Ex Parte Zimmer et al

Patent Trial and Appeal Board

Nov 7, 2014

12386572 (P.T.A.B. Nov. 7, 2014)

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.
12/386,572 04/20/2009 Gunther Zimmer ZN 116 4262
7590 11/10/2014
KLAUS J. BACH & ASSOCIATES
PATENTS AND TRADEMARKS
4407 TWIN OAKS DRIVE
MURRYSVILLE, PA 15668
EXAMINER
BATSON, VICTOR D
ART UNIT PAPER NUMBER
3677
MAIL DATE DELIVERY MODE
11/10/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GUNTHER ZIMMER and MARTIN ZIMMER

____________

Appeal 2012–010063
Application 12/386,5721
Technology Center 3600
____________

Before CAROLYN D. THOMAS, KIMBERLY J. McGRAW, and
ELIZABETH M. ROESEL, Administrative Patent Judges.

McGRAW, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–11. The rejection of claim 12 was accepted by
Appellants. Appeal Br. 4. Accordingly, we will treat claim 12 as being
withdrawn from appeal. See Ex parte Ghuman, 88 USPQ2d 1478, 1480
(BPAI 2008)(precedential). As a consequence, upon return of the

1 According to Appellants, the real parties in interest are the inventors,
Günther Zimmer and Martin Zimmer, both of Rheinau, Germany. Appeal
Br. 2.

Appeal 2012–010063
Application 12/386,572
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application to the Examiner, the Examiner should cancel claim 12 pursuant
to MPEP §1215.03 (8th ed. Rev. 8, Jul. 2010). We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

BACKGROUND
Appellants’ invention is directed to anchor installations in building
panels. Spec. ¶ 1; Claim App’x. Claim 1 is the focus of Appellants’ brief
and is reproduced below (with bold added for emphasis):

1. Anchor installation in planar building panels (100)
comprising a first cover plate (101) and a second cover plate
(111) and at least one intermediate support core layer (121)
disposed between the cover plates (101, 111), the anchor
including at least one expansion body (10) and at least one
wedge body (60) and the wedge body (60) being at least
partially inserted into the expansion body (10) and including an
opening for the screwing in or pounding in a mounting means,
- the building panel (100) being provided with a panel
opening (130) which opening extends as a bore (105) through
the first cover plate (101) and the intermediate support core
layer (121) and in the form of a dead end bore (115) partially
into the second cover plate (111),
- the expansion body (10) including at least two
spreadable locking elements (31, 54), at least one locking zone
(40) and at least one support zone (50) at a front end thereof,
- the wedge body (60) having at least one cylindrical
zone (70), at least one wedging zone (80) and at least one
locking zone (90), and
- with the anchor installed in the panel opening (130), the
one cylindrical zone (70) abutting in the bore (105) the wall of
the first cover plate (101), the wedging zone (80) spreading
apart the locking elements (31) of the expansion body (10)
behind the first cover plate (101) and axially abutting the first
Appeal 2012–010063
Application 12/386,572
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cover plate (101) so that the locking zones (40, 90) are locked
together, and the support zone (50) of the expansion body (10)
abutting in the second cover plate (111) the dead end bore (115)
walls axially and radially, the wedge body (60) having further a
support zone (95), which holds the expansion body expanded-
for firm engagement of the expansion body in the dead end bore
(115).

Appeal Br. 11, Claim App’x.
THE REJECTIONS
Claims 1–6, 8, 9, and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Filipp (US 6,702,534; Sept. 12, 2002) in view of Rohe
(US 3,042,156; July 3, 1962).
Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over the
combination of Filipp and Rohe, and further in view of Yamada
(US 4,653,132; Mar. 31, 1987).
Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Filipp and Rohe, and further in view of Kraus
(US 6,039,523; Mar. 21, 2000).
Claim 11 is rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Filipp and Rohe, and further in view of Hofmeister
(US 5,725,341; Mar. 10, 1998).

ISSUES
We refer to, rely on, and adopt the Examiner's findings and
conclusions set forth in the Answer. Our discussions here will be limited to
the following points of emphasis.

Appeal 2012–010063
Application 12/386,572
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Claim 1
The central thrust of Appellants’ argument is that Filipp does not
teach a dead end bore which extends only partially into the second cover
plate. Appeal Br. 7–10. Appellants contend that a dead end bore is a bore
that extends into, and ends in, a solid material structure. App. Br. 9; Reply
Br. 1. Appellants argue that the Examiner erred in rejecting claim 1 because
element 16 of Filipp illustrates a through bore (the bore extends through the
material and extends into empty space) not a dead end bore through a second
cover plate as required by the claim. App. Br. 8; Reply Br. 1.
This argument is not persuasive. The Examiner finds that the second
cover plate of Filipp includes not only element 16, but also the empty space
below element 16, and the unlabeled panel structure below the empty space.
Answer 16; Final Act. 6. The Examiner states that it would have been
obvious to modify the empty space of Filipp by providing material within
the space as taught by Rohe to achieve the predictable results of
“strengthening the panel structure,” as well as “to more solidly secure an
anchor” and to provide “additional radial and axial engagement of the
anchor in the dead end bore”. Answer 6, 17; Final Act. 5–6. We are
provided with insufficient evidence from Appellants to come to a contrary
conclusion, as Appellants fail sufficiently to support their contention that
Rohe’s teachings add nothing to the teachings of Filipp in this respect. App.
Br. 9. Whereas the Examiner finds that the dead end bore limitation would
have been obvious based upon the combined teachings of Filipp and Rohe,
Answer 6, 17; Final Act. 5–6, Appellants focus their arguments on Filipp
and do not challenge the Examiner’s determination that it would have been
obvious to modify the structure of Filipp to incorporate a filler material as
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Application 12/386,572
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taught by Rohe. Nor do Appellants contest the Examiner’s finding that the
dead end bore limitation would have been met by the modified structure. In
re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.”).
Appellants’ Appeal Brief also asserts that
none of the references discloses an anchor installation, wherein
an expansion body (10) is expanded into engagement with a
building panel (100) by a wedge body (60) which is interlocked
with the expansion body (10) in a locking zone (40) by locking
elements (31) so that mounting means can be mounted to the
wedge body (60) engaged in the expansion body (10).
Appeal Br. 9.
However, the Appeal Brief does not provide any substantive
arguments to support their position, or to rebut the specific findings made by
the Examiner in the Final Action, or provide any analysis of the cited
specific textual portions of the cited references upon which the Examiner
relied in the rejections. Attorney arguments and conclusory statements that
are unsupported by factual evidence are entitled to little probative value. In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Lovin, 652
F.3d 1349, 1357 (Fed. Cir. 2011) (stating “the Board reasonably interpreted
Rule 41.37 to require more substantive arguments in an appeal brief than a
mere recitation of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art”).
While Appellants’ Reply Brief did expand somewhat upon these
arguments (Reply Br. 2–3), these arguments are untimely and unpersuasive.
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First, the Appellants have not provided an explanation as to why these
arguments were not provided in the opening brief. See Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he reply brief [is not]
an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner’s rejections, but were not.”);
see also Ex parte Nakashima, 93 USPQ2d 1834 (BPAI 2010) (informative)
(holding that an argument of no motivation to combine references, which
was first presented in the reply brief, was untimely and would not be
considered absent a showing of good cause).
Second, even considering the arguments presented in the Reply Brief,
the arguments are not persuasive of Examiner error. For example, the
Appellants’ argument that the thread [10] of Fillip is not a locking zone as it
can be unthreaded is not persuasive as it is inconsistent with the
Specification. See e.g., Spec. 15:30–32 (“The connection by means of a
thread or a bayonet locking structure is considered to be equally effective as
far as the locking zones are concerned.”). Furthermore, Appellants’
argument that the anchor system of the claimed invention may be installed in
the lightweight construction panels and that the screw does not provide for
engagement of the anchor in the lightweight construction panel, is
unpersuasive as these aforementioned limitations are not found in the claims.
Reply Br. 3.
Appellants remaining arguments have been fully considered but are
not deemed persuasive. Accordingly, we sustain the Examiner’s rejection of
claim 1 under 35 U.S.C. § 103(a).

Claims 2–11
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Application 12/386,572
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Appellants present no argument for separate patentability of claims 2–
11. Instead, they argue that claims 2–10 are patentable as dependent upon
independent base claim 1 and that independent claim 11 is patentable for the
same reasoning as presented in claim 1. Appeal Br. 9. As we are sustaining
the Examiner’s rejection of claim 1, we do not find these arguments
persuasive.
CONCLUSION
For the above reasons, the Examiner’s rejections of claims 1–11 under
35 U.S.C. § 103(a) is affirmed. As noted supra, Claim 12 is not under
appeal and should be canceled.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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