Ex parte Gross
| Docket Number | Appeal 2022-003414,Application 16/992,360 |
| Decision Date | 12 September 2023 |
| Parties | Ex parte MATTHEW L. GROSS and RICHARD L. NICOSON Technology Center 3600 |
| Court | Patent Trial and Appeal Board |
Before BENJAMIN D. M. WOOD, MICHAEL J. FITZPATRICK, and MICHELLE R OSINSKI, Administrative Patent Judges.
OSINSKI, ADMINISTRATIVE PATENT JUDGE
Appellant[1] appeals under 35 U.S.C § 134(a) from the Examiner's decision rejecting claims 1-4 and 6-12. Final Act. 1. Claim 5 is cancelled. Appeal B. 14 (Claims App.). We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
THE CLAIMED SUBJECT MATTER
Claim 1 is independent and is reproduced below.
1. A dipper door trip assembly comprising:
Appeal Br. 13 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name
Reference
Date
Houghton
US 1,712,040
May 7, 1929
Mader
US 5,609,371
Mar. 11,1997
Kondratuk
US 2006/0208496 A1
Sept. 21,2006
Gross
US 10,745,883 B2
Aug. 18, 2020
THE REJECTIONS
The rejections before us on appeal are:
Claim(s) Rejected
Reference(s)/Basis
1-4, 6-11
103
Houghton, Mader
12
103
Houghton, Mader, Kondratuk
1-4, 6-10, 12
Nonstatutory Double Patenting Gross
11
Nonstatutory Double Patenting Gross, Houghton
The Examiner finds that Houghton discloses most of the limitations of independent claim 1, but acknowledges that although Houghton discloses "[a] roller assembly (24 and shaft to which it's mounted on) having a roller (24) for facilitating latching of lever arm 16" (Final Act. 4-5 (citing Houghton 1, Figs. 1,3, 6)), this roller of Houghton is not "configured to facilitate sliding of the latch bar as the latch bar slides linearly with respect to the dipper door," nor is it "configured to be in direct contact with the latch bar" (id. at 5). In addition, although Houghton discloses that "the dipper door and the latch bar are arranged such that when the material is disposed within the dipper, the material is positioned above the latch bar, and the weight of the material is configured to press the dipper door down and inhibit the sliding of the latch bar" (id. at 4 (citing Houghton 1, Figs. 1, 6)), the Examiner makes no finding that the identified roller 24 of Houghton is arranged such that when material is disposed within the dipper, the material is positioned above the roller.
The Examiner finds that Mader teaches "a linear sliding latch bar (28) that engages with a keeper (53), and the keeper having a roller assembly," where "[t]he roller is configured to facilitate sliding of the latch bar as the latch bar slides linearly to reduce wear on the bar" and "the roller is configured to be in direct contact with the latch bar and roll across a surface of the latch bar when the latch bar is activated." Final Act 5-6 (citing Mader Fig. 3b). The Examiner concludes that it would have been obvious "to have modified Houghton's latch keeper to include a roller to reduce wear on the strike plate and latch keeper." Id. at 6. The Examiner also takes the position that, "when modifying Houghton's dipper door trip assembly with Mader's teaching of a keeper with a roller assembly to reduce wear on the latch bar, [one] would know to position the roller under Houghton's latch bar, resulting in . . . the roller [being] arranged such that when the material is disposed within the dipper, the material is positioned above ... the roller." Id.
Appellant argues that Houghton's roller 24 "is disposed well away from the dipper 6 and the dipper door 7" and "is not positioned below material within the dipper 6," such that "Houghton . . . does not disclose or suggest an arrangement of a dipper door, latch bar, and roller as required by claim 1." Appeal Br. 9 (emphasis omitted). This argument is not persuasive because it does not address the rejection as articulated by the Examiner, which does not rely on roller 24 as meeting all the requirements of claim 1, but is instead based on modifying Houghton's assembly to include a roller under Houghton's latch bar to reduce wear. Final Act. 6 (citing Mader Fig. 3b).
Appellant next argues that and "[t]here is no disclosure or suggestion that the roller itself of Mader is arranged to be positioned under the weight of material at any time, or for that matter that the rod 50 is placed under the weight of material at any time." Appeal Br. 10. Appellant continues that "Mader does not disclose or suggest an arrangement of a dipper door, latch bar, and roller." Id.
We are not persuaded by this argument because it attacks Mader individually, rather than the combination of reference teachings relied on by the Examiner in the rejection. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (). The Examiner relies on Houghton, not Mader, for the arrangement of a dipper door and latch bar that are placed under the weight of material disposed within the dipper. Final Act. 4. The Examiner determines that one of ordinary skill in the art would have been led to include a roller under the latch bar to reduce wear on the latch keeper, and that, in doing so, the roller would be in direct contact with the latch bar and would be positioned with material above it (considering that the latch bar has been found to be positioned with material above it). Id. at 6. Consequently, Appellant's argument directed to Mader individually does not apprise us of error in the Examiner's rejection based on a combination of Houghton and Mader. Moreover, even if Mader's rod and roller are not positioned under the weight of material, this does not obviate the Examiner's stated reasoning of including a roller under the latch bar in Houghton to reduce wear on the components because a roller would reduce wear in connection with components that move relative to each other, regardless of whether the roller is under the weight of material.
Appellant next argues that "Mader merely illustrates a recessed roller strike pocket for a rod 50 that is moved vertically up and down to lock and unlock a door 100 for a building." Appeal Br. 10. Appellant continues that one of skill in the art would not look to Mader "to modify a shovel" because "Mader is not directed to shovels, or to the use of dipper or dipper door, or to using a dipper to gather material." Id.; see also Reply Br. 3 (emphasis omitted) ("Mader is clearly directed to a push pad operated exit device for a door" and "in no way discloses or suggests to one of skill in the art to use a roller in combination with a dipper door trip assembly that has a dipper configured to receive material"). That there are differences between Houghton and Mader is insufficient to make a prima facie case of obviousness impossible. That is, simply because Mader is not directed to a shovel, and is instead directed to an exit device for a door, does not prevent Mader from leading one of ordinary skill in the art to utilize a roller to reduce wear on components that move relative to each other in accordance with the Examiner's rejection.
We have also considered Appellant's argument that "[t]he Examiner's use of Mader amounts to a hindsight reconstruction of the claim." Appeal Br. 10. Appellant has not established a flaw in the Examiner's articulated reasoning of reducing wear on the latch keeper that would support that the Examiner engaged in impermissible hindsight. See In re Cree, Inc., 818 F.3d 694, 702 n.3 (Fed. Cir. 2016) (). Moreover, Appellant does not identify any knowledge relied upon by the Examiner that was gleaned only from Appellant's disclosure and that was not otherwise within the level of ordinary skill in the art at the time of the invention. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) ().
Appellant argues in the Reply Brief that "there is no mention in Mader of noise or wear at the latch keeper/strike 26," and Mader is instead addressing "[t]he problems...
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