Ex Parte Rogers et al

Board of Patent Appeals and Interferences

Jan 14, 2009

10379785 (B.P.A.I. Jan. 14, 2009)

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UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte LLOYD W. ROGERS, JEFFREY S. HAMMINGA,
JOSEPH D. LONG and JOSEPH M. JOHNSON
____________________

Appeal 2008-0105
Application 10/379,785
Technology Center 3600
____________________

Decided: January 14, 2009
____________________

Before: WILLIAM F. PATE, III, JENNIFER D. BAHR, and
FRED A. SILVERBERG, Administrative Patent Judges.

SILVERBERG, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 (2002) from a Final Office
Action of claims 4, 8, 10 and 12. We have jurisdiction under 35 U.S.C.
§ 6(b) (2002).

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Application 10/379,785

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SUMMARY OF DECISION
We REVERSE.

THE INVENTION
The Appellants’ claimed invention is directed to a drive unit that is
installed in a motor vehicle to power open and close a vehicle closure such
as a lift gate. Claim 1, reproduced below, is representative of the subject
matter on appeal.
1. A drive unit for a power operated vehicle closure
comprising:
a track,
a guide engaging the track for sliding movement along
the track,
a link attached to the guide at one end and adapted to be
attached to the vehicle closure at the opposite end, and
a motor assembly including a housing attached to the
track for moving the guide along the track,
the motor assembly having an electric motor and a speed
reducer driven by the electric motor, the speed reducer having a
first speed reducing stage and a second speed reducing stage
that is driven by the first speed reducing stage and that is
drivingly connected to the guide for moving the guide along the
track wherein the first stage includes a belt drive and wherein
the second stage is a spur gear set.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Fleytman US 5,992,259 Nov. 30, 1999
Daniels WO 01/83247 A2 Nov. 8, 2001

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The following rejections are before us for review:
1. Claims 4 and 12 are rejected under 35 U.S.C. § 102(b) (2002) as being
as being anticipated by Daniels.
2. Claims 8 and 10 are rejected under 35 U.S.C. § 103(a) (2004) as being
unpatentable over Daniels in view of Fleytman.

ISSUES
The issues before us are whether the Appellants have shown that the
Examiner erred in rejecting claims 4 and 12 over Daniels, and claims 8 and
10 over Daniels in view of Fleytman. These issues turn on whether: (1)
Daniels discloses a first speed reducing stage including a belt drive as called
for in claim 1; and (2) the combined disclosure of Daniels and Fleytman
discloses a first speed reducing stage including a worm gear having a lead
angle in the range of about 30 to 35 degrees and five to seven leads as called
for in claims 8 and 10.

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. The Appellants’ Specification discloses a drive unit 20 for a power
operated vehicle closure comprising a track 24, a guide 26 engages
the track for sliding movement along the track, a link 34 attached
to the guide at one end and adapted to be attached to the vehicle
closure 12 at the opposite end, and a motor assembly 22 includes a
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housing 38 attached to the track for moving the guide along the
track, the motor assembly has an electric motor 36 and a speed
reducer driven by the electric motor.
2. The Appellants’ Specification further discloses that the speed
reducer has a first speed reducing stage 40, 42, 44 and a second
speed reducing stage 46, 48 that is driven by the first speed
reducing stage and that is drivingly connected to the guide 26 for
moving the guide along the track wherein the first stage includes a
belt drive 42 and wherein the second stage is a spur gear set 46, 48
(Appellants’ figs. 4 and 5).
3. The Appellants’ Specification still further discloses an alternate
drive unit 120 (Spec. 5, l. 22), wherein the speed reducer has a first
speed reducing stage and a second speed reducing stage, the first
stage includes a worm gear 140 and a mating helical gear 142, the
second stage being a spur gear set 148 that is driven by the first
speed reducing stage and that is drivingly connected to the guide
for moving the guide along the track, and wherein the worm gear
140 has a lead angle in the range of about 30 degrees to 35 degrees
and five to seven leads (Specification 5, l. 34-Specification 6, l. 1)
(Appellants’ fig. 8).
4. Daniels discloses a drive unit 10 for a power operated vehicle
closure comprising a track 36, 38, a guide 40 that engages the
track for sliding movement along the track, a link 46 attached to
the guide 40 at one end and adapted to be attached to the vehicle
closure 12 at the opposite end, and a motor assembly 58 that
moves the guide along the track, the motor assembly has an
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electric motor 58, the motor provides a rotational force, the
rotational force is transferred to a transmission gear 60, the
transmission gear 60 transmits the rotation force to an upper gear
62 via a chain link 64 (Daniels figs. 1 and 4).
5. Daniels further discloses that a transmission gear/worm gear
combination may be substituted for the gears 60, 62 and chain 64
(Daniels 4, ll. 14-15).
6. Fleytman discloses that the enveloping angle of a worm gear is
greater than 30 degrees (Fleytman claim 4).

PRINCIPLES OF LAW
On appeal, Appellants bear the burden of showing that the Examiner
has not established a legally sufficient basis for rejecting claims 4 and 12
over Daniels, and claims 8 and 10 over Daniels in view of Fleytman.
Anticipation is established only when a single prior art reference
discloses, expressly or under the principles of inherency, each and every
element of a claimed invention. RCA Corp. v. Applied Digital Data Sys.,
Inc., 730 F.2d 1440, 1444 (Fed. Cir. 1984). In other words, there must be no
difference between the claimed invention and the reference disclosure, as
viewed by a person of ordinary skill in the field of the invention. Scripps
Clinic & Research Found. v. Genentech Inc., 927 F.2d 1565, 1576 (Fed. Cir.
1991). It is not necessary that the reference teach what the subject
application teaches, but only that the claim read on something disclosed in
the reference, i.e., that all of the limitations in the claim be found in or fully
met by the reference. Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772
(Fed. Cir. 1983), cert. denied, 465 U.S. 1026 (1984).
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When construing claim terminology in the United States Patent and
Trademark Office, claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004).

ANALYSIS
Appellants argue claims 4, 8, 10 and 12 separately.
Daniels discloses a drive unit 10 for a power operated vehicle closure
comprising a track 36, 38, a guide 40 engaging the track for sliding
movement along the track, a link 46 attached to the guide 40 at one end and
adapted to be attached to the vehicle closure 12 at the opposite end, and a
motor assembly 58 that moves the guide along the track (Fact 4). Daniels
further discloses that the motor assembly has an electric motor 58 that
provides a rotational force, which is transferred to a transmission gear 60,
which in turn transmits the rotation force to an upper gear 62 via a chain link
64 (Daniels figs. 1 and 4) (Fact 4).
Appellants argue that Daniels does not disclose a speed reducer
having a first and a second stage (Br. 4). The Examiner states that Daniels
discloses a speed reducer for a first stage at page 1, lines 30 and 31 (Ans. 4-
5). However, Appellants correctly point out that in Daniels, the disclosure
set forth on page 1, lines 30 and 31 is in the Description of the Related Art
and refers to a U.S. patent to Moore et al, and not to Daniels’ invention (Br.
7). Appellants state that in Daniels, motor assembly 58 drives transmission
gear 60 through an unlabeled gear box, wherein the elements inside the gear
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box are not illustrated in the drawings nor described in the specification (Br.
4). Appellants refer to the unlabeled gear box as gear box X (Br.4 and Br.
Exhibit A). Daniels discloses the following: “The motor 58 provides a
bidirectional rotational force through an output shaft (not shown). The
rotational force of the output shaft is transferred to a transmission gear 60”
(Daniels 4, ll. 11-13). Therefore, it is speculative, at best, as to what is
actually disclosed in box X. Accordingly, we find that box X can not be
considered to contain a second speed reducing stage as called for in claims
4, 8 and 10 (Ans. 5). The Examiner has the burden in the first instance of
establishing by a preponderance of the evidence that the prior art has the
features relied on in the rejection, in this instance, a second speed reducing
stage. This merely means that the Examiner must show that it is more likely
than not that Daniels contains a second speed reducing stage (cl. 4)
comprised of a worm gear and a mating helical gear (cls. 8 and 10). While
we acknowledge that Daniels mentions a worm shaft and gears in the
Description of the Related Art section of his disclosure (p. 1, ll. 30 and 31),
it is unclear as to whether he contemplates such on his apparatus. On
balance we must agree with Appellants’ argument (Br. 4-7) that the
Examiner has not shown the presence of a second speed reducing stage at
least to a preponderance of the evidence.
The Examiner acknowledges that Daniels does not disclose the
limitation “wherein the worm gear has a lead angle in the range of about 30
degrees to 35 degrees and five to seven leads” (claim 8, ll. 14-15 and claim
10, ll. 16 and 17) and refers to Fleytman as disclosing the omitted limitation
(Ans. 4). We do not agree with the Examiner’s analysis (Ans. 4) as we find
that Appellants (Br. 8-9) correctly point out that Fleytman does not disclose
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the omitted limitation, in particular, the number of leads of the worm gear as
called for in claims 8 and 10.

CONCLUSION OF LAW
We conclude that the Appellants have shown that the Examiner erred
in rejecting claims 4 and 12 under 35 U.S.C. § 102(b) as being anticipated
by Daniels, and claims 8 and 10 under 35 U.S.C. § 103(a) as being
unpatentable over Daniels in view of Fleytman.

DECISION
The decision of the Examiner to reject claims 4 and 12 over Daniels,
and claims 8 and 10 over Daniels in view of Fleytman is reversed.

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REVERSED

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LV :

DELPHI TECHNOLOGIES, INC.
M/C 480-410-202
PO BOX 5052
TROY, MI 48007
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