11434713 (P.T.A.B. Dec. 13, 2012)

Ex Parte Marczyk et al

Patent Trial and Appeal BoardDec 13, 2012

11434713 (P.T.A.B. Dec. 13, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte STANISLAW MARCZYK and KEITH L. MILLIMAN ____________________ Appeal 2010-012034 Application 11/434,713 Technology Center 3700 ____________________ Before: JOHN C. KERINS, RICHARD E. RICE, and SCOTT E. KAMHOLZ, Administrative Patent Judges. KAMHOLZ, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-012034 Application 11/434,713 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134(a) from the decision of the Examiner to reject claims 1-15 and 17 under 35 U.S.C. § 102(b) for anticipation by Milliman (WO 2004/032766 A2; pub. Apr. 22, 2004) and to reject claim 16 under 35 U.S.C. § 103(a) for unpatentability over Milliman. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. THE CLAIMED SUBJECT MATTER The claimed subject matter is directed to a tilt anvil assembly. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A tilt anvil assembly comprising: a center rod; a head assembly including a housing, a post, an anvil plate having staple deforming pockets, and a backup member, the head assembly being pivotally secured to the center rod and pivotal in relation to the center rod between a non-tilted position and a tilted position, wherein the backup member is movable about the post from a first position in which a portion of the backup member is positioned to prevent pivotal movement of the head assembly from the non-tilted position to the tilted position, to a second position in which the backup member is positioned to permit pivotal movement of the head assembly in relation to the center rod from the non-tilted position to the tilted position, and the head assembly further including a pivotal latch member which is urged by a biasing member into engagement with an inner peripheral surface of the backup member when the backup member is in the second position to prevent movement of the backup member from the second position to the first position. Appeal 2010-012034 Application 11/434,713 3 ANALYSIS 1. Anticipation by Milliman The Examiner found that Milliman discloses all limitations of claim 1 in the claimed arrangement. Ans. 3-4. In particular, the Examiner found that Milliman’s pivotal latch member (i.e., retainer clip 127) is “urged by a biasing member 158 into engagement with an inner peripheral surface of the backup member 126 when the backup member is in a second position (see Fig. 55).” Id. Appellants argue, among other things, that Milliman’s pivotal latch member is not urged by a biasing member into contact with the backup member when the backup member is in the second position. App. Br. 7. Instead, Appellants argue, the retainer clip is in an unbiased state when the backup member is in the second position. Id. In response, the Examiner explains that Milliman’s retainer clip 127 “is mounted on the post 122. Since post 122 is being urged by the biasing member 158, and [the retainer clip] is mounted on the post 122, the [retainer clip] is also deemed to be biased by biasing member 158.” Ans. 8. Appellants argue in reply that Milliman’s retainer clip “does not engage any surface of the backup member after the backup member is pushed into the anvil head 124, i.e., in the second position.” Reply Br. 5. A preponderance of the evidence of record does not support the Examiner’s interpretation of Milliman. Milliman’s retainer clip 127 starts off in engagement with an inner peripheral surface of backup member 126 when the backup member is in the first position. Milliman, figs. 16 and 17; p. 18, l. 15 to p. 19, l. 2. Milliman’s knife 188 then pushes backup member 126 into the second position, i.e., deeper in the anvil 124. Id. at p. 18, ll. 19- Appeal 2010-012034 Application 11/434,713 4 20. In so moving, backup member 126 slips off flexible arms 127a and 127b, which arms then spring outward to block movement of backup member 126 out of the second position. Id. at p. 31, ll. 13-15. At this point, bias applied by plunger spring 158 to post 122 (through finger 168 contacting base 122a) causes the anvil assembly to tilt about pivot member 164. Id. at p. 18, ll. 4-14. Contrary to the Examiner’s assertion, there is no evidence in Milliman that plunger spring 158 urges the retainer clip 127, directly or indirectly, into engagement with the backup member when the backup member is in the second position. Retainer clip 127 is not “mounted on the post 122” as the Examiner asserts; rather, it lies in slot 122c between arms of post 122 (id. at p. 18, l. 15) and is mounted on pivot member 164 (id. at ll. 16-17). Bias applied against post 122 is therefore not necessarily transmitted to retainer clip 127. For these reasons, a preponderance of the evidence of record does not support the Examiner’s finding (at Ans. 3-4) that Milliman’s retainer clip 127 is “urged by a biasing member 158 into engagement with an inner peripheral surface of the backup member 126 when the backup member is in a second position.” This finding of fact is therefore in error and consequently cannot support the conclusion that Milliman anticipates the subject matter of claim 1. We reverse the rejection of claim 1, and of claims 2-15 and 17 dependent thereon. 2. Obviousness over Milliman and APA We reverse the Examiner’s obviousness rejection of claim 16 because it is premised on the erroneous finding of fact identified above. Appeal 2010-012034 Application 11/434,713 5 DECISION For the above reasons, the Examiner’s decision to reject claims 1-17 is REVERSED. REVERSED mls