Ex Parte Gillard

Patent Trial and Appeal Board

Sep 27, 2017

13754033 (P.T.A.B. Sep. 27, 2017)

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.
13/754,033 01/30/2013 Laurent GILLARD 243245.000002 2194
6980 7590 09/29/2017
TROUTMAN SANDFRS T T P
EXAMINER
600 Peachtree Street CASSIDY, BRIAN L
Suite 5200
Atlanta, GA 30308 ART UNIT PAPER NUMBER
3618
NOTIFICATION DATE DELIVERY MODE
09/29/2017 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):
j im. schutz @ troutmansanders .com
ryan. schneider@ troutmansanders.com
patents @ troutmansanders. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAURENT GILLARD1
Appeal 2016-003238
Application 13/754,033
Technology Center 3600
Before CARLA M. KRIVAK, CAROLYN D. THOMAS, and
AMBER L. HAGY, Administrative Patent Judges.
KRIVAK, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 3—6, and 8—15. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Appellant’s invention is directed to a “Motor Vehicle Front-End
Carrier Comprising Oblong Opening and Cooling Module” (Spec. 1, Title)
(emphasis omitted).
1 Appellant identifies FAURECIA BLOC AVANT, of Nanterre, FRANCE,
as the real party in interest. App. Br. 1.
Appeal 2016-003238
Application 13/754,033
Independent claim 1, reproduced below, is exemplary of the subject
matter on appeal.
1. A motor vehicle front-end carrier comprising:
a supporting structure intended to be attached to side rails
of a motor vehicle chassis, the supporting structure comprising a
rear face, a front face opposite the rear face, and an opening for
allowing an air flow from the front face towards the rear face,
and
a cooling module thermally exchanging between a fluid
and the air flow, the cooling module extending across the
opening,
wherein the opening has an oblong shape in projection on
a plane perpendicular to a longitudinal direction of the motor
vehicle, the oblong shape extending along a transverse direction,
perpendicular to the longitudinal direction, more than along a
vertical direction, the oblong shape having a perimeter
comprising an upper line along the vertical direction,
approximately forming an arch, and a lower line along the
vertical direction, approximately forming an upside-down arch,
wherein the cooling module comprises an oblong shape in
projection on the plane, the oblong shape of the cooling module
approximately matching the oblong shape of the opening in
projection on the plane, and
wherein the cooling module comprises a radiator
extending along the plane.
REFERENCES and REJECTIONS
The Examiner rejected claims 1, 3—6, 8, and 11—13 under 35 U.S.C.
§ 103(a) based upon the teachings of Citroen (FR 2 912 371 Al; publ. Aug.
15, 2008), Schreiner (US 6,196,169 Bl; iss. Mar. 6, 2001), and Summers
(US 1,822,068; iss. Sept. 8, 1931).
The Examiner rejected claims 9, 10, 14, and 15 under 35 U.S.C.
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Appeal 2016-003238
Application 13/754,033
§ 103(a) based upon the teachings of Citroen, Schreiner, Summers, and
Tepas (US 5,671,803; iss. Sept. 30, 1997).
ANALYSIS
Appellant contends the Examiner erred in finding the combination of
Citroen, Schreiner, and Summers fails to disclose, teach, or suggest the
cooling module having an oblong shape approximately matching the oblong
shape of the opening in the supporting structure (App. Br. 5). Particularly,
Appellant contends neither Citroen nor Schreiner teach a non-rectangular
shaped radiator, Citroen does not discuss airflow, one of ordinary skill in the
art would not be “motivated to reduce the air flow area by utilizing an
oblong opening,” and the Examiner uses improper hindsight in making the
combination (App. Br. 5—6). With respect to the hindsight argument,
Appellant asserts Summers does not belong to the automotive field, but
rather to appliances and there is no teaching about an oblong shape of its
condenser (App. Br. 6). We do not agree.
We agree with and adopt the Examiner’s findings as our own. We
agree Citroen is cited for the supporting structure having an oblong shaped
opening (Ans. 9), Schreiner is cited for a cooling module extending across
an opening and is a radiator (Ans. 3, 9), and Summers teaches an oblong
cooling module (Ans. 4, 9). The Examiner then finds it is known to place a
radiator within an opening as taught by Citroen; thus, it would not have been
beyond the skill of an ordinarily skilled artisan to place a radiator/cooling
module within such an oblong opening taught by Summers (Ans. 11).
Appellant’s Appeal Brief provides attorney argument without persuasive
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Application 13/754,033
reasoning or rationale to support their argument as to why the Examiner
erred.
Appellant’s Reply Brief provides new arguments, which we do not
consider as they could have been presented in the Appeal Brief. Even if we
consider the arguments presented in the Reply Brief, we find them
unpersuasive. As to Appellant’s argument that Schreiner does not teach or
suggest a front end carrier (Reply Br. 2), we note Citroen was cited for this
claim limitation. As to Appellant’s argument that Citroen does not disclose
air intake (Reply Br. 3), Citroen was relied on for the supporting structure
and further, claim 1 recites “air flow” not air intake. Appellant’s argument
that Summers is inapplicable because it is not in the automotive field, but
rather is a refrigeration coil, and, thus, does not teach a “cooling device”
suitable for a moving vehicle (Reply Br. 3—4), is also unpersuasive. The
claims merely recite a “cooling module,” which reads on Summers disclosed
“condenser.”
Appellant’s hindsight argument fails to persuasively illustrate how
any such knowledge was gleaned only from Appellant’s disclosure. The
U.S. Supreme Court guides that “[a] factfinder should be aware, of course,
of the distortion caused by hindsight bias and must be cautious of arguments
reliant upon ex post reasoning.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 417,
421 (2007) (citing Graham v. John Deere Co., 383 U.S. 1, 36 (1966)).
Nevertheless, the Court has also qualified the issue of hindsight by stating
“[rjigid preventative rules that deny factfinders recourse to common sense,
however, are neither necessary under our case law nor consistent with it.”
KSR, 550 U.S. at 421.
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Appeal 2016-003238
Application 13/754,033
Here, we see the post-KSR hindsight question before us as a balancing
test. We consider the question of whether the Examiner’s proffered
combination of references is merely:
(1) “the predictable use of prior art elements according to their
established functions” (KSR, 550 U.S. at 417), consistent with common
sense', or,
(2) whether an artisan would have reasonably combined the cited
references in the manner proffered by the Examiner but for having the
benefit of Appellant’s claims to use as a guide.2
After reviewing the respective teachings and suggestions of the cited
references set forth by the Examiner, we find the evidence answers the first
prong of the balancing test in the positive, leading us to conclude the
Examiner has not relied on hindsight. Appellant merely states the teachings
of the references are disparate and the combination is unsupported, with no
further argument or evidence to support the assertion. The Examiner’s
rationale is supported by articulated reasoning with a rational underpinning
2 See In re Cree, Inc., 818 F.3d 694, 702 n.3 (Fed. Cir. 2016) (where the
Board applied the hindsight balancing test):
Cree argues that the Board's rejection was based on
“impermissible hindsight.” That argument, however, is
essentially a repackaging of the argument that there was
insufficient evidence of a motivation to combine the references.
It is fully answered by the Board’s observation that “the weight
of the evidence shows that the proffered combination is merely a
predictable use of prior art elements according to their
established fimctions[;]”
see also Ex parte Cree, Inc., Appeal 2014-007890, 2014 WL 6664878, at
*17 (PTAB Nov. 21,2014).
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Appeal 2016-003238
Application 13/754,033
for the combination (Ans. 4, 11). Therefore, we find the Examiner’s
combination to be proper.
For the above reasons, we are not persuaded of Examiner error. We
find the weight of the evidence supports the Examiner’s ultimate legal
conclusion of obviousness, and, therefore, sustain the Examiner’s rejection
of claims 1, 3—6, 8, and 11—13.
Appellant argues the combination of Citroen, Schreiner, Summers,
and Tepas also does not teach or suggest claims 9, 10, 14, and 15 for the
reason that Tepas does not teach or suggest any of the elements missing
from Citroen, Schreiner, and Summers. As we find there are no deficiencies
in the references, we sustain the Examiner’s rejection of claims 9, 10, 14,
and 15.
DECISION
The Examiner’s decision rejecting claims 1, 3—6, and 8—15 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)(l)(iv).
AFFIRMED
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