Ex Parte Ginzel et al

Board of Patent Appeals and Interferences

Aug 22, 2012

10586077 (B.P.A.I. Aug. 22, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/586,077 08/29/2006 Lothar Ginzel 5255-96PUS 9440
27799 7590 08/22/2012
Cozen O'Connor
277 Park Avenue, 20th floor
NEW YORK, NY 10172
EXAMINER
O BRIEN, JEFFREY D
ART UNIT PAPER NUMBER
3677
MAIL DATE DELIVERY MODE
08/22/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte LOTHAR GINZEL and VOLKER BIENEK
________________

Appeal 2010-004837
Application 10/586,077
Technology Center 3600
________________

Before JOHN C. KERINS, MICHAEL L. HOELTER and
HYUN J. JUNG, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-004837
Application 10/586,077

2
STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 18-35 (Br. 2). Claims 1-17 have been cancelled (Br. 2).
We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

THE CLAIMED SUBJECT MATTER
The claimed subject matter pertains to a door closer in a longitudinal
housing having a spring extending orthogonally to the housing and further a
pump for pumping fluid to or from a first space within the housing (Spec. ¶¶
[0004] and [0032]. Sole independent claim 18 is representative of the claims
on appeal and is reproduced below:
18. A door closer comprising:
a housing having a longitudinal housing direction;
a shaft supported in the housing and connectable to a
door;
a brake piston supported in the housing and charging the
shaft, the brake piston and the housing defining a first space
away from the shaft;
a blocking member;
a first spring loading the blocking member and extending
orthogonally to the longitudinal housing direction; and
a pump for pumping a brake fluid at least one of to and
from the first space, the pump being disposed in a second space
formed between the housing and the first spring,
wherein the shaft is lockable in a position by the blocking
member.

REFERENCES RELIED ON BY THE EXAMINER
Tillmann US 4,658,468 Apr. 21, 1987
Fischbach US 2003/0213092 A1 Nov. 20, 2003

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Application 10/586,077

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THE REJECTION ON APPEAL
Claims 18-35 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Tillmann and Fischbach (Ans. 3).

ANALYSIS
Appellants argue independent claim 18 under a first heading (Br. 4)
and dependent claims 19-35 under a different heading (Br. 9). Appellants do
not present separate arguments for the dependent claims other than to state
that they depend “from allowable independent claim 18 and thus are each
allowable therewith” (Br. 9). Accordingly, dependent claims 19-35 stand or
fall with independent claim 18.
Claim 18 requires a housing having a longitudinal direction and a first
spring “extending orthogonally to the longitudinal housing direction.”
Claim 18 further requires “a pump for pumping a brake fluid at least one of
to and from the first space” defined by the housing and a brake piston.
The Examiner relies on Tillmann for disclosing all the features of
claim 18 except for (a) the first spring extending orthogonally to a
longitudinal housing direction and (b) the pump (Ans. 4). Concerning the
orthogonal arrangement of the spring, the Examiner concludes that it would
have been obvious to rearrange Tillmann’s spring member “so as to be
orthogonal to the longitudinal housing direction” because it involves only
routine skill in the art. The Examiner also states that the different
components “would maintain the same function by rearranging the parts to
be located orthogonally to the longitudinal direction of the housing” and
further submits “that Sittmann, US 3,742,553 is shown as evidence that it is
old and well known in the art to arrange a spring member (Fig. 1:18) of a
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door closer orthogonally to a longitudinal housing direction” (Ans. 9). As
for the pump, the Examiner relies on Fischbach for teaching a pump for
“pumping brake fluid to a first space (9) and pumping brake fluid from the
first space” (Ans. 4). The Examiner finds that it would have been obvious to
apply Fischbach’s pump to Tillmann’s door closure “in order to allow for
motorized opening assistance of the door” (Tillmann is not motorized) (Ans.
4).
Appellants contend that the “claimed invention requires more than a
mere rearranging of the elements” and further that there is no teaching or
suggestion “as to how Tillmann can be modified to include a brake fluid
pumping system” (Br. 4). Regarding the matter of rearranging the spring
elements to be orthogonal, Appellants contend that to accomplish such a
rearrangement, various components of Tillmann would need to be modified,
reconstructed, redesigned and/or repositioned and that such a rearrangement
would cause interference between various components (Br. 5-6).
Appellants cite no authority to the effect that the test for determining
obviousness in the context of rearranging components is that there must be
no component modification, etc., nor do Appellants contend that their
purported more compact and aesthetic appearance is beyond the skill of one
skilled in the art (Br. 7). Tillmann also addresses the importance of
appearance (2:1-2, 2:17-18 and 2:40-41) and we are instructed that
obviousness does not require absolute predictability, only a reasonable
expectation of success (In re O'Farrell, 853 F.2d 894, 903 (Fed. Cir. 1988)).
Sittmann is cited as evidence of the successful ability to orientate springs
orthogonally in the door closure art (Ans. 9) and Appellants do not contend
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Application 10/586,077

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otherwise. Accordingly, we are not persuaded that the Examiner’s finding
regarding the ability to rearrange Tillmann’s spring is in error.
Regarding the matter of applying Fischbach’s pump to Tillmann’s
door closure, Appellants contend that “[n]either Tillmann nor Fischbach
teach or suggest how Tillmann can be modified to include a brake fluid
pumping system” and that modification of the different components will be
required (Br. 8). More succinctly, “one skilled in the art would not have
recognized that the results of the combined Tillmann and Fischbach were
predictable” (Br. 8).
We disagree. Tillmann teaches a “flow restrictor 43” that permits
liquid to be expelled from chamber 38 (Tillmann 6:33-40, 7:57-59 and Fig.
3). Fischbach discloses valve 20 in a duct for changing flow diameter
(Fischbach ¶ [0065], Fig. 1). Fischbach also discloses a “motorized opening
assist” embodiment which is “basically constructed as the drive system
shown in FIG. 1” with the exception that “a hydraulic pump 44 is installed
in the overload duct instead of the electrically controllable valve” (Fischbach
¶ [0083], Fig. 7). In view of Fischbach’s teachings of the ability to replace a
valve with a pump for motorized assist, the Examiner finds it obvious to
apply Fischbach’s pump to Tillmann’s door closure (i.e. in lieu of
Tillmann’s flow restrictor 43) “in order to allow for motorized opening
assistance of the door” (Ans. 4). Based on the above, we disagree with
Appellants’ contention and instead are of the opinion that one skilled in the
art would have recognized that the results of the combination of Tillmann
and Fischbach were predictable.
Appellants also contend that Fischbach does not have the claimed
“first space” to which brake fluid is pumped either to or from because
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“Fischbach does not have a brake piston” (Br. 8). This contention is not
persuasive because Fischbach was not relied on for having a brake piston,
instead, Fischbach was relied on by the Examiner for teaching “a pump”
(Ans. 4). Further, while the Examiner has identified Fischbach’s chamber 9
as “a first space,” the Examiner has also identified Tillmann’s chamber 38
(Ans. 4) as “a first space” and Appellants do not apprise us of any error
concerning Tillmann’s chamber 38 corresponding to the claimed “first
space” (Ans. 4). Accordingly, we are not persuaded by Appellants’
contention.
Based on the record presented, Appellants have not persuaded us of
Examiner error. We sustain the rejection of claims 18-35.

DECISION
The rejection of claims 18-35 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

MP