Ex Parte KNAUER

Patent Trial and Appeal BoardOct 31, 2018

13916691 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 13/916,691 65363 7590 Todd A. VAUGHN Jordan IP Law, LLC FILING DATE 06/13/2013 11/02/2018 12501 Prosperity Drive, Suite 401 Silver Spring, MD 20904 FIRST NAMED INVENTOR Bernd KNAUER 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. 0722-941 4160 EXAMINER COTOV, JONATHAN J ART UNIT PAPER NUMBER 3762 NOTIFICATION DATE DELIVERY MODE 11/02/2018 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): tvaughn@jordaniplaw.com admin2@jordaniplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BERND KNAUER Appeal 2018-001146 Application 13/916,691 Technology Center 3700 Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and BRANDON J. WARNER, Administrative Patent Judges. WARNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Decoma (Germany) GmbH ("Appellant") 1 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 21--40, which are all the pending claims. See Br. 6-12. We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). We AFFIRM. Decoma (Germany) GmbH is the applicant, as provided in 37 C.F.R. Â§ 1.46, and is identified as the real party in interest. Br. 3. Appeal 2018-001146 Application 13/916,691 CLAIMED SUBJECT MATTER Appellant's disclosed invention relates to "[a] controllable air inlet configured to control the air to be supplied to a heat exchanger or other cooling device of an internal combustion engine of a motor vehicle." Spec. ,r 2. Claims 21, 2 7, and 3 4 are independent. Claim 21, reproduced below, is illustrative of the subject matter on appeal. 21. An air inlet configured to control airflow to a cooling device of an internal combustion engine for a motor vehicle, the air inlet comprising: a frame; and closing elements mounted on the frame, and pivotably movable about a respective pivot axis between an open position to permit airflow through the air inlet and a closed position which restricts airflows through the air inlet, the closing elements each having an inner surface, an outer surface to prevent entry of the airflow when the closing elements are in the closed position, a stop contour on a terminal edge of the outer surface to cooperate with the frame element and limit the pivoting movement of the closing elements in a closing direction, and a reinforcing rib extending over the length of the closing elements at the inner surface, wherein the reinforcing rib is aligned with the pivot axis. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Nissimoff Kurokawa Hori us 5,188,561 US 6,347,988 Bl US 2011/0232981 Al 2 Feb.23, 1993 Feb. 19,2002 Sept. 29, 2011 Appeal 2018-001146 Application 13/916,691 REJECTIONS The following rejections are before us for review: I. Claims 32 and 39 stand rejected under 35 U.S.C. Â§ 112, second paragraph, as being indefinite. Final Act. 3. II. Claims 21--40 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Hori, Nissimoff, and Kurokawa. Id. at 3-10. ANALYSIS Rejection I- Claims 32 and 39 as indefinite Appellant does not present any substantive arguments contesting the indefiniteness rejection of claims 32 and 39. See Br. 6-12 (making no reference to this rejection, and presenting arguments only with respect to the obviousness rejection of claims 21--40). Consequently, Appellant has waived any argument of error, and we summarily sustain the rejection of claims 32 and 39 under 35 U.S.C. Â§ 112, second paragraph, as being indefinite. See In re Berger, 279 F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the Board did not err in sustaining a rejection under 35 U.S.C. Â§ 112, second paragraph, when the applicant failed to contest the rejection on appeal). Rejection II - Claims 21-40 as unpatentable over Hori, Nissimoff, and Kurokawa Appellant presents arguments against the rejection of independent claim 21 (see Br. 6-12), relies on the same arguments for independent claims 27 and 34 (see id. at 10 n.2), and does not present separate arguments for dependent claims 22-26, 28-33, or 35--40 (see id. at 6-12). We select 3 Appeal 2018-001146 Application 13/916,691 claim 21 as representative of the issues that Appellant presents together, with claims 22--40 standing or falling with claim 21. See 3 7 C.F .R. Â§ 4I.37(c)(l)(iv). In rejecting claim 21, the Examiner found that Hori discloses an air inlet, substantially as claimed (Final Act. 3--4), except that "Hori does not teach that the closing elements have a stop contour on a terminal edge of the outer surface to cooperate with the frame and limit movement and an outer surface which is substantially cylindrical to the pivot axis assigned to the closing element" (id. at 4). However, the Examiner found that Nissimoff discloses first and second closing elements (38) which have outer surfaces which are substantially cylindrical to the pivot axis assigned to the closing element and comprise a stop contour on a terminal edge of the outer surface to cooperate with the frame and limit movement (not numbered but as seen in figures la, 5a-5b). Id. The Examiner concluded that, given the teachings of the prior art, it would have been obvious to modify Rori's closing elements "to be substantially cylindrical and include the stop contours[,] as taught by Nissimoff[,] as it is the simple substitution of one known element for another to obtain predictable results." Id. The Examiner also acknowledged that Hori "does not teach a reinforcing rib extending over the length of ... each of the closing elements at an inner surface[,] where the reinforcing rib is aligned with the pivot axis." Id. However, the Examiner found that Kurokawa discloses "an air closing element which comprises a reinforcing rib extending over the length of the closing element in the longitudinal direction and is aligned with a pivot axis (7 4, extending across a longitudinal surface of the door as seen in figure 4)." Id. The Examiner concluded that, given the teachings of the 4 Appeal 2018-001146 Application 13/916,691 prior art, it would have been obvious to modify Nissimoff s closing element to include a reinforcing rib "in order to provide a reinforcing structure ( column 6 lines 60-63) to strengthen the assembly as it encounters strong forces from air." Id. at 4--5. Appellant argues that "rib structure 7 4 of Kurokawa is not aligned in any way with a pivot axis about which the slide door member 70 pivots." Br. 8 (boldface and emphasis omitted) (citing Kurokawa, Fig. 4). In particular, Appellant asserts that Kurokawa's door member 70 does not pivot, but, rather, slides using a rack-and-pinion design. See id. According to Appellant, Kurokawa "is completely silent and lacks any recognition for producing a slide door member 70 that is pivotably movable about a pivot axis," and "it is completely silent and lacks any recognition for locating a reinforcing rib structure 7 4 on the slide door member 7 0 such that it is aligned with a pivot axis." Id. at 9 (boldface and emphasis omitted). Appellant's argument is unpersuasive because it is not responsive to the rejection presented. Here, as discussed supra, the Examiner relied on Nissimoff for teaching a substantially cylindrical closing element that pivots about a pivot axis, but acknowledged that Nissimoff fails to expressly disclose a reinforcing rib aligned with the pivot axis. See Final Act. 4. The Examiner relied on Kurokawa only for teaching that it was known in the art to use a reinforcing rib that extends along the longitudinal length of a closing element. See id.; see also Ans. 10 ( explaining that Kurokawa "teaches a rib which extends across the longitudinal length of the closing element and is also aligned with the axis which moves the closing element"). Thus, the Examiner's rejection is based on the combined teachings of Kori, Nissimoff, and Kurokawa. See Ans. 11 (the Examiner explaining that "[t]he 5 Appeal 2018-001146 Application 13/916,691 combination of the closing element and the reinforcing rib would suggest to include a reinforcing rib which runs down the middle of the element along the longitudinal axis," and "[t]he alignment with the pivot axis must necessarily occur then based at least on the fact that they are aligned in the longitudinal direction"). Appellant's allegation of differences or shortcomings within Kurokawa individually is not responsive to the rejection articulated by the Examiner and thus does not apprise us of error. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413,425 (CCPA 1981)) (nonobviousness cannot be established by attacking references individually when the rejection is predicated upon a combination of prior art disclosures). Appellant argues that "[ n Jone of the drawing illustrations in Nissimoff which are relied upon by the Office supports the notion that the purported stop contours of the closing elements (3 8) interact or otherwise cooperate with a frame element in order to ' ... limit the pivoting movement of the closing elements in a closing direction."' Br. 11 (boldface omitted). Appellant asserts that, "[i]n Nissimoff, the purported stop contours cooperate with each [other] to limit movement of the closing members (3 8) in a closing direction." Id. (boldface omitted). This argument is unconvincing. As discussed supra, the Examiner relied on Figures 1 a, 5a, and 5b of Nissimoff for teaching a stop contour on a closing element. See Final Act. 4; Ans. 11. In particular, Figure 5b shows cover elements 38 in a closed position. See Nissimoff, col. 2, 11. 67---68. Although this figure appears to show that the leading edges of cover elements 3 8 have stop contours that come together in the closed position, the trailing edges of cover elements 38 also have stop contours that contact the frame (i.e., walls 12, 14) 6 Appeal 2018-001146 Application 13/916,691 to limit movement. Thus, the Examiner's finding that Nissimoff discloses the disputed limitation is supported by a preponderance of the evidence. After careful consideration of the evidence, Appellant's arguments do not apprise us of error in the Examiner's findings or reasoning in support of the conclusion of obviousness. Accordingly, we sustain the rejection of independent claim 21, and claims 22--40 falling therewith, under 35 U.S.C. Â§ 103(a) as being unpatentable over Hori, Nissimoff, and Kurokawa. DECISION We AFFIRM the Examiner's decision rejecting claims 32 and 39 under 35 U.S.C. Â§ 112, second paragraph, as being indefinite. We AFFIRM the Examiner's decision rejecting claims 21--40 under 35 U.S.C. Â§ 103(a) as being unpatentable over Hori, Nissimoff, and Kurokawa. 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 7