Ex Parte Frey et al

Patent Trial and Appeal BoardMar 29, 2017

12148326 (P.T.A.B. Mar. 29, 2017)

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. 298-395 2707 EXAMINER GRUN, ROBERT J ART UNIT PAPER NUMBER 1744 MAIL DATE DELIVERY MODE 12/148,326 04/18/2008 28249 7590 03/30/2017 DILWORTH & BARRESE, LLP Dilworth & Barrese, LLP 1000 WOODBURY ROAD SUITE 405 WOODBURY, NY 11797 Werner Frey 03/30/2017 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 WERNER FREY and BERTHOLD RUF Appeal 2016-000884 Application 12/148,326 Technology Center 1700 Before ADRIENE LEPIANE HANLON, N. WHITNEY WILSON, and DEBRA L. DENNETT, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s October 23, 2014 decision finally rejecting claims 1—9, 13, 14, and 40-46 (“Final Act.”). We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify the Real Party in Interest as Liebherr-Mischtechnik GmbH (Br. 3). Appeal 2016-000884 Application 12/148,326 CLAIMED SUBJECT MATTER Appellants’ invention is directed to a control for truck mixers having a hydraulically driven mixer drum (Abstract). The hydraulic pump of the mixer drive is driven by the drive motor of the truck mixer (id.). The speed of the drive motor is adjusted depending on the demanded drum speed, which in turn is set by an operating lever (id.). Details of the claimed invention are set forth in independent claim 1, which is reproduced below from the Claims Appendix of the Appeal Brief: 1. A control is provided for truck mixers having a hydraulically driven mixer drum, with the hydraulic pump of the mixer drive being driven by the drive motor of the truck mixer or by a separate motor, wherein the drive motor of the truck mixer is an internal combustion engine and speed of the drive motor can be set in dependence on the demanded drum speed, and comprising an operating system (14) with the desired drum speed being adjustable via an operating lever (16) arranged to adjust the demanded drum speed in dependence on requirements such that the speed of the internal combustion engine is set automatically in dependence on the demanded drum speed and the internal combustion engine is operated in ideal speed range with respect to noise and consumption, and a pushbutton element (20, 32) arranged upon a casing for the operating lever (16) and is provided beside the operating lever (16) to separately adjust such that acceleration ramps and delay ramps can be adjusted individually and in dependence on the load via the pushbutton operating element. 2 Appeal 2016-000884 Application 12/148,326 REJECTIONS I. Claims 1-4, 7, 8, 10-14, and 21—24 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Quigley2 in view of Ehrenhardt.3 II. Claim 9 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Quigley in view of Ehrenhardt, and further in view of O’Reilly.4 DISCUSSION Appellants do not argue the claims separately (Br. 11). Accordingly, we focus on the rejection of claim 1 over Quigley in view of Ehrenhardt. The complete details of the rejection are set forth in the Final Action. The Examiner finds that Quigley discloses a control for truck mixers having a hydraulically driven mixer drum, where the mixer drive is driven by the drive motor of the truck mixer (Final Act. 2, citing Quigley 125). The Examiner further finds that Quigley teaches that the speed of the drive motor can be set in dependence on the demanded drum speed, and that Quigley also teaches that various input devices, including keypads and levers, may be used (Final Act. 2, citing Quigley, 41, 42). The Examiner finds that while Quigley does not teach automatic adjustment of the engine speed in response to the desired drum speed, such 2 Quigley et al., US 2005/0131600 Al, published June 16, 2005. 3 Ehrenhardt et al., US 5,611,751, issued March 18, 1997. 4 O’Reilly et al., US 6,550,351 Bl, issued April 22, 2003. 3 Appeal 2016-000884 Application 12/148,326 controls were known, as exemplified by Ehrenhardt (Final Act. 3; Ehrenhardt, 1:18—21). The Examiner determines that: Given Quigley et al.[‘s] disclosure of control of engine speed and Ehrenhardt et al.[‘s] disclosure of automatic control of engine speed dependent on the demands of auxiliary components, and absent a showing of unexpected results, a person having ordinary skill in the art at the time of invention would have found such automatic control of engine speed dependent upon required drum speed to be obvious. (Final Act. 3).5 In response, Appellants contend simply that: the combination of Quigley and Ehrenhardt does not teach or disclose: (1) automatically adjusting the speed of the internal combustion engine based on the demanded drum speed, (2) a control to adjust the demanded drum speed such that the speed of the internal combustion engine is set automatically based on the demanded drum speed, or (3) an internal combustion engine operated in ideal speed range with respect to noise and consumption. (Br. 10-11). However, Appellants do not offer any explanation of why the Examiner’s findings and determinations underlying the obviousness rejection are erroneous. 5 The Examiner also determines that phrases like “speed of the drive motor can be set in dependence on the demanded drum speed”, “to adjust the demanded drum speed in dependence on requirements such that the speed of the internal combustion engine is set automatically in dependence on the demanded drum speed”, and “is operated in ideal speed range with respect to noise and consumption” are statements of intended use and are not, therefore, relevant to the determination of patentability so long as the prior art is capable of performing the intended function (Final Act. 3). In view of the Examiner’s findings and determinations that these limitations would have been obvious in light of the cited art, we need not address this determination. 4 Appeal 2016-000884 Application 12/148,326 “[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (citing Ex parte Frye, Appeal 2009- 006013, at 9-10, 2010 WL 889747 (BPAI Feb 16, 2010) (precedential) (“The panel then reviews the obviousness rejection for error based upon the issues identified by appellant, and in light of the arguments and evidence produced thereon.”)). An appellant has the burden on appeal to the Board to demonstrate error in the Examiner’s position. See Ex parte Yamaguchi, 88 USPQ2d 1606, 1614 (BPAI 2008) (on appeal, applicant must show examiner erred). Moreover, the Federal Circuit has held that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art. See In re Lovin, 99 USPQ2d 1373 (Fed. Cir. 2011). Thus, in this instance, Appellants have not met their burden of identifying error in the rejection on appeal, as they have not provided an explanation of why the Examiner erred, and have merely stated that the prior art does not teach or disclose certain claim limitations. It follows that we sustain the rejection. CONCLUSION We AFFIRM the rejections on appeal. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED 5