Ex Parte Cabourg

Patent Trial and Appeal Board

Jul 27, 2018

13554442 (P.T.A.B. Jul. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/554,442 07/20/2012
23280 7590 07/31/2018
Davidson, Davidson & Kappel, LLC
589 8th A venue
16th Floor
New York, NY 10018
FIRST NAMED INVENTOR
Frederic Cabourg
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.
11000797 .1029 1327
EXAMINER
MEKHAEIL, SHIREF M
ART UNIT PAPER NUMBER
3634
NOTIFICATION DATE DELIVERY MODE
07/31/2018 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):
ddk@ddkpatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FREDERIC CABOURG
Appeal2017-009515
Application 13/554,442
Technology Center 3600
Before JOHN C. KERINS, EDWARD A. BROWN, and
ANNETTE R. REIMERS, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Frederic Cabourg (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner's final decision rejecting claims 19-33, 35, and 36. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
CLAIMED SUBJECT MATTER
Appellant's invention relates to a separating element for an aircraft
cabin. Spec. p.l, 1. 3.
Independent Claim 19 is illustrative, and is reproduced below:
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Application 13/554,442
19. An aircraft cabin compnsmg at least one separating
element, said separating element including:
at least one stationary partition, delimiting a passage
defining a circulation axis inside the cabin;
at least one leaf, mounted transversely movable relative to
the circulation axis between a closed position, in which it extends
through the passage, and an open position, in which it is
positioned at least partially spaced away from the passage, the or
each leaf comprising at least one leaf portion; and
a movement system for moving the or each leaf between
the closed position and the open position thereof, the or each leaf
being adapted to move along the plane transverse to the
circulation axis, wherein the movement system comprises, for
the or each leaf, a movement mechanism for moving a driven leaf
portion of the at least one leaf portion of the leaf, the movement
mechanism comprising two push rods each articulated, by a first
point of articulation, to a respective stationary partition among
the at least one stationary partition, and by a second point of
articulation to a connecting element which is fixed relatively to
the driven leaf portion, the first points of articulation being
spaced apart from one another, the push rods being substantially
parallel to one another and being adapted to remain substantially
parallel during the movement of the leaf from the open position
to the closed position thereof.
THE REJECTION
The Examiner has rejected claims 19-33, 35, and 36 under 35 U.S.C.
§ 112, second paragraph, as being indefinite.
The Final Action includes objections based on alleged missing
features from the drawings and an omission of claim 34 from the most recent
listing of the claims. Final Act. 3-5; see also Ans. 2. To the extent that any
issues remain with regard to these objections, resolution thereof lies with the
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Examiner and Appellant, and recourse is available by way of petition, in that
these matters are not within the jurisdiction of the Board.
A rejection of claims 19--29, 31, 32, and 36 under 35 U.S.C. § 103(a)
appearing in the Final Office Action is withdrawn on appeal. Ans. 2; Final
Act. 13-18. We note that a rejection of claims 33 and 35 under 35 U.S.C.
§ 103(a) is not indicated as being withdrawn. Ans. 2; Final Act. 19-20.
However, as claims 33 and 35 depend from claim 19 and the rejection of
these claims relies on the application of the same prior art as in the rejection
of claim 19, we regard the rejection of claims 33 and 35 under 35 U.S.C.
§ 103(a) as being also withdrawn. 1
ANALYSIS
Claims 19, 20, 29, 31, 32, and 35
The Examiner finds, for claim 19, that:
( 1) the phrase "at least one leaf, mounted transversely movable
relative to the circulation axis between a closed position, in
which it extends through the passage," at lines 5---6 is unclear
because the term "through" implies that a leaf extends along or
through the passage instead of across the passage;
(2) the term "each" from the phrase "the or each leaf' at line 11
indicates that there is more than one leaf and conflicts with the
phrase "at least one leaf' which indicates a possibility of having
only one leaf;
(3) the term "the plane" from the phrase "the plane transverse to
the circulation axis" at lines 10-11 lacks antecedent basis;
1 We note that the Answer and the Reply Brief do not discuss the rejection of
claims 33 and 35 under 35 U.S.C. § 103(a).
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( 4) it is unclear what element the term "thereof' refers to in the
phrase "a movement system for moving the or each leaf between
the closed position and the open position thereof' at lines 9--10;
( 5) the phrase "two push rods each articulated, by a first point of
articulation, to a respective stationary partition among the at least
one stationary partition" at lines 13-14, indicates that there are
at least two stationary partitions, which conflicts with the phrase
"at least one stationary partition" at line 3, which indicates a
possibility of having only one stationary partition; and
( 6) in the phrase "a driven leaf portion of the at least one leaf
portion"2 at line 12, it is unclear whether "a driven leaf portion"
is a portion of "the at least one leaf portion" or that "the at least
one leaf portion" is itself in its entirety "a driven leaf portion."
Final Act. 6-7.
A claim is properly rejected as being indefinite under 35 U.S.C. § 112,
second paragraph if, after applying the broadest reasonable interpretation in
light of the specification, the metes and bounds of a claim are not clear
because the claim "contains words or phrases whose meaning is unclear." In
re Packard, 751 F.3d 1307, 1310 (Fed. Cir. 2014).
We agree with Appellant that the recitations at issue are sufficiently
clear and that the Examiner's determination of indefiniteness for claim 19 is
unreasonable. With respect to the enumerated findings listed above:
( 1) it is clear that the "at least one leaf' extends across the
passage based on the phrase "at least one leaf, mounted
transversely movable relative to the circulation axis,"3 in
conjunction with the phrase "a passage defining a circulation axis
2 With respect to this recitation, the Examiner inadvertently referred to claim
21 instead of claim 19. See Final Act. 7.
3 We note that the claim recites "relative to the circulation axis" instead of
"along the circulation axis."
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inside the cabin" at lines 3--4, and in light of the Specification's
similar disclosure at column 6, lines 3---6, and Figs. 1-2;
(2) in the phrase "the or each leaf," the term "the" refers to the
possibility of a single leaf and the term "each" refers to the
possibility of more than one leaf, such that there is no conflict
with the phrase "at least one leaf;"
(3) there is antecedent basis for "the plane" because a "plane
transverse to the circulation axis" inherently exists; 4
( 4) based on the normal rules of grammar, the term "thereof'
would refer to the last element recited before the term, which is
"the or each leaf-"
'
(5) the term "respective" means "corresponding,"5 such that both
push rods can be articulated to the same stationary partition, i.e.,
a single stationary partition; and
( 6) because the term "of' is recited in the phrase "a driven leaf
portion of the at least one leaf portion," it is clear that "a driven
leaf portion" is at least part of "the at least one leaf portion" and
can comprise such leaf portion.
See also Appeal Br. 4--5.
Accordingly, the rejection of claim 19 as being indefinite is not
sustained. No separate objections are presented for claims 20, 29, 31, 32,
and 35, which depend directly or indirectly from claim 19. The rejection of
4 See also Bose Corp. v. JBL, Inc., 274 F.3d 1354, 1359 (Fed. Cir. 2001).
We also note that, notwithstanding the Examiner's assertion that there is
more than one plane that is transverse to the circulation axis (Ans. 3), that
does not negate the fact that a plane transverse to the circulation axis
inherently exists.
5 http://www.thesaurus.com/browse/respective (last accessed July 3, 2018);
see also Spec. 9, 11. 29-30, Fig. 2.
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those claims is thus premised on their dependence from claim 19, and is also
not sustained.
Claims 21 and 2 4
The Examiner finds, for claim 21, that: (1) it is unclear if "the driven
leaf portion" at lines 3--4, is a third leaf portion different from the first and
the second leaf portions that are recited at line 2; and (2) with respect to the
phrase "the driven leaf portion consisting in the first leaf portion," it is
unclear how one element is consisting in another. Final Act. 7.
Appellant contends that claim 21 is merely stating that the "first leaf
portion" is the "driven leaf portion" that is recited in claim 19. Appeal Br. 6;
see also Reply Br. 4. 6
Notwithstanding Appellant's proffered intention, it remains unclear
whether the term "consisting in" would mean "consisting of' or possibly
something else, to a person of ordinary skill in the art. Thus, the term
"consisting in" renders claim 21 unclear and its scope indefinite.
Accordingly, the rejection of claim 21 as being indefinite is sustained.
The rejection of claim 24, which depends from claim 21, is sustained for the
same reasons.
Claim 22
The Examiner finds that phrase "the second leaf portion can be
translated along a movement axis in the transverse plane" is unclear because:
6 The pages of the Reply Brief are unnumbered. We thus refer to the Reply
Brief as if they are numbered consecutively from the first page to the last
page, i.e., from page 1 to page 9.
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(1) the "movement axis" is not shown in the drawings which makes it
difficult to understand the invention; (2) "axis" is defined as "[a] straight
line about which a body or geometric object rotates or may be conceived to
rotate" and thus indicates a rotation motion; and (3) there are an unlimited
number of lines in a plane. Final Act. 7-8 ( citing
http://www.thefreedictionary.com/axis ). As such, the Examiner asserts that
"one cannot merely find or assume an axis in [a] plane sans a rotary
motion." Id. at 8.
We find that the recitation at issue is clear and that the Examiner's
position is unreasonable. Figures 15 and 16 show that the lower leaf portion
is movable from left to right, i.e., "can be translated along a movement axis
in the transverse plane." As Appellant points out, "axis" is also defined as
"an unlimited line, half-line, or line segment serving to orient a space."
Appeal Br. 6 (citing http://www.thefreedictionary.com/axis). As such, there
is no requirement that there be a rotating object in order to recite the term
"axis," and a movement relative thereto. Although a movement axis is not
identified in the figures, and although, mathematically, an infinite number of
lines exist in a plane, we do not find the phrase "the second leaf portion can
be translated along a movement axis in the transverse plane" to be unclear.
See also id. The term "along" is simply meant to convey movement in the
same direction as the extent of the movement axis.
Accordingly, the Examiner's position with respect to the limitations
present in claim 22 as being indefinite is deficient. Notwithstanding, the
rejection of claim 22 as being indefinite is sustained, due to its dependence
from claim 21, for which we sustain the rejection based on indefiniteness.
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Claim 23
The Examiner finds that:
(1) the phrase "a shim for relative transverse shimming of the
first and second leaf portions, said shim having at least one guide
extending along an axis perpendicular to the movement axis," at
lines 2-3, renders the claim indefinite because: (i) it is unclear
what "relative transverse shimming" means; (ii) items 40 and 70
in Figure 2 do not show relative transverse shimming; and (iii)
the phrase "axis perpendicular to the movement axis" is unclear
because of the ambiguity of the term "movement axis" as
discussed for claim 22;
(2) it is unclear whether the term "the guide" at line 5 is referring
to the phrase the "at least one guide" at line 3 or the phrase "the
relative guide" at lines 1-2; and
(3) the term "the associated guide" at line 6 lacks antecedent
basis and makes it even more confusing as to which guide is
being referred to.
Final Act. 8-9.
We agree with Appellant that the meaning of the phrase "a shim for
relative transverse shimming of the first and second leaf portions, said shim
having at least one guide extending along an axis perpendicular to the
movement axis" is clear and definite. As Appellant explains with respect to
item (1) above: (i) an ordinary artisan would understand that "relative
transverse shimming" means shimming in the transverse direction of one
element (the driven leaf portion) relative to the second leaf portion; (ii) item
40 is for transverse shimming as discussed at page 8, lines 22-26 and page
7, line 11 to page 8, line 21 of the Specification, whereas item 7 0 is for
longitudinal shimming; and (iii) the term "movement axis" is clear as
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discussed with respect to claim 22, and thus the phrase "guide extending
along an axis perpendicular to movement axis" is also clear. Appeal Br. 6-
7.
Appellant contends, with respect to items (2) and (3) above, that the
term "the guide" refers to the phrase "[the] at least one guide," otherwise the
term "the relative guide" would have been recited, and that the term "the
associated guide" refers to the phrase "[the] at least one guide," because the
phrase "a movement member ... received in the guide" is associated with
the term "at least one guide." Id. at 7; Reply Br. 5.
Appellant's contentions are unpersuasive. There are several different
"guides" recited in claim 23 alone. Claim 23 recites that a "relative guide"
comprises a shim, and that the shim itself has "at least one guide." As such,
"the guide" at line 5 could be either one of the recited guides, or, possibly a
different guide not previously recited in the claim.
Accordingly, the Examiner's position with respect to the limitations
present in claim 23 and corresponding to items (2) and (3) identified above,
as being indefinite is correct. The rejection of claim 23 as being indefinite is
sustained, both for the reasons discussed in this section, and due to its
dependence from claim 21, for which we sustain the rejection based on
indefiniteness.
Claims 25-27, and 36
The Examiner finds that:
(1) the limitation in claim 25 reciting "a limiting member for
limiting the travel of the leaf along the circulation axis, said
limiting member having at least one protrusion" recited in claim
25, as a "protrusion" is unclear, in that the corresponding
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structure, i.e., item 110, comprises a roller 114 shown in Figure
6, and it is unclear how such roller would limit the travel of the
leaf;
(2) the term "a limiting member" is recited in each of claims 25-
27, but the recited "limiting member" in each claim is directed to
a different limiting member when read in light of the
Specification;
(3) the phrase "a limiting member for limiting the travel of the
leaf along a circulation axis" set forth in claim 26 is indefinite, in
that it is unclear how extension 120 and skate 124 in Figure 7
would limit the travel of the leaf along a circulation axis; and
(4) the recitation of a limiting member in claim 27 is indefinite,
in that it is unclear how fastening member 130 and slide 132 in
Figures 8-9 operate to prevent the leaf from moving away from
a partition.
Final Act. 9-10.
We agree with Appellant that the recitations at issue are clear and that
the Examiner's determination of indefiniteness for claims 25-27 is not
sustainable. With respect to the enumerated findings listed above:
( 1) each roll 114 or protrusion 110 shown in Figure 6 limits the
push rod 86 from moving either to the left or to the right when
the roll or protrusion contacts the stationary partition wall,
thereby limiting movement of the upper leaf portion 22, which is
connected to push rod 86, in travel along the circulation axis;
(2) it is appropriate to use the term "limiting member" as
corresponding to different structures in each of claims 25-27
because each of these claims is separately dependent from claim
19·
'
(3) as extension 120 and skate 124 limit movement of the upper
leaf portion 22 in the left and right directions in Figure 7, the
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travel of the upper leaf portion 22 along a circulation axis is
thereby limited; and
(4) as fastening element 130, via its head 142, is held within ribs
168 and side walls 170 of slide 132 shown in Figures 8-9, all of
which are either interconnected to upper leaf portion 22 in one
direction or a stationary partition in another direction, the upper
leaf portion 22 is prevented from moving away from a stationary
partition.
See also Appeal Br. 7.
Accordingly, the rejection of claims 25-27 as being indefinite is not
sustained. No separate objections are presented for claim 36, which depends
from claim 25. The rejection of that claim is thus premised on its
dependence from claim 25, and is also not sustained.
Claim 28
The Examiner finds that: (1) "a plane defined by the movement
mechanism" is not shown in the figures and is unclear; and (2) it is unclear
whether "said plane" at line 4 refers to "a plane" at line 3 or "the plane" at
line 10 of claim 19. Final Act. 11.
With respect to item (1) above, claim 28 depends from claim 27,
which relates to the embodiment of Figure 8, which in tum is described at
page 12, lines 12-15 of the Specification, as Appellant points out. Appeal
Br. 7. Although "a plane defined by the movement mechanism" is not
identified in the figures by reference numeral or otherwise, a person of
ordinary skill in the art would understand that the elements of the moving
mechanism generally lie in and define a single plane, when viewing Figure 2
and the more detailed illustrations in Figures 8-9. With respect to item (2)
above, an ordinary artisan would understand, because the claim is referring
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to two different positions for the fastening member, one lying in a plane and
the other substantially perpendicular to a plane, that "said plane" refers to
the immediately preceding recitation of the plane defined by the movement
mechanism. Id. at 8.
Accordingly, the rejection of claim 28 as being indefinite is not
sustained.
Claim 30
The Examiner finds that:
(1) the phrase "one of the movement mechanism" at line 2,
should recite "mechanisms," plural, in order to be grammatically
correct;
(2) the phrase "the or each cam lock" conflicts with the phrase
"at least one cam lock" in a similar manner as with the phrases
"the or each leaf' and "at least one leaf' in claim 19;
(3) "the shape of a radial section" at line 7 lacks antecedent basis;
( 4) it is unclear whether "an axis" at line 10 of claim 3 0 is one of
the "two axes" recited at line 3 of claim 29;
( 5) "the direction of elongation of the slot" at line 11 lacks
antecedent basis; and
( 6) it is unclear how cam lock 182 causes movement of support
95A relative to flange 246 illustrated in Figure 13; how the
second points of articulation, 92, 92A, 92B are integral with the
leaf; and how cam lock 182 is inserted into opening 200.
Final Act. 11-12.
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We agree with Appellant that the recitations at issue are clear and that
the Examiner's determination of indefiniteness for claim 30 is unreasonable.
With respect to the enumerated findings listed above:
(1) the entire phrase including the objected-to recitation of
"mechanism" in the singular reads, "a support secured to one of the
movement mechanism and the driven leaf portion" ( emphasis added). The
use of the singular "mechanism" is therefore correct, in that the claim recites
that the support is secured either to the movement mechanism or to the
driven leaf portion;
(2) there is no conflict in using the phrases "the or each cam lock" and
"at least one cam lock" for the same reason discussed above with respect to
the use of the phrases "the or each leaf' and "at least one leaf' in claim 19;
(3) the radial section will inherently have a particular shape, and the
use of "the" simply recognizes the same;
( 4) as the term "an" is recited before the term "axis," "an axis" as
recited in claim 30 is not one of the "two axes" recited in claim 29;
( 5) a slot is an elongated structure, and the direction of elongation is
an inherent characteristic of the slot; and
( 6) the recited flange corresponds to item 192 shown in Figure 11, and
not flange 246 in Figure 13, and an ordinary artisan would understand how
the cam lock 182 operates in conjunction with the correct flange, as would
be recognized in considering Appellant's disclosure at page 14, line 11 to
page 15, line 29; page 15, lines 15-18; and page 1, line 32 to page 2, line 2
of the Specification. See also Appeal Br. 8-9.
We further note that second points of articulation 92A and 92B exist
in a second embodiment shown in Figure 17 and second points of
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articulation 92 exist in a first embodiment shown in Figure 2. See Spec.
page 21, line 25-page 23, line 11; Figs. 2, 17.
Accordingly, the rejection of claim 30 as being indefinite is not
sustained.
Claim 33
The Examiner finds that the recitation of "a larger surface" directed to
a driven leaf portion is unclear as there is no reference point recited in the
claim to compare one surface to another. Final Act. 12.
Appellant contends that Figure 14 and its description in the
Specification clarify what is meant by the claim term "larger surface," in
terms of the surface of the driven leaf portion 26 on which a handle of an
actuating device is positioned. Appeal Br. 9. Appellant asserts that the front
and rear surfaces of the driven leaf portion are larger surfaces than the
surfaces formed by the edges of the driven leaf portion 26. Reply Br. 8.
Appellant's contentions are unpersuasive. Neither claim 33, nor claim
19 from which it depends, define the driven leaf portion in a manner such
that the front and rear surfaces are themselves regarded as being two "larger
surfaces," whereas the edges would constitute "smaller surfaces." The
Specification is similarly silent in describing the surfaces of the driven leaf
portion in this manner. A person of ordinary skill in the art might well
consider the edges of the driven leaf portion as not being suitable for
positioning a handle thereon, and would thus possibly regard the recited
"larger surface" as being a part of the front or rear surface of the driven leaf
portion having a greater area than another part of the front or rear surface.
The scope, or metes and bounds, of the claim term "larger surface" in
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reference to the claimed driven leaf portion cannot reasonably be
ascertained.
Accordingly, the rejection of claim 33 as being indefinite is sustained.
DECISION
The rejection of claims 19, 20, 25-32, 35, and 36 under 35 U.S.C.
§ 112, second paragraph, as being indefinite, is reversed.
The rejection of claims 21-24 and 33 under 35 U.S.C. § 112, second
paragraph, as being indefinite, is 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).
AFFIRMED-IN-PART
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