11726792 (P.T.A.B. Sep. 25, 2013)

Ex Parte Haenbeukers et al

Patent Trial and Appeal BoardSep 25, 2013

11726792 (P.T.A.B. Sep. 25, 2013)

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. 11/726,792 03/23/2007 Casper Haenbeukers T07-017A 9082 26683 7590 09/25/2013 THE GATES CORPORATION IP LAW DEPT. 10-A3 1551 WEWATTA STREET DENVER, CO 80202 EXAMINER AUNG, SAN M ART UNIT PAPER NUMBER 3657 MAIL DATE DELIVERY MODE 09/25/2013 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 CASPER HAENBEUKERS and MICHAEL KAMM ____________________ Appeal 2011-011742 Application 11/726,792 Technology Center 3600 ____________________ Before: WILLIAM V. SAINDON, JILL D. HILL, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-011742 Application 11/726,792 2 STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 1 and 4-6 under 35 U.S.C. § 102(b) as being anticipated by Dinca (US 6,165,091; iss. Dec. 26, 2000). Claims 2 and 3 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Claim 1 is the sole independent claim and is reproduced below: 1. A tensioner comprising: a shaft (10) having a shaft portion (12) engagable with a mounting surface; a pivot arm (50) pivotally engaged with the shaft about an axis AA; a plate (70) fixedly attached to the shaft, the plate disposed on an end of the shaft opposite the shaft portion, the plate comprising a stop (71) for limiting a pivot arm pivot range; a torsion spring (60) engaged between the pivot arm and the plate for biasing the pivot arm, the torsion spring disposed opposite the shaft portion and immediately adjacent the plate; a pulley (40) journalled to the pivot arm, the center of rotation of the pivot arm (A-A) disposed eccentrically from the center of rotation (B-B) of the plate; the pivot arm having a tab (55) which cooperates with a portion (74) on the plate to indicate a relative position of the pivot arm with respect to the plate during installation, the tab does not contact the plate, the pivot arm comprising first and second protrusions (52,53) for cooperatively engaging the stop; and a tool receiving portion (75) on the plate for rotationally adjusting the plate during installation. Appeal 2011-011742 Application 11/726,792 3 OPINION Appellants argue claims 1 and 4-6 as a group. We select claim 1 as representative. Claims 4-6 stand or fall with claim 1. The Examiner finds that Dinca discloses each of the features recited in claim 1. Ans. 3-4. Specifically, the Examiner explains that the cylindrical tubular portion (58) of the valve assembly (24) in Dinca discloses the claimed shaft and that the portion of the cylindrical tubular portion (58) above the upper annular groove (101) forms the claimed shaft portion and is engageable with a mounting surface formed by the inner circumference of the closure portion (44) via the journal bearing (112) and O-ring (108). Ans. 3. Appellants argue that the inner circumference of the closure portion (44) cannot properly be considered the claimed mounting surface because it is internal to the tensioner assembly. App. Br. 6. Appellants explain that while it would be reasonable to conclude that the shaft portion (12) in Appellants’ Figure 1 would be used to attach the tensioner to an external mounting surface such as a vehicle engine, it would not be reasonable to consider the inner circumference of the closure portion (44) in Dinca to be a mounting surface because “using the surface in member 44 would not allow one to install the device on a mounting surface as claimed.” App. Br. 7. Appellants contend that the broadest reasonable interpretation requires the phrase “mounting surface” to be construed as some unspecified external surface such as, but not limited to, a vehicle engine, but do not offer any specific ordinary and customary meaning for “mounting surface.” App. Br. 7, Reply Br. 2-4. Appeal 2011-011742 Application 11/726,792 4 Initially, we note that the claim does not specify anything about the mounting surface. In fact, the mounting surface is not even positively recited in the claim. As the Examiner correctly notes, the claim simply requires that the shaft portion be capable of engaging a mounting surface, somewhere. See Ans. 10. The claim does not require that the mounting surface be any specific structure or at any specific location. Claims must be given their broadest reasonable interpretation consistent with the specification and consistent with the interpretation those skilled in the art would reach. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Appellants contend that the Specification and Dinca each make clear that the meaning of “mounting surface” requires some surface external to the closure portion (44) in Dinca. App. Br. 6-7; Reply Br. 2-4. With regard to Appellants’ argument that the Specification in some way defines the phrase “mounting surface,” we disagree. The Specification simply explains that “[p]ortion 12 engages a mounting surface (not shown)” and “[f]astener 80 is used to secure the tensioner to a mounting surface such as a vehicle engine.” Spec., p. 4, ll. 9-10 and p. 5, ll. 10-11. This is a single example of the mounting surface including a vehicle engine and does not impart a special meaning to the phrase “mounting surface.” See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (an inventor must define specific terms with “reasonable clarity, deliberateness, and precision” in order to be his own lexicographer, as opposed to merely describing “in a general fashion certain features”). Appellants even acknowledge this fact, noting that “had Applicant claimed mounting the tensioner to a vehicle Appeal 2011-011742 Application 11/726,792 5 engine then this would unnecessarily restrict claim coverage to a vehicle engine mounted tensioner.” Reply Br. 4. With regard to Appellants’ statement that Dinca supports some special (but unspecified) meaning of “mounting surface” in the art, the discussion in Dinca relied on by Appellants is also simply a use of the phrase in a single example. See Reply Br. 4 (citing Dinca, col. 8, ll. 37-42). Appellants have failed to persuade us that considering the inner circumference of the closure portion (44) in Dinca as a “mounting surface” is inconsistent with the Appellants’ Specification or with the interpretation one skilled in the art would reach. Appellants do not provide any further arguments attacking the Examiner’s findings. See App. Br. 4-9 and Reply Br. 2-4. Thus, we are not apprised of error and we sustain the rejection of claims 1 and 4-6. DECISION We AFFIRM the Examiner’s decision to reject claims 1 and 4-6. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED rvb