Ex Parte Fukazawa et al

Patent Trial and Appeal Board

Nov 25, 2013

10681253 (P.T.A.B. Nov. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte KAZUMASA FUKAZAWA,
MASAYUKI MUKAINO, and DAVID ANDREWS
____________________

Appeal 2011-007204
Application 10/681,253
Technology Center 3600
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Before: CHARLES N. GREENHUT, PATRICK R. SCANLON, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

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Application 10/681,253
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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
19-26, 29, 30, 32-35 and 37-48. App. Br. 6. We have jurisdiction under 35
U.S.C. § 6(b).
We reverse.

The claims are directed to a work vehicle with improved forward
visibility. Claim 19, reproduced below, is illustrative of the claimed subject
matter:
19. A bulldozer comprising:
a vehicle frame having a front end and a rear end with a
center longitudinal axis;
a pair of tracks disposed on left and right sides of the
center longitudinal axis of the bulldozer, respectively, for
supporting the vehicle frame, with the tracks extending
rearwardly of the rear end of the vehicle frame to form a
cooling module recess that is disposed laterally between the
tracks and at a rear end portion of the frame along the center
longitudinal axis;
a forwardly positioned operator seat secured to the
vehicle frame at a location between the front and rear ends in
front of the cooling module recess;
a bulldozer blade disposed in front of the front end of the
vehicle frame and operatively coupled to the vehicle frame, the
bulldozer blade including a top center portion disposed along
the center longitudinal axis of the bulldozer;
a front mounted engine disposed at a front portion on the
vehicle frame along the center longitudinal axis of the bulldozer
that is in front of the operator seat and behind the bulldozer
blade;
an engine cover covering the front mounted engine at the
front portion of the vehicle frame, the engine cover being
downwardly angled towards the bulldozer blade along the
center longitudinal axis of the bulldozer and aligned vertically
above the front mounted engine, the operator seat, the engine
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cover and the bulldozer blade being disposed such that, when a
lowest point of the bulldozer blade and a lowest point of the
tracks are generally on a horizontal plane, the top center portion
of the bulldozer blade is visible over a top sloped surface of the
engine cover;
a first tank module disposed on a rear of a first lateral
side of the bulldozer; and
a cooling module fluidly coupled to the front mounted
engine for cooling the front mounted engine, the cooling
module being coupled to the rear end portion of the vehicle
frame within the cooling module recess formed between the
tracks, at least an upper end of the cooling module being
recessed forwardly from a rear end of the first tank module, and
a rearmost end of the cooling module being disposed forwardly
of a rear end of the tracks.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sheidler
Akashima
Pack
Yoshida1
US 6,468,153 B2
US D483,043 S
US 6,793,028 B2
JP 51-063032
Oct. 22, 2002
Dec. 2, 2003
Sep. 21, 2004
May 18, 1976

REJECTIONS
Claims 19-21, 23-26, 29, 30, 32-35, and 37-48 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Applicant’s Prior art shown in
Figure 1 (AAPA) in view of Pack and Akashima. Ans. 4.
Claims 22 and 42 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over AAPA, Pack, Akashima and Sheidler. Ans. 7.

1 References to Yoshida are to the English language translation entered
March 11, 2010, PTO 2010-2446.
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Application 10/681,253
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Claims 19-21, 23-26, 29, 30, 32-35 and 37-48 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Yoshida, AAPA and Akashima.
Ans. 8.
Claims 22 and 42 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yoshida, AAPA, Akashima and Sheidler. Ans. 11.

OPINION
The Examiner found the basic bulldozer of independent claims 19, 35
and 44 disclosed in the AAPA. Ans. 4. The Examiner found that either Pack
or Yoshida teaches repositioning the cooling system behind a work vehicle
cab. Ans. 4, 8. Akashima is cited by the Examiner as teaching positioning of
tanks on either side of a work vehicle. Ans. 5, 9. We need not reach the
issues related to the Examiner’s application of Sheidler.
It is not disputed that the basic technique of rearranging the cooling
unit behind a cab is taught by Pack or Yoshida. However, obviousness is not
determined based on the gist of the invention. W.L. Gore & Assocs., Inc. v.
Garlock, Inc., 721 F.2d 1540, 1548 (Fed. Cir. 1983). All claim limitations
must be considered. In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970).
Each of the independent claims calls for the cooling module to be
within a recess formed forwardly of the rear of the tracks and/or tank(s). The
Examiner does not take the position that forming such a recess would have
been obvious in and of itself. Rather, the Examiner reasons that it would
have been obvious to shift the AAPA or Yoshida cabs forward, thereby
creating a recess according to the claims. Ans. 5, 9, 12-13. The Examiner
advances three rationales in support of this proposed modification. Id. First,
the Examiner finds it likely that Pack’s improved vehicle underwent such a
modification because, if it did not, the original vehicle engine enclosure 70
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would have intersected the cab’s front window. Ans. 12. Second, the
Examiner reasons that such a modification would have been obvious in order
to account for imbalances that would occur by shifting the radiator
backwards. Ans. 12-13. Third, the Examiner finds cab rearrangement to be
mere matter of design choice within the capabilities of one skilled in the art,
and concludes that one would have rearranged the cab to provide a better
view or protect the cooling module. Ans. 12-13.
The weakness in the Examiner’s first position is that there is no
evidence of record suggesting that the height of Pack’s front window is not
different from the side windows or has not changed with the change in
enclosure height. There is also no evidence of record demonstrating that the
intersection of an engine enclosure top with the front window is considered
an unacceptable design. The Examiner has not cited any evidence in support
of the Examiner’s second position concerning imbalances created by moving
the cooling units of the AAPA. Appellants have entered rebuttal evidence
indicating that a rearward shift of the AAPA cooling system would not have
created an imbalance significant enough to warrant shifting the cab forward.
Declaration of Masayuki Mukaino (hereafter “Mukaino Declaration”), para.
5 (July 1, 2010) (App. Br. App’x 8). Yoshida teaches that the balance
created by the cooling units’ rearward location is, in fact, desirable. Yoshida
p. 5, ll. 1-4; Mukaino Declaration, para. 3. The Examiner’s third position,
that the rearrangement of the cab is within the level of skill in the art and
merely a design choice, is also lacking any evidentiary support. While the
Examiner may have expertise in the claimed subject matter, this cannot take
the place of concrete evidence supporting any of the challenged core factual
findings upon which a patentability determination is made. In re Zurko, 258
F.3d 1379, 1386 (Fed. Cir. 2001).
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Turning to Akashima, Appellants, citing the utility application from
which Akashima claims priority, have established that one familiar with the
art would have understood Akashima’s compartments to be one fuel tank
and one battery compartment. Mukaino Declaration, para. 6 (citing Exhibit
C). Appellants contend that the broadest reasonable interpretation of the
term “tank” in light of the Specification is confined to a compartment
holding a liquid. App. Br. 31-32. Appellants further contend that even if
Akashima’s compartments were considered “tanks” Akashima shows
nothing more, particularly regarding placement of a cooling unit in between
or forwardly of them. Both of Appellants’ contentions regarding Akashima
stand uncontroverted.
Turning to the secondary considerations of record, the Examiner
concluded:
In this case, both the Pack reference and the Yoshida reference
disclose moving the radiator on a work vehicle to the rear of the
vehicle thereby allowing the front hood of the vehicle to be
slanted down for increased visibility. Both the Pack reference
and the Yoshida reference solved the problem in work vehicle
visibility and did so in the same manner as appellant’s current
invention. The fact that these solutions may or may not have
been marketed may be due to factors such as lack of interest or
lack of appreciation of an invention’s potential or marketability
rather than want of technical know-how . . . .
. . . .
. . . The fact is that both Yoshida and the present
invention teach moving the radiator to the rear of the bulldozer
so that the hood can be angled down for increased visibility.
Whether the invention of Yoshida or anyone else was marketed
or utilized does not change the fact that it was invented by
another.
Ans. 14-15.
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As discussed above, the claims define bulldozers having cooling
modules located in a specific manner, not just moved “to the rear.” The
Examiner’s case for obviousness suffers from the weaknesses discussed
above concerning the limitations relating to the provision of a cooling
module recess by moving the cab forward. This must be weighed along with
the evidence of secondary considerations furnished by Appellants. See In re
Eli Lilly & Co., 902 F.2d 943, 945 (Fed. Cir. 1990). There is significant
evidence of industry praise associated with this specific claimed feature. See,
e.g., Rave Review for Komatsu’s D51 (Submitted July 28, 2008) (App. Br.
App’x 2); Top 100 New Products of 2007 (Submitted July 28, 2008) (App.
Br. App’x 3); High visibility grunt (Submitted Feb. 4, 2009) (App. Br.
App’x 6). This praise tends to indicate that the invention was not obvious.
See, e.g., Power-One, Inc. v. Artesyn Techs., Inc., 599 F.3d 1343, 1352 (Fed.
Cir. 2010).
In light of the lack of evidence provided by the Examiner and the
substantial evidence furnished by Appellants we conclude that the evidence
for obviousness does not outweigh the evidence against. Thus, the
Examiner’s rejections are reversed.

DECISION
The Examiner’s rejections are reversed.

REVERSED

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