Ex Parte Kury

Patent Trial and Appeal Board

Jul 19, 2018

13592417 (P.T.A.B. Jul. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/592,417 08/23/2012
3624 7590 07/23/2018
VOLPE AND KOENIG, P.C.
UNITED PLAZA
30 SOUTH 17TH STREET, 18th Floor
PHILADELPHIA, PA 19103
FIRST NAMED INVENTOR
Werner Kury
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
ATTORNEY DOCKET NO.
SMB-PT433
(Pl20403BUS)
CONFIRMATION NO.
3136
EXAMINER
LINFORD, JAMES ALBERT
ART UNIT PAPER NUMBER
3679
NOTIFICATION DATE DELIVERY MODE
07/23/2018 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):
eoffice@volpe-koenig.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WERNER KURY
Appeal 2016-006977
Application 13/592,417 1
Technology Center 3600
Before MICHAEL C. ASTORINO, JAMES A. WORTH, and
TARA L. HUTCHINGS, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant appeals from the
Examiner's decision rejecting claims 1-10. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellant, the real party in interest is N eoperl GmbH.
Appeal Br. 4.
Appeal 2016-006977
Application 13/592,417
STATEMENT OF THE CASE
Claimed Subject Matter
Claim 1, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below.
1. Detachable plug connection (1) comprising a connecting
element (2) which is connected to a sleeve-like receiving part (3),
an interior of which receives a tubular plug-in part (4) which
carries a circumferential retaining rib ( 5) on an outer
circumference thereof, and having a securing element ( 6) which
is comprised of an elastic material and has inwardly directed
retaining edges (7), which can spring out elastically, for engaging
behind the retaining rib (5) after the plug-in part (4) has been
pushed in, said retaining edges (7) being connected together via
resilient webs (8, 9) which converge in a V shape, and which can
spring out by application of pressure to converged web end
regions of the resilient webs (8, 9), such that the retaining edges
(7) disengage from the retaining rib ( 5), the connecting element
(2) and the securing element ( 6) are an integral molded part (10)
produced from an elastic material, and the connecting element
(2) and the securing element ( 6) are connected together via
deflectable resilient bars ( 11 ), having at least one of the retaining
edges (7) at an end thereof.
Rejections
I. Claims 1--4 and 6-10 are rejected under pre-AIA 35 U.S.C.
§ 102(b) as anticipated by Hansel (US 6,086,119, issued July 11, 2000) or,
in the alternative, under pre-AIA 35 U.S.C. § 103(a) as obvious over Hansel.
II. Claims 1-10 are rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Viratelle et al. (US 5,496,074, issued Mar. 5, 1996),
(hereinafter "Viratelle") in view of Hansel.
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Appeal 2016-006977
Application 13/592,417
ANALYSIS
Rejection I. Claims 1-4 and 6-10 rejected under pre-AJA 35 USC
§ 102(b) as anticipated by Hansel or, in the alternative, under pre-AJA 35
USC§ 103(a) as obvious over Hansel
Claim 1 recites, "the connecting element (2) and the securing element
( 6) are connected together via deflectable resilient bars ( 11 ). " We determine
that the foregoing recitation requires the "connecting element," "securing
element," and "deflectable resilient bars" to, at least, refer to different
regions of a structure, i.e., must not refer to the same region of a structure.
The Appellant argues that "the Examiner has failed to indicate where
it is shown in Hansel that 'the connecting element (2) and the securing
element ( 6) are connected together via deflectable resilient bars ( 11)' as
claimed." Appeal Br. 15. The Appellant asserts that Hansel's "securing
element 2 is a separate part from the connecting element" and that "there is
nothing in H[a]nsel to show that the connecting element and the securing
element are connected together via deflectable resilient bars as claimed."
Appeal Br. 14; see also id. at 16-17.
In the Final Office Action, the Examiner finds that Hansel's retaining
spring 2 corresponds to the claimed "connecting element," "securing
element," and "deflectable resilient bars." See Final Act. 4--5. Hansel's
Figures 3-5 show retaining spring 2 having two support members 13, elastic
crosspieces 14, two jaw portions 17, inclined insertion surfaces 18, and
arcuate shaped support surfaces 21, among other things. See Hansel, col. 2,
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Appeal 2016-006977
Application 13/592,417
1. 55 ("FIG. 4 is a front view of the same retaining spring[, i.e., retaining
spring of FIG. 3]."); see also Hansel, Abstract, col. 2, 11. 20-21. 2
In the Answer, the Examiner clarifies this finding. Ans. 7-8, 9. The
Examiner finds:
Hansel's retaining spring 2 corresponds to the claimed
"connecting element";
Hansel's two jaw portions 17, inclined insertion surfaces 18,
and elastic crosspieces 14 correspond to the claimed "securing
element"· and
'
Hansel's two support members 13 and arcuate shaped support
surfaces 21 correspond to the claimed "deflectable resilient bars."
Id. at 7-8.
Accordingly, the Examiner finds that different regions of Hansel's
retaining spring 2 correspond to the claimed "securing element" and
"deflectable resilient bars," but does not identify any particular region of
Hansel's retaining spring 2 as corresponding to the claimed "connecting
element." As discussed above, the claimed "connecting element" must not
refer to the same region of a structure as the "securing element," and
"deflectable resilient bars." Because the Examiner identifies two jaw
portions 17, inclined insertion surfaces 18, and elastic crosspieces 14 and
2 Hansel appears in one passage to suggest that retaining spring 2 is a
structure that is separate from other structures, such as jaw portions 17.
Hansel, col. 2, 11. 50-51 ("retaining spring 2 is braced even tighter against
the jaw portions 17"). We nonetheless understand Hansel's retaining
spring 2 to be composed of many regions, including jaw portions 17, which
are described as part of the retaining spring 2's support members 13. Id. at
col. 2, 11. 20-21, 29-31.
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Appeal 2016-006977
Application 13/592,417
two support members 13 and arcuate shaped support surfaces 21, as
corresponding to the claimed "securing element" and "deflectable resilient
bars," those portions of Hansel's retaining spring 2 cannot be identified as
corresponding to the claimed "connecting element." Additionally, although
Hansel's retaining spring 2 includes other regions, such as rectangle pressure
plates 15, the Examiner does not identify rectangle pressure plates 15 as
corresponding to the claimed "connecting element." Nor do we infer such a
finding from the Examiner's Final Office Action or Answer.
As such, we understand the Examiner to have identified the same
region(s) of retaining spring 2 as corresponding to the claimed "connecting
part" and ( either one or both of) the claimed "securing element" and
"deflectable resilient bars," or otherwise to have failed to adequately explain
how a region of Hansel's retaining spring 2 corresponds to the claimed
"connecting part," where the region is different than the regions of Hansel's
retaining spring 2 that the Examiner identifies as corresponding to the
claimed "securing element" and "deflectable resilient bars."
In view of the foregoing, we determine that the Examiner's finding
that Hansel's retaining spring 2 corresponds to the claimed "connecting
element" is not adequately supported. This finding is necessary to sustain
the Examiner's rejection of claim 1 underpre-AIA 35 U.S.C. § 102(b) as
anticipated by Hansel and under pre-AIA 35 U.S.C. § 103(a) as obvious over
Hansel. Because the Examiner's finding is not adequately supported, we do
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Application 13/592,417
not sustain the Examiner's rejection of claim 1 and depending claims 2--4
and 6-10 under§ 102(b) or, alternatively,§ 103(a). 3
Rejection II. Claims 1-10 rejected under pre-AJA 35 USC§ 103(a) as
unpatentable over Viratelle in view of Hansel
In the Appeal Brief, the Appellant identifies in Section VI the
"Grounds of Rejection to be Reviewed on Appeal." Appeal Br. 8. In this
section the Appellant lists Rejection I, but does not list Rejection II.
Arguably, there is a reference to Rejection II in the Appeal Brief in Section
III. See Reply Br. 2-3. Rejection II includes a rejection of claim 5, whereas
Rejection I does not; the Appellant states in the Appeal Brief at page 4 that
"[c]laims 1-10 stand rejected and are the subject of the appeal," which
includes claim 5.
In the Answer, the Examiner explains that Rejection II was set forth in
the Final Office Action and determines that the Appellant does not list
Rejection II as a ground of rejection to be reviewed on appeal or present any
arguments addressing Rejection II. Ans. 3 (citing Final Act. 8). We agree
with the Examiner.
In the Reply Brief, the Appellant points to Section III of the Appeal
Brief and states that "[i]n the interest of brevity and to eliminate
redundancies, Appellant did not repeat arguments regarding§ 103" and that
"in order to complete the record Appellant sets forth the following regarding
Vi[r]a[t]elle." Reply Br. 3. Thereafter, the Appellant makes arguments
3 The Appellant and the Examiner construe the term "integral molded part"
differently. See Appeal Br. 9-13. We need not belabor over the meaning of
this term to resolve the dispositive issue in this appeal.
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Appeal 2016-006977
Application 13/592,417
concerning alleged errors in the Examiner's findings concerning Viratelle' s
teachings.
The Appellant's arguments in the Reply Brief, particular to
Rejection II, are not redundant with arguments presented for Rejection I in
the Appeal Brief. Although some of the same limitations of claim 1 are
argued for Rejection I in the Appeal Brief and Rejection II in the Reply
Brief, the arguments in the Reply Brief are new. See Reply Br. 4--5. The
arguments are new because the Examiner's findings based on the Viratelle
reference were not argued in the Appeal Brief. Moreover, it is notable that
the Viratelle reference was not mentioned in the Appeal Brief.
The arguments particular to Rejection II were provided for the first
time in the Reply Brief and are not responsive to an argument raised in the
Examiner's Answer. The Appellant has not shown good cause for not
presenting this argument in the opening brief. As such, we will not consider
the Appellant's argument concerning Rejection II. See 37 C.F.R.
§ 41.41 (b )(2) ("Any argument raised in the reply brief which was not raised
in the appeal brief, or is not responsive to an argument raised in the
examiner's answer, including any designated new ground of rejection, will
not be considered by the Board for purposes of the present appeal, unless
good cause is shown."); see also id. at§ 4I.37(c)(l)(iv)("Except as provided
for in§§ 41.41, 41.47 and 41.52, any arguments or authorities not included
in the appeal brief will be refused consideration by the Board for purposes of
the present appeal.").
Thus, we summarily sustain the Examiner's rejection of claims 1-10
as unpatentable over Viratelle in view of Hansel.
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Appeal 2016-006977
Application 13/592,417
DECISION
We REVERSE the Examiner's decision rejecting claims 1--4 and 6-
10 under pre-AIA 35 U.S.C. § 102(b) as anticipated by Hansel or, in the
alternative, under pre-AIA 35 U.S.C. § 103(a) as obvious over Hansel.
We summarily AFFIRM the Examiner's decision rejecting claims 1-
10 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Viratelle in view
of Hansel.
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)(l )(iv).
AFFIRMED
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