Boudewijn Casper Jung et al.

Patent Trials and Appeals Board

Nov 5, 2020

14128200 - (D) (P.T.A.B. Nov. 5, 2020)

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.
14/128,200 02/06/2014 Boudewijn Casper Jung P6034060PCT/US 3075
132452 7590 11/05/2020
N.V. Nederlandsch Octrooibureau
New Babylon City Offices
Anna van Buerenplein 21a
The Hague, 2595 DA
NETHERLANDS
EXAMINER
LAWSON, STACY N
ART UNIT PAPER NUMBER
3678
NOTIFICATION DATE DELIVERY MODE
11/05/2020 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):
USPTO@nlo.eu
shultz@nlo.eu
uspractice@nlo.eu
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BOUDEWIJN CASPER JUNG and
JOHANNES LOUIS LEONARDUS HESSELS
____________

Appeal 2020-001039
Application 14/128,200
Technology Center 3600
____________

Before ANTON W. FETTING, ULRIKE W. JENKS, and AMEE A. SHAH,
Administrative Patent Judges.

SHAH, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s final decision to reject claims 15, 17–22, 24–26, 28, and 30–35.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as “IHC
HOLLAND IE B.V.” Appeal Br. 2.
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Application 14/128,200

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CLAIMED SUBJECT MATTER
The Appellant’s invention “is directed at assemblies, methods and
systems for coupling two elongate tubular elements which each extend along
a common central longitudinal axis.” Appeal Br. 5. In particular, the
invention “relates to a method for centring a first elongate tubular element
and a second elongate tubular element, such as an underwater pile
accommodated within a noise mitigation screen, at a common central
longitudinal axis along which axis both the first and second element extend.”
Spec. 1, ll. 14–17.
Claims 15, 28, and 35 are the independent claims. Claim 15 is
illustrative of the subject matter on appeal and is reproduced below (with
added paragraphing and bracketing for reference):
15. An assembly of
[(a)] a first elongate tubular element and second elongate
tubular element and a centre system for centring the first elongate
tubular element with respect to the second elongate tubular
element,
[(b)] wherein the assembly has a common central
longitudinal axis along which axis both the first and second
elongate tubular elements extend;
the centre system comprising:
[(c)] a first coupling means fixedly coupling the
centre system with one of the first and second elongate
tubular elements, and
[(d)] a second coupling means engaging the other of
the first and second elongate tubular elements for centring
the other of the first and second elongate tubular elements
at the common central longitudinal axis, wherein the
entirety of the second coupling means overlaps the second
elongate tubular element in an axial direction relative to
the common central longitudinal axis, and
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[(e)] a drive system having at least two drive means
arranged around the common central longitudinal axis,
[(f)] each drive means applying a centring force at a
circumference of said one of the first and second elongate
tubular elements, said centring force having a line of
action through the first and second coupling means to
force said one of the first and second elongate tubular
elements towards a centred position along the common
central longitudinal axis,
[(g)] wherein the at least two drive means are
mutually coupled for evenly driving said one of the first
and second elongate tubular elements for maintaining said
one of the first and second elongate tubular elements in its
centred position,
[(h)] wherein the centre system is fixedly coupled
with the one of the first and second elongate tubular
elements, and engages the other of the first and second
elongate tubular elements for centring the other of the first
and second elongate tubular elements at the common
central longitudinal axis such that an intermediate space
between the one of the first and second elongate tubular
elements and the other of the first and second elongate
tubular elements is maintained,
[(i)] wherein the first elongate tubular element is a
pile and the second elongate tubular element is a noise
mitigation screen,
[(j)] wherein a first drive means of the at least two
drive means comprises a first hydraulic cylinder and a
second drive means of the at least two drive means
comprises a second hydraulic cylinder,
[(k)] wherein the first and second hydraulic
cylinders are mutually hydraulically series coupled by
hydraulic sections for evenly driving said one of the first
and second elongate tubular elements for maintaining said
one of the first and second elongate tubular elements in its
centred position,
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[(l)] wherein the first and second hydraulic
cylinders are mounted normal to the common central
longitudinal axis,
[(m)] and wherein a piston of the first hydraulic
cylinder is configured to move over a certain stroke in a
radial direction with respect to the common central
longitudinal axis, which results in hydraulic fluid
displaced in one of the hydraulic sections, such that a
piston of the second hydraulic cylinder moves over a
stroke, equal to the certain stroke, in the radial direction
with respect to the common central longitudinal axis, such
that the first elongate tubular element is maintained at the
common central longitudinal axis.
Appeal Br. 25–26 (Claims App.).

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Shigeta2 JP 08092958 (A) Apr. 9, 1996
Jung et al. (“Jung”) WO 2010/151121 A2 Dec. 29, 2010

REJECTIONS3
Claims 15, 17–22, 24–26, 28, and 30–34 are rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Shigeta, Official
Notice/Applicant Admitted Prior Art (“Official Notice”), and Jung.

2 We rely on the English translation entered into the record by the Examiner
on January 12, 2018.
3 The Examiner withdraws the rejection of claims 15–22, 24–26, and 28–34
under 35 U.S.C. § 103(a) as obvious over Fujino (JP 2011012394 A, pub.
Jan. 20, 2011), Official Notice, and Jung. Ans. 3. We also consider
withdrawn the Examiner’s rejection of claim 35 as obvious over Fujino and
Official Notice that is similar to the rejection of claims 15 and 28. See Final
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Claim 35 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shigeta and Official Notice.

OPINION
The Appellant argues claims 15, 17–22, 24–26, 28, and 30–34
together and relies on these arguments for the rejection of claim 35. See
Appeal Br. 18, 23. Therefore, we consider these claims as a group with
claim 15 representative and the rejections of claims 17–22, 24–26, 28, and
30–35 standing or falling therewith. See 37 C.F.R. § 41.37(c)(1)(iv) (2018).
The Appellant contends that the Examiner’s rejection of independent
claim 15 is in error because
the combination of Shigeta and Jung et al. does not disclose all
the requirements of independent claim 15, specifically at least:
• a centring system for centring an elongated pile with
respect to an elongated noise mitigation screen [limitations (a)
and (i)];
• a drive system having at least two drive means
comprising hydraulic cylinders mutually hydraulically series
coupled for evenly driving the tubular elements [limitations (g),
(j), and (k)], and
• wherein a piston of the first hydraulic cylinder is
configured to move over a certain stroke in a radial direction with
respect to the common central longitudinal axis, which results in
hydraulic fluid displaced in one of the hydraulic sections, such
that a piston of the second hydraulic cylinder moves over a
stroke, equal to the certain stroke, in the radial direction with
respect to the common central longitudinal axis, such that the

Act. 16–18; Ans. 8 (discussing only the rejection of claim 35 over Shigeta
and Official Notice). We also note that with this withdrawal, there are no
pending rejections for claims 16 and 29.
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first elongate tubular element is maintained at the common
central longitudinal axis [limitation (m)].
Appeal Br. 18–19.
Regarding limitations (a) and (i), the Appellant simply argues that
Shigeta’s “ring holder apparatus [(H)] is not a noise mitigation screen, nor is
it elongated.” Appeal Br. 19. The Appellant’s argument is unpersuasive
because the Appellant argues against Shigeta individually when the
Examiner relies on the combination of Shigeta and Jung for teaching these
elements. The test for obviousness is not what any one reference would
have suggested, but rather what the combined teachings of the references
would have suggested to those of ordinary skill in the art. See In re Keller,
642 F.2d 413, 426 (CCPA 1981). “[O]ne cannot show non-obviousness by
attacking references individually were, as here, the rejections are based on
combinations of references.” Id. (citation omitted). Here, the Examiner
finds that Shigeta discloses an assembly comprising, in relevant part, first
elongate tubular member P and second tubular element 1, but “does not
disclose that the second tubular element is an elongate noise mitigation
screen,” and relies on Jung to correct this deficiency. Id. at 18, 20; see also
id. at 21–22. The Appellant does not provide argument or technical
reasoning to rebut the Examiner’s finding that Jung teaches an elongated
tubular element that is a noise mitigation screen.
Regarding limitations (g), (j), and (k), the Appellant argues that
neither Shigeta nor Jung teaches these limitations. See Appeal Br. 20–21.
The Examiner finds that Shigeta teaches “evenly driving said one of the first
and second tubular elements for maintaining said one of the first and second
tubular elements in its centred position,” i.e., part of limitations (g) and (k),
and wherein the drive means comprise hydraulic cylinders, i.e., limitation
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(j). Final Act. 19–20 (citing Shigeta ¶¶ 28, 40, Figs. 5). The Examiner
acknowledges that “Shigeta does not explicitly disclose that the first and
second hydraulic cylinders are mutually hydraulically series coupled by
hydraulic sections to achieve the even driving,” i.e., the remaining parts of
limitations (g) and (k). Id. at 20. The Examiner relies on Official Notice for
the fact “that coupling hydraulic cylinders in series is notoriously well
known in the art” (id.), determining that
it would have been obvious to a person having ordinary skill in
the art, at the time of the invention, to couple the hydraulic
cylinders of Shigeta in series using hydraulic sections because
such is a known coupling configuration that would provide the
equal and synchronized hydraulic pressure throughout the
hydraulic cylinders as desired by Shigeta (e.g. paragraph 0028 of
translation).
Final Act. 20.
The Appellant contends that they adequately traversed the Examiner’s
assertion of Official Notice in their Remarks filed September 26, 2017
(“Remarks”). Appeal Br. 21; Reply Br. 2–3. To adequately traverse a
finding of Official Notice, the Appellant “must specifically point out the
supposed errors in the examiner’s action, which would include stating why
the noticed fact is not considered to be common knowledge or well-known
in the art. See 37 CFR 1.111(b).” MPEP § 2144.03(C); see also In re
Chevenard, 139 F.2d 711, 713 (CCPA 1963) (“In the absence of anything in
the record to contradict the examiner’s holding, and in the absence of any
demand by appellant for the examiner to produce authority for his statement,
we will not consider this contention.”). Here, the Appellant’s traversal of
the Official Notice is inadequate because the Appellant does not provide any
factual or technical reasons or arguments why the noticed fact, i.e., coupling
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hydraulic cylinders in series, is not considered common knowledge or well-
known in the art. Although the Appellant, in their Remarks, provided
arguments that the cited art Willis et al. (US 2002/0009333, pub. Jan. 2002)
was silent on the type of coupling (see Remarks 8), the Examiner relied on
Official Notice, and not on Willis for teaching coupling hydraulic cylinders
in series. The Appellant’s assertion that Willis does not teach that fact is not
relevant as to why coupling hydraulic cylinders in series is not considered
common knowledge or well known in the art.
Regarding limitation (m), the Appellant argues that “[t]here is no
disclosure or hinting that the system of Shigita [sic] would perform
according to the requirements of claim 15[’s limitation (m)].” Appeal
Br. 20. Rather than distinctly pointing out the Examiner’s supposed errors,
the Appellant recites the claim language and summarily concludes that the
references do not meet the quoted claim language. The Appellant provides
no argument or technical reasoning to identify error in the Examiner’s
finding that Shigeta’s paragraphs 28 and 40 and Figure 5 (that discuss using
a hydraulic cylinder and the movements thereof) disclose this limitation.
See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”). We note that the Examiner does not rely on Official Notice for
this limitation. Cf. Appeal Br. 21–22 (arguing that it was not reasonable for
the Examiner to use official notice for this limitation).
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The Appellant further argues
it would not be obvious to series couple the hydraulic cylinders
of Shigeta, because they are needed to at times provide different
forces at different sides to counter obstacles such as seen in
Fig. 7. If the hydraulic cylinders were series coupled, and
performed as required in claim 15, they would not be able to
provide the sufficient force on one side to counter the obstacle
pushing one way through a significant portion of the rotational
press fitting.
Appeal Br. 22. However, this argument that the combination of Shigeta,
Official Notice, and Jung would render Shigeta’s invention inoperable for its
intended use relies on the Appellant’s speculative statements that amount to
unsupported attorney argument. The Examiner cites to Shigeta at
paragraphs 28 and 40 as support for “disclos[ing] synchronizing the position
of the pistons . . . and centering the pile . . . which requires equal positioning
and strengths. Providing different piston positions and/or forces at different
sides would result in misalignment of the pile which goes against the
disclosure of Shigeta.” Ans. 7. The Appellant cites to Shigeta’s Figure 7
without further explanation or reasoning to support their position, and does
not provide further argument or reasoning why the Examiner’s reasoning is
faulty or incorrect.
For the above reasons, we are not persuaded of Examiner error, and
we sustain the Examiner’s rejection under 35 U.S.C. § 103(a) of independent
claim 15 and the rejections of claims 17–22, 24–26, 28, and 30–35 that stand
with that of claim 15.
CONCLUSION
The Examiner’s decision to reject claim 15, 17–22, 24–26, 28, and
30–35 under 35 U.S.C. § 103(a) is sustained.
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In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
15, 17–22,
24–26, 28,
30–34
103(a) Shigeta, Jung,
Official Notice
15, 17–22,
24–26, 28,
30–34

35 103(a) Shigeta, Official
Notice
35
Overall
Outcome
15, 17–22,
24–26, 28,
30–35

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED