Ex Parte Shaffer

Patent Trial and Appeal Board

Sep 28, 2018

13480695 (P.T.A.B. Sep. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/480,695 05/25/2012
26813 7590 10/02/2018
MUETING, RAASCH & GEBHARDT, P.A.
P.O. BOX 581336
MINNEAPOLIS, MN 55458-1336
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Chadwick A. Shaffer
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.
206.00750101 8511
EXAMINER
MISA,JOAND
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
10/02/2018 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):
ptodocketing@mrgs.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHADWICK A. SCHAFFER
Appeal2017-009435
Application 13/480,695
Technology Center 3600
Before JENNIFER D. BAHR, EDWARD A. BROWN, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner's
Decision rejecting claims 1-20. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
Appeal2017-009435
Application 13/480,695
CLAIMED SUBJECT MATTER
Claims 1, 7, and 17 are independent, with claims 2-6, 8-16, and 18-
20 depending from claim 1, 7, or 1 7. Claims 1, 7, and 17 are reproduced
below:
1. A power equipment unit comprising:
a ground-engaging implement;
a handle having a first end attached to the implement and
a second end configured to cooperate with an operator;
a lever pivotally attached to the handle near the second
end, the lever pivotable between an inoperative position and an
operative position; and
a key removably receivable within an opening located
proximate the second end of the handle, the key configured to
move within, and along an axis of, the opening between: an off
position, wherein movement of the lever between the
inoperative and operative position has no effect on the
implement; and an on position, wherein movement of the lever
between the inoperative and operative position results in
actuation of the implement.
7. A power equipment unit comprising:
a ground-engaging implement;
a handle having a first end attached to the implement and
a second end configured to cooperate with an operator;
a control housing attached to the handle near the second
end, the control housing comprising a switch selectively
configurable between: a normally open state corresponding to a
de-energized state of the implement; and a closed state
corresponding to an energized state of the implement;
a lever pivotally attached to the handle near the second
end, the lever pivotable between at least an inoperative position
and an operative position; and
a removable key configured to be positioned within an
opening of the control housing, the key configured to move
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Application 13/480,695
within, and along an axis of, the opening between: an off
position, wherein movement of the lever from the inoperative
position to the operative position has no effect on the switch;
and an on position, wherein movement of the lever from the
inoperative position to operative position results in
manipulation of the switch from the open state to the closed
state.
17. A power equipment unit comprising:
an electrically powered, ground-engaging implement;
a handle having a first end attached to the implement and
a second end configured to cooperate with an operator;
a control housing attached to the handle near the second
end, the control housing comprising a switch selectively
configurable between: a normally open state corresponding to a
de-energized state of the implement; and a closed state
corresponding to an energized state of the implement;
a lever pivotally attached to one or both of the handle and
the control housing, the lever pivotable between an inoperative
position and an operative position; and
a removable key configured to be positioned within an
opening of the control housing, the key configured to move
within, and along an axis of, the opening between: an off
position, wherein movement of the lever from the inoperative
position to the operative position is isolated from the switch;
and an on position, wherein movement of the lever from the
inoperative position to the operative position results in
manipulation of the switch from the open state to the closed
state.
REJECTIONS
1. Claims 1-3, 5-7, 9, and 14--20 are rejected under 35 U.S.C. § 102 as
being anticipated by Eaton (US 7,762,049 B2, iss. July 27, 2010).
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2. Claim 4 is rejected under 35 U.S.C. § 103 as being unpatentable over
Eaton and Coates (US 7,071,436 B2, iss. July 4, 2006).
3. Claim 8 is rejected under 35 U.S.C. § 103 as being unpatentable over
Eaton.
4. Claims 1-20 are rejected under 35 U.S.C. § 103 as being unpatentable
over Eaton and Stevens (US 4,295,285, iss. Oct. 20, 1981 ).
OPINION
Anticipation
The Examiner finds that Eaton discloses each feature recited in claims
1-3, 5-7, 9, and 14--20. Non-Final Act. 3-5. More specifically, the
Examiner finds that Eaton's key 80 corresponds to the "key" and key
receiver 82 corresponds to the "opening" that receives the "key" recited in
each of claims 1, 7, and 17. Id. at 3--4.
Eaton "relates to electric outdoor power equipment and more
specifically to an electric outdoor power machine having a two-motion
activation system." Eaton, 1: 6-8. Figures 2 and 3 of Eaton are reproduced
below for reference.
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Application 13/480,695
Figure 2 of Eaton "is a front perspective view of an upright assembly having
a bail handle and a bail actuation control assembly associated with [a]
battery-powered lawn mower." Id. at 2:29--31.
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Application 13/480,695
Figure 3 of Eaton "is a side perspective view of the bail actuation control
assembly of FIG. 2 and shown with a portion of the housing removed." Id.
at 2:32-34.
Eaton explains that "[a] key 80 is removably received within a key
receiver 82 provided on the housing 70" (id. at 3:64---65) and that "key 80
must be placed within the key receiver 82 (to complete an electrical loop) for
the bail actuation control assembly to allow power to be delivered to the
cutting mechanism 24" (id. at 5: 17-20).
With respect to claim 1, Appellant contends that "[ t ]he Examiner ...
has failed to provide any teaching in Eaton et al. that describes that the key
80 is configured to move within the key receiver 82 between an off position
and an on position as recited in claim 1." Appeal Br. 8. Appellant does not
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Application 13/480,695
dispute that key 80 from Eaton is a "a key removably receivable within an
opening located proximate the second end of the handle, the key configured
to move within, and along an axis of, the opening" to "an on position,
wherein movement of the lever between the inoperative and operative
position results in actuation of the implement." Rather, Appellant contends
that Eaton fails to disclose an off position for its key 80 and therefore, does
not disclose that key 80 is "configured to move within, and along an axis of,
the opening between: an off position ... and an on position" (i.e., there is
only an "on position" in Eaton). See id. ("key 80 is in the on position once it
is inserted into the key receiver 82" and "is [not] configured to be in an off
position within the key receiver 82 as there is no off position for the key 80
once the key is inserted into the key receiver 82").
The Examiner responds that
when the key 80 of Eaton et al. is inserted completely inside the
key receiver 82 of Eaton et al., the key 80 of Eaton et al. will be
in the on position, which completes an electrical loop.
However, when the key 80 of Eaton et al. is inserted partially
into the key receiver 82, the key 80 of Eaton et al. will be
unable to complete an electrical loop and is therefore in the off
position.
Ans. 3. Appellant counters, contending that "[ t ]he Examiner ... fails to
point to any specific portions of Eaton et al. that describes this alleged off
position of the key 80" and is, "[i]nstead, ... engaging in mere conjecture
that the key 80 can be partially inserted into the key receiver 82 of Eaton et
al. without completing the electrical loop." Reply Br. 2.
Appellant is correct. Although partial insertion of key 80 into key
receiver 82 may not complete the electrical loop, there is no evidence
supporting the Examiner's conclusion that must be the result of partial
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insertion. Eaton simply states that "key 80 must be placed within the key
receiver 82 (to complete an electrical loop)," without specifying any extent
of insertion. Eaton, 5: 17-20. Although Appellant additionally notes that
such an arrangement is not inherent in Eaton (Reply Br. 3), we note that the
Examiner does not rely on inherency.
Similar to claim 1, claims 7 and 17 also recite "a removable key
configured to be positioned within an opening" and "configured to move
within, and along an axis of, the opening between: an off position ... and an
on position." Appellant reiterates the arguments discussed above with
respect to claim 1. Appeal. Br. 9, 11.
For at least these reasons, the Examiner has failed to establish that
claims 1-3, 5-7, 9, and 14--20 are anticipated by Eaton.
Obviousness-Claims 4 and 8
Claim 4 depends from claim 1 and claim 8 depends from claim 7.
The stated bases for the rejections of those claims as unpatentable over
Eaton and Coates (claim 4) and unpatentable over Eaton (claim 8) suffer
from the deficiencies noted above with respect to claims 1 and 7. Non-Final
Act. 5-7.
Obviousness-Claims 1-20
The Examiner alternatively determines that claims 1-20 are
unpatentable over Eaton and Stevens. Non-Final Act. 8-10. In this
rejection, the Examiner cites Eaton's button 76 as corresponding to the
"key" recited in claims 1, 7, and 17, rather than Eaton's key 80 cited in the
anticipation rejection discussed above. Id. The Examiner acknowledges
that button 7 6 is not removable, as required by claims 1, 7, and 17, and
proposes modifying button 7 6 to be removable in view of teachings from
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Stevens "to further improve the safety measures of the unit by further
preventing inadvertent actuation of the ground engaging element." Id. at 8-
9 ( citing Stevens, 2:29-34, 9: 18-33).
Appellant argues claims 1-20 as a group. Appeal Br. 13-19. We
select claim 1 as representative. Claims 2-20 stand or fall with claim 1. See
37 C.F.R. § 4I.37(c)(l)(iv). Appellant does not dispute the Examiner's
findings and, instead, dispute only the rationale provided for the proposed
modification to Eaton's teachings to have button 76 be removable. Appeal
Br. 13-19.
Appellant first argues that "the Examiner has failed to provide any
rational underpinning for the allegation that one of skill in the art would be
motivated to modify the button 7 6 of Eaton et al. such that it is removable"
(id. at 14) because the added safety measure created by the proposed
modification provides "an added yet unnecessary safety feature" (id. at 15).
Notably, Appellant does not dispute that making button 76 removable would
make Eaton's power equipment safer. The fact that a safety measure is more
burdensome, as Appellant contends (id. at 16), goes hand-in-hand with the
purpose of a safety mechanism. That is, a safety mechanism, by its very
nature, typically makes it more difficult to operate a device, creating
additional operating requirements to ensure there is no unintentional
actuation. Accordingly, we are not persuaded by Appellant's contentions
regarding the rationale proposed by the Examiner.
Appellant next argues that the Examiner's proposed modification
would change Eaton's principle of operation. Appeal Br. 17-19. That, too,
is unpersuasive of Examiner error, as the Examiner simply proposes making
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button 76 removable. There is no change to the function of Eaton's power
equipment.
For at least these reasons, we are not apprised of Examiner error in the
rejection of claims 1-20.
DECISION
We REVERSE the Examiner's decision to reject claims 1-3, 5-7, 9,
and 14--20 under 35 U.S.C. § 102 as anticipated by Eaton.
We REVERSE the Examiner's decision to claim 4 under 35 U.S.C.
§ 103 as being unpatentable over Eaton and Coates.
We REVERSE the Examiner's decision to claim 8 under 35 U.S.C.
§ 103 as being unpatentable over Eaton.
We AFFIRM the Examiner's decision to reject claims 1-20 under 35
U.S.C. § 103 as being unpatentable over Eaton and Stevens.
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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