Ex Parte Feddersen

Patent Trial and Appeal Board

Apr 22, 2013

11710438 (P.T.A.B. Apr. 22, 2013)

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.
11/710,438 02/26/2007 Frederick J. Feddersen 6874/CONT 4927
6858 7590 04/22/2013
BREINER & BREINER, L.L.C.
115 NORTH HENRY STREET
ALEXANDRIA, VA 22314
EXAMINER
HOWELL, DANIEL W
ART UNIT PAPER NUMBER
3722
MAIL DATE DELIVERY MODE
04/22/2013 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 FREDERICK J. FEDDERSEN
____________________

Appeal 2011-001132
Application 11/710,438
Technology Center 3700
____________________

Before LINDA E. HORNER, PATRICK R. SCANLON, and
ANNETTE R. REIMERS, Administrative Patent Judges.

SCANLON, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
decision rejecting claims 1-14. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
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Application 11/710,438

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THE INVENTION
Appellant’s invention relates to “a gun drill guide and gun drill guide
assembly.” Spec., para. [0001]. Claims 1, 7, 10, and 13 are the independent
claims on appeal. Claims 1 and 13, reproduced below, are illustrative of the
claimed subject matter:
1. A guide support for a drill to be rotatably
mounted in a support bearing assembly comprising
a cylindrical body made of a resilient polymer
having an opening extending therethrough, a first
radially extending flange means at one end thereof
and a second radially extending flange means at
the opposite end thereof, said second radially
extending flange means including a gradually
angled shoulder portion.
13. A stabilizer assembly for a gun drill
comprising a male section having means for
attachment to a drill guide and a female metal
section having means for attachment to a drill
guide; said male and female sections further each
having cooperating means for connection to each
other.
REFERENCES
The Examiner relies upon the following prior art references:
Muthler
McClennan
Weiblen
Labinka
Cruchandeu1
US 3,317,216
US 3,361,014
US 4,591,300
US 5,181,812
FR 2,261,828
May 2, 1967
Jan. 2, 1968
May 27, 1986
Jan. 26, 1993
Oct. 24, 1975

1 This reference is referred to as “French ‘828” in the Appeal Brief and the
Examiner’s Answer. See, e.g., App. Br. 4; Ans. 5.
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REJECTIONS
The following rejections are before us on appeal:
claims 1-3 under 35 U.S.C. § 102(b) as being anticipated by Labinka;
claims 7 and 9-11 under 35 U.S.C. § 102(b) as being anticipated by
Cruchandeu;
claims 13 and 14 under 35 U.S.C. § 102(b) as being anticipated by
Weiblen;
claims 4-6 under 35 U.S.C. § 103(a) as being unpatentable over
Labinka;
claim 8 under 35 U.S.C. § 103(a) as being unpatentable over
Cruchandeu and Muthler; and
claim 12 under 35 U.S.C. § 103(a) as being unpatentable over
Cruchandeu and McClennan.
ANALYSIS
Rejection of claims 1-3
The Examiner finds that Labinka discloses the guide support of claim
1, including a flange 67 having a gradually angled shoulder as shown in
Figures 1 and 2. Ans. 3. Appellant argues that Labinka does not disclose a
flange including a gradually angled shoulder portion as required by claim 1.
App. Br. 7. Specifically, Appellant indicates that Figure 2 of Labinka shows
a perspective view of the drill guide 54 in partial cross-section, and the
portion of the drawing showing the flange 67 not in cross-section does not
depict a gradually angled shoulder portion. Id. Appellant apparently
concedes that the portion of the flange 67 shown in cross-section appears to
have a gradually angled shoulder, stating the partial cross-section of the
flange 67 “appears somewhat angled only because it is incomplete.” App.
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Br. 8. Appellant also argues that Figure 1 of Labinka “is so small and not to
scale that it is impossible to determine the nature of the shoulder portion.”
Id.
In our view, the portion of Labinka’s Figure 2 shown in cross-section
clearly shows that the flange 67 has a gradually angled shoulder. The fact
that Figure 2 is only a partial, or “incomplete,” cross-section does not detract
from its clear depiction of an angled shoulder. Moreover, we disagree with
Appellant’s contention that the non-sectioned portion of the drawing shows
the flange 67 as lacking a gradually angled shoulder. While this portion of
the drawing may be somewhat cluttered by the presence of phantom lines
depicting the hidden portions of the central opening 70, the curved lines
representing the outside corners of the flange 67 are shown such that the
corner at the end of the cylindrical body member 54 has a smaller diameter
than the other corners. This depicts an angled shoulder, unlike the curved
lines depicting the outside corners of the flat flange 58 that are shown to
have the same diameter. We thus agree with the Examiner that at least
Figure 22 of Labinka shows the flange 67 as having a gradually angled
shoulder.
Appellant also argues that “drawings are not drawn to scale and may
not be relied upon for specific dimensions absent a disclosure in the

2 We agree that the small scale of Labinka’s Figure 1 makes determining the
shape of the flange 67 of guide means 48 difficult. However, we note that
Figure 1 shows another guide means 86 that more clearly shows an end
flange having a gradually angled shoulder. It also appears that guide means
86 is intended to be structurally similar to guide means 48. See Labinka, col.
5, ll. 12-14 (stating “the herein described guide means [i.e., guide means 48]
can support the drill rod intermediate its ends” when beginning discussion of
guide means 86).
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specification.” App. Br. 7-8 (citing Kloster Speedsteel AB v. Crucible Inc.,
793 F.2d 1565, 1571 (Fed. Cir. 1986) overruled by Knorr-Bremse Systeme
Fuer Nutzfahrzeuge GmbH v. Dana Corp., 383 F.3d 1337 (Fed. Cir. 2004);
In re Meng, 492 F.2d 843 (CCPA 1974)). This argument is not persuasive
because, as noted by the Examiner, the drawings of Labinka are relied on
only for the shape that they show, and not scale or dimensions. Ans. 6.
Appellant further relies on Kloster Speedsteel and Meng for the
proposition that “[t]he fact that non-scale drawings appear to disclose a
specific structure cannot anticipate when the public is not taught the
significance of the structure.” Reply Br. 2. Our review of the two cited
decisions does not support Appellant’s position. In Kloster Speedsteel, the
court ruled that anticipation cannot be established by measuring a dimension
in a patent figure. Kloster Speedsteel, 793 F.2d at 1571. In Meng, the court
held that patent drawings showing a limited offset between adjacent product
slices did not teach or suggest an offset sufficient to provide “gripping
portions” as claimed. Meng, 492 F.2d at 847. Neither case stands for the
proposition that patent drawings cannot anticipate structure shown in the
drawings, regardless of whether the public is taught the significance of the
structure. In fact, “a claimed invention may be anticipated . . . by a drawing
in a reference, whether the drawing disclosure be accidental or intentional.”
Id.; see also In re Aslanian, 590 F.2d 911, 914 (CCPA 1979) (“a drawing in
a utility patent can be cited against the claims of a utility patent application
even though the feature shown in the drawing was unintended or
unexplained in the specification of the reference patent.”).
Accordingly, Appellant’s arguments do not apprise us of error, and we
sustain the rejection of claim 1 as being anticipated by Labinka. We also
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sustain the rejection of claims 2 and 3, which depend from claim 1 and for
which Appellant does not advance separate argument.
Rejection of claims 4-6
The Examiner concludes that claims 4-6 would have been obvious
over Labinka. Ans. 4-5. Appellant advances no separate argument in
connection with claim 4, instead relying only on the claim’s dependency
from claim 1 for patentability. App. Br. 9; Reply Br. 3. As we find no
deficiency in the Examiner’s rejection of claim 1 as being anticipated by
Labinka for the reasons discussed supra, we sustain the rejection of claim 4
for the same reasons.
With respect to claims 5 and 6, Appellant argues that the limitations
recited in each of these two claims are not disclosed or suggested by
Labinka. App. Br. 9; Reply Br. 3-4. This argument is not persuasive
because it does not address the Examiner’s rationale for concluding the
claims would have been obvious. The Examiner is not asserting that
Labinka discloses or suggests the subject matter of claims 5 and 6; rather,
the Examiner contends that in light of the teachings of Labinka, one of
ordinary skill in the art would have arrived at the values recited in claims 5
and 6 through routine experimentation. Ans. 4-6. Accordingly, we also
sustain the rejection of claims 5 and 6.
Rejection of claims 7 and 9-11
Independent claim 7 calls for a chip deflector assembly for attachment
to a drill guide comprising (1) a cap member arranged to attach to the drill
guide and (2) a metal disc member arranged to seat in the cap member.
Independent claim 10 calls for a chip deflector cap for a drill guide
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comprising (1) a body portion having means for attachment to a drill guide
and (2) means for receiving a disk member in the cap.
The Examiner finds that Cruchandeu discloses “a chip deflector/cap
1” having “a sleeve/annular ring 6,” “a drill guide 2, 3,” and “a stamped
metal disc 16 that seats in the cap member.” Ans. 4. The Examiner’s
position thus appears to be that element 1 and/or element 6 of Cruchandeu
corresponds to the cap member of claim 7 and the body member of claim 10,
elements 2, 3 correspond to the drill guide, and element 16 corresponds to
the disc member.
The English Abstract of Cruchandeu indicates that element 1 is a ring
that serves as an axial guide for a bit, element 2 is a fixed outer sleeve within
which the ring 1 rotates freely, and element 3 is a bearing race. As such, the
Examiner has erred in finding that the outer sleeve 2 and bearing race 3 of
Cruchandeu define a drill guide. To the extent Cruchandeu discloses a drill
guide, it is the ring 1. We agree with Appellant that Cruchandeu does not
disclose a cap member arranged to attach to a drill guide and a metal disk
member constructed and arranged to seat in the cap member. App. Br. 11.
The disc 16 is seated in the ring 1, but the ring 1 is not arranged to attach to
a drill guide because it is the drill guide. In other words, Cruchandeu
discloses a single structural element—the ring 1—that functions as a guide
and receives the disc 16. Accordingly, Cruchandeu fails to disclose a cap
member arranged to attach to a drill guide as called for by claim 7.
Cruchandeu also fails to disclose a body portion having means for
attachment to a drill guide as called for by claim 10.
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We thus do not sustain the Examiner’s rejection of claims 7 and 10,
and of claims 9 and 11 depending therefrom, as being anticipated by
Cruchandeu.
Rejections of claims 8 and 12
The Examiner’s rejections of claim 8 as obvious over Cruchandeu and
Muthler and claim 12 as obvious over Cruchandeu and McClennan each rely
on the same erroneous finding noted supra that Cruchandeu discloses a cap
member or body portion arranged to attach to a drill guide. Neither Muthler
nor McClennan cures this deficiency of Cruchandeu. Accordingly, we do
not sustain the Examiner’s decision to reject claim 8 as obvious over
Cruchandeu and Muthler and claim 12 as obvious over Cruchandeu and
McClennan for the same reasons stated supra with respect to claims 7 and
10.
Rejection of claims 13 and 14
The Examiner relies on two different interpretations in finding that
Weiblen anticipates independent claim 13. First, the Examiner finds “[d]rill
guide 21 has a stabilizer assembly 24 having male section 48, female section
34, and a screw/thread means 49 for connecting them together.” Ans. 4.
Second, the Examiner finds “[d]rill guide 22 has a stabilizer assembly 1
having male section 24, female section 21, and a screw/thread means 35 for
connecting the male and female sections together.” Id.
Weiblen discloses a lubricating-oil supply device (LOSD) 1 for a
deep-drilling machine having a tool 2. Weiblen, col. 2, ll. 59-61. The
LOSD 1 includes a housing 21 that is secured to a carrier plate 22 and a
stuffing box 24 threaded onto the housing 21. Id. at col. 3, ll. 21-30. The
stuffing box 24 includes a bushing 34 with an external thread 35 and a
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bearing box 48 disposed in the bushing 34 and held in position by a threaded
pin 49. Id. at col. 4, ll. 3-16; fig. 2.
Regarding the first interpretation, the Examiner states it is reasonable
to call the housing 21 a “drill guide” because the tool extends through it, and
it is reasonable to call stuffing box 24 a “stabilizer assembly” because it
prevents lateral deflection of the tool. Ans. 9. The Examiner also asserts
that “it is reasonable to say that male member 48 is attached to both drill
guide 21 and female member 34.” Id. However, claim 13 requires that the
male section and the female section both have a “means for attachment to a
drill guide.” Even if the Examiner’s statements are correct3, the Examiner
has not provided any reasoning as to how both the “male member 48” and
the “female member 34” have means for attachment to a drill guide (i.e., the
housing 21). Thus, the Examiner has not established by a preponderance of
the evidence that Weiblen anticipates claim 13 based on the first
interpretation.
The Examiner’s second interpretation of Weiblen is also flawed. In
this case, there is no showing that the “male section 24” and the “female
section 21” both have the claimed means for attachment to a drill guide. The
Examiner does not provide any reasoning to establish that the stuffing box
24 and the housing 21 both have means for attachment to the carrier plate
22. Moreover, we disagree with the Examiner that it is reasonable to call the
carrier plate 22 a drill guide because “it aids in locating” the tool. Ans 10.

3 Given Weiblen’s failure to disclose male and female sections both having a
means for attachment to a drill guide, we make no judgment with respect to
the Examiner’s findings that the housing 21 is a “drill guide,” the stuffing
box 24 is a “stabilizer assembly,” and the bearing box 48 is attached to both
the housing 21 and the bushing 34.
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The carrier plate 22 is connected to the machine frame and supports the
housing 21. Weiblen, col. 3, ll. 21-23. The plate’s role in “locating”
Weiblen’s tool 2 is tenuous at best and does not suggest any role in guiding
the tool.
For the above reasons, we do not sustain the Examiner’s rejection of
claim 13, and of claim 14 depending therefrom, as being anticipated by
Weiblen.
DECISION
We affirm the decision of the Examiner rejecting claims 1-6.
We reverse the decision of the Examiner rejecting claims 7-14.
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-IN-PART

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