9254865 et al.Download PDFPatent Trials and Appeals BoardMar 26, 202090013980 - (D) (P.T.A.B. Mar. 26, 2020) 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. 90/013,980 07/12/2017 9254865 MTD-865Reexam 9011 32425 7590 03/26/2020 NORTON ROSE FULBRIGHT US LLP 98 SAN JACINTO BOULEVARD SUITE 1100 AUSTIN, TX 78701-4255 EXAMINER ENGLISH, PETER C ART UNIT PAPER NUMBER 3993 MAIL DATE DELIVERY MODE 03/26/2020 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 MTD PRODUCTS INC. Patent Owner and Appellant Appeal 2019-001226 Reexamination Control 90/013,980 Patent 9,254,865 B21 Technology Center 3900 BEFORE DANIEL S. SONG, MEREDITH C. PETRAVICK, and WILLIAM V. SAINDON, Administrative Patent Judges. SONG, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(b) and 306, the Patent Owner2 appeals from the final rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We are informed that the ’865 Patent was involved in a litigation, which has been dismissed with prejudice due to settlement, and also was the 1 Issued February 9, 2016 to Schaedler et al. (“the ’865 Patent”). 2 The real party in interest as MTD Products Inc. Appeal Br. 1. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 2 subject of a request for Inter Partes Review for which the Board denied institution. Appeal Br. 1. In addition to its Appeal Brief and Reply Brief, the Appellant also relies on two declarations of Dr. Charles Reinholtz filed on January 22, 2018 (“Reinholtz Decl. 1”) and April 9, 2018 (“Reinholtz Decl. 2”) in support of patentability. We AFFIRM. THE INVENTION The ’865 Patent is directed to a steering system. Title. In particular, the patent is directed to the steering systems for Zero Turn Radius (“ZTR”) vehicles, such as a lawn and garden tractor. Spec. col. 1, ll. 22–24; col. 6, ll. 41–46. There is a known angular relationship for front steering wheels to obtain a given turn radius without causing the wheels slide or scuff, referred to as Ackermann3 steering geometry. Spec. col. 7, l. 61–col. 8, l. 10. Figures 3A and 3B of the ’865 Patent show the steering angles for a tight right turn (3A) and a zero radius turn (3B): 3 Ackermann steering geometry is represented by the following mathematical relationship: where θo is the turn angle of the outside wheel; θi is the turn angle of the inside wheel; “w” is the vehicle track width; and “l” is the vehicle wheelbase. Reinholtz Decl. 1 ¶¶ 30–31. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 3 Figure 3A depicts the angles of the front wheels of a vehicle making a tight right hand turn around a center point C. Figure 3B depicts the vehicle making a zero radius turn around center point C. The ’865 Patent discloses that: When front wheels 18 make the turn depicted in FIG. 3A, they take two distinct arc-like paths P i and Po, which ideally will have a common center point C located along the axis that extends through the center of both drive wheels 16. Lines Li and Lo extend from center point C and intersect the paths P i and Po, respectively, of the two wheels at the rotational centers of the wheels. The use of a substantially-true Ackermann steering geometry . . . can help to avoid scrubbing rubber from the tire tread on the outboard wheel or damaging vegetation under the front wheels. Spec. col. 7, l. 67–col. 8, l. 10. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 4 To implement such steering, the ’865 Patent discloses the use of non- circular gears that attain non-uniform gear ratios. Spec. col. 11, ll. 12–16; col. 11, l. 59–col. 12, l. 1; Figs 8A–8C. CLAIMED SUBJECT MATTER The claims are directed to a steering system. Claim 1, reproduced below, is illustrative of the claimed subject matter: l. A vehicle comprising: a chassis; a left front steerable, non-driving wheel coupled to the chassis and capable of turning more than 90 degrees left; a right front steerable, non-driving wheel coupled to the chassis and capable of turning more than 90 degrees right; left and right rear drivable wheels coupled to left and right hydrostatic drive units; a first gear pair that turns the right front steerable, non- driving wheel, the first gear pair comprising: a first wheel gear having a first wheel gear pivot axis and a first wheel gear pitch line that changes in distance from the first wheel gear pivot axis; and a first steering gear engaged with the first wheel gear, the first steering gear having a first steering gear pivot axis and a first steering gear pitch line that changes in distance from the first steering gear pivot axis; a second gear pair that turns the left front steerable, non- driving wheel, the second gear pair comprising: a second wheel gear having a second wheel gear pivot axis and a second wheel gear pitch line that changes in distance from the second wheel gear pivot axis; and a second steering gear engaged with the second wheel gear, the second steering gear having a second steering gear pivot axis and a second steering gear pitch line that changes in distance from the second steering gear pivot axis; Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 5 a steering wheel that can receive a steering input from an operator of the vehicle; a speed pedal that can receive a speed input from an operator of the vehicle; first and second speed cams oriented parallel to each other and coupled to the speed pedal, the first speed cam including a first curved slot and the second speed cam including a second curved slot, the first and second curved slots having the same shape, where movement of the speed pedal causes the first and second speed cams to rotate in the same direction and by the same amount about an axis extending through each of the first and second curved slots; a first follower that rides in the first curved slot and that will move in response to steering wheel movement to a right- hand turn from a straight-ahead position; and a second follower that rides in the second curved slot and that will move in response to steering wheel movement to a left- hand turn from a straight-ahead position; where the left and right hydrostatic drive units are capable of driving the left and right rear drivable wheels at different speeds and in different directions; movement of the steering wheel without a speed input from the speed pedal does not cause rotation of the left and right rear drivable wheels; and the same one of the left and right rear drivable wheels will rotate faster than the other of the left and right rear drivable wheels in both forward and reverse for a turned position of the steering wheel. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 6 REFERENCE(S) The prior art relied upon by the Examiner is: Name Reference Date Claude 1,748,061 Feb. 25, 1930 Paramythioti 3,550,708 Dec. 29, 1970 Hauser US 6,962,219 B2 Nov. 8, 2005 Hauser4 US 2003/0102171 A1 June 5, 2003 Irikura US 2003/0106725 A1 June 12, 2003 Barnes GB 2 303 829 A Mar. 5, 1997 LazerZ Exmark Mfg. Co. Inc. LazerZ Brochure 1995 REJECTIONS The Examiner rejects various claims under pre-AIA 35 U.S.C. § 103(a) as follows: 1. Claims 1–10 as unpatentable over Hauser in view of Irikura, Claude, and Barnes. Final Act. 4. 2. Claims 11–20 as unpatentable over Hauser in view of Irikura, Claude, Barnes, and LaserZ. Final Act. 12. 4 The Examiner observes that: Hauser ’171 is the pre-grant publication of the application that later issued as Hauser ’219. Accordingly, Hauser ’171 contains the same disclosure as Hauser ’219. However, Hauser ’171 qualifies as prior art under pre-AIA 35 USC 102(b) with respect to the claims of Patent No. 9,254,865 whereas Hauser ’219 qualifies as prior art under pre-AIA 35 USC 102(e). Final Act. 6. The Appellant simply refers to these references as “Hauser.” Appeal Br. 4. Accordingly, we also refer to these references herein as “Hauser.” Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 7 3. Claims 16–20 as unpatentable over Hauser in view of Irikura, Claude, Barnes, LaserZ, and Paramythioti. Final Act. 13. OPINION Only those arguments actually made by Appellant have been considered in this decision. Arguments which Appellant could have made but chose not to make in the Brief have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv); see also In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”); Ex Parte Frye, 94 USPQ2d 1072, 1075–76 (BPAI 2010, precedential). In addition, although the declarations of Dr. Reinholtz have been fully considered, we omit citations to the declarations when citing to the Appeal Brief that cites or quotes the declarations. Rejection 1: Hauser, Irikura, Claude, and Barnes The Examiner finds that Hauser discloses the invention substantially as recited in independent claims 1, 11, and 16, but finds that Hauser fails to disclose “a steering system having first and second gear pairs with a variable gear pitch line (claims 1 and 11) or non-uniform gear ratio (claim 16).” Final Act. 4–6. Indeed, Hauser fails to disclose a specific steering system for the steerable front wheels. The Examiner correctly finds that Irikura discloses: a zero turn radius (ZTR) steering system including first and second gear pairs 101R, 101L on opposite sides of the vehicle, with each gear pair 101R, 101L comprising: a wheel gear 59 . . . and a steering gear 58 engaged with the wheel gear 59 . . . Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 8 wherein each of the wheel gears 59 and the steering gears 58 has a gear pitch line that has different distances from its respective pivot axis at different locations along the pitch line, i.e., having a variable gear pitch line providing a non-uniform gear ratio. Final Act. 6–7, citing Irikura, Figs. 36 and 41–44; ¶¶ 131–134, 138, 140, 176–182. The Examiner also correctly finds that Irikura “specifically teaches that [the disclosed] steering geometry prevents transverse slipping (i.e., tire scrub or wheel skid) of the steerable wheels 41R, 41L.” Final Act. 7, citing Irikura ¶¶ 189, 196. The Examiner further finds that Claude discloses that designing a steering system satisfying the Ackermann equation was known, teaches a differential cam equation, and discloses a steering system that requires “at least one of steering cams [be] formed with a variable pitch line providing a non-uniform (differential) steering ratio.” Final Act. 7, citing Claude, Fig. 2; pg. 1, l. 33–pg. 2, l. 18; pg. 2, l. 127. In that regard, the Examiner also finds that Claude discloses an intermediate cam disc with variable pitch for driving the steering cam. Final Act. 7–8, citing Claude, pg. 1, l. 98–pg. 2, l. 2. The Examiner concludes that: Therefore, both Irikura ’725 and Claude teach steering systems having first and second gear/cam pairs with a variable gear/cam pitch line (claims 1 and 11) or non-uniform gear/cam ratio (claim 16). From these teachings of Irikura ’725 and Claude, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Hauser . . . by providing the steering system with first and second gear pairs with a variable gear pitch line (claims 1 and 11) or non- uniform gear ratio (claim 16) because such a steering system Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 9 provides the advantage of optimal steering as a result of location of the steerable wheels on tangents of concentric circles having their common center coincident with the rotational axis of the rear drive wheels. Further, such a modification is obvious because it involves the mere combination of one known type of steering system taught by Irikura ’725 and Claude with the vehicle of Hauser . . . according to known methods, yielding only a predictable result. Final Act. 9–10. The Examiner further finds that Hauser also fails to “teach speed cams provided with curved slots such that movement of the steering wheel without a speed input from the speed control member does not cause rotation of the left and right drivable wheels.” Final Act. 10. However, the Examiner finds that Barnes teaches a ZTR steering system having speed cams with arcuate slots that receive followers, and concludes that provision of such speed cams would have been obvious to one of ordinary skill in the art. Final Act. 10– 11, citing Barnes, Figs. 1–5 and disclosures pertaining thereto. The Patent Owner does not contest that the references describe each limitation of the claims. Instead, the Patent Owner attacks the Examiner’s combination of Hauser, Irikura, and Claude, as discussed infra. Prima Facie Case of Obviousness The Patent Owner initially argues that “the Office has not satisfied its burden to produce a prima facie case of obviousness because it does not explain how or why a POSITA[5] would have arrived at the Irikura/Claude steering system.” App. Br. 18; see also App. Br. 19. According to the 5 That is, a person of ordinary skill in the art. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 10 Patent Owner, “despite recognizing that Irikura ’725’s steering system is gear-based and Claude’s steering system is cam-based, the Office has not explained how or why a POSITA would have applied Claude’s cam-based teachings to Irikura’s gear-based teachings or vice-versa,” and that it “must guess at the meaning of the Irikura/Claude steering system” and whether Irikura’s steering gear units are being modified or Claude’s steering cams and cam disc are being modified to be gears. App. Br. 20. We disagree with the Patent Owner, and find the rejection as set forth above provides sufficient notice to the Patent Owner and the Board as to the basis of how these references are being applied in the present rejection. See 35 U.S.C. § 132(a); 37 C.F.R. § 1.104(a)(2), (c)(2). The Examiner has relied on Irikura for its disclosure of a zero turn radius (“ZTR”) steering system utilizing gear pairs that have variable gear pitch line that provides a non- uniform gear ratio to prevent transverse-slipping of the wheels. Final Act. 6–7. The Examiner has also relied on Claude to establish that a steering system having variable pitch for providing Ackermann steering was known in the art. Final Act. 7–8. The Examiner further explained that “it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Hauser . . . by providing the steering system with first and second gear pairs with a variable gear pitch line . . . or non-uniform gear ratio.” Final Act. 10. Thus, the Examiner has made it sufficiently clear that mower of Hauser is being modified to include a steering system with Irikura’s non- uniform ratio gear pairs, and is concluding that any modification required to the gear pairs to attain substantially Ackermann steering would have been Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 11 obvious and within the skill of a person of ordinary skill in the art in view of Claude. See also Final Act. 7–8. The rejection relies on Claude for evidence that Ackermann steering system was known, and that providing variable ratios/pitch line along the interface of the system components, i.e., the cams to provide such steering was also known, such that to any extent Irikura’s gear pairs do not provide substantially Ackermann steering in view of the lack of explicit reference to Ackermann or its representative equation, it would have been obvious and within the skill of those of ordinary skill in the art to modify the gear pairs accordingly to achieve substantially Ackermann steering. The Patent Owner appears to require the Examiner to set forth the specific manner in which the structure of Claude can be bodily incorporated into the non-uniform ratio gear pairs of Irikura, but does not fully consider what Claude was cited for. The Examiner does not propose to incorporate physical components from Claude; rather the Examiner cites Claude as evidence of what a person of ordinary skill in the art would know. In view of the above considerations, we find the rejection sufficiently clear in setting forth a prima facie case of obviousness, and we are not persuaded by the Patent Owner’s arguments to the contrary. Hauser There is no dispute between the Patent Owner and the Examiner as to the educational background, training, and experience of a person of ordinary skill in the art. See Reinholtz Decl. 1 ¶¶ 13–15. However, what would have been obvious to the person of ordinary skill in the art underlies the substantive arguments of the Patent Owner as discussed infra. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 12 The Patent Owner asserts that a person of ordinary skill in the art would have been familiar with Ackermann steering and its importance for mowers like that disclosed in Hauser because wheel-slip will damage lawns. App. Br. 26. The Patent Owner also asserts that “Hauser specifies an Ackermann steering system” (App. Br. 18; see also, e.g., App. Br. 29), and the declarant testifies that Hauser “calls for” and “requires” Ackerman steering. See Reinholtz Decl. 1 ¶¶ 17, 37. Based thereon, the Patent Owner argues that a person of ordinary skill in the art “would have avoided using a non-Ackermann steering system in a mower like Hauser’s because non- Ackermann steering systems produce lawn-damaging wheel slip, which was acutely unacceptable to a POSITA.” App. Br. 18. According to the declarant, any steering system that is not an Ackerman system would not be used by a person of ordinary skill because it would be “sub-optimal” and “wheel slip caused by a non-Ackermann steering system would be unacceptable.” Reinholtz Decl. 1 ¶¶ 17–18, The basis for the Patent Owner and the declarant’s assertions as to Hauser is its teaching that: Any manner of steering the front wheels 4, 5 may be chosen with sound engineering judgment. In this way, the front steerable wheels 4, 5 may be rotated to be substantially tangent to an arc defined at one point by the radius of turning and by the other point at the center of each wheel 4, 5. Hauser, col. 6, ll. 21–26. The Examiner generally agrees with the Patent Owner “with major exception,” which is that Hauser “use[s] the qualifier ‘substantially’ . . . and, therefore, POSITA would understand that these references call for a steering geometry for the front steerable wheels 4, 5 that ‘substantially’ satisfies the Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 13 Ackermann equation.” Ans. 14. According to the Examiner, such a qualifier also evinces that a person of ordinary skill “would also understand that the Ackermann equation is theoretical and difficult to fully satisfy in reality.” Ans. 14–15. We generally agree with the Examiner’s assessment, and we find the Patent Owner and declarant reads too much into the above-reproduced passage of Hauser. Although Hauser’s disclosure can reasonably characterized as teaching the desirability of, or “call[ing] for,” an Ackermann steering, it does not mandate or require strict adherence thereto at the exclusion of all other types of steering systems. Indeed, Hauser specifies that “[a]ny manner of steering the front wheels 4, 5 may be chosen with sound engineering judgment.” Hauser, col. 6, ll. 21–22. In whole, the Patent Owner’s over-reading of this passage in Hauser negatively impacts their arguments discussed infra. Obviousness in view of Irikura and Claude As noted above, Irikura explicitly discloses gear pairs having non- uniform gear ratio to allow “the centers of the lateral turning circles of wheels 41L and 41R, whose radii are extended axes of respective wheels 41, [to] coincide with the turning center of the vehicle,” and prevent “transverse- slipping.” Irikura ¶¶ 176, 189; Figs. 36 and 41–44. Claude discloses a steering system with cams having a variable pitch line for satisfying the Ackermann equation as well as a derivative equation. Claude, Fig. 2; pg. 1, l. 33–70. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 14 Contrary to these explicit teachings, the Patent Owner argues that “a POSITA would have understood that a gear-based steering system produced according to the teachings of Irikura ’725, if used in Hauser’s mower, would cause misalignment of the mower’s wheels,” which would result in “lawn- damaging wheel slip––rendering the mower unsuitable for use as a mower–– but also frustrates the mower’s ability to approach and perform a zero-radius turn––rendering the mower unsuitable as a zero-turn vehicle.” App. Br. 24– 25; see also App. Br. 39, 52. The Patent Owner relies on the first declaration of Dr. Reinholtz in support, which states that: The steering system described in [Irikura ’725] is not an Ackermann steering system. Irikura ’725, at first glance, purports to provide Ackermann steering. However, after reviewing Irikura ’725’s disclosure, it is readily apparent that Irikura ’725’s steering system fails to provide the promised Ackermann functionality. Rather, a mower using Irikura ’725’s steering system would exhibit considerably more wheel slip than if it used an Ackermann system. Reinholtz Decl. 1 ¶ 28. The declarant utilizes trigonometry and calculus to mathematically determine the derivative of the Ackermann equation6 and graphs the result for several values of the ratio of vehicle track width and wheelbase (w/l) to show that the derivative of the Ackermann equation increases, peaks, and then decreases. Reinholtz Decl. 1 ¶¶ 30–36. The declarant points to Figures 36 and 40 of Irikura and its disclosure that the gear ratio “reduce[s] the rate 6 Dr. Reinholtz calculates the derivative equation of the Ackermann equation to be: Reinholtz Decl. 1 ¶ 33. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 15 of increase of lateral turning angle of the outside wheel 41” and “increas[es] the rate of lateral turning angle of inside wheel 51” to conclude that Irikura does not satisfy the derivative equation of the Ackermann equation because the derivative of Irikura continuously increases as steering input increases. Reinholtz Decl. 1 ¶¶ 39–55. The Patent Owner also relies on Dr. Reinholtz’s second declaration to argue that a person of ordinary skill “would not and could not have arrived at the Irikura/Claude steering system because cams or gears shaped to satisfy Claude’s differential cam equation [sin α : sin β = x : y] and the Ackermann equation are physically impossible.” App. Br. 61 (formatting removed). The declarant uses Claude’s relational expression as an equation, the calculated derivative equation of the Ackermann equation, and other mathematical equations derived by applying algebra, trigonometry, and calculus, to solve Claude’s differential cam equation using selected values for the variables to conclude that the cams would have to have “a radius that is larger than the distance between its pivot point and the pivot point of its driving cam,” which is impossible. Reinholtz Decl. 2 ¶ 31; see also Reinholtz Decl. 2 ¶¶ 5–9, 11, 12, 16, 17, 23, 27–35; App. Br. 25, 72. The Patent Owner further argues that Claude’s teachings do not provide a person of ordinary skill in the art guidance to build a steering system suitable for Hauser’s mower because Irikura uses gears while Claude uses cams, which are “distinct mechanical elements that are not simply interchangeable” such that a person of ordinary skill would have viewed “Claude’s teachings of the radii of cams, having smooth peripheries, as Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 16 inapplicable to gears with their toothed peripheries.” App. Br. 83–84, quoting Reinholtz Decl. 2 ¶ 15. Based on the above, the Patent Owner argues that “a POSITA would not have modified Hauser to include the Irikura/Claude steering system’s ‘first and second gear pairs with a variable pitch line”’ (App. Br. 25), and that the “proposed combination would have rendered Hauser’s mower unsatisfactory for its intended purpose.” App. Br. 18. Indeed, the declarant testifies that reviewing Irikura “inevitably would have led a POSITA to abandon any thoughts they had about using Irikura ’725’s steering system in Hauser’s mower.” Reinholtz Decl. 1 ¶ 29. Similar testimony is provided with respect to Claude. Reinholtz Decl. 2 ¶ 32. The Patent Owner further argues that it would have required “a redesign of Irikura[]’s steering system,” and “[s]uch a redesign would have been tantamount to the design–– from scratch––of a gear-based Ackermann steering system capable of performing a zero-radius turn, which was beyond the skill possessed by a POSITA.” App. Br. 83, citing Reinholtz Decl. 1 ¶¶ 63–66. We do not find these arguments of the Patent Owner persuasive. We agree with the Examiner that “[t]he declarant contradicts the explicit disclosure of Irikura,” which “explicitly teaches that the steering system satisfies (or at least very closely approximates) the Ackermann equation.” Ans. 15. We agree with, and adopt as our own, the Examiner’s finding that: Irikura ’725 explicitly teaches that: (a) the steerable wheels 41R, 41L are moved by the wheel gears 59 into tangential relation to concentric circles having their common center 196 upon a line of centers 199 coincident with the rotational axis of the rear drive wheels 43R, 43L of the vehicle (see Figs. 42–44; ¶¶ 0185–0196); (b) such a steering Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 17 geometry prevents transverse slipping (i.e., tire scrub or wheel skid) of the steerable wheels 41R, 41L (see ¶¶ 0189, 196). Ans. 15. We are not persuaded by Dr. Reinholtz’s testimony that a person of ordinary skill would not have found it obvious to modify the mower of Hauser to include a steering system having gear pairs with non-uniform gear ratio like that disclosed in Irikura. Hauser does not provide disclosure of a steering system for its mower. Thus, in view of the absence of a steering system for its mower, it would have been obvious to a person of ordinary skill in the art to have implemented for Hauser’s mower, a steering system such as that of Irikura, which is disclosed as providing the functionality generally suggested by Hauser, via gear pairs having non-uniform gear ratio that allow “the centers of the lateral turning circles of wheels 41L and 41R, whose radii are extended axes of respective wheels 41, [to] coincide with the turning center of the vehicle,” and prevent “transverse-slipping.” Irikura ¶¶ 176, 189. In this way, Irikura provides a specific steering solution meeting the characteristics of a steering system called for by Hauser. Hauser, col. 6, ll. 21–26 (calling for a steering system chosen with “sound engineering judgment” that includes features such as keeping the front wheels tangent to an arc defined by the radius of turning). The Patent Owner and the Examiner further disagree as to whether Dr. Reinholtz’s mathematical analysis based on the derivative equation of the Ackermann equation is required for an Ackermann steering system. The Patent Owner argues that because the derivative equation is “the derivative of the Ackermann equation,” it must be satisfied to be an Ackermann steering system, and because Irikura does not satisfy it, the steering system Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 18 of Irikura is not an Ackermann steering system. App. Br. 35, 39–48. The Examiner responds that “the declarant seeks to add a further requirement” to what is considered to be an Ackermann steering by requiring satisfaction of the derivative equation, but “fails to provide any independent corroboration (e.g., a printed publication such as Wong7) showing that this relationship is, in fact, required.” Ans. 16; see also Ans. 19. The Examiner and the Patent Owner/declarant further disagree as to whether the derivative equation is merely pertinent to the steering shown in Figure 3B of the’865 Patent in which the wheels follow the same arc, which is not the case in Irikura. Ans. 17; Reinholtz Decl. 2 ¶ 26. We do not find this dispute regarding the derivative of the Ackermann equation and its relevance to Irikura to be dispositive for the reasons discussed infra, but nonetheless, find the Examiner’s position more persuasive. The evidence of record indicates that to be considered an Ackermann steering system in the art, it must satisfy a geometric equation. Reinholtz Decl. 1 ¶¶ 30–31; Claude, pg. 1, ll. 33–35; Wong, pgs. 336, 337. There is no indication except for the assertions of the declarant that the derivative equation must also be satisfied in order for a suspension system to be considered an Ackermann steering system in the art. Regardless of the above, even if Irikura fails to satisfy perfectly the derivative equation, and thus, is incapable of providing perfect Ackerman steering as Dr. Reinholtz attests, the Patent Owner’s arguments presume that Hauser mandates a perfect Ackermann steering system. As discussed above, 7 Wong, Theory of Ground Vehicles, 3rd Ed. (2001), pg. 336, 337. Final Act. 3. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 19 the passage of Hauser relied upon by the Patent Owner suggests the desirability of an Ackermann steering system, but it does not mandate or require strict adherence thereto at the exclusion of all other types of steering systems. Thus, the Patent Owner’s assertion that the combination of Houser and Irikura would not be made is premised on the incorrect assertion that Hauser mandates an Ackermann steering system at the exclusion of all other steering systems, and that systems providing imperfect steering cannot be used. In that regard, we generally agree with the Examiner that “[e]ven if Irikura ’725 is incapable of providing complete Ackermann functionality, it nevertheless fulfills the lesser call of Hauser . . . for a steering geometry that ‘substantially’ satisfies the Ackermann equation.” Ans. 16. The Patent Owner’s arguments against Claude stand on similar footing. As the Examiner responds, “[t]he declarant contradicts the explicit disclosure of Claude,” which “discloses an improved steering system including steering cams providing for pure rolling movement of the steered wheels” to avoid wheel skid, and at least substantially satisfies the Ackermann equation. Ans. 18, citing Claude p. l, ll. 1–5, 33–81. Similar to Irikura, we further agree with the Examiner that “[e]ven if Claude is incapable of providing complete Ackermann functionality, it nevertheless fulfills the lesser call of Hauser ’219 or Hauser ’171 for a steering geometry that ‘substantially’ satisfies the Ackermann equation.” Ans. 18. As to the Patent Owner’s arguments based on Claude’s use of cams in contrast to Irikura’s use of gears, we find this argument unpersuasive because, as noted above, the rejection relies on Claude as evidencing that designing steering system to have Ackermann geometry was known and Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 20 practiced in the art, and thus, to any extent Irikura’s gear pairs do not provide a substantially Ackermann steering system as disclosed, it would have been obvious to further modify Irikura to provide such a steering system. In addition, although Claude does use the term “cam” to refer to structural components, it also appears to use the term to more broadly refer to non-circular rotation about offset centers of rotation along the interface of the components, and discloses use of gears in attaining such movement. Claude, pg. 1, ll. 23–32 (“the path to the solution is by . . . the determination of the method of calculating the steering cams, their development and optimum form and, connected therewith, the form of the gearing which as the support or the generator of the steering cams transmits the movement to the steering wheels of the vehicle in suitable manner” (emphasis added)); pg. 1, ll. 49–54 (“Fig. 1 shows the wheels with the new cam mechanism and a cam bar drive. Fig. 2 discloses the theoretical construction of the cams. Fig. 3 is a view showing a development of the cams.”). In that regard, Figure 2 of Claude clearly shows the interface of its components as having a curved, non-circular shape, which would suggest similar shape in a gear interface to the extent mating gears are not shown. Regardless, Claude further discloses an alternative having a gear implementation/embodiment, thereby establishing that it was known to have implemented cam-based suspension geometries and systems using gears instead of cams. Claude, pg. 1, ll. 51–55 (“Fig. 4 illustrates an embodiment of the gearing illustrated diagrammatically in Fig. 3.”); pg. 2, ll. 113–128 (“The steering gear shown in Fig. 4 does not differ in principle from the Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 21 steering gear shown in Figs. 1 and 2. The bevel pinion K2 is the support of the circular steering cam corresponding to the cam disc E. The bevel pinion K' with its driving parts is a generator of the steering cam calculated from the relations . . . corresponding to the cam disc A. The bevel pinion K is the intermediate member controlling the two bevel pinions K' and K2 in dependence on one another corresponding to the cam disc J in Fig. 2 or the cam bar replacing it in Fig. l.”). Therefore, even if Irikura’s gear pairs with non-uniform gear ratio needed to be redesigned to provide substantially Ackermann steering, Irikura and Claude provide sufficient evidence that such redesign would have been within the skill and creativity of a person of ordinary skill in the art. In that regard, we further find the declarant’s treatment of a person of ordinary skill in the art to be problematic. On the one hand, the declarant asserts that a person of ordinary skill in the art as having the skills and knowledge to review both Irikura and Claude, and despite their explicit disclosures regarding minimizing transverse slip, would have deduced using trigonometry and calculus in the specific manner set forth in the declarations to attain the derivative Ackermann equation, and determine that these references do not disclose Ackermann steering systems. Reinholtz Decl. 1 ¶¶ 13–15, 56–61; Reinholtz Decl. 2 ¶¶ 5–18, 21–23, 27–32. On the other hand, the declarant states that this same person of ordinary skill, upon concluding that these references do not disclose Ackermann steering systems, would have abandoned using either Irikura or Claude, discard their teachings, and would have been incapable of applying the same skill and knowledge to remedy any purported deficiencies of the disclosed steering Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 22 systems. Reinholtz Decl. 1 ¶¶ 29, 62–66; Reinholtz Decl. 2 ¶ 32. In particular, the declarant states that modifications would have to replace gears and linkages, as well as steering gear box and pivotal joints with new components so as to result in Ackermann steering, and that the specific needs of a zero-turn radius Ackermann steering system are more complicated and beyond the skill of those of ordinary skill in the art. Reinholtz Decl. 1 ¶ 64. However, we do not agree with the Patent Owner that a person of ordinary skill and creativity would have simply abandoned the teachings of Irikura and Claude considering their explicit teachings and lack of any steering system in Hauser. Indeed, in view of the evidently high skill of those of ordinary skill in the art attested to by the declarant, it is not apparent why such a person would not have the skills to apply the same skills and knowledge, as well as creativity to modify the variable gears of Irikura to any extent necessary, with or without Claude teachings, or why such modifications would have been beyond their skill and creativity. Accordingly, we find this testimony of the declarant to be not credible, and agree with the Examiner that “[t]he teachings of Claude and Irikura ’725 provide POSITA with an adequate understanding of the use a variable gear pitch line providing a non-uniform gear ratio in order to achieve a ZTR steering system that satisfies (or at least substantially satisfies) the Ackermann equation and provides for the pure rolling movement that is desired for eliminating wheel skid.” Ans. 22. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 23 Teaching Away The Patent Owner further argues that “when properly considered in its entirety, Irikura ’725 would have led a POSITA away from the proposed combination” because Irikura “teaches abandonment of a configuration in which each of two hydrostatic transmissions . . . controls a respective one of two driving wheels” as disclosed in Hauser. App. Br. 18; see also App. Br. 91–92. Thus, the Patent Owner argues that: To use Hauser’s hydrostatic drive units 16, 18––the alleged left and right hydrostatic drive units of the claims––a POSITA would have had to ignore the primary purpose of Irikura [], i.e., to avoid the “labor [required] for precise coincidence between the capacities of” the pumps and motors of the hydrostatic drive units. App. Br. 95–96, quoting Irikura ¶ 8; see also Rebuttal Br. 5–6. The Examiner finds that the prior art teaches well-known alternative transmissions, and concludes that a person of ordinary skill in the art would have found it obvious to utilize such known transmissions based on “the known advantages/disadvantages thereof as well as the particular design criteria involved.” Ans. 18; see also Ans. 23. We generally agree with the Examiner. Although the Patent Owner is correct that Irikura discloses the disadvantage of using hydrostatic drive units for separately driving left and right wheels, and further discloses its solution therefor, as discussed above, Irikura also clearly teaches a steering system for the steerable front wheels for use in a zero radius turn vehicle. There may be many reasons that a person of ordinary skill in the art may have implemented only Irikura’s teachings with respect to the steering system, but not its teachings regarding hydrostatic drive units. For example, Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 24 engineering considerations such the specific application, manufacturability, durability, serviceability, and other considerations such as costs and market familiarity. Although the Patent Owner argues that “the Office fails to enumerate any advantages of Hauser’s drive units 16, 18 and/or disadvantages of Irikura ’725’s driving/steering unit 10 that would have led a POSITA to choose Hauser’s drive units over Irikura ’725’s” (App. Br. 96), we find sufficient, the Examiner’s general reasoning in view of the art that a person of ordinary skill in that art would have considered numerous factors, and that it would have been obvious to such a person to have applied the multiple independently teachings of Irikura selectively. Further, the Examiner’s rejection begins with Houser, which already has a hydrostatic drive system specified, and directs one of skill in the art to find a suitable manner of steering it. Thus, we see no reason the Examiner would have had to address keeping Houser’s existing drive system. We think it is unreasonable, and do not expect, the Examiner to articulate the rejection in such level of detail asked for by the Patent Owner, who essentially relegates a person of ordinary skill to an automaton that would have bodily incorporate all the teachings of Irikura into the mower of Hauser. Therefore, in view of the above, we affirm Rejection 1. The remaining dispute between the Examiner and the Patent Owner regarding the broader scope of the claims on appeal is moot. Ans. 17; App. Br. 86; see also Final Act. 18, 20, 22. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 25 Rejection 2: Hauser, Irikura, Claude, Barnes and LaserZ The Examiner rejects claims 11–20 as unpatentable over Hauser in view of Irikura, Claude, Barnes, and LaserZ. Final Act. 12. The Patent Owner relies on arguments submitted with respect to Rejection 1 for patentability of these claims. App. Br. 97. However, as discussed above, these arguments are unpersuasive. The Patent Owner also points out that independent claim 11 recites that the left and right front steerable, non-driving wheels are “rotatable to a zero radius turn.” Appeal Br. 98. The Patent Owner then argues that “[a]s shown above, a POSITA would have understood that neither Irikura ’725’s steering system nor Claude’s steering system provides this functionality” (Appeal Br. 98), and that “[t]he Examiner’s Answer fails to respond to this independent basis for reversing its rejection.” Rebuttal Br. 7. This argument is unpersuasive. Although the Patent Owner has argued that the steering systems of Irikura and Claude do not provide fully Ackermann steering as discussed above, Irikura clearly discloses a zero radius turn capable steering system. Irikura, Fig. 44; ¶ 194 (“left wheel 43L serving as inside wheel 43 rotates backward while right wheel 43R serving as outside wheel 43 rotates forward, so that the turning center of the vehicle . . . is placed on the lateral middle point between wheels 43L and 43R. . . . Since point 196 coincides with the lateral middle point of the vehicle, the vehicle turns centering on its own lateral middle point. In other words, the vehicle spins.”). Therefore, Rejection 2 is affirmed. Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 26 Rejection 3: Hauser, Irikura, Claude, Barnes, LaserZ and Paramythioti The Examiner rejects claims 16–20 as unpatentable over Hauser in view of Irikura, Claude, Barnes, LaserZ, and Paramythioti. Final Act. 13. The Patent Owner relies on arguments submitted with respect to Rejection 1 for patentability, noting that deficiencies of the proposed combination of Hauser, Irikura, and Claude is not remedied by the remaining references relied upon by the Examiner. App. Br. 99. Thus, being unpersuaded of deficiencies in the combination of Hauser, Irikura, and Claude, we affirm Rejection 3. CONCLUSION The Examiner’s Rejections 1–3 are AFFIRMED. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–10 103(a) Hauser, Irikura, Claude, Barnes 1–10 11–20 103(a) Hauser, Irikura, Claude, Barnes, LaserZ 11–20 16–20 103(a) Hauser, Irikura, Claude, Barnes, LaserZ, Paramythioti 16–20 Overall Outcome 1–20 Appeal 2019-001226 Reexamination Control 90/013,980 Patent US 9,254,865 B2 27 REQUESTS FOR EXTENSIONS OF TIME Requests for extensions of time in this ex parte reexamination proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f). AFFIRMED SDC For Appellant: NORTON ROSE FULBRIGHT US LLP 98 San Jacinto Boulevard, Suite 1100 Austin, TX 78701-4255 For Third Party Requester: James W. Miller, (General) 527 Marquette Avenue, Suite 1960, Rand Tower Minneapolis, MN 55402 Copy with citationCopy as parenthetical citation