Ex Parte NUSSBAUMER et al

Patent Trial and Appeal Board

Jul 30, 2018

14134193 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/134,193 12/19/2013
513 7590 08/01/2018
WENDEROTH, LIND & PONACK, L.L.P.
1030 15th Street, N.W.,
Suite 400 East
Washington, DC 20005-1503
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Erich NUSSBAUMER
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.
2013-2002A 2582
EXAMINER
BESLER, CHRISTOPHER JAMES
ART UNIT PAPER NUMBER
3726
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
eoa@wenderoth.com
kmiller@wenderoth.com
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERICH NUSSBAUMER and
KARL FRIEDRICH ENDERES
Appeal2017-007903 1
Application 14/134,193
Technology Center 3700
Before MURRIEL E. CRAWFORD, MICHAEL W. KIM, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal from the fmal rejection of claims 30-45 and 47--49.
We have jurisdiction to review the case under 35 U.S.C. §§ 134 and 6.
1 The Appellants identify Progress Maschinen & Automation AG as the real
party in interest. Appeal Br. 1.
Appeal2017-007903
Application 14/134,193
The invention generally "concerns a method of continuously
producing a mesh-type support or lattice girder by welding." Spec. 1
lines 7-12.
Claim 30 is illustrative:
30. An apparatus for continuously producing a lattice girder
comprising at least one lower chord, an upper chord located at a
variable height relative to the at least one lower chord, and at
least one diagonal member extending back and forth between the
at least one lower chord and the upper chord, said apparatus
compnsmg:
a lower chord welding device for welding the at least one
lower chord to the at least one diagonal member;
an upper chord welding device for welding the upper
chord to the at least one diagonal member;
a height adjustment device for adjusting a height of the
upper chord relative to the at least one lower chord during
continuous production of the lattice girder; and
a cutting device for cutting the upper chord, said cutting
device being configured and arranged so as to cut the upper chord
upstream of a height adjustment point along a direction of
production, said height adjustment device being configured to
adjust the height of the upper chord at the height adjustment
point.
The Examiner rejects claims 30-45 and 49 under 35 U.S.C. § 103(a)
as unpatentable over Schmidt (US 4,372,350, iss. Feb. 8, 1983) and Ritter
(US 5,647, 110, iss. July 15, 1997) (hereinafter "Ritter' 110").
The Examiner rejects claims 47 and 48 under 35 U.S.C. § 103(a) as
unpatentable over Schmidt, Ritter '110, and Ritter (US 6,915,572 Bl, iss.
July 12, 2005) (hereinafter "Ritter '572").
We AFFIRM.
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Application 14/134,193
ANALYSIS
We do not agree with the Appellants' argument that Schmidt fails to
disclose a height adjustment device for adjustment "during continuous
production" of a lattice girder, as recited in independent claim 1, because,
according to the Appellants, Schmidt "presumably requires interruption of
the production process between each 'batch' of lattice girders." Appeal Br.
4--5.
Schmidt discloses a machine "for automatic production of lattice
girders" (Schmidt col. 1 lines 44--50) which provides "a machine frame 1 at
the upper side of which there is provided a sliding guide 2 on which is
slidable in the vertical direction a housing 3, in which holding-and-welding
members for an upper chord wire 4 of the girder are accommodated" (id
col. 2 lines 53-57). Schmidt further discloses "guides 63, 64 and 68 are
accommodated in the housing 3 and can thereby be adjusted in height with
respect to the members 42, 61, 62, 65, 66 and 67, so that girders of different
heights may be produced" (id. col. 4 lines 45--49).
The issue then is whether Schmidt's machine permits "continuous
production." The Appellants' Specification does not defme "continuous
production," but does describes "conversion to the production of a lattice
girder involving an altered upper chord height is possible without any loss of
material worth mentioning. In that case ... the change in height can be
effected completely between two welding cycles." Spec. 3 lines 18-24. The
Specification further describes that "at a given moment in time during
welding of the two lower chords 2 and the upper chord 3 to the two diagonal
members 4, the upper chord 3 is cut by the cutting device 14 at a
predetermined cutting position." Id. 9 lines 12-19. "Following the
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Appeal2017-007903
Application 14/134,193
operation of cutting the upper chord 3, the lattice girder is transported
stepwise towards the right." Id. lines 23-26.
Schmidt discloses "feed mechanisms for the stepwise feeding of wire
material for the chords, a continuously working bending mechanism for the
production of a stock of strutting bent in the shape of a zigzag and an
intermittently working welding mechanism for welding the points of bend of
the strutting to the chords." Schmidt col. 1 lines 5-15. Schmidt discloses
"pauses used for the welding between two steps in the feed of the chord
wires," (id. lines 59---67), but "a stock of wire which can be resiliently
contracted and expanded, namely the distances between the bending regions
of the wire strutting material are alternately increased and reduced" (id.
col. 2 lines 7-14 ). We interpret this to mean the machine may pause for
welds during production, but because the zig-zag wire can be stretched or
compressed to match different distances between the chords, and the chord
distance can be adjusted, Schmidt's machine can operate essentially
continuously fabricating lattice girders with different dimensions.
We are unpersuaded of any difference between the "continuous
production" capability of Schmidt and the aforementioned language of
independent claim 1, since both have momentary operations, such as cutting
or welding, and both feed wire to the machine even as height adjustments
are made between pieces requiring different distances.
We are not persuaded by the Appellants' argument that neither Ritter
reference discloses a height adjustment device, and Schmidt discloses no
cutter, so no reference discloses a relative placement of a cutter to a height
adjustment "device," as claimed. Appeal Br. 5---6; see also Reply Br. 4---6.
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Appeal2017-007903
Application 14/134,193
We note frrst that independent claim 1 doesn't call for the cutter to be
positioned relative to the "height adjustment device," but instead to a "height
adjustment point," which does not preclude a different location than the
claimed device. In addition, even assuming the "point" is at the "device,"
because Schmidt is for "automatic production" (Schmidt col. 1 lines 5-15),
and the Examiner finds Schmidt discloses the claimed "height adjustment
device" (see Final Act. 4), we are persuaded that the ordinary artisan would
have understood that the welded sections would have been cut from the fed
wire stock, even though Schmidt is silent on how girders are separated from
each other. More specifically, the separation would have to have been either
"upstream" of the height adjustment device, as claimed, or downstream, so
that the new height adjustment can take place without bending the chords
when a straight element piece is desired. Because there are only two
practical possibilities for the relationship of the cutter and height adjustment,
the ordinary artisan would have known to position the cutter at either of the
only two possibilities, such as the claimed "upstream" arrangement. KSR
Int 'l Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007) ("A person of ordinary
skill is also a person of ordinary creativity, not an automaton.").
Because the Appellants have not shown error on the part of the
Examiner, we sustain the rejection of claim 30, as well as of dependent
claims 31--45 and 49 that were rejected along with claim 30, and not argued
separately. See Appeal Br. 6. In addition, because the Appellants do not
advance argument specially directed to the rejection of claims 47 and 48, we
additionally sustain the rejection of claims 47 and 48. Id.
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Appeal2017-007903
Application 14/134,193
DECISION
We affrrm the rejections of claims 30-45 and 47--49 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).
AFFIRMED
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