Ex Parte Lee et al

Patent Trial and Appeal Board

Oct 11, 2017

14259310 (P.T.A.B. Oct. 11, 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.
14/259,310 04/23/2014 Brian Lee LUK-PT011.1 4414
(P12133310US)
7590
Volpe and Koenig, P.C. DEPT. SCHAEFFLER
TECHNOLOGIES AG & Co. KG
30 South 17th Street
United Plaza
Philadelphia, PA 19103
EXAMINER
HANNON, TIMOTHY
ART UNIT PAPER NUMBER
3659
NOTIFICATION DATE DELIVERY MODE
10/13/2017 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):
eoffice @ vklaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN LEE and CARSTEN OHR
Appeal 2017-004745
Application 14/259,310
Technology Center 3600
Before ERIC S. FRAHM, MICHAEL J. STRAUSS, and
AARON W. MOORE, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2017-004745
Application 14/259,310
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—3, 5—7, 9, 10, 15, and 16. Claims 8, 11—14, and 17 are withdrawn from
consideration. Claim 4 is canceled. We have jurisdiction over the rejected
claims under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to a rotary power transfer disconnect device.
Spec., Title. Claim 1, reproduced below with a disputed limitation
emphasized in italics, is representative of the claimed subject matter:
1. A rotary power transfer disconnect device, comprising:
a first drive part having an opening defined therein, with
teeth defined around at least a portion of an inner periphery of
the opening;
a second drive part that is at least partially received in the
opening in the first drive part, the second drive part having teeth
defined around at least a portion of an outer periphery that
extends into the opening, a gap being located between the teeth
on the inner periphery of the opening of the first drive part and
the teeth defined on the outer periphery of the second drive part
that extends into the opening so that the first drive part is
rotatable relative to the second drive part; and
a sliding dog clutch having a spline sleeve with internal
projections located on an inner periphery thereof that are
engagable with the teeth on the outer periphery of the second
drive part and external projections located on an outer periphery
thereof that are engagable with the teeth on the inner periphery
of the opening of the first drive part, the sliding dog clutch being
slidable between a first position in which the spline sleeve is
located in the gap, providing a driving engagement between the
first drive part and the second drive part, and a second position,
in which the spline sleeve is disengaged from the teeth on the
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Application 14/259,310
inner periphery of the opening of the first drive part or the teeth
defined on the outer periphery of the second drive part, allowing
relative rotation between the first drive part and the second drive
part, wherein
the spline sleeve is a deep drawn part having a generally
constant wall thickness.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Archer et al.
Winter
Hickey et al.
Clohessy
Kazaoka et al
Eastman
Perakes et al.
US 3,631,706
US 3,664,890
US 5,788,038
US 5,806,623
US 2002/0187874 Al
US 2012/0067689 Al
US 2013/0178318 Al
Jan. 4, 1972
May 23, 1972
Aug. 4, 1998
Sept. 15, 1998
Dec. 12, 2002
Mar. 22, 2012
July 11,2013
REJECTIONS
The Examiner made the following rejections:
Claims 2 and 3 stand rejected under 35 U.S.C. § 112(b) as being
indefinite for failing to particularly point out and distinctly claim the subject
matter which the inventor or a joint inventor regards as the invention. Final
Act. 2—3.
Claims 1—3, 5—7, and 10 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Hickey, Archer, and Winter. Id. at 4—7.
Claims 1—3, 5, and 7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Clohessy and Archer. Id. at 7—10.
Claims 1—3, 5—7, and 15 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Kazaoka and Archer. Id. at 10-13.
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Claims 1—3, 5, and 7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Perakes (Figure 1) and Archer.1 Id. at 13—15.
Claim 9 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Clohessy, Archer, and Eastman. Id. at 15—16.
Claims 9 and 16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Kazaoka, Archer, Eastman, and Clohessy. Id. at 16—17.
Claim 10 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Kazaoka, Archer, and Hickey. Id. at 17.
Claims 1—3, 5—7, 9, 10, 15, and 16 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Perakes (Figure 2) and Archer. Id. at 18—
23.
APPELLANTS’ CONTENTIONS
1) In connection with the rejections under 35 U.S.C. § 112(b), “one of
ordinary skill in the art would know the meaning of the term ‘an area’ as
used in claim 2 based on [Appellants’ disclosure].” App. Br. 11—14.
2) In connection with the rejections under 35 U.S.C. § 103(a),
a) The primary references of Hickey, Clohessy, and Kazaoka disclose
machined or forged sleeves of significantly varied thicknesses, and
Perakes similarly discloses sleeves of varying thicknesses, thus failing
to teach or suggest the disputed limitation of a spline sleeve that is a
deep drawn part having a generally constant wall thickness as required
by claim 1. App. Br. 16, 23, 26, 28—29, 32.
1 Although the statement of the rejection appearing in the heading at page 13
of the Final Action omits Archer, the reference is applied in the explanation
of the rejection that follows at page 14—15. We find the omission of Archer
from the heading harmless error.
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b) In interpreting the disputed limitation
i) The Examiner’s finding that ‘“anything can be considered
generally constant when compared to something much larger than
itself’ ignores the explicit language of claim 1.” App. Br. 18—19
(emphasis added) (quoting from Advisory Action 2).
ii) “[T]he Examiner has completely failed to recognize the meaning
of the term ‘the spline sleeve is a deep drawn part having a
generally constant wall thickness’ as recited in claim 1.” Id. at 19—
20.
c) Because “Archer is not directed to a rotary power transfer disconnect
device - and instead is directed to a method for forming articles from
billets of solid plastic material” (emphasis omitted) the reference fails
to disclose “a deep-drawn spline sleeve having a generally constant
wall thickness as required by claim 1.” Id. at 20.
d) “It would not have been obvious to modify the machined sleeve 66 of
Hickey with the deep-drawn processes of Archer and Winter due to
the specific shape and arrangement of Hickey’s sleeve 66, which
cannot be formed by deep drawing.” Id. at 22.
ANALYSIS
Appellants’ contentions are not persuasive of reversible Examiner
error. Except as noted infra, we adopt as our own (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 2—25) and (2) the reasons set forth by the Examiner in the
Examiner’s Answer in response to Appellants’ Appeal Brief (Ans. 3—29) and
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concur with the conclusions reached by the Examiner. We highlight the
following for emphasis.
1) 35U.S.C. § 112(b)
In connection with contention 1, Appellants argue one of ordinary
skill in the art would know the meaning of the term “an area” as used in
claim 2, in view of paragraph 49 of the Specification’s use of that
terminology, in combination with the drawings depicting a wave-like form
of the spline sleeve. App. Br. 11. In the Appeal Brief, Appellants further
provide a “Representative Illustration of Spline Sleeve Teeth” in support of
their argument explaining the meaning of the disputed phrase “valleys
between the internal teeth are located in an area of the external teeth.” Id. at
12. The Examiner responds by finding “[i]t appears that valleys between the
internal teeth are simply located in the external teeth. By adding ‘an area’
the claim becomes indefinite.” Ans. 24. The Examiner further finds the
description at paragraph 49 “does not limit what can be considered ‘an area’
but merely provides an example, the example further defining the area as
valleys located in the external teeth as drawn to the figure.” Id.
We agree the phrase “in an area” renders claim 2 and, therefore,
further-dependent claim 3, indefinite. Paragraph 49 discloses “[a]s shown in
Figure 8, the valleys between the inner teeth 62 can be located in that area of
the external teeth 64 providing a generally constant wall thickness for the
first embodiment of the spline sleeve 61.” Thus, reference must be made to
Figure 8, depicted below, to understand what is meant by “in an area.”
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3,0
Figure 8 depicting a rotatory power transfer disconnect device
A similar stmcture is depicted in Figure 5, Appellants providing a new
figure purporting to depict a “simplified representative illustration [of] an
isolated portion of the spline sleeve without the adjacent parts from Figure
5” (App. Br. 11—12), as shown below.
Representative Illustration of Spline Sleeve Teeth
In particular, although paragraph 49 uses the phrase “in an area,” we find
neither an explanation nor depiction of such an area. Instead, it appears the
valleys between the internal teeth are located at or in the external teeth. That
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is, while an internal surface of the spline sleeve forms the valleys between
the internal teeth, an opposing external surface forms the external teeth and
vice versa. Thus, other than having opposite surfaces of the sleeve form
valleys between internal teeth and the external teeth, we are unable to
ascertain from either the Specification or drawings the metes and bounds of
the disputed “area.” Thus, we sustain the Examiner’s rejection of claims 2
and 3 under 35 U.S.C. § 112(b).
2) 35 U.S.C. § 103(a)
In considering Appellants’ arguments contesting the rejections under
35 U.S.C. § 103(a), we first interpret the meaning of the disputed limitation
of “a generally constant wall thickness.”
During examination of a patent application, pending claims are given
their broadest reasonable construction consistent with the specification. In
re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re
Prater, 415 F.2d 1393, 1404—05 (CCPA 1969). Under a broadest reasonable
interpretation, the words of the claim are given their plain meaning unless
the plain meaning is inconsistent with the Specification. In re Zletz, 893
F.2d 319, 321 (Fed. Cir. 1989); Chef America, Inc. v. Lamb-Weston, Inc., 358
F.3d 1371, 1372 (Fed. Cir. 2004). However, “limitations are not to be read
into the claims from the specification.” In re Van Geuns, 988 F.2d 1181,
1184 (Fed. Cir. 1993) (citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir.
1989)).
In interpreting the disputed “generally constant wall thickness” of the
recited spline sleeve, we consider whether the wall is that of a tubular or
cylindrical body portion of the sleeve (i) excluding the splines or (ii)
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including the thickness added or subtracted by splines formed on or into a
surface(s) of a tubular or cylindrical body portion. We note, for example,
Kazaoka discloses “sleeve 41 possesses a cylindrical hollow shape and is
provided with splines on its inner surface and its outer surface.” Kazaoka
125. Perakes discloses “an external spline formed on coupler sleeve 44.”
Perakes 118. Thus, a reasonable interpretation of a spline sleeve includes a
generally cylindrical hollow shape, e.g., a tubular portion, on or into which
splines are formed. Such an interpretation is not inconsistent with the
language of claim 1 which recites “a spline sleeve with internal. . . and
external projections” (emphasis added) rather than, for example, a spline
sleeve forming internal and external projections. As such, a requirement that
the spline sleeve have a generally constant wall thickness may be reasonably
interpreted to include wherein the tubular portion (on or in which the splines
are formed or located) has a generally constant wall thickness without regard
to the separately recited projections or splines. Furthermore, we note claim
1 does not specify a direction in which the wall thickness is constant. Thus,
under a broad but reasonable interpretation, the “generally constant wall
thickness” may be satisfied by a constant wall thickness in, for example, a
longitudinal direction, such as along and/or between projections or splines.
a) Argument That Prior Art Machined or Forged Sleeves Do Not Have A
Generally Constant Wall Thickness
Appellants argue Hickey, Clohessy, Kazaoka, and Perakes disclose
sleeves of varying thicknesses, thus failing to teach or suggest the disputed
limitation of a “spline sleeve [that] is a deep drawn part having a generally
constant wall thickness” as required by claim 1. App. Br. 16, 23, 26, 28—29,
32. We find this argument unpersuasive in light of our interpretation of the
disputed limitation of a spline sleeve having generally constant wall
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thickness as discussed supra. For example, shift sleeve 66 as depicted in
Hickey Figure 3 is reproduced below:
Shift Sleeve 66 as Depicted in Hickey Figure 3
Hickey discloses:
Shift sleeve 66 includes a radially extending flange portion
102 having external splines 68 formed on an outer end thereof^.]
Sleeve 66 further includes a first generally cylindrical portion
104 attached to and extending axially aftward from flange
portion 102, and a second generally cylindrical portion 106
attached to and extending axially aftward from the first
cylindrical portion 104. The diameter of cylindrical portion 104
is greater than the cylindrical portion 106 of sleeve 66. An
annular, radially extending shoulder 108 is formed between
cylindrical portions 104 and 106.
Hickey col. 4,11. 47—53. That is, Hickey separately describes splines 68,
flange portion 102, and cylindrical portions 104 and 106. Thus, Hickey’s (i)
splines are “formed on” but are not part of the underling structure (i.e.,
flange portion 102) of sleeve 66, and (ii) at least first and second cylindrical
portions 104 and 106 each constitute a generally constant wall thickness of
shift sleeve 66.
We are also unpersuaded by Appellants’ argument because it relies on
limitations not present in the claims. As explained supra, claim 1 neither
requires the entirety of the spline sleeve to have a generally constant wall
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thickness throughout its structure, including a thickness of the splines, nor
does the claim specify in what direction(s) or axes the wall thickness is
measured. Thus, Appellants’ argument that the splines of the prior art result
in varying wall thickness circumferentially or over some extended portion or
portions of the sleeve, i.e., that the entirety of the prior art sleeves do not
have a constant wall thickness, are not commensurate in scope with the
disputed claim language. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982)
(limitations not appearing in the claims cannot be relied upon for
patentability).
b) Argument That The Examiner’s Interpretation of Claim 1 is Improper
Appellants argue the Examiner (i) improperly finds ‘“anything can be
considered generally constant when compared to something much larger
than itself’ ignores the explicit language of claim 1” (App. Br. 18—19
quoting from Advisory Action 2 (emphasis added)) and (ii) fails to give
appropriate weight to the requirement “the spline sleeve is a deep drawn part
having a generally constant wall thickness” (App. Br. 19—20).
i) Generally constant is not relative to something much larger
Appellants argue “[c]laim 1 does not require the deep drawn spline
sleeve to have a generally constant wall thickness compared to another
component or compared to ‘something much larger than itself’ as alleged by
the Examiner.” App. Br. 19 (emphasis omitted). The Examiner responds,
finding Hickey’s Figure 3 shows that any “difference in [spline sleeve wall]
thickness is due to the peaks and valleys of the splines attached to the spline
sleeve.” Ans. 24—25. The Examiner concludes, based on such an
interpretation, “[i]t is a reasonable interpretation to state that [Hickey’s walls
have] a generally constant thickness.” Ans. 25.
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Appellants’ contention 1 (b)(i) is unpersuasive for the reasons
discussed supra. In particular Appellants’ argument is based on a narrow
construction of the disputed limitation requiring both (i) the wall thickness
of the spline sleeve include splines formed on or in the wall, and (ii) the
entirety of the spline sleeve have a generally constant wall thickness along
both length and circumference. Because we disagree with these premises,
we do not decide whether the wording “generally constant” is satisfied by
the varied diameters of Hickey’s portions 104 and 106 because, according to
the Examiner, the differences in wall thicknesses are within some range
considered to be generally the same, i.e., constant.
ii) Argument the Examiner Does Not Give Proper Consideration to
the Requirement that the Spline Sleeve is a Deep Drawn Part
Having a Generally Constant Wall Thickness
Appellants argue Hickey “fails to disclose the spline sleeve is a deep
drawn part having a generally constant wall thickness” and Archer fails to
remedy the deficiency because it “is not directed to a rotary power transfer
disconnect device - and instead is directed to a method for forming articles
from billets of solid plastic material.” App. Br. 20 (emphasis omitted). The
Examiner responds by explaining “Archer is used to simply teach that well-
known methods of manufacturing are machining processes and deep-
drawing processes are interchangeable, meaning the pieces formed in
Hickey can be deep-drawn instead of machined.” Ans. 25.
Appellants’ contention is unpersuasive. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.” In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425
(CCPA 1981)). As explained by the Examiner, Archer is relied upon for
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disclosing the processing requirement of claim 1, i.e., that the spline sleeve
of Hickey be a deep drawn part, not for the recited structural limitations.
Furthermore, Appellants fail to provide evidence that requiring the spline
sleeve be a deep drawn part results in a structure distinguishable over
Hickey’s sleeve 66. Process limitations in a product claim are given no
patentable weight absent evidence of a different resulting structure. In re
Thorpe, 111 F.2d 695, 697 (Fed. Cir. 1985) (“The patentability of a product
does not depend on its method of production. If the product in a product-by­
process claim is the same as or obvious from a product of the prior art, the
claim is unpatentable even though the prior product was made by a different
process.”) (citations omitted). Conversely, Appellants provide insufficient
evidence or argument explaining why the deep drawing method of Archer
would not teach or suggest a manufactured article with a constant wall
thickness. See, e.g., Archer col. 1,11. 14—16 (disclosing formation of articles
having, inter alia, a uniform thickness); id. col. 7,11. 14—15 (disclosing
formation of an articles having a wall thickness of 0.010 inch from a nickel
rod billet). Thus, the combination of Hickey, Archer, and Winter teaches or
suggests the entirety of the disputed limitation.
c) Argument that Archer is Directed to a Method for Forming Articles
From Billets of Solid Plastic Material, Not to a Rotary Power Transfer
Disconnect Device as Required by Claim 1
In response to Appellants’ contention 2(c), the Examiner finds “as
defined by Archer, a solid plastic material includes metals (see Column 1
lines 16—26), which means that Archer can be applied to the pieces formed
in Hickey.” Ans. 25. We agree with the Examiner. Archer is not limited to
plastics, i.e., complex organic compounds produced by polymerization (i.e.,
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polymers), but to materials capable of being shaped or formed, i.e., pliable
materials, including metals. Thus, Archer discloses
With regard to the term “solid plastic material,” it is known by
those skilled in the art, that many metals and other materials
increase in ductility, or have an increased capacity for
deformation without fracture, when they are subjected to high
pressure. These metals and other materials are known as “solid
plastic materials.”
Archer col. 1,11. 16—22. Appellants fail to provide sufficient evidence or
argument to persuade us the Examiner erred in finding Archer “teach[es] that
well-known methods of manufacturing are machining processes and deep-
drawing processes are interchangeable, meaning the pieces formed in
Hickey can be deep-drawn instead of machined.” Ans. 25. To the extent
Appellants argue the rejection is deficient for failure of Archer to disclose
use of deep drawing to manufacture a spline sleeve, such argument is an
improper attack on the references individually, where the rejection based on
the combination of Hickey, Archer, and Winter, not Archer alone. See In re
Keller.
d) Argument that Harvey’s Sleeve cannot be formed by deep drawing as
taught by Archer
Appellants argue the combination of Hickey and Archer is improper
because “Hickey’s sleeve 66 . . . cannot be formed by deep drawing.” App.
Br. 22. The Examiner responds by finding “there is no reason Hickey cannot
have a deep drawn part rather than a machined part.” Ans. 26.
Appellants’ argument is unpersuasive in the absence of sufficient
evidence in support of the alleged inability to form Hickey’s sleeve 66 by
deep drawing. It is well settled that mere attorney arguments and conclusory
statements, which are unsupported by factual evidence, are entitled to little
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probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Attorney argument is not
evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such
argument take the place of evidence lacking in the record. Meitzner v.
Mindick, 549 F.2d 775, 782 (CCPA 1977).
For the reasons discussed supra, Appellants’ contentions of error in
the rejection of claim 1 over the combination of Hickey, Archer, and Winter
are unpersuasive. Accordingly, we sustain the rejection of independent
claim 1 under 35 U.S.C. 103 as being unpatentable over Hickey, Archer, and
Winter.
e) Argument that Hickey does not Disclose the Wave-form of Claim 2
Appellants contend “Hickey’s sleeve 66 clearly fails to disclose [a]
wave-like form with valleys of the internal teeth being located between the
external teeth” as required by claim 2. The Examiner responds, finding
“[tjhere is no ‘wave-like form’ claimed, so this [argument] is not being
considered.” Ans. 26.
Appellants’ argument is not persuasive because, as explained by the
Examiner, the argued feature of a “wave-like form” is not recited by the
claim. Appellants further argue Hickey fails disclose such a wave-like form
“with valleys of the internal teeth being located between the external teeth”
(App. Br. 22), a limitation found to be indefinite for the reasons discussed
supra in connection with the rejection under 35 U.S.C. 112(b). However,
because we dispense with such argument based the argued but unclaimed
features of a “wave-like form,” we do not decide whether the claim is so
indefinite as to require impermissible speculation as to the scope of the
remainder of the limitation in sustaining the rejection under 35 U.S.C. § 103.
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Cf. In re Aoyama, 656 F.3d 1293, 1300 (Fed. Cir. 2011) (holding that the
Board erred in affirming an anticipation rejection of indefinite claims); In re
Steele, 305 F.2d 859, 862—63 (CCPA 1962) (holding that the Board erred in
affirming a rejection of indefinite claims under 35 U.S.C. § 103(a), because
the rejection was based on speculative assumptions as to the meaning of the
claims).
Accordingly, in the absence of persuasive argument contesting the
Examiner’s findings, we sustain the rejection of claim 2.
f) Other Rejections Under 35 U.S.C. § 103(a)
Appellants repeat argument presented in connection with the rejection
of claim 1 over Hickey, Archer, and Winter in contending the remaining
rejections are likewise improper. Having found those arguments
unpersuasive of Examiner error for the reasons discussed supra, we likewise
sustain the remaining rejections of claim 1 under 35 U.S.C. § 103(a).
Furthermore, because Appellants do not present additional separate
arguments in connection with dependent claims 2, 3, 5—7, 9, 10, 15, and 16,
we further sustain the rejections of those claims.
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DECISION
We affirm the Examiner’s decision to reject claims 2 and 3 under 35
U.S.C. § 112(b).
We affirm the Examiner’s decision to reject claims 1—3, 5—7, 9, 10,
15, and 16 under 35 U.S.C. § 103(a).
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). See 37
C.F.R. §41.50(f).
AFFIRMED
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