MTD Products Inc

Patent Trials and Appeals Board

Jul 29, 2020

15010662 - (D) (P.T.A.B. Jul. 29, 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.
15/010,662 01/29/2016 Robert Bermudez 040158 2240P2 US 6917
33805 7590 07/29/2020
WEGMAN HESSLER
6055 ROCKSIDE WOODS BOULEVARD
SUITE 200
CLEVELAND, OH 44131
EXAMINER
MITCHELL, JOEL F
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
07/29/2020 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):
intellectualproperty@wegmanlaw.com
whvipgroup@wegmanlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte ROBERT BERMUDEZ
__________

Appeal 2020-000956
Application115/010,662
Technology Center 3600
__________

Before ANTON W. FETTING, AMEE A. SHAH, and
RACHEL H. TOWNSEND, Administrative Patent Judges.

TOWNSEND, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
handheld law maintenance tool, which have been rejected as anticipated
and/or obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as MTD
Products Inc. (Appeal Br. 2.) We note that neither the Appeal Brief nor the
Reply Brief is paginated. The page numbers we refer to of these documents
are based on assigning the first page of the document as page 1, and the
remaining pages as if numbered consecutively.
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STATEMENT OF THE CASE
Appellant’s Specification notes that handheld lawn maintenance tools
that have a single power head that can be used with multiple different
attachments “have become increasingly popular among homeowners.”
(Spec. ¶ 3.) Appellant’s invention is directed to such a handheld lawn
maintenance tool. (Id. ¶ 2.)
Claims 1–3, 6, and 10–24 are on appeal. Claims 1 and 12 are
illustrative and read as follows:
1. A handheld lawn maintenance tool comprising
a power head having a power source connected to a rear
end of a housing,
said housing including
a first handle oriented along a longitudinal
axis of said power head,
a second handle extending from said
housing adjacent to a forward end of said housing,
a control mechanism positioned adjacent to
said first handle,
a power generator located within said
housing and operatively connected to said power
source, and
a first attachment mechanism includes a
recess for receiving a releasably attachable
working attachment or an adapter,
wherein said power generator is positioned
between said first handle and said second handle,
said power generator generates an output source of
power.
(Appeal Br. 20 (Claims Appendix) (paragraphing added).)
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12. A handheld lawn maintenance tool comprising:
a power head having a power source releasably attached
thereto, said power head including
a power generator electrically connected to said
power source for generating output power,
a first attachment mechanism operatively
connected to said power generator,
a trigger operatively connected to said power
generator for selectively controlling said output power
from said power generator,
a first handle and a second handle,
wherein said power generator is positioned
between said first and second handles, and said second
handle being rotatable in a fore/aft manner;
an adapter releasably attached to said first attachment
mechanism of said power head, said adapter receiving
said output power from said power generator; and
a working attachment releasably attached to said adapter,
wherein said adapter transfers said output source of
power from said power generator to said working
attachment.
(Appeal Br. 21 (some paragraphing added).)

The prior art relied upon by the Examiner is:
Name Reference Date
Motosko US 6,955,227 B1 Oct. 18, 2005
Lidstone US 3,129,771 Apr. 21, 1964
Yamada et al. US 2013/0075122 A1 Mar. 28, 2013
Ryobi, 40V-X EXPAND-IT STRING TRIMMER
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The following grounds of rejection by the Examiner are before us on
review:
Claims 1–3, 6, 11–15, 18, 19, 21, and 23 under 35 U.S.C. § 102(a) as
anticipated by Motosko.2
Claims 1–3, 6, 10–17, 19, 21, 23, and 24 under 35 U.S.C. § 102(a) as
anticipated by Ryobi.3
Claims 10, 16, 17, and 24 under 35 U.S.C. § 103(a) as unpatentable
over Motosko and Lidstone
Claims 18, 20, and 22 under 35 U.S.C. § 103 (a) as unpatentable over
Ryobi and Yamada.
DISCUSSION
I
Anticipation
1. Motosko
a. Claim 1
The Examiner relies on Figure 1 of Motosko to conclude that the
invention of claim 1 is anticipated. Figure 1 is reproduced below.

2 The Examiner’s rejection includes claim 5. However, claim 5 was
cancelled and is not on appeal.
3 The Examiner’s rejection includes claim 5. However, claim 5 was
cancelled and is not on appeal.
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Figure 1 depicted above shows an embodiment of a hand held power
gardening tool.
The Examiner identifies element 35 as the power head with a power
generator inside, and element 38 as the power source connected to a rear end
of a housing. (Final Action 4.) The Examiner identifies a first handle as the
element adjacent the trigger/control mechanism 48. (Id.) The second handle
extending from the housing is identified by the Examiner as element 42.
(Id.) Element 30 is identified by the Examiner as meeting the first
attachment mechanism that includes a recess for receiving a releasably
attachable working attachment. (Id.)
We agree with the Examiner’s findings and conclusion of anticipation.
We first provide our construction of certain terms: “rear end of a housing,”
“forward end of said housing,” and “longitudinal axis of said power head.”
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“[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification.” In re Hyatt, 211
F.3d 1367, 1372 (Fed. Cir. 2000). We first look to the Specification “to see
if it provides a definition for claim terms, but otherwise apply a broad
interpretation.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). “[W]hile it is true that claims are to be interpreted in light
of the specification . . . , it does not follow that limitations from the
specification may be read into the claims . . . . [T]he claims define the
invention.” Sjolund v. Musland, 847 F.2d 1573, 1581–82 (Fed. Cir. 1988).
Appellant’s Specification does not provide any explicit definitions.
Nor do we find any particular guidance in the Specification suggestive of an
intent to define these terms in a particular manner. Bell Atlantic Network
Servs., Inc. v. Covad Communications Grp, Inc., 262 F.3d 1258, 1268 (Fed.
Cir. 2001) (“[A] claim term may be clearly redefined without an explicit
statement of redefinition.”). A power head is referred to in figures of the
prior art and embodiments of the invention as a particular part identified by a
drawing reference number that can be held in some manner and receives a
component to provide power. (See, e.g., Spec. ¶¶ 5, 8, 26, 27.) A housing is
referred to in figures of embodiments of the invention as a structure that
other elements reside within or are attached to. (See, e.g., Spec. ¶¶ 27, 31.)
Each of the noted terms “rear end of,” “forward end of,” and
“longitudinal axis of” rest upon an arbitrary frame of reference. A rear end
is associated with being the back end of an object, but that only has
relevance with respect to what is designated the front or forward end of an
object. The forward/front end of an object can be the part that is seen first
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when the object is presented for use or view. A front or forward end can
also be a top end, and the rear end can also be a bottom.
In this case, the object at issue with respect to the term front and rear
end is a housing for the power head of a hand held tool. The forward end of
such an object could be the portion to which a working attachment is
provided or it could simply be the top of the housing. A rear end would be a
position that is opposite either the working attachment end or opposite the
top of the housing.
A longitudinal axis is a coordinate axis along a lengthwise or
horizontal direction with respect to any particular object. With respect to the
object at issue here, a longitudinal axis refers to a lengthwise direction of the
power head.
In light of the foregoing constructions, we note that the power
source 38 in Figure 1 of Motosko can reasonably be found to be connected
to a rear end of a housing because it is located opposite a top side of a
housing—i.e., a structure to which other elements are attached or other
elements reside within. The second handle 42 is adjacent to a forward end
of the housing, e.g., the top side of the housing. Furthermore, the first
handle located to the left of the power source in Figure 1 is oriented along a
longitudinal axis of the power head, which power head is shaped like the
number seven, and so has both horizontal and vertical segment lengths. We
also agree with the Examiner that the power generator is positioned between
the first handle and the second handle. That is, the power generator is in the
space separating the first handle and the region of the intersection of the
second handle with the housing.
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Appellant’s primary disagreement with the Examiner’s rejection rests
on the construction of the term “rear end.” (Appeal Br. 9–10; Reply Br. 4–
5.) According to Appellant, two passages of the Specification (¶¶ 27–28)
“clearly indicate that the ‘rear end’ of the power head is the rear distal end of
the power head.” (Appeal Br. 9.) We do not find Appellant’s argument
persuasive as to the construction of the phrase “rear end of a housing.” It is
true that the Specification indicates, with respect to Figure 3, reproduced
below, that the “power source 48 is located at the rear of the power head 42”
and the “[t]he first handle 50 is positioned adjacent to the rear of the power
head 42.”

Figure 3 above shows “an embodiment” of the claimed “power head.”
(Spec. ¶ 15.) The power source 48 is located rearward of the first handle 50
and the first attachment mechanism 60. We note that rear is determined with
respect to a reference object of the power source. One could just as easily
define the power source as being at the bottom end of the power head.
Moreover, as Figure 3 is simply “an embodiment” of the power head of the
invention (Spec. ¶¶ 27–28), it does not serve to define the phrase “rear end
of a housing” or the only possible shape of a power head. Thus, we also
disagree with Appellant that our construction above is “beyond the broadest
reasonable construction in view of the Specification as it would be
understood by one having ordinary skill in the art” (Reply Br. 3).
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Appellant’s further argument rests on a conclusion that there is only a
single orientation of an object by which one can establish a rear end, which
precludes a bottom of an object from also being a rear end. (Appeal Br. 10–
11.) In particular, according to the Appellant “[o]ne skilled in the art would
properly understand the orientation of the housing of Motosko as shown in
the following annotated drawing:”
.
(Id.) The above drawing is an annotated depiction of a partial view of
Figure 1 of Motosko. Appellant does not identify any persuasive evidence
supporting its assertion that this is the only possible interpretation of the rear
end of Motosko. Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034,
1043 (Fed. Cir. 2017) (“Attorney argument is not evidence.”). Although it
might be one interpretation, for the reasons discussed above, we disagree
with Appellant that the position labeled as bottom in the annotated figure
cannot also be considered a rear end of the power head of Motosko, where
the front end would be the “top” of the power head in the depiction above.
Thus, we do not find Appellant’s argument that “Motosko fails to teach a
power source connected to a rear end of a housing” (Appeal Br. 8)
persuasive.
In light of the foregoing, we affirm the Examiner’s rejection of
claim 1 as being anticipated by Motosko.
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Claims 2, 3, 6, 11, 21, and 23, which depend from claim 1, have not
been argued separately and therefore fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv).
b. Claim 12
Like claim 1, claim 12 requires the power head to have a power
source and first and second handles. However, claim 12 does not have the
same positional requirements as claim 1 with regard to the power source and
the first handle. On the other hand, claim 12 requires that the second handle
is “rotatable in a fore/aft manner.”
The Examiner finds that this limitation is met because second
handle 42 of Figure 1 can be rotated with respect to attachment mechanism
40 and can rotate parts 25, 27, and 28. (Final Action 6.) According to the
Examiner,
it is well known by those of ordinary skill in the art of hand
drills, and by those who have used hand drills, that a stabilizer
handle such as 42 of Motosko rotates relative to the working
attachment of the drill when the drill is being powered and that
such a stabilizer handle is used to rotate and move the working
attachment through a fixed connection when the working
attachment becomes stuck or needs to be otherwise moved.
(Ans. 20.)
We do not agree with the Examiner’s findings and conclusion of
anticipation as to claim 12. In particular, claim 12 requires that the second
handle itself is rotatable in a fore/aft manner. There is nothing in Motosko
to indicate that the stabilizing handle 42 is rotatable, and the Examiner’s
position in the Answer that the handle rotates “relative to the working
attachment” or that the handle is used to rotate the attachment does not
establish rotatability of the handle itself in a fore/aft manner.
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For this reason we do not affirm the Examiner’s rejection of claims
12–15, 18, and 19 as being anticipated by Motosko.
2. Ryobi
The Examiner finds that Ryobi discloses the invention recited in
independent claims 1, 12, and 24 based on the following annotated picture
from the depicted handheld lawn maintenance tool of Ryobi.

The annotated figure above depicts the power handle portion of the Ryobi
lawn trimmer.
a. Claim 1
Claim 1 requires that the “second handle extend[] from said housing
adjacent to a forward end of said housing.” The Examiner notes that
“Housing” is taken to mean “something that cover[s], protects,
or supports.” (See Webster’s II Dictionary, Third Edition,
p. 348.)
(Ans. 21.) The Examiner determines further that a housing is not required
by the Specification to be a unitary structure, nor is that required by the
claim. (Id.)
Appellant argues that the shaft to which the second handle of Ryobi is
attached is not part of the housing, but rather “is an intermediate component
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positioned between the housing and the second handle of Ryobi.” (Appeal
Br. 13.) Appellant notes “[t]he housing of the power head in Ryobi appears
to be plastic and the shaft appears to be metal” (id. at 14) and that “the shaft
is a separate component than the housing” (id. at 15) that is “removably
connectable to the housing” (id. at 13).
The dispute turns on the construction of the term “housing.” We
touched on that term briefly above. We agree with the Examiner that a
housing is not required, by the claim language or the Specification, or the
prior art, to be a unitary structure, and that functionally, a housing can
provide cover, protection and/or support. However, in providing support, a
housing still provides a frame around that which is to be supported. See,
e.g., “Housing,” Miriam-Webster’s Collegiate Dictionary 11th edition,
(2009) (“3. . . c: a support (as a frame) for mechanical parts”). The shaft to
which the Ryobi second handle is connected and on which it rests, does not
provide a frame for the second handle which it supports, though it certainly
provides support. Thus, we agree with Appellant that the shaft from which
the Ryobi second handle extends would not be considered by one of
ordinary skill in the art to be part of a housing. Consequently, we do not
affirm the Examiner’s rejection that claim 1 or claims 2, 3, 6, 10, 11, 21,
and 23, which depend therefrom, are anticipated by Ryobi.

b. Claims 12 and 24
Unlike claim 1, claim 12 does not require a housing, but requires the
“power head” to have “a first handle and a second handle.” Similarly
claim 24 requires the “power head” to have “a first handle . . . a second
handle.” According to the Examiner, the upper part of the Ryobi tool that
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includes a power generator is the power head, and that the shaft and second
handle are “capable of being considered parts of the power head.” (Ans. 22.)
Appellant argues that the shaft to which the handle of Ryobi is attached is
not part of the power head. (Appeal Br. 15 (“[T]he handle of Ryobi is a
separate component, which is attached to a shaft that is releasably
connectable to the power head.”); Reply Br. 10 (“Ryobi actually does not
teach that the second handle and shaft are capable of being part of the power
head . . . .” (emphasis omitted)).)
This dispute turns on the construction of the term “power head” and in
this case, we determine that the Examiner has the better position. We
touched on the term power head briefly above in addressing the rejection
over Motosko. As we noted, there is not an explicit definition for this term.
Nor does Appellant argue that this is a term of art with a well-known
definition. Rather, Appellant contends that “the Specification of the present
application clearly teaches that the shaft (of the adapter) is separate and
distinct from the housing.” (Reply Br. 10.) Whether or not the shaft of the
adapter depicted in the Specification is separate and distinct “from the
housing” is not relevant to the construction of the term “power head.”
“[C]laim construction must begin with the words of the claims
themselves.” Amgen Inc. v. Hoechst Marion Roussel, Inc., 457 F.3d 1293,
1301 (Fed. Cir. 2006). Appellant’s claims 12 and 24, relevant to the dispute
here, require the power head to have two handles and an attachment
mechanism. Figure 3 of Appellant’s Specification, provides “an
embodiment of a power head” of the claimed invention. (Spec. ¶ 15.) The
figure, which is reproduced above in our discussion of the anticipation
rejection over Motosko, shows a power head identified as the entire
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structure 42, that includes, inter alia, a power source 48, a first attachment
mechanism 60, a first handle 50, and a second handle 54. (Spec. ¶ 27.)
However, Figure 3 does not confine the claims to only that configuration of
a power head; it is simply one example. See Innova/Pure Water, Inc. v.
Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004)
(“particular embodiments appearing in the written description will not be
used to limit claim language that has broader effect” where there is no “clear
intention to limit the claim scope using ‘words or expressions of manifest
exclusion or restriction’”).
Thus, the fact that the first attachment mechanism is not a “shaft” and
the second handle is not shown attached to a shaft (Appeal Br. 15; Reply
Br. 10) is not controlling as to what one of ordinary skill in the art would
understand to be within the scope of the claimed power head. We do not
find anything in the Specification that demonstrates an intention to exclude
second handles attached to the attachment mechanism from being within the
scope of the claimed power head. Moreover, we do not find anything in the
Specification that demonstrates an intention to exclude elements from a
power head when they are releasably attached. Indeed, the Specification
states that a power head “includes a power source” and that the power source
“is removably attachable to the housing,” Where the “housing” is a part of
the power head 42. (Spec. ¶ 27 and Fig. 3.) Thus, we conclude that whether
a handle is permanently attached to the power head is not determinative of
whether the handle can be considered part of the power head. Stated in the
affirmative, we conclude that a removably attachable handle can still be
considered to be part of a power head just as a power source that is
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removably attachable is considered by Appellant’s Specification to be a part
of a power head.
We do not find Appellant’s argument that “nowhere in the Ryobi
reference is there an explanation or description that the second handle is part
of the power head” (Reply Br. 10) to be persuasive that Ryobi does not
anticipate claim 12. The second handle of Ryobi is attachable to a shaft that
is described in Ryobi as being “the bottom shaft of the RYOBI 40 X String
Trimmer power head.” (Ryobi at 1 (emphasis added).) Thus, we conclude
that the shaft is part of the power head and, in light of our claim construction
above, the removably attachable handle is properly considered to be part of
the Ryobi power head when it is attached. Consequently, we affirm the
Examiner’s rejection that claims 12 and 24 are anticipated by Ryobi.
Claims 13–17, and 19, which depend from claim 12 have not been
argued separately and therefore fall with claim 12. 37 C.F.R.
§ 41.37(c)(1)(iv).
II
Obviousness
1. Motosko and Lidstone
a. Claim 10
Appellant argues only that Lidstone does not cure the deficiency of
Motosko regarding a power source connected to the rear end of the housing.
(Appeal Br. 16–17.) However, because we find that Motosko describes a
power source connected to the rear end of a housing, we affirm the
Examiner’s rejection that claim 10 is rendered obvious from the teachings of
Motosko and Lidstone.
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b. Claims 16, 17, and 24
Claim 24, like claim 12 requires that the second handle is “rotatable in
a fore/aft manner.” Lidstone is not relied upon by the Examiner for such a
teaching. (See, e.g., Final Action 13.)
We reverse the Examiner’s rejection of claims 16, 17, and 24 as being
rendered obvious from the teachings of Motosko and Lidstone because, as
discussed above, Motosko does not teach a second handle that is “rotatable
in a fore/aft manner” as required by claims 12 and 24
2. Ryobi and Yamada
a. Claim 22
Claim 22 depends from claim 1 and thus includes the requirement that
the second handle extends from the housing. As we explained above, we do
not agree with the Examiner that Ryobi teaches a handle extending from a
housing. The Examiner does not rely on Yamada for such a teaching. (See,
e.g., Final Action 17.) Thus, we reverse the Examiner’s rejection of
claim 22 as being obvious from Ryobi and Yamada.
b. Claims 18 and 20
Appellant argues only that Yamada does not cure the deficiency
regarding Ryobi of a power head having a second handle. (Appeal Br. 18.)
However, because we find that Ryobi describes a power head having a
second handle, we affirm the Examiner’s rejection of claims 18 and 20 as
being obvious from the teachings of Ryobi and Yamada

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 6, 11–
15, 18, 19,
21, 23
102 Motosko 1–3, 6, 11,
21, 23
12–15, 18,
19
1–3, 6, 10–
17, 19, 21,
23, 24
102 Ryobi 12–17, 19,
24
1–3, 6, 10,
11, 21, 23
10, 16, 17,
24
103 Motosko, Lidstone 10 16, 17, 24
18, 20, 22 103 Ryobi, Yamada 18, 20 22
Overall
Outcome
1–3, 6, 10–
21, 23, 24
22

TIME PERIOD FOR RESPONSE
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 IN PART