Ex Parte Dilger et al

Patent Trial and Appeal Board

Jul 22, 2014

11250792 (P.T.A.B. Jul. 22, 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.
11/250,792 10/14/2005 Horst Dilger DILGER ET AL. - 4 7673
25889 7590 07/22/2014
COLLARD & ROE, P.C.
1077 NORTHERN BOULEVARD
ROSLYN, NY 11576
EXAMINER
MULLER, BRYAN R
ART UNIT PAPER NUMBER
3727
MAIL DATE DELIVERY MODE
07/22/2014 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)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte HORST DILGER, THOMAS LIND, and
DIETER KAFFENBERGER
____________________

Appeal 2012-006283
Application 11/250,792
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, JAMES P. CALVE, and JILL D. HILL,
Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Horst Dilger et al. (Appellants) appeal under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 1–3, 6, 7, 10, and 11 under 35 U.S.C.
§ 103(a) as being unpatentable over Fujiwara (JP 2001-157652 A, pub. June
12, 2001), Murata (US 4,638,526, iss. Jan. 27, 1987), and Sudou (US
6,442,792 B1, iss. Sept. 3, 2002). We have jurisdiction under 35 U.S.C.
§ 6(b).

We AFFIRM.

Appeal 2012-006283
Application 11/250,792

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THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A floor nozzle for vacuum cleaners, having a first functional
position for vacuuming broad floor surfaces, as well as a second
functional position for vacuuming narrow floor surfaces, the
nozzle comprising:
a suction head having a base area with a first broad side
and a second broad side and two narrow sides, wherein said
first broad side corresponds to a front and said second broad
side corresponds to a rear of said suction head;
a tilt joint consisting of a channel connector piece molded
onto the suction head, and a pivotable channel section,
a pipe elbow having a fixed curvature of about 90o
connected with the channel section of the tilt joint, said pipe
elbow having a connector end for a suction pipe,
wherein the channel section is pivoted out in the first
functional position, so that an axis of rotation of a connection
between the pipe elbow and the channel section is oriented at a
slant directed downwardly relative to a plane of a lower face of
the nozzle and away from said suction head, and wherein the
channel section, in the second functional position, is pivoted
into the channel connector piece so far that the axis of rotation
of the connection is oriented parallel to the plane of the lower
face of the nozzle,
wherein the suction head has an indentation that forms a
free space for movement of the pipe elbow that is connected to
the channel section, said indentation being disposed in said
second broad side, and
wherein a joint axis of the tilt joint is disposed within the
indentation, in a region of the suction head that lies close to the
lower face of the nozzle,
and further comprising a slide sole disposed on an
underside of the suction head, said slide sole having a suction
mouth that extends all the way to the narrow sides of the
suction head, wherein the suction mouth is connected with the
channel connector piece in terms of flow via an opening, and
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Application 11/250,792

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wherein the slide sole is provided without wheels to allow a
sliding movement.
OPINION
Appellants do not present any arguments as to why dependent claims
2, 3, 6, 7, 10, and 11 might be patentable if claim 1 is not patentable. Thus,
pursuant to 37 C.F.R. § 41.37(c)(1)(vii) (2011), we decide this appeal on the
basis of claim 1.
The primary issues raised in this appeal are: (1) whether Fujiwara’s
suction head has “an indentation that forms a free space for movement of the
pipe elbow,” as called for in claim 1 (Appeal Br. 8, 9; Reply Br. 3);
(2) whether Fujiwara’s disclosure of rollers for movement of the floor nozzle
undermines the Examiner’s determination that it would have been obvious to
replace Fujiwara’s wheels with sliding surfaces, as taught by Sudou, to
facilitate movement of the nozzle along a floor surface (Appeal Br. 8); and
(3) whether Fujiwara’s joint axis of the tilt joint “is disposed within the
indentation, in a region of the suction head that lies close to the lower face of
the nozzle,” as called for in claim 1 (Reply Br. 3–4).
Turning first to issue (1), the Examiner specifically points out, using
arrows, an indentation in Fujiwara’s suction head. Ans. 7. Appellants argue
that the indentation alluded to by the Examiner “is filled essentially
completely by the wheel” and thus “does not form a clear space for
movement of a pipe elbow 12 connected with the movable channel section.”
Reply Br. 3. According to Appellants, Fujiwara’s pipe elbow 12 “cannot be
submerged into the indentation filled by the wheel, and always has a clear
distance from the floor.” Id.; see also Appeal Br. 9 (stating, “[p]ivoting of
the pipe elbow into an indentation is technically excluded” in Fujiwara).
This line of argument is not convincing, for the reasons set forth by the
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Application 11/250,792

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Examiner on page 7 of the Answer. Claim 1 does not require that the pipe
elbow move, or be capable of movement, into the free space formed by the
indentation. As pointed out by the Examiner, the free space formed by
Fujiwara’s indentation allows for movement of the pipe elbow above or near
the free space; further, the free space accommodates a roller, which allows
for movement of the pipe elbow, as well as other parts of the suction head,
along a surface being cleaned. Id.
Turning next to issue (2), the Examiner found that Sudou teaches that
sliding surfaces are preferable to wheels for a vacuum nozzle because sliding
surfaces offer less resistance to sliding than wheels, and thus facilitate
movement of the nozzle. Ans. 6 (citing Sudou, col. 13, ll. 28–37). Based on
that teaching, the Examiner determined it would have been obvious to
replace Fujiwara’s wheels (or rollers) with sliding surfaces “to make it easier
to move the nozzle along a floor surface.” Id. Appellants argue that a
person skilled in the art would not consider sliding surfaces because
Fujiwara discloses wheels. Appeal Br. 9. This argument attacks Fujiwara
individually, rather than as combined with Sudou as proposed by the
Examiner, and thus fails to show error in the rejection. Nonobviousness
cannot be established by attacking the references individually when the
rejection is predicated upon a combination of prior art disclosures. See In re
Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Although
Fujiwara discloses rollers, Appellants do not point to any disclosure in
Fujiwara that disparages or criticizes the use of a sliding surface without
rollers or wheels to facilitate movement of the nozzle.
Turning finally to issue (3), Appellants argue that Fujiwara’s tilt joint
axis is not “disposed within the indentation, in a region of the suction head
Appeal 2012-006283
Application 11/250,792

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that lies close to the lower face of the nozzle,” as called for in claim 1.
Reply Br. 2, 3–4. Appellants raise this issue for the first time in the Reply
Brief. We direct Appellants to the informative decision Ex Parte Borden, 93
USP2d 1473, 1475 (BPAI 2010) (pointing out the procedural difficulties
with such belated arguments). With respect to the requirement that the tilt
joint axis be disposed within the indentation, we note that the Examiner
identifies the indentation of Fujiwara’s nozzle as encompassing both the
indentation in the upper cover portion and the indentation in the base
portion. As such, Fujiwara’s tilt joint axis reasonably appears to be within
the indentation in the same manner that Appellants’ tilt joint axis is within
the indentation. Compare Fujiwara, Figs. 1a, 1b, 7a, 7b with Appellants’
Figs. 3, 4. Appellants argue that Fujiwara’s “joint axis 8 is not disposed
close to the floor, but rather has a distance from the floor surface
predetermined by the height of the floor plate 7.” Reply Br. 3–4. The claim
terminology “close to” is a term of degree. When a term of degree is used in
a claim, we must determine whether the Specification provides some
standard for measuring that degree. See Seattle Box Co., Inc. v. Indus.
Crating & Packing, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984). Appellants’
Specification does not explicitly define the terminology “close to,” but does
disclose that the joint axis is “in a region of the suction head that lies close to
the floor. This results in a particularly good introduction of force for the
pushing force.” Spec. 5. The location of Fujiwara’s joint axis appears
reasonably consistent with such an objective. Further, we construe the
terminology “close to the lower face of the nozzle” in light of Appellants’
drawings. Appellants’ Specification gives no indication that the location of
joint axis 10 depicted in Figures 3 and 4 of the present application falls
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Application 11/250,792

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outside of the location called for in claim 1. Construing the claim
terminology in light of this disclosure, we find no error in the Examiner’s
finding that Fujiwara satisfies the limitation in claim 1 that the joint axis is
“close to the lower face of the nozzle.” Compare Fujiwara, Figs. 1a, 1b, 7a,
7b with Appellants’ Figs. 3, 4.
Appellants also argue that “Fujiwara cannot inspire a person skilled in
the art to take measures for minimizing the expanse of the floor nozzle in the
direction of the narrow sides, in the second functional position.” Appeal Br.
9–10. This argument is not convincing, because Fujiwara illustrates this
concept in the transition from Figure 6a to Figure 6b.
Appellants additionally argue that Murata does not provide a solution
to the problem of increased resistance to movement in the direction of the
rollers parallel to their broad sides, and further cannot render obvious the
indentation called for in claim 1. Appeal. Br. 10. These arguments are not
convincing, because the Examiner does not rely on Murata for either of these
features. See Ans. 5, 8.
Appellants further argue that Sudou does not disclose first and second
functional positions. Appeal Br. 11. This argument is not convincing,
because the Examiner does not rely on Sudou for this feature. See Ans. 6.
For the above reasons, Appellants do not apprise us of error in the
Examiner’s rejection of claim 1. We sustain the rejection of claim 1 and of
its dependent claims 2, 3, 6, 7, 10, and 11 as unpatentable over Fujiwara,
Murata, and Sudou.

Appeal 2012-006283
Application 11/250,792

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DECISION
The Examiner’s decision rejecting claims 1–3, 6, 7, 10, and 11 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

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