HUSQVARNA AB

Patent Trials and Appeals Board

Aug 26, 2020

2020000481 (P.T.A.B. Aug. 26, 2020)

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.
14/888,565 11/02/2015 Daniel Ericsson 738004/10064/P2917US00 8384
148434 7590 08/26/2020
Burr Forman McNair
Husqvarna
Bank of America Plaza
101 South Tryon Street, Suite 2610
Charlotte, NC 28280
EXAMINER
DONG, LIANG
ART UNIT PAPER NUMBER
3724
NOTIFICATION DATE DELIVERY MODE
08/26/2020 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):
mcnairip@mcnair.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DANIEL ERICSSON
____________

Appeal 2020-000481
Application 14/888,565
Technology Center 3700
____________

Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
SEAN P. O’HANLON, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–6, 9, and 11–22.2 We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as is Husqvarna AB.
Appeal Br. 1.
2 Claims 7, 8, and 10 are cancelled. Appeal Br. 11 (Claims App.).
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THE CLAIMED SUBJECT MATTER
Claims 1 and 14 are independent. Claim 1, reproduced below, is
illustrative of the subject matter on appeal.
1. An apparatus arranged to secure a portable cutting machine
on an elongated railshaped profiled object, the apparatus
comprising:
a base adapted to be disposed on an upper surface of the
elongated railshaped profiled object; and
an arm pivotably mounted to the base at a first pivot axis
at right angles to a main extension of the elongated railshaped
profiled object;
wherein the base comprises:
two parallel, spaced plates, each plate having an
opening for receiving the object;
a rocker arm; and
a clamping device for actuating the rocker arm;
wherein each plate comprises a central, first contact
surface arranged to contact the upper surface of the elongated
railshaped profiled object, the central, first contact surface being
located between a first end and a second end of each plate;
wherein a second inwardly angled contact surface extends
from the first end of each plate towards a corresponding first side
surface of the elongated railshaped profiled object, the second
inwardly angled contact surface arranged to contact a first lower
edge of a rail head of the elongated railshaped profiled object;
wherein the rocker arm is pivotally mounted at a location
between and spaced apart from an interior surface of each of the
plates about a second axis and is configured to rotate about the
second axis;
wherein the rocker arm comprises a first end, a central
portion, and a second end;
wherein the first end of the rocker arm defines a third
contact surface, the third contact surface extending towards a
corresponding second side surface of the elongated railshaped
profiled object to clamp the elongated railshaped profiled object;
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wherein a first end of the clamping device is pivotably
mounted to the base about the first axis between the parallel,
spaced plates;
wherein the second end of the rocker arm is journaled on
the clamping device about a third pivot axis; and
wherein the first, second, and third pivot axes are different.

EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Larsson US 5,545,079 Aug. 13, 1996
Huboud Peron3 US 6,234,889 B1 May 22, 2001
Welsh US 6,745,804 B2 June 8, 2004
Mallookis US 2010/0317498 A1 Dec. 16, 2010
DeMartine US 7,926,771 B2 Apr. 19, 2011

THE REJECTIONS
I. Claims 1–6, 9, and 11–13 stand rejected under 35 U.S.C. § 103 as
unpatentable over Huboud, DeMartine, and Welsh, as evidenced by
Mallookis. Final Act. 2–9; Ans. 3–8.
II. Claims 14–22 stand rejected under 35 U.S.C. § 103 as unpatentable
over Larsson, DeMartine, and Welsh, as evidenced by Mallookis.
Final Act. 9–16; Ans. 8–13.

3 We note that both the Examiner and Appellant refer to this reference as
“Huboud.” See, e.g., Final Act. 2; Appeal Br. 5. For consistency and
convenience, we do likewise herein.
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OPINION
Rejection I
In contesting the rejection of claims 1–6, 9, and 11–13, Appellant
presents arguments for independent claim 1 (see Appeal Br. 5–8), and relies
on the same arguments for dependent claims 2–6, 9, and 11–13 (see id. at 8).
We select claim 1 as representative, and claims 2–6, 9, and 11–13 stand or
fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Huboud discloses an
an apparatus arranged to secure a portable cutting machine on
an elongated railshaped profiled object (see Figure 1), the
apparatus comprising[:] a base adapted to be disposed on an
upper surface of the profiled object (see Figure 1) and at least
one arm mounted pivota[lly] around an arm (13) pivot axis of
the base at right angles to the main extension of said profiled
object (see Figure 1).
Ans. 3. The Examiner finds that Huboud fails to disclose “the specific detail
of the claw joint arrangement of claim 1.” Id. at 4. In particular, the
Examiner finds that Huboud fails to disclose, inter alia, “a rocker arm . . .
pivotally mounted at a location between and spaced apart from an interior
surface of each of the plates about a second axis and . . . configured to rotate
about the second axis.” Id. However, the Examiner finds that DeMartine
teaches
a claw joint arrangement including a base (724 and 722)
capable of being adapted to be disposed on an upper surface of
the elongated railshaped profiled object . . . wherein the base
comprises two parallel, spaced plates, each plate having an
opening (space around 722, 724) for receiving the object, a
rocker arm (732), and a clamping device (748) for actuating the
rocker arm (see Figure 11); . . . wherein the rocker arm [is]
pivotally mounted about a second axis and is configured to
rotate about the second axis.
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Id. at 5–6. The Examiner determines that it would have been obvious “to
substitute one claw joint arrangement for the other to achieve the predictable
result of providing a joint arrangement for a clamp claw apparatus.” Id. at 7
(citing MPEP § 2143(I)(B)).
Next, the Examiner finds that “it is known in the art to have the rocker
arm . . . be between the parallel, spaced plates (232 between 222, 224, see
Figure 3 of DeMartine) or the rocker arm [be] outside of the two parallel,
spaced plates (see Figure 11 of DeMartine).” Ans. 7. The Examiner
determines that it would have been obvious to “rearrange the rocker arm to
be in between the two parallel, spaced plates, since it has been held that
rearranging the parts of an invention involves only routine skill in the art.”
Id. (citing In re Japikse, 181 F.2d 1019 (CCPA 1950)).
Acknowledging that DeMartine is relied on “only . . . for the teaching
that the location of the rocker arm is ‘between’ [the] plates” (Ans. 14), the
Examiner additionally turns to Welsh. The Examiner finds that Welsh
teaches “a washer (84W) between two rotatable mounted parts (84 and 83,
see Figures 20B–C).” Id. at 7. The Examiner further finds that “Mallo[o]kis
teaches that adding [a] washer between rotating parts would . . . reduce
friction when pivoting (paragraph 0047).” Id. (boldface omitted).4 The
Examiner determines that it would have been obvious “to modify the device

4 In the Final Action, the Examiner “take[s] official notice that it [was]
commonly known in the art to add [a] washer between rotating parts for
reducing friction and wear of the two parts.” Final Act. 6. The Examiner
cites paragraph 47 of Mallookis in support of the official notice. Id. at 7. In
the Answer, the Examiner explains that “[t]he Examiner has dropped the
official notice and the rejections only use the rationale of Welsh and
Mallo[o]kis (both references were provided in the Final rejection mailed on
1/23/2019).” Ans. 16.
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of Huboud in view of DeMartine to incorporate the teaching of Welsh as
evidence[d] by Mallo[o]kis to add the washer between [the rocker arm and
plate] in order to reduce friction between the two parts (paragraph 0047 of
Mallo[o]kis).” Id. at 8. The Examiner explains that the proposed
combination of reference teachings would yield a device having a “rocker
arm . . . pivotally mounted at a location between and spaced apart from an
interior surface of each of the plates about a second axis and is configured to
rotate about the second axis.” Id. (emphasis added).
Appellant argues that DeMartine fails to disclose a rocker arm, as
claimed. Appeal Br. 6. In particular, Appellant asserts that “the alleged
rocker arm 232 is not an actual rocker arm, as claimed, if anything the
alleged rocker arm 232 is analogous to the claimed plates.” Id. We are
unpersuaded by this argument. Claim 1 does not specify the structure of the
rocker arm, much less recite any limitations that would preclude the rocker
arm from having structure analogous to the parallel spaced plates. Claim 1
merely requires the rocker arm to have a first end that defines a contact
surface extending towards the elongated railshaped profiled object, a central
portion, and a second end journaled on the clamping device (Appeal Br. 10
(Claims App.)), and Appellant does not explain how the Examiner erred in
finding that the identified rocker arm in DeMartine includes such structure.
Thus, Appellant does not apprise us of error in the Examiner’s interpretation
that DeMartine’s jaw profile 232 constitutes a “rocker arm,” as recited in
claim 1.
Appellant argues that “DeMartine does not teach a rocker arm spaced
between two parallel, spaced plates, as claimed.” Appeal Br. 7. In
particular, Appellant asserts that “alleged rocker arm 232 is not mounted
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between the alleged plates 222 and 224,” but instead “the alleged rocker arm
232 extends from or is defined by alleged plate 222.” Id. at 6 (citing
DeMartine, Fig. 3). This argument is unpersuasive. Figure 3 of DeMartine,
which shows a mounting apparatus according to one embodiment, is
reproduced below.

Figure 3 of DeMartine, above, depicts mounting apparatus 200 having jaws
208 and 210. DeMartine, 5:53–56. Jaw 208 is formed from jaw profiles 222
and 224, and jaw 210 is formed of jaw profiles 232 and 234. Id. at 5:58–60.
DeMartine teaches that “jaws 208, 210 pivot about a central hinge 270 using
scissoring action.” Id. at 6:13–14 (boldface omitted). In other words, as
clearly shown in Figure 3 of DeMartine, jaw profiles 232 and 234 are
positioned on the interior sides of jaw profiles 222 and 224, which are
spaced apart along the axis of central hinge 270. Thus, the Examiner’s
finding that DeMartine teaches a rocker arm (jaw profile 232) between
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parallel spaced plates (jaw profiles 222 and 224) is supported by a
preponderance of the evidence.
Appellant argues that,
[t]o the extent the alleged rocker 232 is spaced between plates
222 and 224 (which Applicant denies), the alleged rocker arm is
only spaced apart from the interior surface of 224. In this
respect, alleged rocker arm 232 is immediately adjacent to the
interior surface of plate 222. In other words, the rocker arm
232 sits directly across from alleged plate 222 in order to clamp
an object, not between and spaced apart from each of the plates
222 and 224.
Appeal Br. 6. This argument is unpersuasive because it attacks DeMartine
individually, rather than the combination of reference teachings relied on by
the Examiner in the rejection. See In re Keller, 642 F.2d 413, 425 (CCPA
1981) (one cannot show nonobviousness by attacking references
individually when the rejection is based on a combination of the references).
As discussed above, the Examiner relies on DeMartine for teaching a
“rocker arm pivotally mounted about a second axis and . . . configured to
rotate about the second axis.” Ans. 6. The Examiner explains that the
rejection “is only relying on DeMartine for the teaching that the location of
the rocker arm is ‘between’ plates (222 and 224).” Id. at 14. In other words,
the Examiner does not find that DeMartine teaches that the rocker arm (jaw
profile 232) is spaced apart from the interior surface of each of the parallel
spaced plates (jaw profiles 222 and 224). Rather, the Examiner determines
that “the modified device of Huboud in view of DeMartine and in further
view of Welsh as evidence[d] by Mallo[o]kis would include [a] rocker arm
[that] is pivotally mounted at a location between and spaced apart from an
interior surface of each of the plates.” Id. at 8. Thus, Appellant’s argument
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against DeMartine individually does not apprise us of error in the
Examiner’s rejection.
Appellant argues that the Examiner’s rejection “rel[ies] on Welsh as
teaching the recitation that the rocker arm is pivotally mounted at a location
between and spaced apart from an interior surface of each of the plates
about a second axis. However, Appellant respectfully submits that it is
inappropriate to apply Official Notice in this instance.” Appeal Br. 7.
Appellant asserts that it
is uncertain how a reference that is alleged to teach “a washer
(84W) between two rotatable mounted parts (84 and 83, see
Figures 20B–C)” is being used to support Official Notice in this
case. Even if Examiner is correct as to what Welsh teaches,
Appellant is unclear how a teaching related to a washer has
anything to do with a placement of a rocker arm.
Id. According to Appellant, “the specific placement of a rocker arm on an
apparatus arranged to secure a portable cutting machine on an elongated
railshaped profiled object is not common knowledge, of notorious character,
nor instantly and unquestionably demonstrable.” Id. at 8; see also id.
(asserting that the Examiner “failed to provide sound technical reasoning to
support the conclusion that the claimed feature is common knowledge”).
We are not persuaded by Appellant’s argument because it is not responsive
to the rejection as presented. As an initial matter, “[t]he Examiner has
dropped the official notice and the rejections only use the rationale of Welsh
and Mallo[o]kis.” Ans. 16. Moreover, when considering the application of
official notice in the Final Action, Appellant’s argument misunderstands the
fact asserted by the Examiner to be well-known or common knowledge in
the art. As discussed above, the Examiner relies on Welsh for teaching the
use of a washer between two rotatable parts. Final Act. 6. The Examiner
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takes official notice in the Final Action that it was known in the art to use a
washer between rotating parts to reduce friction and wear. Id. The
Examiner cites Mallookis as evidentiary support for the official notice. Id.
at 7 (citing Mallookis ¶ 475). In other words, contrary to Appellant’s
argument, the Examiner’s rejection in the Final Action does not conclude
that the claimed feature of a rocker arm mounted between and spaced apart
from an interior surface of parallel spaced plates was common knowledge.
Rather, the Examiner concludes that this feature would have been obvious in
view of the combined teachings of the cited references and in view of the
officially noticed fact that washers are used between rotating parts to reduce
friction, which is supported by the disclosure of Mallookis. In this regard,
Appellant does not identify error in the fact officially noticed by the
Examiner in the Final Action.
Appellant argues that “neither Welsh nor Mallo[o]kis teach[es] that
the rocker arm is spaced apart from the plates.” Reply Br. 2. Appellant
asserts that “Welsh relates to a portable work bench, and Mallo[o]kis relates
to a collapsible truss assembly. Neither Welsh nor Mall[o]okis actually
teach[es] or suggest[s] anything regarding a rocker arm much less the
placement of the rocker arm being spaced apart from plates.” Id. at 3. This
argument is unpersuasive because it attacks Welsh and Mallookis
individually, rather than the combination of reference teachings relied on by
the Examiner in the rejection. See Keller, 642 F.2d at 425. As discussed

5 Mallookis teaches that “one or more washers, e.g., washers 480-1 and
480-2, placed between the truss members 406-1B and 406-2B at the pivotal
x-joint 408-B can be formed of a lightweight material that allows the
members to pivot with relatively little friction, e.g., nylon.” Mallookis ¶ 47
(boldface omitted).
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above, the Examiner does not rely on either Welsh or Mallookis alone for
teaching a rocker arm spaced apart from the plates. See Ans. 16 (explaining
that “Welsh was not relied upon for providing the feature of the location of
the rocker arm, but only for the teaching that you can space the rocker arm
from the plates with washers, as this is commonly done to reduce friction”);
see also id. (explaining that “[n]either Welsh nor Mallo[o]kis w[as] relied
upon for teaching the structure of the plates and their location with respect to
the rocker arm, as this structure is taught by DeMartine”). Instead, the
Examiner explains that
the combination of Huboud as taught by DeMartine, places the
rocker arm in between the two parallel plates. The further
modification of Welsh adds a washer between the rocker arm
and the plates in order to reduce friction cause[d] by two parts
touching each other during pivoting as is well known in the art
as evidenced by Mallo[o]kis (for friction reduction). As a
result, the modified device includes the rocker arm being
pivotally mounted at a location “between and spaced apart”
from an interior surface of each of the plates (at least spaced
apart by the thickness of the washer added).
Id. at 17. In other words, the Examiner relies on the combined teachings of
Huboud, DeMartine, Welsh, and Mallookis. The Examiner takes the
position that “spaced apart,” as recited in claim 1, only requires that the
rocker arm does not directly touch the interior surface of the parallel spaced
plates. Id. at 16; see also id. (explaining that the “limitation does not require
[that] the space between the interior surface and the rocker arm be void of
any additional structure. The washer causes the two plates to not directly
touch, therefore they are ‘spaced apart’”). Here, Appellant does not
persuasively refute the Examiner’s position.
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For the foregoing reasons, Appellant does not apprise us of error in
the Examiner’s conclusion of obviousness with respect to claim 1.
Accordingly, we sustain the rejection of claim 1, and claims 2–6, 9, and
11–13 falling therewith, under 35 U.S.C. § 103 as unpatentable over
Huboud, DeMartine, and Welsh, as evidenced by Mallookis.

Rejection II
In contesting the rejection of independent claim 14, Appellant relies
on the arguments presented for patentability of independent claim 1, and
does not separately argue its dependent claims 15–22. Appeal Br. 9. For the
reasons discussed above, Appellant’s arguments do not apprise us of error in
the rejection of claim 1, and likewise do not apprise us of error with respect
to the rejection of claim 14. Accordingly, we sustain the rejection of claim
14, and its dependent claims 15–22, for which Appellant does not present
separate patentability arguments (see id.), under 35 U.S.C. § 103 as
unpatentable over Larsson, DeMartine, and Welsh, as evidenced by
Mallookis.

CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–6, 9,
11–13
103 Huboud, DeMartine,
Welsh, Mallookis
1–6, 9,
11–13

14–22 103 Larsson, DeMartine,
Welsh, Mallookis
14–22
Overall Outcome 1–6, 9,
11–22

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED