Ex Parte Netzer et al

Patent Trial and Appeal Board

Aug 30, 2016

13971201 (P.T.A.B. Aug. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/971,201 08/20/2013
513 7590 09/01/2016
WENDEROTH, LIND & PONACK, LLP,
1030 15th Street, N.W.,
Suite 400 East
Washington, DC 20005-1503
FIRST NAMED INVENTOR
Emanuel NETZER
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. CONFIRMATION NO.
2013-0806 8012
EXAMINER
ROERSMA, ANDREW MARK
ART UNIT PAPER NUMBER
3637
NOTIFICATION DATE DELIVERY MODE
09/01/2016 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):
ddalecki@wenderoth.com
eoa@wenderoth.com
PTOL-90A (Rev. 04/07)
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EMANUEL NETZER and ANDREAS HOLZER
Appeal2014-004453
Application 13/971,201
Technology Center 3600
Before LYNNE H. BROWNE, MARK A. GEIER, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants, Emanuel Netzer et al., 1 appeal under 35 U.S.C. § 134
from the Examiner's decision rejecting claims 6-10.2 We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
Appellants identify the real party in interest as Julius Blum GmbH.
Br. 1.
2 Claims 1-5 are cancelled. Appeal Br. 2.
Appeal2014-004453
Application 13/971,201
THE CLAIMED SUBJECT MATTER
The claims are directed to an ejection device for a movable furniture
part. Spec. 1 (Title). Claims 6, 9, and 10 are independent. Claim 6,
reproduced below, is illustrative of the claimed subject matter:
6. An unlockable ejection device for locking and ejecting a
movable furniture part, comprising:
a spring loaded ejector for ejecting the movable furniture
part from a furniture body;
a linearly displaceable carriage;
a latching element mounted on said linearly displaceable
carriage and a curved sliding guide path into which said latching
element engages, wherein said latching element and said curved
sliding guide path are arranged with respect to each other so as
to be able to, when provided on one of the furniture body and the
movable furniture part, hold the movable furniture part in a
closed latching position as well as release the movable furniture
part from the closed latching position in response to pressing the
movable furniture part inwardly into the furniture body from the
closed latching position;
a drive portion coupled to said carriage for movement
therewith; and
a rotatable synchronization rod having a rotary element
with which said drive portion can be brought into force-
transmitting connection.
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Kropf
Grabherr
Rotter
Netzer
US 2007/0103041 Al
WO 2007/087,656
US 7,430,937 B2
US 8,534,781 B2
2
May 10, 2007
Aug.9,2007
Oct. 7, 2008
Sept. 17, 2013
Appeal2014-004453
Application 13/971,201
REJECTIONS
The Examiner made the following rejection: 3
1. Claims 6-10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Grabherr, Kropf, and Rotter.
Appellants seek our review of this rejection.
ANALYSIS
Claim 6
The Examiner finds that all of the limitations of independent claim 6
are disclosed by Grabherr except for the limitations reciting: (1) a drive
portion coupled to said carriage for movement therewith, which is taught by
Rotter; and (2) a rotatable synchronization rod having a rotary element with
which said drive portion can be brought into force-transmitting connection,
which is taught by Kropf. Final Act. 8-10.
Appellants present several arguments contending that the Examiner's
rejection of claim 6 is incorrect. First, at pages 9-14 of the Appeal Brief,
Appellants argue that modifying the locking element, push-out elements,
stop mechanism, and other physical components disclosed in Grabherr to
incorporate locking element 6, push-out element 23, and other components
(e.g., stop surface 14, blocking surface 15, drawer rail 22, stop 17, heart
shaped cam) disclosed by Kropf would result in (1) "a rod that fixes one
carriage to the other," and (2) "two linearly displaceable carriages being
3 The rejection of claims 6-9 on the ground of nonstatutory double
patenting as being unpatentable over claims 1-23 of Netzer is withdrawn.
Ans. 2. The rejection of claim 10 on the ground of nonstatutory double
patenting as being unpatentable over claims 1-23 of Netzer and Rotter is
withdrawn. Id.
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Application 13/971,201
displaced together," and "would still not result in a 'rotatable
synchronization rod' as required by claim 6." See e.g., Br. 13-14.
Appellants, at pages 14--18 of the Appeal Brief, also argue that "there is no
physical way" to modify the carriages, housing 14, ejection element 19, pin
28, and other components disclosed in Grabherr to incorporate rack gear 36,
gear wheels 38, and other components of Rotter, "without significant
reconstruction of Grabherr, a reconstruction that is simply without reason or
motivation." See e.g., Br. 17. According to Appellants, in the Grabherr
carriages, "there is no space for the integration of any racking gear according
to Rotter, and no discussion in the prior art of how this might be
accomplished." Id.
Appellants' "bodily incorporation" arguments are not persuasive.
"The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference .... Rather, the test is what the combined teaching of those
references would have suggested to those of ordinary skill in the art." In re
Keller, 642 F.2d 413, 425 (CCPA 1981); see also In re Sneed, 710 F.2d
1544, 1550 (Fed. Cir. 1983) ("[I]t is not necessary that the inventions of the
references be physically combinable to render obvious the invention under
review."); KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) ("[I]f a
technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond his or her skill."). Appellants do not show that the proposed
modification is beyond the skill of one skilled in the art. Thus, Appellants
do not apprise us of error.
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Second, Appellants argue that, in using the teachings of Rotter, "the
Examiner's attempt at modifying the already modified combination of
Grabherr and Kropf is taken completely in hindsight and not properly based
upon the teachings of the references or the knowledge of one of ordinary
skill in the art." Br. 15. The Examiner's stated reason for modifying
Grabherr is ( 1) the Kropf latch mechanism "ensur[ es] that the locking
mechanisms on both sides of said drawer release no matter where a user
presses the drawer [citing Kropfi-fi-12-5, 10]" (Final Act. 9-10), and (2) the
Rotter rack and gear mechanism "prevent[ s] wobble and racking (defined in
Rotter Col. 1 lines 33-52), while at the same time providing easy, effective
means of aligning and maintaining the alignment of the stabilizer assembly
and drawer (Rotter Col. 2 lines 26-30)" (Final Act. 10). The Examiner's
reasoning comes directly from Kropf and Rotter. Appe11ants do not identify
any knowledge relied upon by the Examiner that was gleaned only from
Appellants' disclosure and that was not otherwise within the level of
ordinary skill at the tirne of the invention, thereby obviating Appellants'
assertion of hindsight. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
1971 ). Thus, Appellants do not apprise us of error.
Third, Appellants appear to be arguing that Grabherr, Kropf, and
Rotter are non-analogous art. Br. 15-16. To qualify as prior art for an
obviousness analysis, a reference must qualify as "analogous art," i.e., it
must satisfy one of the following conditions: ( 1) the reference must be from
the same field of endeavor; or (2) the reference must be reasonably pertinent
to the particular problem with which the inventor is involved. K-TEC, Inc.
v. Vita-Mix Corp., 696 F.3d 1364, 1375 (Fed. Cir. 2012). Appellants argue
that
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Application 13/971,201
Grabherr discloses ejection devices for ejecting the drawer;
Kropf discloses a torsion rod for connecting two devices that
work together to eject the drawer; Rotter discloses a rack and
pinion system that stabilizes the drawer during its movement as
it is opened and closed. While Kropf and Grabherr have some
arguable relation to each other, Rotter does not.
Br. 16. According the Specification, however, the invention broadly
concerns devices for ejecting sliding drawers (Spec. 1:4--5, 16-18), and
seeks to overcome problems with existing mechanisms which created
skewed or inclined positioning of the sliding drawers which, in the worst
case scenario, cause the sliding drawers to become wedged in the furniture
(Spec. 2:15-24). The Examiner finds that "all three references are drawn to
sliding drawers, and Rotter and Kropf are concerned with synchronizing
parts of those sliding drawer assemblies." Ans. 6. Because the sliding
drawers in Grabherr, Kropf, Rotter and the Specification are from the same
field of endeavor and the three references are reasonably pertinent to the
particular problems with sliding drawers described in the Specification; they
are analogous art.
For the reasons discussed above, we sustain the rejection of claim 6.
Claim 7
Claim 7 depends from claim 6. Because Appellants do not allege any
other patentable distinctions for claim 7 other than reciting the claim
limitations, Appellants do not apprise us of error by the Examiner. We
sustain the Examiner's rejection of this claim under 35 U.S.C. § 103(a). Br.
19; see In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (37 C.F.R. § 41.37
requires "more substantive arguments in an appeal brief than a mere
recitation of the claim elements and a naked assertion that the corresponding
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Application 13/971,201
elements were not found in the prior art."); see generally Ax parte Belinne,
No. 2009-004693, 2009 WL 2477843, *4 (BPAI 2009) (informative) ("[W]e
find that the Examiner has made extensive specific fact finding ... with
respect to each of the argued claims. Appellants' argument ... repeatedly
restates elements of the claim language and simply argues the elements are
missing from the reference. However, Appellants do not present any
arguments to explain why the Examiner's explicit fact finding is in error.").
Claim 8
Claim 8 depends from independent claim 6. Appellants argue that
"[ w ]hile the Examiner takes the position that [modifying Grabherr to
incorporate the teachings of Rotter] is within the general skill of a worker in
the art, the fact that the Examiner is taking the teaching from a reference
directed to the drawer, and not the ejection device, is clear evidence of
hindsight." Br. 19. Appellants, however, do not identify any knowledge
relied upon by the Examiner that was gleaned only from Appellants'
disclosure and that was not otherwise within the level of ordinary skill at the
time of the invention, thereby obviating Appellants' assertion of hindsight.
As discussed above with respect to claim 6, the Examiner's reasoning is
taken from Kropf and Rotter. Thus, Appellants' argument is not persuasive.
We sustain the rejection of claim 8.
Claim 9
Independent claim 9 recites, in part, a "drive portion comprising a
rack; a rotatable synchronization rod having a gear with which said rack can
be brought into force-transmitting connection; and a housing in which said
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rack is located." With respect to this limitation, the Examiner finds that
"[u]sing the same combination as claims 6-8, Grabherr in view of Kropf and
Rotter teach[] ... drive portion comprising a rack (Rotter's rack gear 36); a
rotatable synchronization rod (Rotter's axle 40) having a gear (Rotter's gear
wheel 38) with which said rack can be brought into force-transmitting
connection; and a housing (Grabherr's housing 8) in which said rack is
located." Final Act. 10-11.
In response to the rejection of claim 9, Appellants merely assert that
[t]here is nothing to suggest that the rack be located in a housing
in any of the references cited by the Examiner. There is, as has
been discussed, nothing to even suggest providing a rack together
with the linearly displaceable carriage, much less in a housing of
the carriage.
Appeal Br. 20. Because Appellants do not address the rejection as
articulated by the Examiner, and for the reasons discussed above with
respect to claim 6, Appellants do not apprise us of error.
Claim 9 also recites, in part, "a housing in which said rack is located,
said housing having an opening for said rack such that said gear can be
meshed with said rack by way of said opening." With respect to this
limitation, the Examiner finds that
in order for Rotter's gear wheel 38 (mounted on the ends of axle
40) to mesh with rack gear 36 and to allow Grabherr's device to
operate as intended, it would have been obvious to one having
ordinary skill in the art at the time the invention was made to
create an opening in Grabherr's housing 8. Grabherr discloses
putting an opening 23 in housing 8 for the locking element 10 to
reach stop element 9 (Fig. 3b, Fig. 6b, and [0044]), so putting an
opening in the opposing side of housing 8for the synchronization
structure would be within the general skill of a worker in the art.
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Id. at 12 (emphasis added).
In response, Appellants assert that
the claim goes on to require that the housing have an opening for
the rack and that the gear can be meshed with the rack by way of
the opening. There is clearly nothing in any of the references to
suggest any such opening; no such opening is present in
Grabherr, as can be seen from Fig. 3a. This is further evidence
of the fact that the rejection represents a pure hindsight
reconstruction of Appellant's invention without any proper basis
in the prior art.
Br. 20. Appellants do not explain why the Examiner's reasoning with
respect to putting an opening in the opposing side of the housing is flawed;
and thus, do not address the rejection as articulated by the Examiner.
Appellants also do not identify any knowledge relied upon by the Examiner
that was gleaned only from Appellants' disclosure and that was not
otherwise within the level of ordinary skill at the time of the invention,
thereby obviating Appellants' assertion of hindsight. Accordingly,
Appellants do not apprise us of error.
We sustain the rejection of claim 9.
Claim 10
Independent claim 10 recites, in part, "a linearly displaceable
carriage" and "a housing for said displaceable carriage." With respect to
these limitations, the Examiner finds that "[u]sing the same combination as
claims 6-9, Grabherr in view of Kropf and Rotter teach[] ... a linearly
displaceable carriage (Grabherr's ejection element 19); ... a housing
(Grabherr's housing 8) for said displaceable carriage and said drive portion;
... " Final Act. 12-13. In response, Appellants merely assert that
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There is nothing to suggest that the drive portion be
located in a housing in any of the references cited by the
Examiner. There is, as has been discussed, nothing to even
suggest providing a drive portion together with the linearly
displaceable carriage, much less in a housing of the carriage.
Br. 21. Because Appellants do not address the rejection as articulated by the
Examiner which relies upon the combined teachings of Grabherr, Kropf, and
Rotter to meet the limitations at issue, and for the reasons discussed above
with respect to claim 6, Appellants do not apprise us of error.
Claim 10 also recites, in part, "a holding sleeve connected to said
housing, said holding sleeve having a rotary bearing that supports said rotary
element for rotation." With respect to this limitation, the Examiner finds
that
Rotter discloses that bushings 82 are mounted to inner slide
member 42 using a snap-fit connection. Rotter discloses that
gear wheel 38 is mounted to bushing 82, and gear wheel 38
rotates. Bushings 82 facilitate assembly of the gear wheel 38 on
the slide assembly. See Col. 16 lines 14-40. Therefore, when
combining Grabherr and Rotter, Rotter's bushing 82 (a "rotary
bearing") would be snap-fit to a "holding sleeve" formed on
Grabherr's ejection element 19 so as to facilitate assembly of
gear wheel 38 to ejection element 19 as taught by Rotter.
Final Act. 13. The Examiner also presents an annotated figure from Rotter
identifying the holding sleeve and rotary bearing. Id. In response,
Appellants summarily assert that
the claim goes on to require that the housing have the holding
sleeve with the rotary bearing that supports the rotary element for
rotation. There is clearly nothing in any of the references to
suggest any such structure. This is further evidence of the fact
that the rejection represents a pure hindsight reconstruction of
Appellant's invention without any proper basis in the prior art
cited.
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Br. 21. Appellants do not address the rejection as articulated by the
Examiner which relies upon the combined teachings of Grabherr, and Rotter
to meet the limitations at issue and, thus, do not apprise us of error.
Appellants also do not identify any knowledge relied upon by the Examiner
that was gleaned only from Appellants' disclosure and that was not
otherwise within the level of ordinary skill at the time of the invention,
thereby obviating Appellants' assertion of hindsight.
We sustain the rejection of claim 10.
DECISION
For the above reasons, the Examiner's rejections of claims 6-10 under
35 U.S.C. § 103(a) as being unpatentable over Grabherr, Kropf, and Rotter
are AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv) (2015).
AFFIRMED
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