Ex Parte Ho

Patent Trial and Appeal BoardAug 20, 2013

11376231 (P.T.A.B. Aug. 20, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CHAO-CHANG HO ____________ Appeal 2011-008295 Application 11/376,231 Technology Center 3600 ____________ Before STEFAN STAICOVICI, MICHAEL C. ASTORINO, and ADAM V. FLOYD, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-008295 Application 11/376,231 2 STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claim 11 under 35 U.S.C. § 103(a) as unpatentable over Chonan (US 2004/0224806 A1, pub. Nov. 11, 2004) and Applicant Admitted Prior Art (AAPA) (Figure 1 of the Appellant’s Drawings). We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. Claimed Subject Matter Claim 11 is the sole claim on appeal and recites1: 11. A cooling mechanism adapted to cool a belt- based speed-change system of an engine, wherein the engine has a crankshaft for output of power, the crankshaft having an end coupled to a power generator and an opposite end extending into a transmission box and coupled to the belt-based speed-change system, and a wet-type clutch arranged between the belt-based speed-change system and the engine, the wet-type clutch having a clutch cover separating the clutch from the belt- based speed-change system, the cooling mechanism comprising: an air inlet defined in an end of the transmission box; 1 The recitation of claim 11 is the rejected and appealed claim in the Final Office Action, mailed May 7, 2010. Ans. 3. See Br. 5. The Claims Appendix at page 17 of the Appeal Brief recites an incorrect version of the claim rejected in the Final Office Action. The Appellant’s last two attempts at amending claim 11 by Amendment filed August 8, 2010, and December 10, 2010 were not entered by the Examiner. Ans. 3. See Advisory Action, mailed Aug. 18, 2010 and Advisory Action, mailed Jan. 11, 2011. Appeal 2011-008295 Application 11/376,231 3 an air guide chamber formed inside the transmission box and defining an air collection chamber communicating with the air inlet, the clutch cover being mounted to and covering the air guide chamber and defining two openings in communication with the air collection chamber, the two openings being arranged in an up-and- down line-up and spaced manner; an air guide lid arranged between the belt- based speed-change system and the clutch cover, the air guide lid forming an air intake opening corresponding in position to a drive disk of the belt-based speed-change system, the air guide lid having a surface opposing the belt-based speed- change system and forming a first flange on the surface, the first flange partially circumferentially extending around the drive disk and forming a cutoff, serving as an air discharge opening, the air guide having a surface opposing the clutch cover and forming a second flange on the surface, the second flange surrounding the openings of the clutch cover, said air guide lid forming a barrier face within the second flange and confronting the opening of the clutch cover; and an air outlet formed on another end of said transmission box. OPINION The Appellant contends that Chonan lacks “evidence or suggestion in providing the clutch cover with two openings arranged in an up-and-down line-up and spaced manner.” Br. 14. The Examiner agrees that “the Chonan reference lacks evidence of the two openings.” Ans. 6, 7. The Appellant also contends that “AAPA is silent about a clutch cover having two openings in communication with the air collection chamber and arranged in an up- and-down line-up and spaced manner.” Br. 15. However, the Examiner Appeal 2011-008295 Application 11/376,231 4 does not rely on AAPA to disclose the clutch cover having two openings. The Examiner relies on AAPA to disclose “a wet-type clutch (13) arranged between the belt-based speed-change system and the engine (figure 1), the wet-type clutch having a clutch cover (131) separating the clutch from the belt-based speed-change system.” Ans. 6. As for the claimed clutch cover having two openings, the Examiner’s rejection includes the following: It would have been obvious to one having ordinary skill in the art at the time of the invention to optimize the design of clutch cover to vary the size, number, and configuration of the holes to improve durability of the transmission and to provide redundancy to guarantee air flow should foreign contaminants enter the transmission. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify Chonan’s transmission to incorporate redundant holes in the clutch cover to increase reliability of the transmission. See MPEP 2144.04 (VI) B. Id. See also Br. 12. Although the Appellant asserts that the two openings “are very helpful for reinforcing the structure and preventing the air flow from being randomly distributed” (Br. 14), the assertion does not cogently explain why the Examiner’s conclusion is in error. See also Ans. 7-9. The Appellant also contends that Chonan, particularly element 89 of Chonan, and the AAPA fails to disclose “an air guide lid having a second surface opposing the clutch cover and forming a second flange on the second surface, the second flange surrounding the two openings of the clutch cover thereby forming a barrier face within the second flange and confronting the two openings of the clutch cover.” Br. 14-15 (emphasis added). The Appeal 2011-008295 Application 11/376,231 5 Examiner correctly explains that the reference to the “second surface” of the air guide is directed to the non-entered amendment and is not present in the appealed claim. Ans. 9. Compare appealed claim at page 5 of the Appeal Brief with non-entered amended claim at page 17 of the Appeal Brief. Since the Appellant’s contention is directed to a limitation that is not present in the appealed claim, the argument is not commensurate in scope with the appealed claim. Simply put, limitations not appearing in the claims cannot be relied upon for patentability. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Lastly, on the basis of the specific contentions discussed above, the Appellant generally contends that “even if the disclosures of the cited references are combined together, the combined disclosure still fails to teach a cooling mechanism for belt-based speed-change system of engine as claimed in the present application.” Br. 15. For the reasons discussed above this contention is not persuasive. Rather, the Examiner supports the rejection of the appealed claim at pages 4-6 of the Answer and the Appellant has not provided persuasive evidence or technical reasoning why the Examiner’s rejection of the appealed claim is in error. Thus, the rejection of claim 11 as unpatentable over Chonan and AAPA is sustained. DECISION We AFFIRM the rejection of claim 11. Appeal 2011-008295 Application 11/376,231 6 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 Klh