Oslizlo, Michael et al.

Patent Trials and Appeals Board

Jan 23, 2020

13714662 - (D) (P.T.A.B. Jan. 23, 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.
13/714,662 12/14/2012 Michael Oslizlo 155407-00483 3705
6470 7590 01/23/2020
MILLER, CANFIELD, PADDOCK AND STONE
150 W. JEFFERSON, SUITE 2500
DETROIT, MI 48226
EXAMINER
HAIL, JOSEPH J
ART UNIT PAPER NUMBER
3723
MAIL DATE DELIVERY MODE
01/23/2020 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 MICHAEL OSLIZLO and DENNIS E. COX

Appeal 2019-003288
Application 13/714,662
Technology Center 3700
____________

Before LINDA E. HORNER, MICHAEL J. FITZPATRICK, and
MICHAEL L. WOODS, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 1, 4, and 8. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.

1 Appellant is the “applicant” under 37 C.F.R. § 1.42(a) and identifies
Federal-Mogul Corporation as the sole real party in interest. Appeal Br. 3.
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Application 13/714,662

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STATEMENT OF THE CASE
The Specification
The Specification’s disclosure relates “to windscreen wiper devices
for automobiles and more particularly to hybrid windscreen wiper devices.”
Spec. ¶2.
The Claims
Claims 1, 4, and 8 are rejected. Final Act. 1. The remaining pending
claims, namely claims 9–12, have been withdrawn from consideration.
Claim 1 is illustrative and reproduced below.
1. A windscreen wiper device for cleaning a
windshield of a vehicle, comprising:
an elongated wiper strip of a flexible material for sealing
against the windshield;
at least one deflectable carrier element in engagement
with said elongated wiper strip for biasing said elongated wiper
strip into a pre-curved configuration;
a frame structure coupled to said at least one carrier
element;
said frame structure including a main bridge with a
spoiler-shaped outer surface and a pair of end piece sub-
assemblies that are coupled to opposite ends of said main
bridge;
each of said end piece sub-assemblies including a linkage
with two sets of claws that are spaced from one another and an
end cap and a connecting piece which is pivotably connected
with said linkage and with said end cap and which presents a
resiliently deflectable tongue with a button that projects in a
direction away from said wiper strip;
each of said opposite ends of said main bridge having an
opening shaped to receive said connecting piece of one of said
end piece sub-assemblies and a recess within said opening;
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said connecting pieces of said end piece sub-assemblies
being at least partially received within said openings of said
main bridge with said buttons being disposed within said
recesses such that said connecting pieces are restricted from
rotation relative to said main bridge; and
said recesses being covered by said spoiler-shaped outer
surface of said main bridge such that the connections between
said end piece sub-assemblies and said main bridge are
irreversible and permanent.
Appeal Br. 17 (emphasis added).

The Examiner’s Rejection
The Examiner rejected claims 1, 4, and 8 pursuant to pre-AIA
35 U.S.C. § 103(a) as unpatentable over US 2011/0131750 A1, published
June 9, 2011 (“Kwon”), US 3,041,654, issued July 3, 1962 (“Anderson”),
and US 2007/0089257 A1, published April 26, 2007 (“Harita”). Final Act.
3.2

DISCUSSION
Claim 1 recites “said recesses being covered by said spoiler-shaped
outer surface of said main bridge such that the connections between said end
piece sub-assemblies and said main bridge are irreversible and permanent.”
The issue before us is whether the asserted prior art meets the “irreversible
and permanent” aspect of this limitation.

2 The Examiner also rejected claims 1, 4, and 8 as failing to comply with the
written description requirement of 35 U.S.C. § 112(a)/¶1, but ultimately
withdrew that rejection. Final Act. 2; Ans. 3.
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The Examiner relies on Anderson as teaching this limitation, finding
and concluding as follows:
Anderson further teaches that the spring snaps into
position in apertures (16 and 17) behind the claws 14 to prevent
accidental displacement from their assembled position (col. 2,
lines 47-51).
It would have been obvious to one of ordinary skill in the
art at the time of the invention to modify the frame structure of
Kwon et al., based on the aforementioned teachings of Anderson,
to releasably secure the components of the frame structure as
desired thereby making connections irreversible and permanent
until the necessary pressure is applied to intentionally release the
components from assembly.
Final Act. 5–6.
On its face, the rejection would appear erroneous in that it identifies a
“releasabl[e]” connection as one that is “irreversible and permanent.” Id.
However, the Examiner construes “irreversible and permanent” not in
accordance with its plain and ordinary meaning. See Ans. 3–4. In that
regard, the Examiner construes “irreversible and permanent” according to its
supposed definition set forth in paragraph 27 of the Specification. Id. That
paragraph states, in part:
This connection between the resilient tab 58 and the recess 62 in
the opening is shown in Figure 9 and is hereinafter referred to as
a “bayonet connection”. Because the resilient tab 58 is not
readily accessible from outside of the main bridge 28, the
bayonet connection between the main bridge 28 and the end
piece sub-assembly 30 is, for all practical purposes, irreversible
and permanent.
Spec. ¶27. The Examiner takes the position that this paragraph defines an
“irreversible and permanent” connection as one in which a resilient tab is not
readily accessible from outside the main bridge, without regard to whether it
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Application 13/714,662

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is “irreversible and permanent” in the plain and ordinary meaning of those
terms. Ans. 4 (“[T]he plain and ordinary meaning of the term “irreversible
and permanent” is not applied to the claims. . . . Based on appellant’s
definition, ‘irreversible and permanent’ means to not be readily
accessible from outside.”).
The Examiner then applies that construction to the connecting
structure identified in Anderson. Id. (“Anderson also teaches that the spring
(18) snaps into position in apertures 16 and 17 behind the claws 14 (col. 2,
lines 47-51), thereby making connections ‘not readily accessible from
outside’.”). As Appellant points out, however, Anderson explicitly describes
its connection between the asserted windshield end piece sub-assemblies
(i.e., “secondary yokes”) and the main bridge (i.e., “primary bridge”) as
being reversible. Appeal Br. 10.
When, however, it is necessary to replace the wiping element,
the connecting process is reversed and, therefore, a suitable
button 21 is operatively associated with the free end of spring 18
whereby the button may be depressed so that the laterally
extending portions of the spring may be depressed so that claws
14 and 15 may be returned from slots 19 and 20 to apertures 16
and 17 to effect separation of the primary bridge and secondary
yoke. Both ends of the primary bridge may be detachably
connected to their respective secondary yokes in this manner.
Anderson 2:52–62.
The plain and ordinary meaning of an “irreversible and permanent”
connection does not encompass Anderson’s connection, which includes
structure specifically designed to “reverse[]” the connection and “detach”
the main bridge from the yokes. The Examiner effectively concedes this on
page 4 of the Answer, as quoted above. Thus, the issue before us is whether
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Appellant has acted as his own lexicographer and defined “irreversible and
permanent” in a manner that would encompass Anderson’s connection.
“Although words in a claim are generally given their ordinary and
customary meaning, a patentee may choose to be his own lexicographer and
use terms in a manner other than their ordinary meaning, as long as the
special definition of the term is clearly stated in the patent specification or
file history.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582
(Fed. Cir. 1996) (emphasis added).
The Specification states that, in the embodiment illustrated in the
Figures, “the bayonet connection between the main bridge 28 and the end
piece sub-assembly 30 is, for all practical purposes, irreversible and
permanent.” Spec. ¶27. Although the Specification explains why the
exemplary connection illustrated in the Figures is “irreversible and
permanent,” i.e., “[b]ecause the resilient tab 58 is not readily accessible from
outside of the main bridge 28,” the Specification does not clearly set forth a
definition for “irreversible and permanent,” let alone one that means a
connection in which a tab is not readily accessible from the outside. Id.; see
Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir.
2012) (“To act as its own lexicographer, a patentee must ‘clearly set forth a
definition of the disputed claim term’ other than its plain and ordinary
meaning. It is not enough for a patentee to simply disclose a single
embodiment or use a word in the same manner in all embodiments, the
patentee must ‘clearly express an intent’ to redefine the term.”) (citations
omitted); K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1364 (Fed. Cir. 1999)
(“We decline, however, to adopt a proffered unaccustomed meaning [of
‘permanently affixed’] with so little support in the intrinsic record.”).
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Because the Examiner misconstrued “irreversible and permanent” in
reading claim 1 on the prior art, we reverse the obviousness rejection of
claim 1. We likewise reverse the rejection of claims 4 and 8, which depend
from claim 1. See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988)
(“Dependent claims are nonobvious under section 103 if the independent
claims from which they depend are nonobvious.”).

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § References Affirmed Reversed
1, 4, 8 103 Kwon,
Anderson,
Harita
1, 4, 8

REVERSED