Appeal 2007-0550
Application 10.763,714
with either of these interpretations of Attinger. With respect to the
anticipation rejection issue, we thus focus our attention on Appellants'
argument under the heading "Second Interpretation of Attinger" (Reply Br.
3-5).
Appellants' argument as to why Attinger does not anticipate claims 1,
4, 6, 13, 14, 19-21, 23 and 24 is that Attinger's wheel-set shaft 3, hollow
shaft 7 and hollow shaft 9 are separate from one another and, further, allow a
limited extent of relative movement therebetween and thus cannot
reasonably be considered an axle shaft as understood by a worker of
ordinary skill in the art (Reply Br. 3-4). This argument is not commensurate
in scope with the claims, which do not require that the "axle shaft" or "axle"
be a single unitary shaft which moves as a single unit. Moreover, even
assuming Appellants are correct that one of ordinary skill in the art would
not understand the hollow shafts 7, 9, shaft couplings 8, 10 and wheel-set
shaft 3 to be an "axle shaft" or "axle" as set forth in independent claims 1, 13
and 19, none of these claims requires the brake assembly or rotor to be fixed
or directly mounted to the claimed axle shaft or axle. Claim 1 recites that
the brake assembly including a rotor is "attached to said axle shaft adjacent
said second end"; claim 13 recites that the "rotor is fixed[2] adjacent said
second end of said axle shaft" and claim 19 calls for the brake member to be
"attached to said second end portion" of the axle. Thus, even if the hollow
shaft 7 to which disk brake 11 is attached is not considered part of the
claimed "axle shaft" or "axle," the disk brake 11 is still attached to wheel-set
shaft 3 adjacent its second (left) end, as called for in claim 1, indirectly via
2 The claim does not specify to what the rotor is fixed and, in particular, does
not require that the rotor be fixed to the axle shaft.
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