Ex Parte 6,935,093 et al

Patent Trial and Appeal Board

Feb 14, 2014

95001742 (P.T.A.B. Feb. 14, 2014)

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.
95/001,742 09/06/2011 6,935,093 JAR-3696-82 3410
23117 7590 02/14/2014
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
JASTRZAB, JEFFREY R
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
02/14/2014 PAPER
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.
PTOL-90A (Rev. 04/07)
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UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

THE TORO COMPANY
Requester, Cross-Appellant, Respondent

v.

WRIGHT MANUFACTURING, INC.
Patent Owner, Appellant, Respondent
____________________

Appeal 2013-002900
Inter partes Reexamination Control 95/001,742
Patent US 6,935,093 B2
Technology Center 3900
____________________

Before RICHARD M. LEBOVITZ, JEFFREY B. ROBERTSON and
DANIEL S. SONG, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

The Patent Owner filed PATENT OWNER'S REQUEST FOR
REHEARING on July 19, 2013 (hereinafter "Rehearing Request" or "Rhrg.
Req.") under 37 C.F.R. § 41.79 seeking rehearing of our Decision mailed
June 21, 2013 (hereinafter "Decision" or "Dec.") which affirmed the final
Appeal 2013-002900
Reexamination Control 95/001,742
Patent US 6,935,093 B2

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rejections of the claims made by the Examiner.
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The Patent Owner asserts
that the Board overlooked various facts and requests modification of the
Decision.
We grant the Rehearing Request to the extent that we consider the
Patent Owner's arguments infra, but DENY the request to modify the
Decision.
Preliminarily, we observe that the Requester has filed THIRD PARTY
REQUESTER'S COMMENTS OPPOSING PATENT OWNER'S
REQUEST FOR REHEARING on August 17, 2013 (hereinafter
"Requester's Comments" or "Req. Com."). Upon consideration, we agree
with the Requester's Comments and cite to portions thereof infra as
supplemental to our discussion.

Velke '031 in View of Cox, Musgrave, Busboom, Hale '536 and Hale
'798
The Patent Owner asserts that the Board overlooked the fact that "in
Velke '031 (the base reference) the cutter deck is rigidly connected to the
engine deck 3" so that "[t]here can be no relative movement between the
cutter deck and the engine deck 3." (Rhrg. Req. 1). Hence, the Patent
Owner concludes that "one of ordinary skill in the art would not have
modified Velke '031 by adding Busboom's stabilizing rod … because there

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A substantially identical Request for Rehearing has been filed with respect
to the Board's decision also mailed June 21, 2013 for Appeal No. 2013-
002864 (Reexamination Control 95/001,741 for Patent US 6,438,931). The
Board's decision with respect to that Request for Rehearing is being mailed
concurrently herewith.
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Patent US 6,935,093 B2

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is no uncontrolled movement [between the cutter deck and the engine deck]
to stabilize." (Rhrg. Req. 1; see also Rhrg. Req. 2).
The Patent Owner misapprehends the fact that the main rejection
based on Velke '031 is not based on merely incorporating Busboom's
stabilizer rod into the mower of Velke '031. Rather, the rejection is based on
implementing the height-of-cut (hereinafter "HOC") adjustment mechanism
of Busboom into the mower of Velke '031 (Dec. 22 citing Right of Appeal
Notice (hereinafter "RAN") 15-16; see also Req. Com. 2-3). As first
explained in the Decision with respect to the rejection based principally on
Wright '138, the HOC adjustment mechanism of Busboom would include
the chain links and the stabilizing rods (Dec. 16). The reasons articulated by
the Examiner for the combination based on Velke '031 are that: using the
HOC adjustment mechanism of Busboom is merely a substitute for changing
the mounting of each wheel which is disclosed in Velke '031; and such
combination would provide ease of adjusting the HOC as compared to the
adjustment disclosed in Velke '031 (Dec. 22; RAN 15). We agreed with the
Examiner, the reasons articulated being rational and sufficient to support the
conclusion of obviousness (Dec. 22; see also Req. Com. 3).
The Patent Owner argues that Velke '031 "already has a system for
adjusting the height-of-cut" so that there would be no reason to replace it
with the HOC adjustment mechanism of Busboom (Rhrg. Req. 3).
However, as noted supra and pointed out in the Decision, the HOC
adjustment mechanism of Busboom which uses a lever that is simply
grasped by the user and moved to adjust the HOC would make such
adjustment easier as compared to the cumbersome method disclosed in
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Velke '031 wherein the height of each wheel must be adjusted separately
(Dec. 22).
The Patent Owner further asserts that the stabilizing purpose of
Busboom's control arm requires it to be long in order to reduce movement of
the cutter deck thereby teaching away from the claims that require short
control arms which would reduce the stabilizing function (Rhrg. Req. 3).
However, the Patent Owner's assertion is not explained or substantiated by
persuasive evidence. Our understanding is that control arms such as those
disclosed in Busboom and the subject '248 patent are rigid structural
members which are pivotably mounted to the mower deck and the frame. It
is not apparent how shortening a control arm so as to be appropriately
dimensioned for a smaller mower as set forth in the rejection would reduce
the stabilizing function of the control arm.

Wright '138 in View of Cox, Musgrave, Busboom, Hale '536 and Hale
'798
The Patent Owner initially asserts that the Board overlooked the fact
that "both parties agreed at the Oral Hearing that in Wright '138 (the base
reference) the cutter deck 9 is probably rigidly connected to the engine deck
13 so that the cutter deck 9 and engine deck 13 move together as one unit."
(Rhrg. Req. 4-5). The Patent Owner argues that "this agreement as to the
content of Wright '138 cannot be ignored" and "[t]he Board's Finding of Fact
1(B) improperly ignores this agreement." (Rhrg. Req. 5). The Patent Owner
also argues that Wright '138 does not include chains and the cutter deck is
already structurally connected to the engine deck and the frame so that there
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is no need to stabilize anything by adding Busboom's control arm (Rhrg.
Req. 5-6). The Patent Owner's arguments are unpersuasive.
Firstly, facts are established by the evidence, not by mere "agreement"
between the parties. Secondly, Finding of Fact 1.B. was that Wright '138
does not disclose the manner in which the mower deck is
mounted/connected to the frame and engine deck, or require
that the mower deck be fixed in position relative to the engine
deck so as to preclude relative movement therebetween.
(Dec. 5-6, FF 1.B.).
In other words, Wright '138 does not disclose sufficient detail to allow a
determination that there is no relative movement between the mower deck
and the engine deck. The factual finding was neither that Wright '138
discloses relative movement, nor that it discloses no relative movement.
Thirdly, the Patent Owner itself conceded the possibility that the
mower deck Wright '138 may be mounted and connected to the engine deck/
frame in a manner which allows for relative movement therebetween (Dec.
16-17 citing Resp. Br. PO 11-12; see also excerpts from the Oral Hearing set
forth in Dec. 17, n.6 and Req. Com. 5).
The conclusion drawn in the Decision was that "while Wright
suggests including a mechanism for adjusting the height of cut [], it does not
actually disclose a specific mechanism for doing so (FF 1B-1D)." (Dec. 11;
see also Req. Com. 4-5). The Patent Owner's erroneous assertion regarding
the disclosure of Wright '138 notwithstanding, the Patent Owner again
misapprehends the basis of the main rejection based on Wright '138 that was
affirmed in the Decision by arguing that Wright '138 does not include chains
so there is no need for stabilization by adding Busboom's control arm (Rhrg.
Req. 5-6).
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As noted, Wright '138 does not disclose a mechanism for adjusting
HOC (Dec. 14; Dec. 5, FF 1B-1D). Hence, we explained,
[a]bsent such information, one of ordinary skill in the art would
have logically considered known HOC adjustment mechanisms
to implement in the mower of Wright. Busboom is one such
known mechanism. When implementing the HOC adjustment
mechanism of Busboom in the mower of Wright, we agree with
the Examiner (RAN 4) that it would have been obvious to
provide control arms that are sized to be appropriate to the
application so that when applied to the compact standing
mower of Wright which has a compact frame, the control arms
would be shorter than that disclosed in Busboom. (RAN 8).
(Dec. 14-15).
Finally, the Patent Owner argues that there are no chains in Cox or
Musgrave either so that there is nothing to stabilize (Rhrg. Req. 6-7).
However, the Patent Owner again misses the point that Wright '138 does not
disclose a mechanism for HOC adjustment, and that the affirmed rejection is
based on using the known HOC adjustment mechanism of Busboom.

REHEARING DECISION
While we have considered the Decision in light of the Request for
Rehearing, and have elaborated on certain aspects of the Decision, we
decline to modify it in any respect.

DENIED
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Patent US 6,935,093 B2

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ack
PATENT OWNER:

NIXON & VANDERHYE PC
901 North Glebe Road
11
th
Floor
Arlington, VA 22203

THIRD PARTY REQUESTER:

James W. Miller
527 Marquette Avenue
Suite 1960, Rand Tower
Minneapolis, MN 55402