Ex Parte Husson et alDownload PDFPatent Trial and Appeal BoardJun 15, 201713377647 (P.T.A.B. Jun. 15, 2017) 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. 13/377,647 03/05/2012 Geoffroy Husson GB09/016/WO/US-2 4688 88988 7590 06/19/2017 AGCO Corporation, IP Legal Jeff Ellsworth 420 W. Lincoln Blvd. Hesston, KS 67062 EXAMINER LOWE, MICHAEL S ART UNIT PAPER NUMBER 3652 NOTIFICATION DATE DELIVERY MODE 06/19/2017 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): patents @ agcocorp. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GEOFFROY HUSSON and PIERRE DUPIRE Appeal 2016-004204 Application 13/377,647 Technology Center 3600 Before MICHAEL J. STRAUSS, MICHAEL M. BARRY, and AARON W. MOORE, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-004204 Application 13/377,647 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection of claims 1—12. Claim 13 is canceled. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. THE INVENTION The claims are directed to a front loader for a tractor. Spec., Title. Claim 1, reproduced below with a disputed limitation emphasized in italics, is representative of the claimed subject matter: 1. A front loader for attachment to a tractor which has an engine compartment disposed forwardly of a cab and transversely centred on a longitudinal axis, the front loader being detachable from the tractor and comprising a pair of lift arms, when in use, each being pivotally mounted relative to the tractor at respective pivot points which are transversely spaced either side of the engine compartment, the lift arms, when lowered, extending generally forwardly and converging in front of the engine compartment to attach to a single, transversely centred telescopic boom which is disposed in front of the engine compartment. REFERENCES The prior art cited by the Examiner in rejecting the claims on appeal is: Boers US 3,766,952 Oct. 23, 1973 Friesen US 4,347,031 Aug. 31, 1982 Beck US 5,265,995 Nov. 30, 1993 Braud US 6,071,066 June 6, 2000 Knell US 6,106,217 Aug. 22, 2000 2 Appeal 2016-004204 Application 13/377,647 REJECTIONS The Examiner made the following rejections1: Claims 1—6 and 8—12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Friesen and Boers. Final Act. 3—5. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Friesen, Boers, and Knell. Final Act. 5. APPELLANTS’ CONTENTIONS 1. Neither Friesen nor Boers discloses lift arms that, when lowered, converge in front of the engine compartment as required by the disputed limitation of claim 1. Br. 12—13. 2. The applied prior art fails to provide requisite motivation for including Boers’s telescoping boom in Fiesen’s loader, rendering the combination improper. Br. 13. ANALYSIS Appellants’ arguments are unpersuasive of Examiner error. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 3—6) and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief (Ans. 5—7) and concur with the conclusions reached by the Examiner. We highlight the following for emphasis. In connection with contention 1, Appellants argue Friesen does not describe lift arms converging in front of the engine compartment. Br. 12. 1 The rejection of claims 1—9 under 35 U.S.C. § 112, second paragraph (Final Act. 2), has been withdrawn (Ans. 5). 3 Appeal 2016-004204 Application 13/377,647 Likewise, Appellants argue Boers also fails to disclose the disputed converging lift arms. Br. 13. The Examiner responds by finding, although it is not clear whether Friesen’s arms laterally converge, As shown in Boers figure 2 lift arms laterally] converge as they must for a single central boom as taught here. The combination would still need to extend forwardly and in front of the engine compartment (and as claimed) to keep the modified Friesen from having restricted movement as would be clear to one of ordinary skill. Ans. 6. Appellants’ contention 1 is unpersuasive of Examiner error because, inter alia, it is an attack on the individual disclosures of the references rather than on what the combination teaches or suggests. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)). Although Friesen does not describe whether lift arms 16 are parallel or laterally converge, Boers’s Figures 1 and 2 depict piston and cylinder actuators 24 and 25 converging to attach on either side of plate 26 of arm 12, thereby teaching or suggesting converging arms as required by the disputed limitation. Furthermore, as found by the Examiner, one skilled in the art would have appreciated that, to attach the single central boom of Boers to Friesen’s lift arms 16, the lift arms or some portion thereof would extend inwardly to support the central boom, thereby laterally converging toward each other. Thus, it is the combination of Friesen and Boers that teaches or suggests the disputed limitation. In connection with contention 2, Appellants argue motivation for modifying Friesen’s front loader to incorporate Boers’s telescoping boom is 4 Appeal 2016-004204 Application 13/377,647 not found in the references, “it logically following] that modification of a front loader has been improperly gleaned from Applicant’s own specification and that the combination of Friesen and Boers is an exercise of impermissible hindsight.” Br. 13. The Examiner responds by finding: In this case, [b]oth references are in the material handling vehicle technology and so are of common interest and technology. It would be apparent to one of ordinary skill that telescopic members allow for greater reach and greater versatility of different reach movements and so it would be desirable and within the ordinary ability for one to modify the references as done in the office action rejections to improve the primary reference to have the known benefits of the secondary reference. Ans. 7. Appellants’ argument is not persuasive because it attempts to hold the Examiner to the now-rejected rigid application of the teaching, suggestion, or motivation (“TSM”) standard where there must be some suggestion or motivation in the references themselves to modify the reference or to combine reference teachings; such a standard is not required. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007) (“We begin by rejecting the rigid [application and requirement of a TSM to combine known elements in order to show obviousness].”). The proper inquiry is whether the Examiner has articulated adequate reasoning based on a rational underpinning to explain why a person of ordinary skill in the art would have been led to combine the disclosures of Friesen and Boers. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds . . . must [include] some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.”), cited with approval in KSR v. Teleflex, 550 U.S. at 418. Here, as explained supra, the Examiner has articulated reasoning based on rational underpinning, sufficient to support a conclusion 5 Appeal 2016-004204 Application 13/377,647 of obviousness, i.e., to increase movement flexibility made possible by Boers’s telescoping boom. See Final Act. 4; Ans. 7. Accordingly, Appellants’ contention that the combination is improper is unpersuasive. For the reasons discussed supra, we are unpersuaded of Examiner error. Accordingly, we sustain the rejection of independent claim 1 and, for the same reasons, the rejection of independent claim 10 under 35 U.S.C. § 103(a) over Friesen and Boers, together with the rejections of dependent claims 2—9, 11, and 12, these dependent claims not argued separately with particularity. DECISION We affirm the Examiner’s decision to reject claims 1—12. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 6 Copy with citationCopy as parenthetical citation