Ex Parte Niwa

Patent Trial and Appeal Board

Jun 29, 2018

13856374 (P.T.A.B. Jun. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/856,374 04/03/2013
20551 7590 07/03/2018
THORPE NORTH & WESTERN, LLP.
P.O. Box 1219
SANDY, UT 84091-1219
FIRST NAMED INVENTOR
Masakazu Niwa
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.
3138-142.US 5194
EXAMINER
LY, KENDRA
ART UNIT PAPER NUMBER
1747
NOTIFICATION DATE DELIVERY MODE
07 /03/2018 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):
patentdocket@tnw.com
rich@tnw.com
annette.fields@tnw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MASAKAZU NIWA
Appeal2017-007893
Application 13/856,374
Technology Center 1700
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellant 1 appeals from the Examiner's
April 1, 2016 decision finally rejecting claims 1-20. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b ).
We affirm.
1 Appellant states that the real party in interest is The Yokohama Rubber Co.,
Ltd. (Br. 3).
Appeal2017-007893
Application 13/856,374
CLAIMED SUBJECT MATTER
Appellant's invention is directed to a pneumatic tire with protectors in
the sidewall portion (Spec. 1 :8-9). According to the Specification, the
claimed invention functions more effectively and reduces damage to the
protector (id.). Claim 1 is representative and is reproduced below from the
Claims Appendix of the Appeal Brief (emphasis added):
1. A pneumatic tire comprising an annular-shaped tread
portion extending in a tire circumferential direction; a pair of
side wall portions disposed on both sides of the tread portion;
and a pair of bead portions disposed on an inner side in a tire
radial direction of the side wall portions, wherein a carcass
layer having at least one layer is mounted between the pair of
bead portions, and a belt layer having a plurality of layers is
disposed on the outer circumferential side of the carcass layer in
the tread portion, wherein a plurality of protectors is
concentrically disposed continuously in the tire circuniferential
direction in the side wall portions projecting from the surface
of the tire; each protector is formed with a triangular shape in
a tire meridian cross-section; an inclination angle a with
respect to the tire radial direction of an inclining face from the
apex of the protector outward in the tire radial direction is from
15° to 45°; and an inclination angle fJ with respect to a tire
axial direction of the inclining face from the apex of the
protector inward in the tire radial direction is from 0° to 30°.
Appeal Br. 16.
DISCUSSION
The only rejection on appeal is the rejection of claims 1-20 under
35 U.S.C. § 103 as unpatentable over Masamichi. 2 Appellant does not offer
separate arguments in support of any of the dependent claims. Appellant's
2 Masamichi, JP 2007 /055498, published March 8, 2007.
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Appeal2017-007893
Application 13/856,374
arguments are directed to limitations recited in independent claim 1 (see
generally Br. 8-14). Accordingly, our discussion will focus on the rejection
of claim I. 37 C.F.R. § 41.37(c)(l)(iv).
Figure 4, which illustrates a cross-sectional view of the contours of
pneumatic tire protectors with inclination angles a and B, is reproduced
below from the Specification.
Fig.4
···-..,,
Figure 4 from the Specification illustrates features of a pneumatic tire side
wall portion including: (i) protector 11; (ii) inclining face Sl that extends
from the apex P outward in the tire radial direction, thereby creating
inclination angle a with respect to the tire radial direction; and (iii) an
inclining face S2 that extends from the apex P inward in the tire radial
direction, thereby creating inclination angle B with respect to the tire axial
direction.
The Examiner finds that Masamichi' s disclosure teaches each
limitation of the pneumatic tire comprising a plurality of protectors recited in
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Appeal2017-007893
Application 13/856,374
claim 1 except that Masamichi does not teach that each protector possesses:
(i) an inclination angle a, with respect to the tire radial direction of an
inclining face from the apex of the protector outward in the tire radial
direction, from 15° to 45°; and (ii) an inclination angle B, with respect to the
tire axial direction of the inclining face from the apex of the protector inward
in the tire radial direction, from 0° to 30° (Ans. 2).
The Examiner determines, however, that it would have been obvious
for the ordinary skilled artisan to modify Masamichi' s protectors so that they
would possess the requisite inclination angles a and B because
(1) [Masamichi] teaches a ranges between 30[0 ] and 60°, B
ranges between 60[0 ]-120°, and y ranges between 30[0 ] and 90°
... , (2) the claimed inclination angle a= [Masamichi's] a+
the angle between the tire radial direction and the base level SO
which is illustrated to be a small acute angle, rendering the
claimed [a] range obvious (3) the claimed inclination angle B is
rendered obvious because the corresponding claimed B of
[Masamichi] is a fraction of y, wherein y is between 30[0 ] and
90[0 ]; alternatively, when B of [Masamichi] approaches the
upper limit of 120[0 ], the corresponding claimed inclination
angle B accordingly decreases, reasonably satisfying the
claimed inclination angle B range.
(Ans. 3 (citing Masamichi Fig. 2; i-fi-120-23)).
Masamichi's Figure 2, which illustrates a cross-sectional view of a
plurality of protectors in a side wall portion of a tire, is reproduced below.
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Appeal2017-007893
Application 13/856,374
./
~/
---0.~
/ -~~--- \ \ "-<·----., .. _ __._.. -1$
/ ";=~~.<·"' '\ ~\~---~~.-... \
QZ\Q~} <~k\'>. ,,__. \ \
..... / "0~) f ·\'"'
L... ________ .~t.. ha
Masamichi's Figure 2 illustrates features of ribs 16 including: (i) angle a of
30°---60° formed by upper inclined surface 14 and reference surface SO; (ii)
angle B of 60°-120° formed by lower inclined surface 15 and reference
surface SO; and (iii) angle y of 30°-90° formed by upper inclined surface 14
and lower inclined surface 15.
With respect to the issue of whether Masamichi teaches or suggests
the requisite inclination angles a and B, Appellant makes the following
principal arguments: (1) as measured by Appellant, Masamichi' s smallest
depicted angle relative to the radial direction for the reference surface SO is
"approximately" 28° and, thus, the disclosed range of a is at least 28° +the
range from 30° to 60°, which provides a 58° to 88° range that does not
overlap the claimed range (Appeal Br. 11 ); (2) Appellant validated the
approximated 28° measurement by calculating the length La depicted in
Figure 2 to within the 4--10 mm range disclosed by Masamichi (id. at 12);
(3) if Masamichi's Figure 2 cannot be relied upon because it is not drawn to
scale, then the Examiner cannot rely on Masamichi's drawings to render the
claimed invention obvious (id.); and (4) the Examiner has not demonstrated
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Appeal2017-007893
Application 13/856,374
that Masamichi would place protectors near the tire maximum width, where
the reference surface SO would be near vertical and thereby provide an angle
relative to the radial direction for the reference surface SO approaching 0°
(id. at 13).
Appellant's arguments are not persuasive.
With regard to arguments (1) and (2), our reviewing court, the Federal
Circuit, and its predecessor have repeatedly cautioned against overreliance
on drawings that are neither expressly to scale nor linked to quantitative
values in the specification. Krippelz v. Ford Motor Co., 667 F.3d 1261
(Fed. Cir. 2012); see also, In re Wilson, 312 F.2d 449, 454 (CCPA 1963)
(noting that specific dimensions could not be established based on
measurements of patent drawings). In this instance, the Examiner correctly
finds that Masamichi does not disclose that the drawings therein are to scale
(Ans. 4).
With respect to Appellant's arguments (3) and ( 4 ), there is no dispute
that Masamichi discloses that "the protectors are placed in the sidewall
upper part region between the tread edge and the tire maximum width
position" (Br. 13 (citing Masamichi i-f 7); see also Ans. 5). Furthermore,
Appellant does not dispute the Examiner's finding that Masamichi "teaches
the presence of a plurality of protectors" (Ans. 5).
Therefore, we conclude that Appellant fails to identify reversible error
in the Examiner's reasoned determination that an ordinary skilled artisan
would have inferred from Masamichi' s drawings that
there includes angles of the base level relative to the radial
direction which are sufficiently small (less than 15 degrees) and
would satisfy the claimed range [] because ... the angle of the
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Application 13/856,374
base level and the radial direction approaches zero degrees from
the tread end to the maximum width of the tire.
(Ans. 6; see also In re Preda, 401 F.2d 825, 826 (CCPA 1968) ("[I]n
considering the disclosure of a reference, it is proper to take into account not
only specific teachings of the reference but also the inferences which one
skilled in the art would reasonably be expected to draw therefrom.")).).
Thus, we agree with the Examiner that Masamichi' s Figure 2 would have
reasonably suggested to one of ordinary skill in the art that a protector
placed near the tire maximum width would have possessed the requisite
inclination angles a between 15° to 45° and B between 0° to 30°.
Accordingly, we affirm the rejection claims 1-20 under 35 U.S.C.
§ 103 for the reasons set forth above.
CONCLUSION
We AFFIRM the rejection of claims 1-20 under 35 U.S.C. § 103 over
Masamichi.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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