Ex Parte Church et al

Patent Trial and Appeal BoardMar 4, 2019

14802669 (P.T.A.B. Mar. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/802,669 07/17/2015 125048 7590 Reising Ethington P.C. 755 W. Big Beaver Road Suite 1850 Troy, MI 48084 03/06/2019 FIRST NAMED INVENTOR David R. Church 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 8380.3019.001 1807 EXAMINER BOWES, STEPHEN M ART UNIT PAPER NUMBER 3657 NOTIFICATION DATE DELIVERY MODE 03/06/2019 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): USPTOmail@reising.com USPTOmail@gmx.com kolakowski @reising.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID R. CHURCH, BRET ALLEN ENGELS, and EDWARD RAY GREEN Appeal2018-005538 Application 14/802, 669 1 Technology Center 3600 Before MICHAEL C. ASTORINO, BRUCE T. WIEDER, and BRADLEY B. BAY AT, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. Â§ 134(a), the Appellants appeal from the Examiner's decision rejecting claims 1-20.2 We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). We AFFIRM-IN-PART. 1 "Bendix Spicer Foundation Brake LLC ... is the real party in interest." Br. 1. 2 Throughout this Decision, we refer to the Non Final Office Action ("Non- Final Act.," mailed Aug. 16, 2017), Appeal Brief ("Br.," filed Jan. 12, 2017"), and the Examiner's Answer ("Ans.," mailed Mar. 8, 2018 ("Answer"). Appeal2018-005538 Application 14/802,669 STATEMENT OF THE CASE Claimed Subject Matter Claims 1, 7, 9, and 13 are independent claims. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A drum brake assembly, comprising: a brake spider having a central aperture configured to receive an axle extending therethrough along a center axis of the central aperture; first and second brake shoes, each of said first and second brakes shoes having a first end pivotally coupled to said brake spider; a first cam follower disposed at a second end of said first brake shoe; a second cam follower disposed at a second end of said second brake shoe; and, a camshaft having a shaft disposed along a rotational axis; a cam disposed at one end of the shaft, the cam having an inboard side proximate said shaft and an outboard side distant from said shaft and a cam surface extending between said inboard and outboard sides in engagement with said first and second cam followers, movement of said cam causing said first and second brake shoes to move between positions of engagement and disengagement with an associated braking surface; and, a noise reducing mass disposed on said outboard side of said cam, the mass configured to establish a natural frequency in said cam that differs from a natural frequency of said first and second brake shoes by at least 200 Hz. Rejections I. Claims 6, 8, 12, and 19 are rejected under 35 U.S.C. Â§ 112(b) as indefinite. 2 Appeal2018-005538 Application 14/802,669 II. Claims 1--4, 6, 9, 10, 13-17, 19, and 20 are rejected under 35 U.S.C. Â§ 103 as unpatentable over Clark et al. (US 2006/0016652 Al, pub. Jan. 26, 2006) ("Clark") and Okada et al. (US 5,971,112, iss. Oct. 26, 1999) ("Okada"). III. Claim 5, 7, 8, 11, 12, and 18 are rejected under 35 U.S.C. Â§ 103 as unpatentable over Clark, Okada, and Jackson (US 5,515,952, iss. May 14, 1996). ANALYSIS Rejection I The Appellants do not submit an argument concerning the Examiner's rejection of claims 6, 8, 12, and 19 under 35 U.S.C. Â§ 112(b) as indefinite. See Ans. 3. We summarily sustain this ground of rejection. Rejections 11-111 Independent claim 1 calls for a drum brake assembly including a camshaft having a shaft, a cam, and, "a noise reducing mass ... configured to establish a natural frequency in said cam that differs from a natural frequency of said first and second brake shoes by at least 200 Hz." Br., Claims App. Independent claims 7, 9, and 13 include a similar limitation. See id. The Examiner finds that Clark teaches substantially all of the subject matter of claim 1, including "a noise reducing mass (Fig. 10) disposed on said outboard side of said cam, but does not disclose the mass configured to establish a natural frequency in said cam that differs from a natural frequency of said first and second brake shoes by at least 200 Hz." Non- 3 Appeal2018-005538 Application 14/802,669 Final Act 4. To cure this deficiency the Examiner turns to Okada. Id. at 5. The Examiner finds, "Okada [] discloses a drum brake assembly wherein the brake shoes have different natural frequencies (Abstract). Okada[] discloses that providing the shoes with different natural frequencies reduces judder, a type of vibration noise." Id. (citing Okada, col. 3, 11. 55---65, col. 4, 11. 37- 42). The Examiner also finds, "[f]orming connected parts with different natural frequencies prevents the natural frequencies from overlapping and creating an especially large vibration." Id. The Examiner concludes, "it would have been obvious to one of ordinary skill in the art ... to modify the different connected parts of the drum brake of Clark [] by forming them to have different natural frequencies as taught by Okada [] in order to reduce coupled vibrations and judder (Abstract)." Id. The Appellants point out that "Okada [] disclose[ s] a drum brake assembly in which a brake shoe (not a cam) is altered in some manner so that the natural frequency of one brake shoe differs from the natural frequency of the other brake shoe in order to reduce 'judder."' Br. 8 ( citing Okada, Abstract, col. 2, 11. 16-22). The Appellants argue that Okada does not teach modifications to a cam (id. at 9) and that "the combination of Clark [] and Okada [] does not disclose the fundamental concept of establishing a natural frequency in the cam differing from the natural frequencies in the brakes shoes" (id. at 10). The Appellants' argument is persuasive. In response, the Examiner explains that the rationale for the modification of the different connected parts of Clark's drum brake to have different natural frequencies is based on a broad finding from Okada. Ans. 4. In the words of the Examiner, Okada "broadly teach[ es] that it is desirable for connected parts to have different natural frequencies." Id. We 4 Appeal2018-005538 Application 14/802,669 disagree with the Examiner that Okada's teachings extend to all the components of the drum brake assembly. Consequently, we determine that the Examiner's conclusion of obviousness lacks rational underpinning. Further, to the extent that the Examiner invokes legal precedent as a source of supporting rationale to further modify Clark's drum brake (see Non-Final Act. 5 (citing In re Aller, 220 F.2d 454,456 (CCPA 1955)), the further modification does not cure the lack of rational underpinning. Thus, we do not sustain the Examiner's rejection of independent claim 1, and dependent claims 2--4 and 6, as unpatentable over Clark and Okada. Similarly, we do not sustain the Examiner's rejection of independent claims 9 and 13, and dependent claims 10, 14--17, and 19, as unpatentable over Clark and Okada because the rejection suffers from the same deficiency as the rejection of claim 1. The remaining rejection based on Clark and Okada in combination with Jackson also suffers from the same deficiency as discussed above and is not cured by the additional findings and reasoning associated therewith. Thus, we do not sustain the Examiner's rejection of independent claim 7 and dependent claim 8, as well as dependent claims 5, 12, and 18, which depend from independent claims 1, 9, and 13, respectively. DECISION We SUMMARILY AFFIRM the Examiner's decision rejecting claims 6, 8, 12, and 19 under 35 U.S.C. Â§ 112(b) (Rejection I). We REVERSE the Examiner's decision rejecting claims 1-20 under 35 U.S.C. Â§ 103 (Rejection II-III). 5 Appeal2018-005538 Application 14/802,669 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED-IN-PART 6