Ex Parte Martin, III et al

Patent Trial and Appeal Board

Mar 26, 2013

11782685 (P.T.A.B. Mar. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ROBERT J. MARTIN, III and BRIAN DAVID
HAYES
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Appeal 2010-011187
Application 11/782,685
Technology Center 3600
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Before PHILLIP J. KAUFFMAN, PATRICK R. SCANLON, and
NEIL A. SMITH, Administrative Patent Judges.

SCANLON, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
decision rejecting claims 1, 4-13, 20-28, and 30. Claims 2, 3, and 14-19 are
cancelled. Previously maintained rejections of claim 29 under 35 U.S.C.
§ 112, second paragraph and under 35 U.S.C. § 102(b) are withdrawn by the
Examiner.1 Ans. 3. The Examiner enters new grounds of rejection of claim
7 under 35 U.S.C. § 103(a) and of claims 26 and 30 under 35 U.S.C.
§ 102(b)2. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
THE INVENTION
The claims are directed to a carrier assembly including a drain plug.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A carrier assembly comprising:
a carrier housing defining an internal cavity
that receives a gear assembly, said carrier housing
including an inner wall portion that extends at least
partially around the gear assembly and an outer
wall portion;
a sump located within said internal cavity at
the gear assembly wherein said inner wall portion
extends around the gear assembly to substantially
enclose said sump;

1 As a result of these withdrawn rejections, there is no ground of rejection as
to claim 29. We accordingly confine our decision to claims 1, 4-13, 20-28,
and 30.
2 Claims 26 and 30 were previously rejected under 35 U.S.C. § 103(a).
Although not expressly withdrawn by the Examiner, this ground of rejection
is not maintained in the Examiner’s Answer, apparently intended to be
replaced by the new Section 102 rejection of claims 26 and 30. We thus
treat the Section 103 rejection of claims 26 and 30 as being withdrawn.
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a reservoir located within said internal
cavity for holding a lubricating fluid, said reservoir
being separate from said sump and located
between said inner and said outer wall portions;
a drain plug attached to said carrier housing,
said drain plug controlling fluid flow of the
lubricating fluid between said reservoir and said
sump; and
a channel extending along said outer wall
portion between said reservoir and said sump, said
drain plug having a body portion that extends into
said channel.
REFERENCES
The Examiner relies upon the following prior art references:
Herrick
Katayama
Choi
US 3,625,310
US 4,240,524
US 6,234,136 B1
Dec. 7, 1971
Dec. 23, 1980
May 22, 2001
REJECTIONS
The following rejections are before us on appeal:
I. Claims 1, 4, 5, 8-13, 20-22, 24, 26-28, and 30 under 35 U.S.C.
§ 102(b) as being anticipated by Herrick;
II. Claims 6 and 7 under 35 U.S.C. § 103(a) as being unpatentable over
Herrick and Choi; and
III. Claims 23 and 25 under 35 U.S.C. § 103(a) as being unpatentable
over Herrick and Katayama.
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ANALYSIS
Anticipation by Herrick
Claims 1, 4, 5, 8-13, 20-22, 24, and 26
Both independent claims 1 and 12 call for a channel extending
between a reservoir and a sump. The rejection of these claims relies on the
Examiner’s finding that the portion of Herrick’s reservoir (i.e., lower
chamber B) identified as the channel in the marked-up version of Figure 1 of
Herrick provided on page 6 of the Examiner’s Answer actually corresponds
to the channel as claimed. Ans. 5-6, 9.
Appellants argue that Herrick does not disclose a channel as claimed
because “the ‘channel’ identified by the examiner does not extend along the
outer wall portion between the reservoir B and sump A. The entire channel
identified by the examiner is the reservoir B itself.” App. Br. 5-6. We agree
with Appellants. The “channel” as identified by the Examiner is entirely
contained within the reservoir B of Herrick and thus cannot extend between
the reservoir B and the sump A. As such, Herrick fails to disclose this
limitation of independent claims 1 and 12, and we accordingly do not sustain
the rejection of claims 1 and 12—as well as of claims 4, 5, 8-11, 13, 20-22,
24, and 26 depending therefrom—as being anticipated by Herrick.
Claims 27, 28, and 30
Independent claim 27 calls for a carrier assembly having a sump and a
reservoir and a drain plug controlling flow of lubricating fluid between the
reservoir and the sump by directing fluid flow around an outer surface of the
drain plug. In rejecting claim 27, the Examiner relies on the reasoning
provided in rejecting claims 8 and 21, both of which also call for fluid
flowing around an outer surface of the drain plug. Ans. 9, 10. Specifically,
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the Examiner finds that fluid must pass around an outer surface of the drain
plug to enter both openings3 of Herrick. Ans. 7-8. The Examiner also finds
that Herrick discloses a drain plug 20 that controls the flow of lubricant
between a reservoir B and a sump A. Ans. 5.
We agree with the Examiner’s findings. Herrick discloses a drain
plug 20 having an extension 42 that extends into the baffle 34 that separates
the upper chamber, or sump, A from the lower chamber, or reservoir, B.
Herrick, col. 2, ll. 27-35; figs. 1, 2. The extension 42 includes an internal
passageway 46 that provides “restricted communication between the upper
and lower chambers A and B.” Herrick, col. 2, ll. 42-45. In particular,
lubricant 22 flows slowly through the passageway 46 from the reservoir B to
the sump A to replenish consumed lubricant. Herrick, col. 3, ll. 3-6. The
drain plug 20 thus controls a flow of lubricant 22 between the reservoir B
and the sump A. Furthermore, some of the lubricant 22 in the reservoir B
would have to flow at least partially along the outer circumferential surface
of the extension 42, which is immersed in lubricant, to flow into the
openings in the outer circumferential surface and then through passageway
46 into the sump A.
Appellants argue Herrick does not disclose the fluid flow path of
claim 27, but instead discloses that, during gear rotation, lubricant is
splashed from cavity A into cavity B over edges 36 and 38 in a manner that
is not controlled by the drain plug 20. App. Br. 8. This argument is not
persuasive because it is not commensurate in scope with claim 27. Claim 27

3 The openings referred to by the Examiner appear to be the horizontally-
oriented openings that are formed in the extension 42 just above the threaded
portion of the drain plug 20 and apparently feed the vertical passageway 46,
as best seen in Figures 2 and 4 of Herrick.
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calls for the drain plug to control fluid flow of the lubricant between the
reservoir and the sump; the claim does not require that all lubricant flow
between the reservoir and the sump be controlled by the drain plug. As
discussed supra, Herrick discloses a drain plug 20 that controls a flow of
lubricant between the reservoir B and the sump A. This fact is not
diminished by Herrick’s disclosure of an additional path of lubricant flow
between the reservoir B and the sump A. See Ans. 13.
Accordingly, we sustain the Examiner’s rejection of claim 27 as being
anticipated by Herrick. Claim 28 depends from claim 27 and recites a
channel extending between the reservoir and the sump. For the reasons
discussed supra in connection with claims 1 and 12, Herrick fails to disclose
such a channel. We thus do not sustain the rejection of claim 28—and claim
30 depending therefrom—as being anticipated by Herrick.
Obviousness - claims 6, 7, 23, and 25
The Examiner’s rejections of claims 6 and 7 as obvious over Herrick
and Choi and of claims 23 and 25 as obvious over Herrick and Katayama
each rely on the same erroneous finding noted supra that Herrick discloses a
channel as claimed. See Reply Br. 9-12. Neither Choi nor Katayama cures
this deficiency of Herrick. Accordingly, we do not sustain the Examiner’s
decision to reject claims 6 and 7 as obvious over Herrick and Choi and
claims 23 and 25 as obvious over Herrick and Katayama for the same
reasons stated supra with respect to claims 1 and 12.
DECISION
We reverse the decision of the Examiner rejecting claims 1, 4-13, 20-
26, 28, and 30.
We affirm the decision of the Examiner rejecting claim 27.
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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).

AFFIRMED-IN-PART

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