10221297 (B.P.A.I. Jan. 31, 2012)

Ex Parte Haussecker et al

Board of Patent Appeals and InterferencesJan 31, 2012

10221297 (B.P.A.I. Jan. 31, 2012)

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. 10/221,297 12/16/2002 Walter Haussecker 2260 9394 7590 01/31/2012 Striker Striker & Stenby 103 East Neck Road Huntington, NY 11743 EXAMINER LUONG, VINH ART UNIT PAPER NUMBER 3656 MAIL DATE DELIVERY MODE 01/31/2012 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 WALTER HAUSSECKER and MARCO KRAUTH ____________ Appeal 2009-012884 Application 10/221,297 Technology Center 3600 ____________ Before JOHN C. KERINS, GAY ANN SPAHN, and EDWARD A. BROWN, Administrative Patent Judges. SPAHN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Walter Haussecker and Marco Krauth (Appellants) seek our review under 35 U.S.C. § 134 of the Examiner’s rejection of claims 18, 24, 38, and 39. Appellants cancelled claims 1-17, 19-23, and 25-37. We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2009-012884 Application 10/221,297 2 The Invention The claimed invention is directed to a transmission-drive unit especially used for a power window drive in the door of a motor vehicle. Spec. 1, 4. Claim 18, reproduced below, is illustrative of the subject matter on appeal. 18. A transmission-drive unit (10) in a motor vehicle, comprising: a housing (14) having an opening (26) and a cap (34), wherein the housing is a transmission housing, wherein disposed on the cap (34) are at least two guide lugs (36), wherein said at least two guide lugs are thrust under ribs (29) formed on the housing for closing the housing (14); and wherein disposed perpendicular to the cap (34) is a shaft (16), on which a worm wheel (18) and a slaving element (22) are disposed, which are supported axially and/or radially by means of the cap (34), wherein formed onto the housing (14) is a sealing face (30), against which the cap (34) is pressed via the ribs (29) and the guide lugs (36), and wherein the sealing face (30) on the housing (14) and/or the cap (34) is coated on an inside surface, at least in an outer circumferential region, with a rubberlike material (48). Br. 13. Appeal 2009-012884 Application 10/221,297 3 The Rejections The following Examiner’s rejections are before us for review.1 Claims 18, 24, 38, and 39 are rejected under 35 U.S.C. § 103(a) as unpatentable over Fenelon (US 5,653,144, iss. Aug. 5, 1997) and Jennrich (US 5,460,439, iss. Oct. 24, 1995). Ans. 3-5. Claims 18, 24, 38, and 39 are rejected under 35 U.S.C. § 103(a) as unpatentable over Torii (US 6,229,233 B1, iss. May 8, 2001) and Jennrich. Ans. 5-6. Claims 18, 24, 38, and 39 are rejected under 35 U.S.C. § 103(a) as unpatentable over Torii and Reutter (US 5,071,020, iss. Dec. 10, 1991).2 Final Rej. 6-7. 1 Under the heading “Grounds of Rejection to be Revi[ew]ed on Appeal,” Appellants list as their first ground of appeal whether the Examiner properly objected to the drawings under 37 C.F.R. § 1.83(a). Appellants’ challenge to the Examiner’s objection to the drawings relates to a petitionable matter and not to an appealable matter, and thus is not within the jurisdiction of the Board. See In re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (citing In re Hengehold, 440 F.2d 1395, 1403-04 (CCPA 1971) (stating that there are many kinds of decisions made by examiners that are not appealable to the Board when they are not directly connected with the merits of issues involving rejections of claims, and holding that “the kind of adverse decisions of examiners which are reviewable by the board must be those which relate, at least indirectly, to matters involving the rejection of claims”)); and In re Mindick, 371 F.2d 892, 894 (CCPA 1967) (holding that the refusal of an examiner to enter an amendment of claims is reviewable by petition under 37 C.F.R. § 1.181, and not by appeal to the Board). 2 The Examiner set forth this rejection in the Office Action mailed Jul. 20, 2006. Final Rej. 6-7. Appellants did not list this ground of rejection under the heading of “Ground of Rejection to be Revi[ew]ed on Appeal.” Br. 6-7. The Examiner indicates that this rejection has not been withdrawn. Ans. 2. In both the Office Action mailed Jul. 20, 2006 (Final Rej. 6) and the Answer (Ans. 2), the Examiner listed the wrong patent number for Reutter Appeal 2009-012884 Application 10/221,297 4 SUMMARY OF DECISION We AFFIRM. OPINION The Examiner finds that Torii discloses the subject matter of each of independent claims 18, 24, 38, and 39 substantially as claimed, but fails to disclose the claimed bayonet type closure including lugs thrust under ribs. Final Rej. 6. The Examiner also finds that Reutter discloses guide lugs 4 which can be thrust under the ribs 5. Final. Rej. 6-7. The Examiner concludes that it would have been obvious to one of ordinary skill in the art to modify the closure device of Torii with the bayonet type closure as taught by Reutter “in order to provide a stronger closure that limits the axial movement of the mechanisms inside the housing so that the gear engagement remains intact.” Final Rej. 7. Appellants present no arguments of error with respect to the Examiner’s rejection of claims 18, 24, 38, and 39 under 35 U.S.C. § 103(a) as unpatentable over Torii and Reutter. (i.e., the Examiner listed US 5,460,439 which is the patent number for Jennrich, not the patent number for Reutter which is US 5,071,020). However, Reutter was listed on a Notice of Reference Cited attached to the Office Action mailed Oct. 1, 2004 and Appellants addressed the Reutter reference in the Remarks section of their Amendment filed May 9, 2006 responding to the Office Action mailed Dec. 9, 2005. In addition, the Examiner’s discussion of Reutter (Ans. 6-7) lists reference numerals (i.e., 1, 2, 4, 5, 7, and 8) which are disclosed in Reutter, but which do not exist in the Jennrich reference. Thus, it is clear that the Examiner’s third rejection in the Office Action mailed Jul. 20, 2006 was based on Torii and Reutter, not Torii and Jennrich. Appeal 2009-012884 Application 10/221,297 5 Thus, we summarily sustain the Examiner’s rejection of claims 18, 24, 38, and 39 under 35 U.S.C. § 103(a) as unpatentable over Torii and Reutter. See In re Berger, 279 F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the Board did not err in sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the applicant failed to contest the rejection on appeal). Our affirmance of the Examiner’s rejection of claims 18, 24, 38, and 39 under 35 U.S.C. § 103(a) as unpatentable over Torii and Reutter constitutes a general affirmance of the decision of the Examiner on these claims. See 37 C.F.R. § 41.50(a)(1). Thus, we do not address the rejection of claims 18, 24, 38, and 39 under 35 U.S.C. § 103(a) as unpatentable over Fenelon and Jennrich and the rejection of claims 18, 24, 38, and 39 under 35 U.S.C. § 103(a) as unpatentable over Torii and Jennrich. DECISION We affirm the Examiner’s rejection of claims 18, 24, 38, and 39. 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) (2007). AFFIRMED Klh