Ex Parte Schwenke et al

Patent Trial and Appeal Board

May 5, 2017

11616058 (P.T.A.B. May. 5, 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.
11/616,058 12/26/2006 Robert A. Schwenke 10EXT0055-US-NP 1930
95329 7590 05/09/2017
C ANTOR mT RT TRN T T P - S ARTC FXATFr EXAMINER
20 Church Street PAIK, SANG YEOP
22nd Floor
Hartford, CT 06103 ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
05/09/2017 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT A. SCHWENKE and
STEVEN M. GASWORTH
Appeal 2015-005847
Application 11/616,058
Technology Center 3700
Before MICHELLE R. OSINSKI, JEREMY M. PLENZLER, and
LISA M. GUIJT, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert A. Schwenke and Steven M. Gasworth (Appellants)1 appeal
under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting
claims 2—6, 11—16, 21—25, and 27—29 under 35 U.S.C. § 103(a) as
unpatentable over Shoop (US 4,102,722, iss. July 25, 1978) or Funaki
1 Appellants identify the real party in interest as EXATEC, LLC. Appeal
Br. 2.
Appeal 2015-005847
Application 11/616,058
(US 5,766,739, iss. June 16, 1998), Ruelle ’529 (GB 2 091 529 A, pub. July
28, 1982), and Ohgushi (US 4,983,814, iss. Jan. 8, 1991). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
THE CLAIMED SUBJECT MATTER
Claims 2 and 28 are independent. Claim 2 is reproduced below and is
illustrative of the claimed subject matter on appeal.
2, A window defroster assembly for use in a motor vehicle, the
assembly comprising:
a transparent glazing panel having a protective layer and a.
conducti ve ink. in the form of a window'- defroster grid integrally
formed with the transparent glazing panel, wherein the defroster
grid includes electrically conductive first and second busbars and
a plurality of electrically conductive grid lines extending
between and connected to the first and second busbars, wherein
the first and second busbars comprise a series of substantially
parallel busbar lines, the parallel busbar lines extending the full
length of the busbars and forming ends thereof.
PROCEDURAL HISTORY
The present application came before the Board previously on appeal.
See Prior Board Decision in Appeal 2011-008834, dated September 13, 2013
(“Prior Decision”). In the prior appeal, the Board reversed the prior art
rejections, under 35 U.S.C. § 103(a), of: claims 2—6, 15, 16, 21, 22, and 25
as unpatentable over Ruelle ’527 (GB 2 091 527 A, pub. July 28, 1982) and
Leon (US 4,755,659, iss. July 5, 1988); and claims 11—14, 23, 24, and 27—29
as unpatentable over Ruelle ’527, Leon, and Kochman (US 6,369,369 B2,
iss. Apr. 9, 2002). Prior Decision 2, 6. The Board found that the Examiner
failed to establish by a preponderance of the evidence that Ruelle ’527
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discloses “parallel busbar lines extending the full length of the busbars and
forming ends thereof,” as recited in claim 2, “merely by reference to Figures
1—4 of Ruelle [’527].” Prior Decision 4. We explained, in particular, that
“[w]ith respect to Ruelle [’527]’s second embodiment depicted in Figure 2,
. . . the solid terminal portion 14 forms the end of the bus strip 8, not the
ends of the conductive lines 12.” Id.
OPINION
Independent claim 2 and dependent claims 3—6, 15, 16, 21, 22, and 25
The Examiner finds that either Shoop or Funaki teaches the general
structure of a window defroster assembly for use in a motor vehicle as
recited in claim 2, but “do[es] not show the bus bars having a series of
substantially parallel bus bar lines/segments.” Final Act. 2—3. The
Examiner finds that Ruelle ’529 teaches bus bar 3 having a plurality of
parallel bus lines 4—11 and that Ohgushi teaches bus bar 2 having a plurality
of parallel bus bar lines. Id. at 3. The Examiner concludes that it would
have been obvious to one of ordinary skill in the art “to adapt Shoop or
Funaki with the bus bars having a plurality of bus bar lines, as known in the
art, that would allow one of ordinary skill to control desired heating output
by modifying the electrical connection between the bus bar lines and the
heating elements.” Id.
As to the limitation of “the parallel busbar lines [that make up first
and second busbars] extending the full length of the busbars and forming
ends thereof,” the Examiner takes the position that Ruelle ’529’s busbar is
reasonably limited to the plurality of lines shown by lines 4—11, not
including terminal pad 13. Final Act. 4. The Examiner, thus, takes the
further position that substantially parallel lines 4—11 “terminate where the
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terminal portion 13 is provided as illustrated in Figure 1 of Ruelle [’529].”
Ans. 4. In this way, the Examiner specifically explains how Ruelle ’529’s
parallel busbar lines may be considered to extend the full length of the
busbars and form ends of the busbars.
Appellants respond that “solid terminal portion 13 forms the end of
the bus strip and that it is not the ends of the conductive lines that ‘form the
ends thereof as is recited in the present claims.” Reply Br. 5 (emphasis
omitted). The dispute hinges on whether the structure identified by the
Examiner as the busbar in Ruelle ’529 results from an arbitrary delineation
of Ruelle ’529’s structure made in order to meet the claim limitations, or is
instead a reasonable delineation of Ruelle ’529’s structure that is consistent
with the meaning of the term “busbar” and the teachings of Ruelle ’529.
The Specification describes that “a busbar is used to distribute
electrical current to each grid line of the defroster.” Spec. 13.2 This
function of distributing electrical current to grid lines of the defroster, as
described in the Specification, is consistent with an ordinary and customary
meaning of the term “bus bar.” See, e.g., Merriam-Webster Dictionary,
available at www.merriam-webster.com (defining “bus bar” as “a conductor
or an assembly of conductors for collecting electric currents and distributing
them to outgoing feeders”). Thus, the Examiner’s identification of bus lines
4—11 as the claimed “busbar” appears consistent with both the ordinary and
customary meaning of the term “busbar” and with the Specification.
We also consider whether identification of only bus lines 4—11 as the
claimed “busbar” appears consistent with the teachings of Ruelle ’529.
Appellants assert that “one skilled in the art presented with the Ruelle
2 The Specification does not describe how electrical current is supplied to
the busbar.
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Application 11/616,058
references would [not] consider the plurality of lines of the Ruelle references
to be their entire bus strip.” Id. To support their position, Appellants assert
that “[e]ven just considering the ‘terminal’ of the terminal enamel body
signifies that the terminal enamel body is the terminal portion of the bus
strip.” Id. at 6 (emphasis omitted). We are not persuaded by this assertion
in that “terminal” has a special meaning in the electrical art as “a. the
mechanical device by means of which an electric connection to an apparatus
is established[;] b. the point of current entry to, or point of current departure
from, any conducting component in an electric circuit.” Dictionary.com
Unabridged Based on the Random House Dictionary (2017), available at
www.dictionary.com. Accordingly, the word “terminal” is not necessarily
indicative that it is the terminal part (e.g., end or extremity) of a structure.
In further support of their position that the bus strip must be
considered to be formed of both lines 4—11 and terminal enamel body 13,
Appellants point to the teaching in Ruelle ’529 of the plurality of lines 4—11
being “interconnected at their upper ends by terminal enamel body 13” with
“[a] similar bus strip [being] deposited on the opposite side margin of the
substrate.” Id. (quoting Ruelle ’529, 2:29-38) (emphasis omitted). We are
not persuaded by this argument because there is at least some language
within Ruelle ’529 that would support the opposite position—i.e., that
terminal enamel body 13 is not necessarily considered part of the bus strip.
For example, Ruelle ’529 teaches that “[e]ach bus strip [of a conventional
rear window heater] is provided with a soldered terminal to which a current
supply wire is attached.” Ruelle ’529, 1:25—27. Ruelle ’529 also teaches
that “th[e] problem [of excessive heating of the substrate on which the bus
strips are deposited] is particularly severe in the first four or five centimetres
of the bus strip adjacent the terminals.” Ruelle ’529, 1:36-42. Accordingly,
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we are not persuaded by Appellants that the Examiner’s delineation of bus
lines 4—11 as the claimed “busbar” is outside the realm of what Ruelle ’529
reasonably and fairly teaches.
For the foregoing reasons, we determine that the Examiner did not err
in finding by a preponderance of evidence that Ruelle ’529 teaches a busbar
comprising a series of substantially parallel busbar lines, the parallel busbar
lines extending the full length of the busbars and forming ends thereof. In
sum, the Examiner’s delineation of only bus lines 4—11 as the claimed
“busbar” does not appear arbitrary, but rather appears reasonable based on
the ordinary and customary meaning of the term “busbar” in light of the
Specification, as well as the teachings of Ruelle ’529.
Appellants also argue that Ohgushi is non-analogous art. Appeal Br.
8—10. The established precedent of our reviewing Court sets up a two-fold
test for determining whether art is analogous: “[‘](1) whether the art is from
the same field of endeavor, regardless of the problem addressed and, (2) if
the reference is not within the field of the inventor’s endeavor, whether the
reference still is reasonably pertinent to the particular problem with which
the inventor is involved.’” In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011
(quoting In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004)). The Examiner
takes the position that Ohgushi is analogous art because it is “in the same
field of endeavor, which is in the field of electrical heating devices.” Final
Act. 5.
The “field of endeavor” prong asks if the structure and function of the
prior art is such that it would be considered by a person of ordinary skill in
the art because of the similarity to the structure and function of the claimed
invention as disclosed in the application. Bigio, 381 F.3d at 1325—27.
Although the Examiner broadly defines the field of endeavor as “electrical
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heating devices” (Final Act. 5), Appellants more narrowly define their field
of endeavor as relating to “window glazing used in motor vehicles” and
“[m]ore specifically, . . . forming electrical window defrosters on the
window glazing.” Spec. 12. Similarly, independent claim 2 is more
narrowly directed to “[a] window defroster assembly for use in a motor
vehicle.” as opposed to being broadly directed to an electrical heating
device.
Even taking into account the Examiner’s assertion regarding the
alleged structural and functional similarity between Ohgushi and the claimed
in vention based on Ohgushi’s purported arrangement of busbars connected
to conductive lines to provide electrical resistance heating (Final Act. 5;
/\ns. 4), we are not persuaded that Ohgu shi’s teachings are in the same field
of endeavor as defined in the current application. As explained by
Appellants, Ohgushi discloses electrodes for supplying power to fibrous
heating elements provided in a woven fabric that “seemingly cannot be
integrally formed with a transparent glazing panel,” Appeal Br. 9.
Appellants maintain that “the thermal conducti vities of the materials, the
resi stance of the materials to heat deformati on, and the flame retardant
properties are all going to be
busbar for a heater grid on [a] window' panel” as opposed to “a fibrous
heating element.” Reply Br„ 6.
Accordingly, we agree with Appellants that the Examiner has not
adequately supported that Ohgushi is analogous art. However, we are not
persuaded of reversible error by the Examiner because Ohgushi is merely
relied on by the Examiner for the same teachings for which the Examiner
relies on Ruelle ’529. See Final Act. 3 (outlining that Ohgushi, like Ruelle
’529, teaches that it is known to provide a busbar having a plurality of
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busbar lines in connection with a plurality of heating elements and that it is
known for at least some heating elements to intersect with less than all of the
busbar lines). For the reasons discussed supra, we are not persuaded that the
Examiner erred in relying on Ruelle ’529.
For the foregoing reasons, we are not persuaded that the Examiner
erred in concluding that Shoop or Funaki, Ruelle ’529, and Ohgushi render
obvious the subject matter of independent claim 2, and we sustain the
rejection of independent claim 2 as unpatentable under 35 U.S.C. § 103(a)
over these references. We also sustain the rejection of claims 3—6, 15, 16,
21, 22, and 25, which depend therefrom, and for which Appellants
apparently rely on the same arguments and reasoning we found unpersuasive
in connection with independent claim 2.
Independent claim 28 and dependent claims 11—14, 23, 24, 27, and 29
Independent claim 28 is directed to an embodiment of a window
defroster assembly for use in a motor vehicle in which the busbars include,
not only a series of substantially parallel busbar lines that extend the full
length of the busbars, but also “a series of line segments . . ., wherein each
line segment extends diagonally between and connects two of the parallel
busbar lines and crosses at least one of the grid lines, whereby the series of
line segments form in combination with the busbar lines a zigzag pattern.”
Appeal Br. 15 (Claims App.).
With respect to this limitation, the Examiner finds that Ruelle ’529
teaches bus bar 3 “having a series of line segments including a plurality of
zig-zag lines (25) in Figure 4 and transverse lines (29) in Figure 5 between
adjacent bus bar lines.” Final Act. 4. The Examiner concludes that it would
have been obvious to one of ordinary skill in the art “to provide the line
segments that are diagonally extending between the adjacent parallel bus bar
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lines or any other arrangement that allows the patterned bus bar having its
adjacent bus bar lines electrically connected.” Id. The Examiner takes the
position that Ruelle ’529’s zig-zag pattern depicted in Figure 4 would cross
at least one of the grid lines (e.g., 14, 15, 16, 17, 18, 19) when the grid lines
are connected to the busbar. Ans. 5.
Appellants argue that Ruelle ’529 “fails to disclose or suggest the
technical feature of each line segment crossing at least one of the grid lines.”
Appeal Br. 10. Rather, Appellants contend, Ruelle ’529 “does not illustrate
how their bus strip of Figure 4 connects to their grid line” and “[i]t is more
likely that one skilled in the art. . . would assume that the transverse zig-zag
lines [25] of Figure 4 are connected to or, in other words, become the grid
lines as they extend across the window and meet the bus strip.” Reply Br. 7.
We are persuaded by Appellants’ arguments that the Examiner has not
adequately shown that Ruelle ’529 teaches or suggests the specific
limitations of independent claim 28. In particular, the Examiner’s finding
that Ruelle ’529’s zig-zag lines 25, as depicted in Figure 4, would cross one
of the grid lines when the grid lines are connected to the busbar is not
expressly disclosed in Ruelle ’529. Moreover, the Examiner has not
provided sufficient technical reasoning to support that it would necessarily
do so. Accordingly, the Examiner has not established that Ruelle ’529
inherently discloses line segments (extending diagonally between and
connecting two parallel busbar lines) that cross at least one of the grid lines.
See In re Oelrich, 666 F.2d 578, 581 (CCPA 1981) (“Inherency . . . may not
be established by possibilities or probabilities. The mere fact that a certain
thing may result from a given set of circumstances is not sufficient.”).
Appellants also argue that the identified zig-zag lines 25 are not
formed in combination with longitudinal lines 26 to form a zigzag pattern.
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Appeal Br. 10. Rather, Appellants contend, Figure 4 illustrates “transverse
zig-zag lines 25 interconnected by longitudinal lines 26.” Id. The Examiner
reiterates that “as stated in the ground of rejection, having different pattern
arrangements would have been obvious to one of ordinary skill in the art as
Ruelle [’529] also shows various patterns (Figure 4 and Figure 5) that allow
for the adjacent busbar lines to be electrically connected.” Ans. 5.
The Examiner’s apparent conclusion that it would be obvious to have
a pattern in which the line segments in combination with the parallel busbar
lines form a zigzag pattern is conclusory and lacks reasoning having a
rational evidentiary underpinning to support arriving at the specific claimed
pattern. Appellants have identified at least one advantage to the specific
claimed zigzag pattern in that a “robot does not need to stop after the
deposition of each busbar line segment 40.” Reply Br. 8 (citing Spec. 129).
The Examiner, therefore, cannot simply rely on apparent design choice to
arrive at the specific claimed zigzag pattern.
For the foregoing reasons, we are persuaded that the Examiner erred
in concluding that Shoop or Funaki, Ruelle ’529, and Ohgushi render
obvious the subject matter of independent claim 28, and we do not sustain
the rejection of independent claim 28 and its dependent claim 29 as
unpatentable under 35 U.S.C. § 103(a) over these references. We also do
not sustain the rejection of dependent claim 11 which recites a limitation
substantially similar to the relevant portion of independent claim 28.
Further, we do not sustain the rejection of dependent claims 12—14, 23, 24,
and 27 which depend, directly or indirectly, from dependent claim 11.
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DECISION
The Examiner’s rejection of claims 2—6, 15, 16, 21, 22, and 25 under
35 U.S.C. § 103(a) as unpatentable over Shoop or Funaki, Ruelle ’529, and
Ohgushi is affirmed.
The Examiner’s rejection of claims 11—14, 23, 24, and 27—29 under
35 U.S.C. § 103(a) as unpatentable over Shoop or Funaki, Ruelle ’529, and
Ohgushi is reversed.
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-IN-PART
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