Ex Parte Wesson et alDownload PDFPatent Trial and Appeal BoardSep 25, 201713822080 (P.T.A.B. Sep. 25, 2017) Copy Citation United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/822,080 03/11/2013 John P. Wesson 60469-51 OPUS 1; 14428-US 9896 64779 7590 09/27/2017 CARLSON GASKEY & OLDS INTELLECTUAL PROPERTY DEPARTMENT 400 W MAPLE STE 350 BIRMINGHAM, MI 48009 EXAMINER VINEIS, FRANK J ART UNIT PAPER NUMBER 1786 NOTIFICATION DATE DELIVERY MODE 09/27/2017 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): frederic .tenney@otis.com ptodocket @ cgolaw. com cgolaw@yahoo.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN P. WESSON, GOPAL R. KRISHNAN, TIMOTHY D. DEVALVE, VIJAY JAYACHANDRAN, and DANIEL RUSH Appeal 2017-001406 Application 13/822,080 Technology Center 1700 Before KAREN M. HASTINGS, MONTE T. SQUIRE, and JENNIFER R. GUPTA, Administrative Patent Judges. SQUIRE, Administrative Patent Judge. DECISION ON APPEAL1 Appellants2 appeal the Examiner’s decision to finally reject claims 1— 10 and 21, which constitute all the claims pending in this application. 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). 1 In our Decision, we refer to the Specification filed March 11, 2013 (“Spec.”); Final Office Action dated February 12, 2016 (“Final Act.”); Appeal Brief dated June 15, 2016 (“App. Br.”); Examiner’s Answer to the Appeal Brief dated September 7, 2016 (“Ans.”); and Reply Brief dated November 4, 2016 (“Reply Br.”). 2 Appellants identify Otis Elevator Company, a business unit of United Technologies Corporation, as the real party in interest. App. Br. 1. Appeal 2017-001406 Application 13/822,080 We AFFIRM. The Claimed Invention Appellants’ disclosure is directed to a traction elevator system comprising an elongated elevator load bearing member that includes a plurality of tension elements that extend along a length of the load bearing member and a plurality of weave fibers transverse to the tension elements and woven with the tension elements. Spec. 1, Figs. 1—3; Abstract. Claim 1 is illustrative of the claimed subject matter on appeal and is reproduced below from the Claims Appendix to the Appeal Brief (App. Br. 9) (key disputed claim language italicized and bolded): 1. A traction elevator system, comprising: a traction sheave; an elevator car; and an elongated elevator load bearing member associated with the elevator car, the elongated load bearing member suspending a weight of the elevator car, the elongated load bearing member comprising: a plurality of tension elements that extend along a length of the load bearing member; and a plurality of weave fibers transverse to the tension elements and woven with the tension elements, the weave fibers maintaining a desired spacing and alignment of the tension elements relative to each other, the weave fibers at least partially covering the tension elements, the weave fibers being exposed and establishing an exterior, traction surface of the load bearing member, the traction surface contacting the traction sheave. 2 Appeal 2017-001406 Application 13/822,080 The References The Examiner relies on the following references as evidence in rejecting the claims on appeal: Zaharia et al., US 2002/0104715 A1 Aug. 8, 2002 (hereinafter “Zaharia”) Braekevelt et al, US 2007/0235595 Al Oct. 11, 2007 (hereinafter “Braekevelt”) Wesson etal., US 2013/0042939 Al Feb. 21,2013 (hereinafter “Wesson”) The Rejections On appeal, the Examiner maintains the following rejections: 1. Claims 1—5, 7—10, and 21 are rejected under pre-AIA 35 U.S.C. § 102(e) as being anticipated by Wesson (“Rejection 1”). Ans. 2; Final Act. 3. 2. Claims 1—10 and 21 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Braekevelt in view of Zaharia (“Rejection 2”). Ans. 6; Final Act. 7. OPINION Having considered the respective positions advanced by the Examiner and Appellants in light of this appeal record, we affirm the Examiner’s rejections for the reasons set forth in the Answer to the Appeal Brief and Final Office Action, which we adopt as our own. We highlight and address specific findings and arguments for emphasis as follows. 3 Appeal 2017-001406 Application 13/822,080 Rejection 1 Claims 1—5, 7—10, and 21 Appellants argue claims 1—5, 7—10, and 21 as a group. App. Br. 2. We select claim 1 as representative and the remaining claims stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner determines that Wesson discloses an elevator system satisfying all of the limitations of claim 1 and thus, anticipates the claim. Ans. 2—3. In particular, the Examiner finds that Wesson teaches a method of making a woven fabric 20 having desired spacing between tension members 22, wherein the tension members 22 are woven with weave fibers 24; the weave fibers 24 are transverse to the tension members 22; the weave fibers 24 maintain a desired spacing and alignment of the tension members 22 relative to each other; and the weave fibers 24 partially cover the tension elements 22 and form a traction surface. Ans. 3 (citing Wesson, Fig. 1, | 15). The Examiner finds further that Wesson teaches a traction sheave 76, elevator car 72, and that the traction surface contacts the traction sheave. Id. at 3 (citing Wesson, Fig. 8,134). Appellants argue that the Examiner’s rejection of claim 1 should be reversed because the Examiner has failed to establish a prima facie case of anticipation. App. Br. 2; Reply Br. 1. In particular, Appellants argue that the Wesson reference does not teach “the weave fibers being exposed and establishing an exterior, traction surface of the load bearing member, the traction surface contacting the traction sheave,” as recited in the claim. See App. Br. 3; Reply Br.l—2. 4 Appeal 2017-001406 Application 13/822,080 We do not find Appellants’ argument persuasive of reversible error in the Examiner’s rejection. To serve as an anticipatory reference, “the reference must disclose each and every element of the claimed invention.” In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). Based on the record before us, we find that a preponderance of the evidence supports the Examiner’s determination (Ans. 2—3, 11—12) that Wesson discloses each and every element of claim 1, including “the weave fibers being exposed and establishing an exterior, traction surface of the load bearing member, the traction surface contacting the traction sheave.” Wesson, Figs. 1, 8, H 15, 34. We do not find Appellants’ arguments at page 3 of the Appeal Brief persuasive for the well-stated reasons provided by the Examiner at pages 2— 4 and 11—12 of the Answer. In particular, as the Examiner correctly points out (Ans. 11), Appellants’ argument is misplaced because the Examiner’s rejection relies principally on Figure 1 of Wesson for disclosing this limitation—and not on Figure 7 of the reference as Appellants argue. As the Examiner finds (Ans. 3, 11), Figure 1 of Wesson does disclose the weave fibers 24 being exposed and together with tension elements 22 establishing a traction surface, as claimed. Wesson, Fig. 1,115. As the Examiner further finds (Ans. 3, 4), Wesson also discloses a traction sheave 76, elevator car 72, and that the traction surface formed by the weave fibers 24 and tension elements 22 contacts the traction sheave 76. Wesson, Fig. 8,1 34. Appellants’ argument reveals no reversible error in the Examiner’s factual findings and analysis in this regard. 5 Appeal 2017-001406 Application 13/822,080 Moreover, for the reasons provided by the Examiner at pages 11—12 of the Answer, we concur with the Examiner’s determination that Wesson does not require a coating of the weave. In particular, as the Examiner finds (Ans. 11), Wesson teaches that the “jacket 60” depicted in Figure 7 of the reference is merely an example of another embodiment of the disclosed invention, and not required as Appellants’ argument suggests. See Wesson 130 (disclosing that the “example of FIG. 7 illustrates one way in which a woven fabric designed according to an embodiment of this invention can be incorporated into a flat belt”) (emphasis added); see also In re Mills, 470 F.2d 649, 651 (CCPA 1972) (“[A] reference is not limited to the disclosure of specific working examples.”). We also concur with the Examiner’s determination (Ans. 12) that, in light of the Specification and language of the claims, the broadest reasonable interpretation of claim 1 would encompass coating/impregnating the weave fibers with an elastomer or a sizing material. See Spec. 121 (“One example includes establishing weave fibers 34 of a desired material and then coating or impregnating the fibers with the elastomer material.”); Spec. 122 (disclosing that the “weave fibers 34 comprise yam that is treated with a known sizing material” that “enhances a wear characteristic” and “provides a desired traction characteristic”); claim 6 (reciting “wherein the weave fibers comprise yam and sizing”); claim 7 (reciting “wherein the weave fibers comprise yam impregnated with an elastomer material”). We, therefore, sustain the Examiner’s determination that Wesson discloses all of the limitations of claims 1—5, 7—10, and 21. 6 Appeal 2017-001406 Application 13/822,080 Claim 3 Appellants present separate argument for the patentability of claim 3. App. Br. 2; Reply Br. 3. Claim 3 depends from claim 1 and further recites: wherein weave fibers are arranged in a pattern that comprises a predetermined spacing between the weave fibers that establishes a surface area of coverage over the tension elements sufficient to prevent the tension elements from contacting the traction sheave. App. Br. 9 (Claims App’x). Appellants argue that the Examiner’s rejection of claim 3 should be reversed because the Examiner has failed to identify sufficient evidence to establish that Wesson inherently discloses “spacing between the weave fibers that establishes a surface area of coverage,” as recited in the claim. App. Br. 4—5; Reply Br. 3—5. We do not find Appellants’ argument persuasive of reversible error in the Examiner’s rejection for the well-stated reasons provided by the Examiner at page 4 of the Answer. We find that a preponderance of the evidence supports the Examiner’s determination that Wesson discloses each and every element of claim 3, including “spacing between the weave fibers that establishes a surface area of coverage over the tension elements sufficient to prevent the tension elements from contacting the traction sheave.” Gleave, 560 F.3d at 1334. In particular, we concur with the Examiner’s determination that Figure 1 of Wesson shows the weave fibers 24 arranged in a pattern that comprises predetermined spacing between the weave fibers 24 and that such spacing inherently establishes a surface area of coverage over the tension elements 22, which would be sufficient to prevent the tension elements 22 7 Appeal 2017-001406 Application 13/822,080 from contacting the traction sheave 76. See also Wesson, Fig. 8,1 15; In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (“Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product.”); In re Spada, 911 F.2d 705, 708-09 (Fed. Cir. 1990) (“[pjroducts of identical chemical composition cannot have mutually exclusive properties”). Appellants’ argument does not adequately rebut or otherwise establish reversible error the Examiner’s factual findings and analysis in this regard. We, therefore sustain the Examiner’s determination that Wesson discloses all of the limitations of claim 3. Accordingly, we affirm the Examiner’s rejection of claims 1—5, 7—10, and 21 under 35 U.S.C. § 102(e) as being anticipated by Wesson. Rejection 2 Claims 1—10 and 21 Appellants argue claims 1—10 and 21 as a group. App. Br. 5. We select claim 1 as representative and the remaining claims subject to this rejection stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner determines that the combination of Braekevelt and Zaharia suggests an elevator system satisfying all of the limitations of claim 1 and would have rendered claim 1 obvious. Ans. 6—7. The Examiner finds that Braekevelt teaches the majority of the limitations of claim 1, but that the reference does not teach a traction sheave, elevator car, or that the traction surface contacts the traction sheave. Ans. 6— 8 Appeal 2017-001406 Application 13/822,080 7 (citing Braekevelt, || 21—23, 33, 36, 42, 58, 69, Figs. 1—8). The Examiner, however, relies on Zaharia for teaching these missing limitations. Id. at 7. In particular, the Examiner finds that Zaharia teaches an elevator inspection device, wherein a belt 26 is attached to an elevator car 22 and counterweight 24 along a chosen path which is guided by traction sheaves 28 and 30. Ans. 7 (citing, Zaharia, Fig. 1,118). Based on the above findings, the Examiner concludes that it would have been obvious for one of ordinary skill in the art to have combined Braekevelt’s and Zaharia’s teachings (i.e., using the cable of Braekevelt in the system of Zaharia) to arrive at the claimed invention because the elements were known in the prior art, each element merely performs the same function as it does separately, and the results of the combination would have been predicable, i.e. an elevator system. Ans. 7. Appellants argue that the Examiner’s rejection should be reversed because the Braekevelt reference does not teach “the weave fibers being exposed and establishing an exterior, traction surface of the load bearing member, the traction surface contacting the traction sheave” and that the inclusion of the coating in the Braekevelt reference prevents such a result. See App. Br. 5—6; see also Reply Br. 6. We do not find Appellants’ argument persuasive of reversible error in the Examiner’s rejection. A preponderance of the evidence and sound technical reasoning support the Examiner’s analysis and determination that the combination of Braekevelt and Zaharia suggests all of the limitations of claim 1 and would have rendered the claim obvious. Braekevelt, || 21—23, 33, 36, 42, 58, 69, Figs. 1—8; Zaharia, Fig. 1,118. 9 Appeal 2017-001406 Application 13/822,080 The Examiner also provides a reasonable basis and identifies a preponderance of the evidence in the record to evince why one of ordinary skill would have combined the teachings of the references to arrive at Appellants’ claimed invention. Ans. 7. See also KSRInt’l Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007) (explaining that any need or problem known in the art can provide a reason for combining the elements in the manner claimed). Appellants fail to direct us to sufficient evidence or provide an adequate technical explanation to establish why the Examiner’s articulated reasoning for combining the teachings of the prior art to arrive at the claimed invention lacks a rational underpinning or is otherwise based on some other reversible error. We also do not find Appellants’ argument (App. Br. 5—6; Reply Br. 6) persuasive of reversible error because it is premised on what Appellants contend the Braekevelt reference teaches individually, and not on the combined teachings of the references as a whole and what the combined teachings would have suggested to one of ordinary skill in the art. One cannot show non-obviousness by attacking references individually where the rejection is based on a combination of references. See In re Keller, 642 F.2d 413,425 (CCPA 1981). Appellants’ assertions that the “inclusion of the coating in the [Braekevelt] reference prevents such a result” and “even if the proposed combination could be made, the result still does not include weave fibers like those included in Appellant’s claims” (App. Br. 6) are not persuasive of reversible error because they are conclusory and Appellants do not provide an adequate technical explanation or direct us to sufficient evidence in the 10 Appeal 2017-001406 Application 13/822,080 record to support them. Attorney argument is not evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Claim 3 Appellants argue that the Examiner’s rejection of claim 3 should be reversed because the Examiner has failed to make a showing of inherency and the Examiner’s findings regarding Braekevelt’s “warp elements” and “weft elements” are not supported by sufficient evidence in the record. App. Br. 6-7; see also Reply Br. 6. We do not find these arguments persuasive of reversible error for the well-stated reasons provided by the Examiner at pages 6—9 and 16—18 of the Answer. Rather, we find that a preponderance of the evidence supports the Examiner’s determination that the combination of Braekevelt and Zaharia suggests a system satisfying all of the limitations of claim 3 and would have rendered the claim obvious. Braekevelt, H 21—23, 25—27, 33, 36, 42, 58, 69, Figs. 1—8; Zaharia, Fig. 1,118 In particular, we concur with the Examiner’s finding (Ans. 6) that the warp elements of Braekevelt (Braekevelt, Fig. 1, elements 121,122, 123; Fig. 4, elements 221, 222, 223) correspond to the claimed tension elements and the weft elements correspond to the claimed weave fibers (Braekevelt, Fig. 1, elements 111, 112,113; Fig. 4, elements 311, 312, 313). We also concur with the Examiner’s determination (Ans. 8—9, 16—18) that Figure 4 of Braekevelt suggests the weave fibers (weft elements 311, 312, 313) arranged in a pattern that comprises predetermined spacing between them and that such spacing inherently establishes a surface area of coverage over the tension elements (warp elements 221, 222, 223) that, in 11 Appeal 2017-001406 Application 13/822,080 view of Zaharia, would be sufficient to prevent the tension elements from contacting the traction sheave (Zaharia, Fig. 1, elements 28 and 30). Appellants’ contentions at pages 6—7 of the Appeal Brief and page 6 of the Reply Brief are not persuasive because they are largely conclusory and, without more, insufficient to rebut or otherwise establish reversible error in the Examiner’s factual findings and analysis in this regard. Accordingly, we affirm the Examiner’s rejection of claims 1—10 and 21 under 35 U.S.C. § 103(a) as obvious over the combination of Braekevelt and Zaharia. DECISION/ORDER The Examiner’s rejections of claims 1—10 and 21 are affirmed. It is ordered that the Examiner’s decision is affirmed. 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 12 Copy with citationCopy as parenthetical citation