Ex Parte Lutz et al - Page 5
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Board of Patent Appeals and Interferences > 2004 > Ex Parte Lutz et al - Page 5
Appeal No. 2004-2154 Page 5
Application No. 10/067,049
medium exceeds a predetermined4 pressure in the working space, as required by
claim 8. To the extent that the examiner’s position as expressed in the last two
paragraphs on page 7 of the answer is that the flexing of the disc to move it from its
seat constitutes “breaking” as used in appellants’ claim 8, this is not a fair and
reasonable reading of this term.
For the foregoing reasons, we shall not sustain the rejection of claims 7 and 8 or
claim 9 which depends from claim 8.
In rejecting claim 10 as being unpatentable over Pradel in view of Freitag, the
examiner recognizes that Pradel lacks the pressure tube comprising the predetermined
breaking point but relies on the teachings of Freitag for a suggestion to modify Pradel’s
pressure tube to comprise such a feature. We, however, find no such suggestion in
Freitag, which is directed to pneumatic springs of the piston-and-cylinder type and
particularly to a pneumatic spring equipped with a safety release, in the form of a
frangible reduced wall portion, for its compressed gas charge, such as those used
under engine compartment hoods and trunk lids of passenger cars (column 1, lines 3-
4 The present situation is analogous to that in In re Weiss, 989 F.2d 1202 (Table), 26 USPQ2d
1885, 1887 (Fed. Cir. 1993), wherein the position of the USPTO that a means for breaking away a cleat at
a preselected level of force requires only that a cleat break away when some level of force is applied,
regardless of any intention to break away, was found to be in error. Akin to the situation in Weiss,
appellants’ specification discloses a specific structural element (decreased wall thickness 41 in the
pressure tube 7 or a thin floor 51 in the central fastening means 49 in the bottom valve 27) which
responds at a specific predetermined pressure by causing the tube or fastening means to break.
Appellants’ specification further indicates that the predetermined pressure is defined as a function of the
vehicle. We thus conclude that the “predetermined breaking point” in appellants’ claim 8 requires specific
structure designed to break when the pressure in the working space exceeds a predetermined pressure.
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