Ex Parte Ispolatova et al

Patent Trial and Appeal Board

Jul 29, 2013

11646198 (P.T.A.B. Jul. 29, 2013)

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.
11/646,198 12/26/2006 Olga Ispolatova P050279/10US 6972
20676 7590 07/29/2013
ALFRED J MANGELS
4729 CORNELL ROAD
CINCINNATI, OH 452412433
EXAMINER
AUNG, SAN M
ART UNIT PAPER NUMBER
3657
MAIL DATE DELIVERY MODE
07/29/2013 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 OLGA ISPOLATOVA, WOLFGANG OBERLE, MICHAEL
PICHURA, MARCUS JUNIG, and ANTON SIMONOV
____________

Appeal 2011-006386
Application 11/646,198
Technology Center 3600
____________

Before PHILLIP J. KAUFFMAN, BRETT C. MARTIN, and
BARRY L. GROSSMAN, Administrative Patent Judges.

GROSSMAN, Administrative Patent Judge.

DECISION ON APPEAL
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Application 11/646,198

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1, 2, and 4-10. We have jurisdiction over
the appeal under 35 U.S.C. § 6(b).
We affirm-in-part the decision of the Examiner.
CLAIMED SUBJECT MATTER
The claimed subject matter “relates to a toothed plate for a toothed
plate-link chain, wherein the toothed plate includes two teeth with tooth
flanks, and having an indentation between the teeth.” Spec., para. [0001].
Claims 1, 6, 7, and 9 are independent claims. Claim 1 is illustrative of the
subject matter on appeal, and recites: 1
1. A toothed plate for a toothed plate-link
chain, said plate comprising: a plate body, two
teeth extending from the plate body and each
having an inner flank defining part of an
indentation between the teeth, wherein a transition
from at least one of the inner flanks to an inner
region of the indentation has a convex curvature,
wherein the indentation has a concave curvature
with a variable radius of curvature.

REFERENCES
The Examiner relied on the following references:
Horie US 2002/0028720 A1 Mar. 7, 2002
Allingham GB 9295 Mar. 9, 1911

1 Appellants’ Appeal Brief dated Aug. 6, 2010, did not include a claims
appendix, which was subsequently submitted on Sep. 24, 2010. References
in this opinion are to the Appeal Brief dated Aug. 6, 2010 unless stated
otherwise.
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REJECTIONS
Appellant seeks review (App. Br. 10) of the following rejections made
in the Final Rejection, dated December 3, 2009:
1. Claims 1, 2, and 4-10 under 35 U.S.C. § 102(b) as anticipated by
Horie; and
2. Claims 1, 2, 4-6, 8, and 10 under 35 U.S.C. § 102(b) as anticipated
by Allingham.
ANALYSIS
Independent claim 1 is directed to a toothed plate that includes an
indentation between two teeth where that indentation has a concave
curvature with a variable radius of curvature. Independent claims 6, 7, and 9
contain similar limitations.
Rejection 1
Appellants argue that Horie does not disclose an indentation having a
concave curvature with a variable radius of curvature as claimed. App. Br.
14-18; Reply Br. 1-4.
Initially, the Examiner simply repeated the claim language and cited
to an annotated copy of Horie’s Figure 6. Ans. 4, 6. In the Examiner’s
Response to Argument, the Examiner adds that Horie’s bottom surface 3
inherently includes a concave curvature with a variable radius of curvature.
Ans. 9 (citing Figs. 2-6).
Horie does not explicitly disclose that bottom surface 3 includes a
concave curvature with a variable radius of curvature.
Horie discloses that each link plate 100 has a concave bottom surface
3 that is “scooped out to extend the amplitude.” Horie, para. [0048]. A
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concave surface may have either a constant or a variable radius of curvature.
Therefore this disclosure does not support the Examiner’s finding.
Horie’s bottom surface 3 is depicted in Figures 2 and 4-6 (surface 3
not identified in Figures 4 and 5), with Figure 6 being the best illustration
because it is an enlarged view. Horie, para. [0036]; figs. 2, 4-6. Figure 6 is
not disclosed as being to scale and to the unaided eye appears to be concave
with a constant radius of curvature.
In light of this, we cannot say that a preponderance of evidence shows
that Horie necessarily discloses an indentation having a concave curvature
with a variable radius of curvature as claimed.
Accordingly, we do not sustain the rejection of independent claims 1,
6, 7, and 9 or their respective dependent claims 2, 4, 5 8, and 10.
Rejection 2
The Examiner found that Figure 4 in Allingham and an “[a]ttached
figure,” which is on page 8 of the Answer and is Figure 4 of Allingham
annotated by the Examiner, disclosed the structure called for in the claims.
Ans. 6-8.
Appellants assert the “same arguments” as “presented ... in connection
with the anticipation rejections based upon the Horie et al. reference.” App.
Br. 21. Specifically, Appellants allege that: such disclosure is not explicit in
the reference, the Examiner findings are not supported by any evidence, and
the drawings are not to scale. App. Br. 14-18.
Also, after arguing that patent drawings are not to scale (App. Br. 17),
Appellants measured the diameters of curves in Allingham as “17/32 in.”
and assert that this refutes the rejection based on Allingham. App. Br. 21.
There is no evidence of what was measured, how it was measured, or who
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measured the drawings. More importantly, however, as stated in the case
law cited by Appellants on page 17 of their Appeal Brief, “arguments based
on measurement of a drawing are of little value." See App. Br. 17.
Appellants characterize Allingham’s indentation as formed by two
circles of equal diameters connected by a tangential upper straight line.
App. Br. 21. Though Allingham’s Figure 4 is not disclosed as being to
scale, the uppermost portion of Allingham’s indentation, though less curved
than the outer portions, in nonetheless depicted as arcuate. Allingham, Fig.
4. See In re Aslanian, 590 F.2d 911, 914 (CCPA 1979) (“[A] drawing in a
utility patent can be cited against the claims of a utility patent application
even though the feature shown in the drawing was unintended or
unexplained in the specification of the reference patent,” and such drawings
are evaluated on the basis of what they reasonably disclose and suggest to
one skilled in the art). Therefore, a preponderance of the evidence
establishes that Allingham’s indentation has a concave curvature with a
variable radius of curvature, as claimed.
Appellants’ arguments and evidence do not apprise us any error in the
Examiner’s rejection of claims 1, 2, 4-6, 8, and 10 as anticipated by
Allingham. Accordingly, we affirm this rejection.
DECISION
Upon consideration of the record as a whole in light of Appellants’
contentions and the preponderance of relevant evidence, we reverse the
Examiner’s decision rejecting claims 1, 2, and 4-10 as anticipated by Horie,
and we affirm the Examiner’s decision rejecting claims 1, 2, and 4-6, 8, and
10 as anticipated by Allingham.

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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-IN-PART

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