Ex Parte Shade

Patent Trial and Appeal Board

Dec 14, 2018

13703967 (P.T.A.B. Dec. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/703,967 12/13/2012
23117 7590 12/18/2018
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Richard A. Shade
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.
AMK-3638-1245 3609
EXAMINER
TEKA,ABIY
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
12/18/2018 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD A. SHADE
Appeal2018-000750
Application 13/703,967 1
Technology Center 3700
Before LINDA E. HORNER, STEFAN STAICOVICI, and
ERIC C. JESCHKE, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE-
Richard A. Shade ("Appellant") appeals under 35 U.S.C. § 134(a)
from the Examiner's decision in the Final Office Action (dated Aug. 11,
2016, hereinafter "Final Act.") rejecting claims 1-19. We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We REVERSE.
1 JLG Industries, Inc. is identified as the real party in interest in Appellant's
Appeal Brief (filed May 8, 2017, hereinafter "Appeal Br."). Appeal Br. 3.
Appeal2018-000750
Application 13/703,967
INVENTION
Appellant's invention relates to "a hydraulic drive system for an aerial
work platform." Spec. para. 3.
Claims 1, 8, and 15 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A selectable flow divider drive system comprising:
a hydraulic fluid reservoir;
a plurality of drive motors in fluid communication with
the hydraulic fluid reservoir;
a hydraulic pump connected between the hydraulic fluid
reservoir and the plurality of drive motors, the hydraulic
pump directing hydraulic fluid from the hydraulic fluid
reservoir to the plurality of motors, wherein the hydraulic
pump is operable in a high flow condition and a low flow
condition;
a flow divider component interposed between the
hydraulic pump and the plurality of motors, the flow divider
component selectively dividing hydraulic fluid flow to each
of the plurality of drive motors, wherein a flow divider of
the flow divider component is sized for the low flow
condition of the hydraulic pump;
a bypass valve disposed upstream of the flow divider, the
bypass valve selectively bypassing the flow divider when
the hydraulic pump is operated in the high flow condition;
and
a fluid circuit downstream of the flow divider component
and the bypass valve, the fluid circuit directing the hydraulic
fluid in parallel flow to each of the plurality of drive motors
regardless of a position of the bypass valve.
REJECTIONS
I. The Examiner rejects claims 1-3 and 15-19 under 35 U.S.C. § 103(a)
as being unpatentable over Campbell et al. (US 3,997,017, iss. Dec.
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Application 13/703,967
14, 1976, hereinafter "Campbell") and Morgan (US 7,000,386 Bl, iss.
Feb. 21, 2006, hereinafter "Morgan '386").
II. The Examiner rejects claim 4 under 35 U.S.C. § I03(a) as being
unpatentable over Campbell, Morgan '386, and Morgan (US
6,279,317 Bl, iss. Aug. 28, 2001, hereinafter "Morgan '317").
III. The Examiner rejects claims 5 and 6 under 35 U.S.C. § I03(a) as
being unpatentable over Campbell, Morgan '386, Larson (US
3,889,759, iss. June 17, 1975), and Holtkamp et al. (US 3,841,423, iss.
Oct. 15, 1974, hereinafter "Holtkamp").
IV. The Examiner rejects claim 7 under 35 U.S.C. § I03(a) as being
unpatentable over Campbell, Morgan '386, and Laurich-Trost (US
4,446,941, iss. May 8, 1984), as evidenced by Barlow et al. (US
2006/0278305 Al, pub. Dec. 14, 2006, hereinafter "Barlow").
V. The Examiner rejects claims 8-14 under 35 U.S.C. § I03(a) as being
unpatentable over Takahashi (US 6,378,653 Bl, iss. Apr. 30, 2002),
Campbell, and Morgan '386, as evidenced by Larson. 2
ANALYSIS
Rejection I
Each of independent claims requires, inter alia, fluid to flow "in
parallel flow to each of the plurality of drive motors regardless of a position
of the bypass valve." Appeal Br. 15, 16, 18 (Claims App'x.).
2 We view the Examiner's omission of claim 14 in the heading of this
rejection as a typographical error because claim 14 is discussed in the
body of the rejection. See Final Act. 13.
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Application 13/703,967
The Examiner finds that Campbell discloses most of the limitations of
independent claims 1 and 15, but "remains silent regarding the fluid circuit
directing the hydraulic fluid in parallel flow to each of the plurality of drive
motors regardless of a position of the bypass valve." Final Act. 2-3 ( citing
Campbell, col. 2, 11. 59----67, col. 3, 11. 31-34, Fig. 1). Nonetheless, the
Examiner finds that Morgan '386 discloses a fluid circuit located
downstream of flow divider valve 1 and bypass valve 4 that "allows
hydraulic [ fluid to] flow ... in parallel flow to each of the plurality of drive
motors (6) regardless of a position of the bypass valve (4)." Id. at 3--4
(citing Morgan '386, Fig. 3). The Examiner concludes that because both
Campbell and Morgan '386
are in the same field of endeavors and both teach known
hydraulic connections of actuators (series/parallel) to a
hydraulic source it would have been obvious to one ordinary
skill in the art to have replaced one connection type for the
other thereby providing a hydraulic fluid in parallel flow to
each of the plurality of drive motors regardless of a position of
the bypass valve to achieve a predictable result of supplying
pressurized fluid for the actuation of the hydraulic running
motors.
Id. at 4.
In response, Appellant argues that because Campbell's system "shifts
between a low-speed high torque setting in parallel flow and a high-speed
low torque setting in series flow," the Examiner's modification of
Campbell's system, according to Morgan '386, "would subvert the intended
functionality of the Campbell system, which requires series flow for a high-
speed low torque setting." Appeal Br. 10-11. According to Appellant, the
system of Campbell, as modified by Morgan '386, "would no longer include
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Application 13/703,967
a series drive setting for the motors." Id. at 11 (citing Sundance, Inc. v
DeMonte Fabricating Ltd., 550 F.3d 1356 (Fed. Cir. 2008)).
The Examiner responds that because Campbell does not disclose that
only a series connection should be used to achieve a low torque, high speed
operation, using a parallel flow connection, as taught by Morgan '386, "will
work equally as well [in Campbell's system] because fluid flow is being
delivered to the motors ( without it being delivered to any other actuator that
might consume part of the fluid that is going to the motors) by bypassing the
flow divider." Examiner's Answer 3--4 (dated Aug. 28, 2017, hereinafter
"Ans."). According to the Examiner, "the hydraulic circuit [ of Campbell, as
modified by Morgan '386,] will be able to receive sufficient flow (without
flow division at the flow divider) to the drive the motors in high speed/low
torque operation" and, hence, "the combination will not subvert or destroy
the functionality of the hydraulic device in Campbell." Id. at 4.
In this case, Campbell discloses driving motors 56, 62 operating in
series or parallel, where parallel fluid flow is required for low speed, high
torque operation and series fluid flow is needed for high speed, low torque
operation. See Campbell, Abstract, col. 4, 11. 16-35, Fig. 1. We agree with
Appellant that when Campbell's motors 56, 62 operate in parallel, they share
fluid flow between them, but have the same pressure available, such that
neither motor can operate at full speed, but, instead, the system operates in a
low speed, high torque mode. Reply Brief 1 (filed Oct. 30, 2017, hereinafter
"Reply Br."). However, when Campbell's motors 56, 62 operate in series,
because they operate under the same fluid flow rate, "the torque is halved,
but the speed is doubled," as compared to when the motors are arranged in
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parallel, such that they operate in a high speed, low torque mode. Id. at 1-2.
Therefore, we agree with Appellant that "there are substantial functional
differences between operating hydraulic motors in series versus [in]
parallel." Id. at 2.
Accordingly, we do not agree with the Examiner that, when supplying
fluid in a parallel manner in the system of Campbell, as modified according
to Morgan '386, to bypass flow divider 24, motors 56, 62 would operate "in
the same manner and achieve the same effect." Ans. 3; see also Campbell,
Fig. 1. As noted above, when Campbell's motors 56, 62 operate in parallel,
they share flow between them, and, thus, operate in a low speed, high torque
mode. The Examiner does not adequately explain how is it possible to
supply fluid in a parallel manner to motors 56, 62 in the system of Campbell,
as modified by Morgan '386, such that both low speed, high torque (when
dividing flow with flow divider 24) and high speed, low torque ( when
bypassing flow divider 24) modes of operation are obtainable.
Furthermore, even though we appreciate the Examiner's position that
there is an "alternative way of supplying fluid" (see Ans. 3), this does not
mean that operating Campbell's motors 56, 62 in parallel when bypassing
flow divider 24 would result in a high speed, low torque mode of operation.
The Examiner's determination that "parallel flow [in the system of
Campbell] is equally as effective [ as series flow] in achieving the high speed
low flow setting" requires speculation on the Examiner's part. Advisory
Action (dated Dec. 8, 2016, hereinafter "Adv. Act.") (emphasis added).
Specifically, the Examiner's finding that "parallel flow will work equally as
well [in the system of Campbell] because fluid flow is being delivered to the
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motors ... by bypassing the flow divider [24 ]" is mere speculation based on
an unfounded assumption that Campbell's flow divider 24 "consume[s] part
of the fluid that is going to the motors." Ans. 3. The Examiner does not set
forth any persuasive evidence to support the determination that bypassing
Campbell's flow divider 24 results in a high speed, low torque mode of
operation. Therefore, the Examiner's legal conclusion of obviousness is not
supported by sufficient factual evidence, and thus, cannot stand. See In re
Warner, 379 F.2d 1011, 1017 (CCPA 1967).
Lastly, we note that Campbell provides a system that includes both
low speed, high torque (when dividing flow with flow divider 24) and high
speed, low torque (when bypassing flow diver 24) modes of operation.
Campbell, Abstract. Accordingly, it would not have been obvious to a
person of ordinary skill in the art to run Campbell's motors 56, 62 in parallel
when bypassing flow divider 24 because such a modification would not
maintain the purpose of Campbell's system, as it would eliminate series
fluid flow needed for high speed, low torque operation. See DePuy Spine,
Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1326 (Fed. Cir.
2009) (noting that the "predictable result" discussed in KSR International
Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007), also means "that the
combination would have worked for its intended purpose").
In conclusion, for the foregoing reasons, we do not sustain the
rejection under 35 U.S.C. § 103(a) of claims 1-3 and 15-19 as unpatentable
over Campbell and Morgan '386.
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Rejections 11-V
In regards to Rejections II-IV, the Examiner's use of the disclosures
of Morgan '317, Larson, Holtkamp, Laurich-Trost, and Barlow do not
remedy the deficiency of the Examiner's combination of Campbell and
Morgan '386 discussed supra. See Final Act. 5-9.
As to Rejection V, the Examiner employs the teachings of Campbell
and Morgan '386 in the same manner discussed above that we did not find
persuasive. See id. at 9-12.
Accordingly, for the same reasons discussed above, we also do not
sustain Rejections II-V.
SUMMARY
The Examiner's decision to reject claims 1-19 under 35 U.S.C. § 103(a)
is reversed.
REVERSED
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