Ex Parte Lutz et al

Patent Trials and Appeals Board

Jan 9, 2019

14501231 - (D) (P.T.A.B. Jan. 9, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/501,231 09/30/2014
10800 7590 01/10/2019
Maginot, Moore & Beck LLP
One Indiana Square, Suite 2200
Indianapolis, IN 46204
FIRST NAMED INVENTOR
Tobias Lutz
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.
2178-1247 3269
EXAMINER
MICHALSKI, SEAN M
ART UNIT PAPER NUMBER
3724
MAIL DATE DELIVERY MODE
01/10/2019 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 TOBIAS LUTZ, ROBIN SCHULER and
UWE ENGELFRIED
(Applicant: Robert Bosch GmbH)
Appeal 2017-011331
Application 14/501,231
Technology Center 3700
Before STEVEN D.A. McCARTHY, JAMES P. CALVE and
PAUL J. KORNICZKY, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 STATEMENT OF THE CASE
2 The Appellant's 1 claims being twice-rejected, the Appellant appeals
3 under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1-8,
4 10 and 13.2 We have jurisdiction under 35 U.S.C. § 6(b).
The Appellant identifies Robert Bosch GmbH of Stuttgart, Germany,
the applicant under 37 C.F.R. § 1.46, as the real party in interest. (See
Appeal Brief, dated Mar. 20, 2017, at 2).
2 The Examiner lists a claim 14 among the rejected claims listed on the
cover sheet of the Final Office Action, mailed October 19, 2016. The
Appellants inform us that there is no claim 14. (See Appeal Brief, dated
Mar. 20, 2017, at 4 n.l).
Appeal 2017-011331
Application 14/501,231
1 We sustain the rejection of claims 1, 2, 4, 6, 7, 10 and 13 under
2 35 U.S.C. § 103 as being unpatentable over Sanborn (US 5,784,941, issued
3 July 28, 1998) in view of "Official Notice as to common chainsaw guide bar
4 sizes" (Non-Final Office Action, mailed Oct. 19, 2016 ("Non-Final Act."),
5 at 3), namely, that "common chainsaw bar sizes (representing an
6 approximation of the cutting depth which is shown in Sanborn) are known to
7 exist between 14 and 24 inches" (Examiner's Answer, mailed July 3, 2017
8 ("Ans."), at 5). In addition, we sustain the rejection of claim 3 under§ 103
9 as being unpatentable over Sanborn and "Official Notice as to common
10 chainsaw guide bar sizes," in view of McIntosh (US 2007/0101851 Al,
11 publ. May 10, 2007) and Rowe (US 5,509,206, issued Apr. 23, 1996), and as
12 informed by Lindell (US 5,239,758, issued Aug. 31, 1993), De Salles (US
13 7,513,048 B2, issued Apr. 7, 2009) and Giousos (US 5,875,826, issued Mar.
14 2, 1999); and the rejection of claim 8 under § 103 as being unpatentable over
15 Sanborn and "Official Notice as to common chainsaw guide bar sizes," in
16 view of Woodland (US 4,300,428, issued Nov. 17, 1981). (See Non-Final
17 Act. 7-10).
18 We do not sustain the rejections of claims 6 and 13 under§ 103 as
19 being unpatentable over Sanborn in view of Official Notice.
20
21 THE CLAIMED SUBJECT MATTER
22 The appealed claims are directed to a power tool system including a
23 power tool such as a bench saw. (See Specification, dated Sept. 30, 2014
24 ("Spec."), at 12, 11. 6 & 7). Claims 1 and 10 are independent. Claim 1 is
25 illustrative:
26 1. A power tool system comprising:
2
Appeal 2017-011331
Application 14/501,231
1 at least one power tool that includes at least one workpiece
2 support unit that is configured to support a workpiece during
3 machining; and
4 at least one machining tool device which extends through
5 a workpiece support surface of the at least one workpiece support
6 unit in at least one operating state, the at least one machining tool
7 device including at least one cutting strand that is configured to
8 be driven in circulation;
9 wherein a ratio between a maximum distance, extending
10 in a direction extending at least substantially perpendicularly to
11 the workpiece support surface, from the workpiece support
12 surface to an underlying-surface contact surface of the power
13 tool and a maximum cutting depth of the at least one cutting
14 strand is less than 4 .1 : 1 and more than O. 8: 1, wherein the at least
15 one machining tool device includes at least one guide unit which
16 extends at least partially through the workpiece support surface
1 7 in the at least one operating state and is configured to guide the
18 at least one cutting strand.
19
20 ISSUES
21 Claim 1 is representative, at least with respect to the rejection of
22 claims 1, 2, 4, 7 and 10 under § 103 as being unpatentable over Sanborn in
23 view of Official Notice. Claims 6 and 13 are argued separately. (See App.
24 Br. 9-12). The rejections of dependent claims 3 and 8 are argued solely on
25 the basis that Sanborn purportedly fails to disclose limitations of patent
26 claim 1; therefore, the rejections of claims 3 and 8 will not be addressed
27 separately. Therefore, this appeal turns on four issues:
28 First, does Sanborn fail to describe a power tool system that includes
29 both a power tool and at least one machining tool device, as recited in claim
30 1?
3
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Application 14/501,231
1 Second, does Sanborn fail to describe a power tool system including a
2 power tool with a workpiece support surface through which at least one
3 machining tool device extends, as recited in claim 1?
4 Third, does Sanborn describe a power tool system including a power
5 tool with "at least one tool receptacle that, for machining a workpiece, is
6 configured to fix the at least one machining tool device to the at least one
7 power tool via at least one of a form-fitting connection and a force-fitting
8 connection," as recited in claim 6?
9 Fourth, does Sanborn describe a power tool system including a
10 machining tool device in which "the at least one cutting strand and the at
11 least one guide unit are configured as a closed system," as recited in claim
12 13?
13
14 FINDINGS OF FACT
15 The Appellants' argument solely concern the teachings of the primary
16 reference, Sanborn. The Examiner does not appear to cite McIntosh, Rowe,
17 Woodland, Lindell, De Salles or Giousos for teachings that would remedy
18 any alleged deficiencies in the teachings of Sanborn. (See Non-Final Act. 8
19 & 10). Therefore, our findings of fact will address only the teachings of
20 Sanborn. Given that constraint, the record supports the following findings of
21 fact ("FF") by a preponderance of the evidence.
22 1. Sanborn describes "a portable sawmill by which the position of
23 a log to be cut into lumber can be adjusted." (Sanborn, col. 4, 11. 7 & 8).
24 The portable sawmill includes a frame 10, setworks 12 and a cutting means
25 14. (See Sanborn, col. 4, 11. 10-12 & Fig. 1). In one embodiment, the
26 cutting means 14 is a chainsaw. (See, e.g., Sanborn, col. 6, 11. 23-27 & Fig.
4
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Application 14/501,231
1 1 ). The chainsaw, as depicted in Figures 1 and 4, includes a motor, a sawbar
2 32 and a cutting chain driven by the motor for circulation about the sawbar.
3 2. Sanborn's frame 10 includes a left side beam 30, a right side
4 beam 46 and a middle beam 16. As depicted in Figures 1 and 2, all three
5 beams 16, 30, 46 extend in parallel, with the center beam position between
6 the side beams 30, 46. (See Sanborn, col. 4, 11. 33-35).
7 3. Sanborn's right side beam 46 mounts parallel, interrupted
8 crosspieces 64 that extend in a cantilevered fashion into the space between
9 the right side beam 46 and the middle beam 30. (See Sanborn, col. 4, 11. 51-
10 53 & Fig. 2).
11 4. The portable sawmill I 0, as depicted in Figure 1 of Sanborn,
12 includes two setworks 12 for holding a log as it is cut. Each setwork 12
13 includes a dog 40, 42 mounted on a headstock 26, 28 by means of a clamp
14 78. (See Sanborn, col. 5, 11. 1-9). Each setwork 12 also has a base member
15 82 slidable along one of a plurality of setworks tracks 34, 36. (See Sanborn,
16 col. 5, 11. 12-14 & Fig. 3).
17 5. In fact, Sanborn's portable sawmill I 0, as depicted in Figure 1,
18 includes three setworks tracks 3 4, 3 6, 3 8, although only two of the setworks
19 tracks, tracks 34 and 36, slidably mounts setworks 12. Each of the three
20 setworks tracks 34, 36, 38 is mounted on a middle crosspiece 58, 60, 62 that
21 spans the distance between the middle and right side beams 16, 30. (See
22 Sanborn, col. 4, 11. 49-51; col. 5, 11. 15 & 16; & Figs. 1 & 3). Figure 1 of
23 Sanborn depicts the setworks tracks 34, 36, 38 as having end portions
24 extending in cantilevered fashion into the space between the middle and left
25 beams 16, 46.
5
1
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Application 14/501,231
6. Sanborn's portable sawmill 10 also includes a carriage plate
2 146 mounting a bar clamp 148. (See Sanborn, col. 6, 11. 14--17 & Fig. 5).
3 The bar clamp 148 consists of a U-shaped member having an inner
4 horizontal jaw 166 and an outer horizontal jaw 164. The inner horizontal
5 jaw 166 mounts a clamp pad 17 4. (See Sanborn, col. 6, 11. 23-30 & Fig. 5).
6 The carriage plate 146 is coupled to a monorail track 112 by means of
7 shouldered wheels 15 0 for movement along the monorail track parallel to the
8 lengths of the middle and left side beams 16, 46. (See Sanborn, col. 6, 11.
9 14--17, 20-22 & 50-58; see also id., Figs. 4 & 5).
10 7. The bar clamp 148 secures the sawbar 3 2 of the cutting means
I I 14 (that is, of the chainsaw) to the carriage plate 146 for movement along the
12 monorail track 112. (See Sanborn, col. 7, 11. 43--46 & Fig. 4). More
13 specifically, the sawbar is clamped between the inner and outer horizontal
14 jaws 166, 164 of the bar clamp 148. Set screws 168 extending through the
15 outer horizontal jaw 164 press the sawbar against the clamp pad 17 4
16 mounted on the inner horizontal jaw 166 to secure the sawbar within the bar
17 clamp 148. (See Sanborn, col. 6, 11. 27-30 & 36-39; see also id., Figs. 4 &
18 5). The motor of the cutting means 14 (that is, of the chainsaw) appears to
19 hang from a lower end of the sawbar 32. (See Sanborn, Fig. 4).
20 8. During a cutting operation, a log rests on the interrupted
21 crosspieces 64 and the end portions of the setworks tracks 34, 36, 38 over
22 the space between the middle and left side beams 16, 46. (See Sanborn, col.
23 4, 11. 51---60). The carriage plate 146 conveys the machining tool device, that
24 is, the sawbar and the cutting chain 236, along the monorail track 112 such
25 that the sawbar and cutting chain pass between the interrupted crosspieces
6
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Application 14/501,231
1 64, on one side, and the end portions of the setworks tracks 34, 36, 38, on
2 the other. (See Sanborn, col. 6, 11. 50-58).
3
4 ANALYSIS
5 First Issue
6 Claim 1 recites a "power tool system comprising: at least one power
7 tool ... [and] at least one machining tool device." The Examiner finds that
8 Sanborn's entire portable sawmill, including the cutting means 14,
9 corresponds to the recited power tool. The sawbar 32 and the cutting chain
10 correspond to the recited machining tool device. (Non-Final Act. 3 & 4).
11 Thus, in accordance with the Examiner's findings, Sanborn describes a
12 "power tool" in the sense that the portable sawmill as a whole includes the
13 motor of the chainsaw or cutting means 14. (See Ans. 12 & 13).
14 The Appellants argue that, in accordance with the language of claim
15 1, the "support surface must therefore be a part of [the power tool, that is,]
16 the system which incorporates a motor or some other form of power.
17 (Appeal Brief, dated Mar. 20, 2017 ("App. Br."), at 7). Consequently, the
18 Appellants argue that Sanborn fails to describe a "power tool," as recited in
19 claim 1, because the motor is part of the chainsaw; and the chainsaw is not a
20 part of the frame 10. (See id.; see also Reply Brief, dated Sept. 5, 2017, at
21 6-8)3
3 The Appellants argue that "one of ordinary skill in the art would
[have] recognize[ d] that the crosspieces 64 are a part of the carriage, which
is a separate component from the chainsaw/alleged machining tool device."
(App. Br. 7). Therefore, the question is whether the motor of the cutting
means 14 may be considered part of the frame 10, because both the carriage
120 and the cross-pieces 64 are themselves parts of the frame.
7
Appeal 2017-011331
Application 14/501,231
1 The Examiner is correct. When the cutting means 14, that is, the
2 chainsaw, is clamped to the frame 10 via the carriage plate 146 (see FF 6 &
3 7), the motor is coupled to the frame, albeit indirectly. Hence, as the
4 Examiner finds, the motor may be deemed part of a power tool that also
5 includes the frame 10. (See Ans. 12). Claim 1 does not positively recite
6 the motor and, as such, does not recite any interconnection or interaction
7 between the motor of the cutting means 14, on the one hand, and the at least
8 one machining tool device (that is, the sawbar 32 and the cutting chain of the
9 cutting means), on the other, that Sanborn's cutting means or chainsaw could
10 not satisfy. In particular, Sanborn's cutting strand or cutting chain is
11 configured to be driven in circulation about the sawbar 32 by the motor.
12 Therefore, the Appellants' argument is not persuasive.
13
14 Second Issue
15 In the Non-Final Office Action, the Examiner found that an imaginary
16 plane including the upper surfaces of the interrupted crosspieces 64
17 corresponded to the "workpiece support surface" recited in claim 1. (See
18 Non-Final Act. 3). In response, the Appellants argued that the imaginary
19 plane the Examiner relies on cannot be the recited "workpiece support
20 surface," because only "actual physical structure" can support a workpiece.
21 (See App. Br. 8). In addition, the Appellants argued that the upper surfaces
22 of the interrupted crosspieces 64 alone do not constitute a workpiece support
23 surface, because claim 1 recites that the "at least one machining tool device
24 which extends through a workpiece support surface;" and because Figure 9
25 of Sanborn suggests that the sawbar 32 and cutting chain of Sanborn's
8
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Application 14/501,231
1 cutting means 14 extends upwardly to one horizontal side of, rather than
2 through, the interrupted crosspieces. (See App. Br. 5 & 6).
3 In the Answer, the Examiner found that an imaginary plane including
4 both the upper surfaces of Sanborn's interrupted crosspieces 64, and upper
5 surfaces of end portions of Sanborn's setworks tracks 34, 36, 38, collectively
6 define a workpiece support surface as recited in claim 1. (See Ans. 11 &
7 12). The Appellants respond that the Examiner's reasoning as set forth in
8 the Answer is a new ground of rejection that should be disregarded in this
9 appeal. (See Reply Br. 2 & 3).
10 The Appellants have waived the argument that the Examiner's
11 reasoning in the Answer constitutes new grounds of rejection by failing to
12 file a timely petition under 3 7 C.F .R. § 41.40( a), seeking review of the
13 Examiner's failure to designate a rejection as a new ground of rejection in
14 the Examiner's Answer. The filing of a timely petition under 37 C.F.R.
15 § 4I.40(a) seeking review of the Examiner's failure to designate a rejection
16 as a new ground of rejection in the Examiner's Answer is mandatory.
17 "Failure of [ A Jppellant to timely file such a petition will constitute a waiver
18 of any arguments that a rejection must be designated as a new ground of
19 rejection." Id.
20 In the present case, the Appellants conceded in the Reply Brief that
21 they were aware that they could have filed a petition requesting that the
22 Examiner's reasoning be designated a new ground of rejection, but chose not
23 to file a petition. (See Reply Br. 3 (admitting that "the Appellant has elected
24 not to undertake the added expenses associated with filing a petition to
25 designate the discussions in the Answer as new rejections.")). Therefore, the
26 Appellants' waiver is intentional. We will address the rejection as
9
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Application 14/501,231
1 formulated by the Examiner in both the Non-Final Office Action and the
2 Answer.
3 Despite the Appellants' argument to the contrary (see Reply Br. 4),
4 the Examiner's findings, as set forth in the Non-Final Office Action and the
5 Answer, are sufficiently clear to place the Appellants on notice of the
6 Examiner's reasoning. Furthermore, the reasoning as set forth in the Answer
7 responds to the Appellants' argument in the Appeal Brief. When the
8 workpiece support surface is the imaginary plane including the upper
9 surfaces of both the interrupted crosspieces 64 and the end portions of the
10 setworks tracks 34, 36, 38, the sawbar 32 and the cutting chain of the cutting
11 means 14 extend through the workpiece support surface as shown, for
12 example, in Figures 1 and 9. Furthermore, Sanborn teaches that the upper
13 surfaces of the interrupted crosspieces 64 and the end portions of the
14 setworks tracks 34, 36, 38 support workpieces, that is logs, to be cut in the
15 portable sawmill. (See FF 8). As such, the imaginary plane including the
16 upper surfaces of the interrupted crosspieces 64 and the end portions of the
17 setworks tracks 34, 36, 38 supports the workpieces in the sense that the
18 workpieces rest on that surface during a cutting operation.
19 Having addressed the Appellants' arguments, we sustain the rejection
20 of claims 1, 2, 4, 6, 7 and 10 under § 103 as being unpatentable over
21 Sanborn in view of Official Notice. In addition, we sustain the rejection of
22 claim 3 under§ 103 as being unpatentable over Sanborn and Official Notice,
23 in view of McIntosh and Rowe, and as informed by Lindell, De Salles and
24 Giousos; as well as the rejection of claim 8 under § 103 as being
25 unpatentable over Sanborn and Official Notice, in view of Woodland.
10
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Application 14/501,231
1 Third Issue
2 Claim 6 recites:
3 The power tool system according to claim 1, wherein the
4 at least one power tool includes at least one tool receptacle that,
5 for machining a workpiece, is configured to fix the at least one
6 machining tool device to the at least one power tool via at least
7 one of a form-fitting connection and a force-fitting connection.
8 The Examiner finds that:
9 Sanborn discloses mounting structure [Figure 5], joining the
10 machining tool [device] to the power tool by means of force
11 connection (bolts, friction, spaced rollers compris[ing] one or
12 more force connections or form connections). The breadth of
13 "force" or "form" includes these connections. See also figure 9,
14 where 234 is coupled into a driven arrangement which drives the
15 chain 236.
16 (Ans. 7). The Appellants disagree. (See App. Br. 9 & 1 O; Reply Br. 5 & 6).
17 The Appellants propose defining a "'form-fitting connection' or
18 'force-fitting connection' [as] a connection wherein fastening between two
19 parts is achieved by friction after the parts are pushed together rather than by
20 using some other component." (App. Br. 9). In particular, the Appellants
21 propose defining a "force-fitting connection" as "a fastening between two
22 parts which is achieved by friction after the parts are pushed together, rather
23 than by any other means of fastening." (App. Br. 10, citing WIKIPEDIA,
24 https://en.wikipedia.org/wiki/Interference_fit). We adopt these definitions
25 as representative of the ordinary usage of the terms. The broader definitions
26 found by the Examiner on page 14 of the Answer are not persuasive because
2 7 the definitions are not supported by any authority; and because the
28 definitions fail to take into account the meaning of the word "fitting" as used
29 in the two terms.
11
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Application 14/501,231
1 Given these definitions, Sanborn's bar clamp 148 is not a form-fitting
2 connection or a force-fitting connection. Although the bar clamp 148
3 appears to engage and hold the sawbar 32 of the cutting means 14
4 frictionally, the frictional engagement occurs only after the sawbar is
5 inserted through the clamp; and only as a result of the tightening of the set
6 screws 168. (See FF 6 & 7). Therefore, Sanborn does not teach or suggest
7 "fix[ing] the at least one machining tool device to the at least one power tool
8 via at least one of a form-fitting connection and a force-fitting connection,"
9 as recited in claim 6. The Examiner articulates no reason why one of
10 ordinary skill in the art might have modified Sanborn's carriage plate 146
11 and bar clamp 148 to satisfy the limitation, apart from the erroneous finding
12 that the limitation was taught. Therefore, we do not sustain the rejection of
13 claim 6 under § 103 as being unpatentable over Sanborn in view of Official
14 Notice.
15
16 Fourth Issue
17 Claim 13 recites the "power tool system according to claim 1, wherein
18 the at least one cutting strand and the at least one guide unit are configured
19 as a closed system." The Specification formally defines a "closed system"
20 as "a system which comprises at least two components which retain
21 functionality by means of interaction in a state in which the system is
22 dismounted from a system superordinate to the system." (Spec. 5). The
23 Examiner acknowledges the formal definition of the term "closed system" in
24 the Specification (see Non-Final Act. 7), but finds that:
25 there is no meaningful definition or boundary to define the
26 system as "closed." The broadest reasonable interpretation of a
27 "closed system" is a discrete unit. The chain itself would be a
12
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Application 14/501,231
1 "closed system" since it is formed of links in a circle; the chain
2 alone can be removed and used as a chain apart from the use
3 identified by Sanborn. Similarly, the embodiment of figure 9 of
4 Sanborn shows portions 236, 232 are discrete elements relative
5 to 234 and 228, and can be removed from the carriage.
6 (Ans. 15).
7 The Examiner has not proved that the combination of the sawbar 3 2
8 and the cutting chain, if disconnected, would maintain the capacity to
9 perform the function the combination performs in the cutting means 14 of
10 Sanborn's portable sawmill. Claim 13 recites that "the at least one cutting
11 strand and the at least one guide unit are configured as a closed system."
12 Thus, it is the cutting chain, which corresponds to the recited cutting strand,
13 and the sawbar 3 2, which corresponds to the recited guide unit, rather than
14 the chainsaw as a whole, that must be a closed system to satisfy claim 13. In
15 particular, the Appellants correctly point out that the cutting chain could fall
16 off of the sawbar 3 2 if the sawbar and the cutting chain were disengaged as a
17 system from the cutting means 14. (See App. Br. 11 ).
18 Claim 13 recites that "the at least one cutting strand and the at least
19 one guide unit are configured as a closed system." The use of the plural
20 form of "be," along with the use of the singular form of the term "closed
21 system," imply that it is the combination of the at least one cutting strand
22 and the at least one guide that must be a closed system. Therefore, the
23 Examiner's finding that a cutting chain alone could be closed system for
24 purposes of performing some function (see Ans. 15) does not imply that the
25 combination of Sanborn's sawbar 32 and cutting chain are a closed system
26 with respect to the function the combination performs when a component of
27 Sanborn's portable sawmill.
13
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1 The Examiner has not shown by a preponderance of the evidence that
2 Sanborn's cutting chain would not fall off the sawbar 32, as the Appellants
3 reasonably allege (see App. Br. 11 ). Hence, the Examiner has not shown
4 that the sawbar 32 and the cutting chain, as a combination, is a closed
5 system. Therefore, we do not sustain the rejection of claim 13 under § 103
6 as being unpatentable over Sanborn in view of Official Notice.
7
8 DECISION
9 We AFFIRM the Examiner's decision rejecting claims 1--4, 7, 8 and
10 10.
11 More specifically, we sustain the rejection of claims 1, 2, 4, 6, 7, 10
12 and 13 under§ 103 as being unpatentable over Sanborn in view of Official
13 Notice; the rejection of claim 3 under§ 103 as being unpatentable over
14 Sanborn and Official Notice, in view of McIntosh and Rowe, and as
15 informed by Lindell, De Salles and Giousos; and the rejection of claim 8
16 under § 103 as being unpatentable over Sanborn and Official Notice, in view
1 7 of Woodland.
18 We REVERSE the Examiner's decision rejecting claims 6 and 13.
19 More specifically, we do not sustain the rejections of claims 6 and 13
20 under§ 103 as being unpatentable over Sanborn in view of Official Notice.
21 No time period for taking any subsequent action in connection with
22 this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
23 § 1.136(a).
AFFIRMED-IN-PART
14