 B2, issued Aug. 3, 2010) and Kueper ʼ365 (US
8,640,365 B2, issued Feb. 4, 2014). Final Act. 2–4.

ANALYSIS
The focus of this appeal is the claimed at least one resilient buffer
space of the clearing strip. We reproduce Figure 2 of the application below.
Appeal 2020-002720
Application 15/762,902

3

Figure 2 is a side view of a first embodiment of a clearing strip. Spec. 8.
Resilient buffer space (7) is visible in rubber-elastic layer (5) above hard-
material elements (6).
The Examiner finds that Küper ʼ726 discloses a clearing strip as
claimed except for a resilient buffer space in its rubber-elastic layer. Final
Act. 2; Ans. 3–4. The Examiner finds that Kueper ʼ365 discloses, “a buffer
space in the rubber elastic member above the embedded hard material to
accommodate displaced rubber then the blade impacts an obstacle.” Final
Act. 2 (emphasis added) (citing Kueper ʼ365, 3:47–4:5). The Examiner
concludes that it would have been obvious to modify Küper ʼ726 by
providing rubber body (i.e., rubber-elastic layer) 4 of the scraper strip
depicted in Figure 2 of Küper ʼ726 with a buffer space such as that depicted
Appeal 2020-002720
Application 15/762,902

4
in Figure 3 of Kueper ʼ365. Final Act. 2; see also Ans. 3–4. According to
the Examiner, this modification would be “use of a known technique to
improve similar devices in the same way.” Final Act. 2–3 (citing KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007)).
Appellant contends that the Examiner has not shown that one of
ordinary skill in the art would have modified the references as proposed.
Appeal Br. 5–15; Reply Br. 1–7. For the reasons that follow, we agree with
Appellant.
Kueper ʼ365 describes a clearing strip that includes rubber body 4
having a resilient buffer space (tubular section 5). Kueper ʼ365 3:26–33;
Fig. 3. We reproduce Figure 3 of Kueper ʼ365 below.

Figure 3 is a side view of clearing strip 1 of Kueper ʼ365 that depicts a
resilient buffer space (tubular section 5) in the form of a cavity passing the
width of rubber body 4. Kueper ʼ365 3:17–18, 26–33.
Appeal 2020-002720
Application 15/762,902

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The Examiner’s finding that Kueper ʼ365 discloses “a buffer space in
the rubber elastic member above the embedded hard material to
accommodate displaced rubber then the blade impacts an obstacle” is not
supported by the reference. See Final Act. 2 (emphasis added) (citing
Kueper ʼ365, 3:47–4:5). Specifically, Kueper ʼ365 does not disclose
embedded hard material in rubber body 4 below the resilient buffer space
(tubular section 5). Consequently, the Examiner’s reasoning that the
proposed modification is the use of a known technique from Kueper ʼ365
that improves Küper ʼ726 in the same way (see Final Act. 2–3), lacks a
rational underpinning. In other words, because Kueper ʼ365 does not
disclose the technique the Examiner relies upon as the rationale for the
modification, the Examiner has not demonstrated that a person of ordinary
skill would have made the proposed modification. Consequently, we agree
with Appellant that the Examiner has not shown that one of ordinary skill in
the art would have recognized the resilient buffer space (cavity 5) of the
device of Kueper ʼ365 as a potential improvement to the scraper strip of
Küper ʼ726. See Appeal Br. 7.
In the Answer, the Examiner changes position to acknowledge that the
clearing strip of Kueper ʼ365 lacks a hard-material element corresponding to
hard metal core 6 of scraper strip of Küper ʼ726. Ans. 4. Despite
acknowledging this distinction, the Examiner still contends that the hard
material of Küper ʼ726 would benefit in the same way from a buffer space
when obstacles are encountered. Id.
Appellant contends that the clearing strip of Kueper ʼ365 functions
differently from the scraper strip of Küper ʼ726 and for that reason, a person
of ordinary skill in the art would not have recognized that such a resilient
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Application 15/762,902

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buffer space (cavity 5) would improve the apparatus of Küper ʼ726. See,
e.g., Appeal Br. 13–14; Reply Br. 5. This is not a case of Appellant
attacking one reference individually (see Ans. 3); rather, Appellant
challenges the reason articulated by the Examiner to justify combining the
teachings of the references. For the reasons that follow, we agree with
Appellant.
Cavity 5 of Kueper ʼ365 accommodates rubber displacement when the
clearing strip bends in response to an upward or rearward force, or a
combination of the two. Appeal Br. 8–9; Kueper ʼ365 3:47–4:2. As
Appellant correctly points out, steel jacket 5 of scraper strip of Küper ʼ726 is
designed to reinforce the strip against such bending. Appeal Br. 8; Reply
Br. 2; see also Küper ʼ726 2:38–43. Thus, one of ordinary skill in the art
would not have had reason to believe that a cavity or buffer space added to
the scraper strip of Küper ʼ726 would behave in the same fashion that cavity
5 behaves in the clearing strip of Kueper ʼ365. In particular, cavity 5 of
Kueper ʼ365 does not protect a brittle, hard-material element from damage
by accommodating movement of the element in response to an upwardly-
direct impulse. Appeal Br. 7; Reply Br. 5; see also Spec. 2:7–3:11. In light
of this functional distinction, the Examiner had a duty to identify additional
evidence, or to articulate additional technical reasoning, to support a finding
that one of ordinary skill in that art would have recognized that the addition
of a cavity such as that described by Kueper ʼ365 would improve the scraper
strip of Küper ʼ726. The Examiner has not identified additional evidence or
articulated additional technical reasoning to support such a finding. Ans. 3–
5.
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Application 15/762,902

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For these reasons, Appellant has shown that the reason for the
proposed modification is insufficient. See Appeal Br. 5–15; Reply Br. 1–7.
We do not sustain the rejection of claims 1–9 under 35 U.S.C. § 103 as
unpatentable over Küper ʼ726 and Kueper ʼ365.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–9 103 Küper ʼ726,
Kueper ʼ365
1–9

REVERSED