Ex Parte Meier

Patent Trial and Appeal Board

Aug 30, 2017

12485353 (P.T.A.B. Aug. 30, 2017)

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.
298-463 3057
EXAMINER
KING, BRADLEY T
ART UNIT PAPER NUMBER
3657
MAIL DATE DELIVERY MODE
12/485,353 06/16/2009
28249 7590 08/30/2017
DILWORTH & BARRESE, LLP
Dilworth & Barrese, LLP
1000 WOODBURY ROAD
SUITE 405
WOODBURY, NY 11797
Simon Meier
08/30/2017 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 SIMON MEIER1
Appeal 2017-000632
Application 12/485,353
Technology Center 3600
Before JAMES R. HUGHES, JOHNNY A. KUMAR, and
JOHN P. PINKERTON, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Non-Final Rejection of claims 1, 6—10, and 15—27, which are all of the
claims pending in the application. Claims 2—5 and 11—14 are canceled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies Liebherr-Hydraulikbagger GmbH as the real party in
interest. Br. 3.
Appeal 2017-000632
Application 12/485,353
STATEMENT OF THE CASE
Introduction
Appellant describes the disclosed and claimed invention as follows:
The present invention relates to a traveling working
machine, in particular a hydraulic excavator, with a traveling
gear and with a hydraulic service brake system for the traveling
gear, which is supplied with brake pressure via at least one brake
valve. In accordance with the invention, the brake valve can be
actuated electrically, wherein it is connected with a control
element via an electric control line, by means of which an
operator can brake the traveling working machine.
Abstract.2
Claim 1 is representative and reproduced below:
1. A hydraulic excavator, with a traveling gear and with a
hydraulic service brake system for the traveling gear, which is
supplied with brake pressure via at least one brake valve,
wherein the brake valve is configured to be actuated
electrically and is connected with a control element via an
electric control line, by which an operator can brake the traveling
working machine, and further including,
an undercarriage on which the traveling gear, the service
brake system and the brake valve are arranged, and with an
uppercarriage rotatably arranged on the undercarriage, on which
the control element is arranged,
wherein at least one hydraulic accumulator is provided,
which supplies the hydraulic service brake system with pressure
and the accumulator is arranged in the undercarriage, and
2 Our Decision refers to the Non-Final Office Action mailed June 3, 2015
(“Non-Final Act.”); Appellant’s Appeal Brief filed Nov. 18, 2015 (“Br.”);
the Examiner’s Answer mailed July 19, 2016 (“Ans.”); and, the original
Specification filed Sept. 1, 2009 (“Spec.”).
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Application 12/485,353
wherein the hydraulic accumulator having an accumulator
charging valve is charged via a hydraulic pump arranged in the
uppercarriage.
App. Br. 16 (Claims App’x).
Rejection on Appeal
Claims 1, 6—10, and 15—27 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Legner at al. (US 2004/0249537 Al; published Dec.
9, 2004) (“Legner”) and Uematsu3 (US 2009/0112391 Al; published Apr.
30, 2009).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments in the Brief and are not persuaded the Examiner erred. Unless
otherwise noted, we adopt as our own the findings and reasons set forth by
the Examiner in the Office Action from which this appeal is taken (Non-
Final Act. 2-4) and in the Examiner’s Answer (Ans. 2-4), and we concur
with the conclusions reached by the Examiner. For emphasis, we consider
and highlight specific arguments as presented in the Brief.
Rejection of Claims 1, 6—10, and 15—274 under § 103(a)
The Examiner finds that the combination of Legner and Uematsu
teaches or suggests the limitations of claim 1. Non-Final Act. 2-4.
3 Although the rejection cites WO 2007/007652, as noted by Appellant, the
Examiner relies on Uematsu as the US equivalent or English language
translation of WO 2007/007652. See Non-Final Act. 2; Br. 9.
4 Appellant argues these claims together. Thus, we decide the rejection of
the claims on the basis of representative claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv).
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Application 12/485,353
Appellant does not contend these findings are in error. Instead, Appellant
contends that (1) Uematsu is non-analogous art (see Br. 10-12) and (2) the
Examiner’s rejection is based on impermissible hindsight (see id. at 12—14).
Regarding the non-analogous art issue, Appellant argues Uematsu
clearly “relates to a working vehicle having a retarder,” and “Uematsu
cannot be considered analogous since brake systems comprising retarders
are simply not used in hydraulic excavators.” Id. at 10—11. Appellant also
argues that one skilled in the art of brake systems would not look to
Uematsu to combine with Legner because hydraulic excavators and
commercial vehicles “have completely different controls and concepts due to
the integration of a retarder” and “the braking systems are so vastly different
from each other.” Id. at 11—12.
We are not persuaded by Appellant’s arguments. The Examiner finds,
and we agree, that Uematsu is analogous art because “Uematsu and the
instant invention both reside in the field of braking of work vehicles.” Ans.
2 (citing In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir 1992) (to be
analogous art, “the reference must either be in the field of the applicant’s
endeavor or, if not, then be reasonably pertinent to the particular problem
with which the inventor was concerned”). The Examiner also finds, and we
agree, the addition of a retarder function in Uematsu does not take the art out
of the field of endeavor.” Id. In that regard, we are not persuaded by
Appellant’s arguments that the systems have “completely different controls
and concepts due to the integration of a retarder” and “are so vastly different
from each other” because they are conclusory and unsupported by evidence
or specific explanations of the how the systems are different. See Br. 11—12.
Furthermore, we agree with the Examiner’s findings that:
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Application 12/485,353
Appellant’s argument fails to elaborate on the “completely
different controls and concepts[;][]” however it is noted that
Uematsu controls the rear brake 16 to provide retarder function.
[0048] The rear brake is the same brake as used in service
braking. [0034], Thus, Uematsu merely provides additional
control and pressure supply to the rear brake to prevent overrun
of the engine. [0048] This additional function does not change
the control or concept of operation of the pedal actuated service
brake or parking brake.
Ans. 3.
Regarding the impermissible hindsight issue, Appellant argues “[t]he
prior art must provide a motivation or reason for the worker in the art,
without the benefit of appellant’s specification, to make the necessary
changes in the reference device.” Br. 13 (citing Ex parte Chicago Rawhide
Mfg. Co., 223 USPQ 351, 353 (Bd. Pat. App. & Inter. 1984). Appellant also
argues that in the Examiner’s rejection, “it is not the prior art that provides
any motivation or reason to make the necessary changes in the prior art, but
Appellant’s own application.” Id. Appellant further argues that any finding
of obviousness based on combining Uematsu with an electrical braking
system “can only be made with the use of the road map of the present
application” because in Uematsu, “the individual brake circuits are not
arranged symmetrically, have a high number of values,” whereas
Appellant’s invention “implements a symmetrical brake system ‘with a
reduced number of valves’ which is arranged crossed over axes to increase
safety.” Br. 14.
We are not persuaded by Appellant’s arguments. First, we are
not persuaded by Appellant’s argument that there must be a
“motivation or reason to make the necessary changes in the prior art”
because the Supreme Court has rejected the rigid requirement of
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Application 12/485,353
demonstrating a teaching, suggestion, or motivation in the references
to show obviousness. See KSR Int'l Co., v. Teleflex Co., 550 U.S. 398,
415—16 (2007); see also In re Ethicon, Inc., 844 F.3d 1344, 1350
(Fed. Cir. 2017) (“KSR directs that an explicit teaching, suggestion, or
motivation in the references is not necessary to support a conclusion
of obviousness.”). Second, the Examiner finds it would have been
obvious to a person of ordinary skill in the art at the time the invention
was made to use the “valve/accumulator arrangement (accumulators
211—212, valve (check valve near 213) and hydraulic pump 215)” as a
means of “providing controllable brake actuation as well as
emergency function.” Non-Final Act. 3. Accordingly, we find the
rejection is supported by “some articulated reasoning with some
rational underpinning” to combine known elements in the manner
required by the claim. See KSR, 550 U.S. at 418.
Third, we are not persuaded by Appellant’s argument that in Uematsu,
the individual brake circuits are not arranged symmetrically, whereas
Appellant’s invention “implements a symmetrical brake system
combination” because this argument is not commensurate with the scope of
claim 1. Finally, regarding Appellant’s argument that the Examiner engaged
in impermissible hindsight, it must be recognized that any judgment on
obviousness is in a sense necessarily a reconstruction based upon hindsight
reasoning. However, so long as it takes into account only knowledge which
was within the level of ordinary skill at the time the claimed invention was
made, and does not include knowledge gleaned only from the Appellants’
disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d
1392, 1395 (CCPA 1971). Here, we conclude the Examiner did not use
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Application 12/485,353
impermissible hindsight because the rejection is based on the references and
what they would have taught or suggested to a person of ordinary skill in the
art.
For the aforementioned reasons, we are not persuaded the Examiner
erred in concluding that the combination of Legner and Uematsu renders the
subject matter of claim 1 obvious under 35 U.S.C. § 103(a). Accordingly,
we sustain the Examiner’s rejection of independent claim 1. For the same
reasons, we also sustain the rejection of independent claim 21, and
dependent claims 6—10, 15—20, and 22—27, which variously depend
therefrom and are not argued separately.
DECISION
We affirm the Examiner’s rejection of claims 1, 6—10, and 15—27
under 35 U.S.C. § 103(a).
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). See 37
C.F.R. § 41.50(f).
AFFIRMED
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