Ex Parte 5234564 et al

Board of Patent Appeals and Interferences

Aug 31, 2009

90008447 (B.P.A.I. Aug. 31, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CONSTRUCTION EQUIPMENT COMPANY1
____________________

Appeal 2009-005265
Reexamination Control 90/008,447
Patent 5,234,5642
Technology Center 3900
____________________

Decided: August 31, 2009
____________________

Before LINDA E. HORNER, SCOTT R. BOALICK and
DANIEL S. SONG, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 Construction Equipment Company is the real party in interest (App. Br. 1).
2 Roger G. Smith, Mobile Screen Assembly for Rubble and Debris, U.S.
Patent No. 5,234,564 (filed Jul. 24, 1992) (issued August 10, 1993).
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STATEMENT OF THE CASE
The Patent Owner (hereinafter “Appellant”) appeals under 35 U.S.C.
§§ 134(b) and 306 (2002) from a Final Rejection of claims 1, 2, 5-10, 13, 14,
19 and 20. Claims 11, 12 and 15-18 have been previously canceled. (App.
Br. 2; Ans. 3). In addition, claims 3 and 4 are not subject to reexamination
(App. Br. 2; Ans. 3). We have jurisdiction under 35 U.S.C. §§ 134(b) and
306 (2002).
The Patent No. 5,234,564 (hereinafter “‘564 patent”) was previously
involved in an infringement litigation, during which claims 3 and 4 were
found invalid. (Ans. 3). Constr. Equip. Co. v. Powerscreen, No. 96-1574-
AS (D. Or. Jun. 11, 1998), aff’d 243 F.3d 559 (Fed. Cir. 2000).

THE INVENTION
The Patentee claims a vehicle used for screening materials to separate
various sized materials such as rocks from dirt, etc. Independent claim 1
differs in scope as compared to independent claims 2 and 7 which are similar
to each other in scope. Moreover, dependent claim 53 (which depends from
independent claim 3) also differs in scope as compared to the other
independent claims. Independent claims 1 and 2, as well as dependent claim
5 (reproduced with limitations of intervening claims 3 and 4) read as follows
(App. Br., Claims App’x (underlining in original, italicized for emphasis)):
1. A vehicle for screening material comprising:

3 Claims 5 and 6 ultimately depend from claims 3 and 4 which are not
subject to reexamination, claim 6 depending from claim 5 (App. Br. 2; Ans.
3).
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an elongate wheel-supported vehicle frame,
an elongate power-driven material transport conveyor
extending lengthwise along the vehicle frame and having a feed
end adjacent one end of the vehicle frame and inclining
upwardly to a discharge end located toward the vehicle's
opposite end,
a hopper adapted for the feeding thereinto of material
mounted on the vehicle frame above the feed end of the
material-transport conveyor,
a vibrating screen assembly having a feed end adjacent
and in receiving relation to the discharge end of the material-
transport conveyor and inclining downwardly toward a
discharge end located adjacent the vehicle's opposite end, and
a power-driven under-screen conveyor supported on the
vehicle frame with a feed end adjacent the discharge end of the
screen assembly and extending from its feed end to a discharge
end located toward the vehicle's said one end;
said under-screen conveyor inclining upwardly extending
from its feed to its discharge end, and the vehicle further
including an adjustable conveyor mounted on the vehicle frame
and adjustable from an inoperative position to an extended
position extending laterally of the vehicle frame and having a
feed end positioned to receive material falling from the
discharge end of the under-screen conveyor.

2. A vehicle for feeding and screening material comprising
an elongate vehicle frame having hitch structure for detachably
connecting the frame to a towing vehicle, wheel means
providing wheel support for the frame,
an elongate inclined power-driven material-transport
conveyor extending lengthwise along the vehicle frame having
a feed end adjacent one end of the vehicle frame and a raised
discharge end located toward the vehicle's opposite end,
an inclined screen assembly having a feed end adjacent
and in receiving relation to the discharge end of the material-
transport conveyor and inclining downwardly from its feed end
to a discharge end disposed adjacent the vehicle's opposite end,
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the screen assembly having at least two decks and
including an upper deck retaining the coarse material supplied
to the screen assembly by the material-transport conveyor and
a lower deck retaining material of smaller size than the
material retained by the upper deck,
material-channeling structure mounted on the vehicle
frame in receiving relation to the upper deck of the screen
assembly and constructed to channel material deposited on the
structure beyond said opposite end of the vehicle frame, and
an adjustable conveyor adjustably mounted on the
vehicle frame and adjustable from an inoperative position to an
extended position extending laterally of the vehicle frame, the
adjustable conveyor receiving material retained on the lower
deck of the screen assembly.

5. [3.] A vehicle for feeding and screening material
comprising:
an elongated vehicle frame and wheel support for the
frame,
an elongate inclined power-driven material-transport
conveyor extending lengthwise along the vehicle frame having
a feed end adjacent one end of the vehicle frame and a
discharge end located toward the vehicle's opposite end,
a material-receiving hopper disposed over the feed end
of the material-transport conveyor,
an inclined screen assembly having a feed end adjacent
the discharge end of the material-transport conveyor and
inclining downwardly toward a discharge end located adjacent
the vehicle's opposite end,
an adjustable conveyor supported on the vehicle frame
an [sic, and] adjustable from an inoperative position to an
extended position extending laterally of the vehicle from a feed
end which is in material-receiving relation to the discharge end
of the screen assembly, and
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an under-screen conveyor mounted on the vehicle frame
in a position beneath the screen assembly with a feed end
adjacent the discharge end of the screen assembly and
extending from said feed end to a discharge end located toward
the vehicle's said one end[,]
[4. The vehicle of claim 3, which further includes]
another adjustable conveyor supported on the vehicle frame
having a feed end disposed in receiving relation to the discharge
end of the under-screen conveyor and adjustable from an
inoperative to an extended position extending laterally of the
vehicle frame[,]
[5. The vehicle of claim 4,] wherein the screen assembly
includes at least two decks, with an upper deck retaining
relatively course material and a lower deck retaining finer
material, and which further includes material-channeling
structure receiving material from the upper deck and channeling
such beyond the vehicle's said opposite end, the under-screen
conveyor being in a position receiving material passing through
the lower deck of the screen assembly.

PRIOR ART
The prior art4 relied upon by the Examiner in rejecting the claims is:
1. Cheyette 2,703,649 Mar. 8, 1955
2. Eriksson 4,983,280 Jan. 8, 1991
3. Douglas5 GB 2,207,874 Feb. 15, 1989

4 The Appellant does not dispute that the Möckeln Brochures, the RSTI
Brochure, and Royer are prior art references.
5 The Examiner notes that U.S. Patent No. 5,112,474 issued to Douglas on
May 12, 1992, corresponds to GB 2,207,874, the disclosures of these
references being the same (Ans. 8). The Examiner relies on the British
reference which is prior art under 35 U.S.C. § 102(b), and refers to this
reference as “Extek” in the Examiner’s Answer based on the Third Party’s
Request for Ex Parte Reexamination (Ans. 8). The Appellant refers to the
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4. Möckeln SvH-5 Brochure
5. Möckeln SvH-3 Brochure
6. RSTI Brochure
7. Royer

THE REJECTIONS
1. The Examiner rejected claims 2 and 7 under 35 U.S.C. § 103(a)
as unpatentable over Douglas and Eriksson.
2. The Examiner rejected claims 13, 14, 19 and 20 under 35
U.S.C. § 103(a) as unpatentable over Douglas, Eriksson, and Cheyette.
3. The Examiner also rejected claims 2 and 7 under 35 U.S.C.
§ 103(a) as unpatentable over the Möckeln SvH-5 Brochure and Eriksson.
4. The Examiner also rejected claims 13, 14, 19 and 20 under 35
U.S.C. § 103(a) as unpatentable over the Möckeln SvH-5 Brochure,
Eriksson, and Cheyette.
5. The Examiner rejected claims 1, 5, 6 and 8 under 35 U.S.C.
§ 103(a) as unpatentable over the Möckeln SvH-5 and SvH-3 Brochures, the
RSTI Brochure, and Eriksson.
6. The Examiner rejected claims 9, 10, 19, and 20 under 35 U.S.C.
§ 103(a) as unpatentable over the Möckeln SvH-5 and SvH-3 Brochures, the
RSTI Brochure, Eriksson, and Cheyette.

reference as “Douglas” throughout the Appeal Brief. We likewise refer to
GB 2,207,874 as “Douglas” herein.
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7. The Examiner rejected claims 1, 2 and 5-8 under 35 U.S.C.
§ 103(a) as unpatentable over the RSTI Brochure, the Möckeln SvH-5
Brochure, and Eriksson.
8. The Examiner rejected claims 9, 10, 13, 14, 19 and 20 under 35
U.S.C. § 103(a) as unpatentable over the RSTI Brochure, the Möckeln SvH-
5 Brochure, Eriksson, and Cheyette.
9. The Examiner also rejected claims 1, 2, and 5-8 are obvious
under 35 U.S.C. § 103(a) as unpatentable over the Möckeln SvH-5 and SvH-
3 Brochures and Royer.
10. The Examiner also rejected claims 9, 10, 13, 14, 19 and 20
under 35 U.S.C. § 103(a) as unpatentable over the Möckeln SvH-5 and SvH-
3 Brochures, Royer, and Cheyette.

We AFFIRM.

ISSUES
The following issues have been raised in the present appeal.
1. Whether the Appellant has shown that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill in the art
to modify prior art screening devices shown in Douglas, the Möckeln
Brochures, and the RSTI Brochure, to include an adjustable conveyor
described in Eriksson which is pivotable between an in-use position and an
out-of-use position.
2. Whether the Appellant has shown that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill in the art
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to modify prior art screen assemblies to include a step as described in
Cheyette.
3. Whether the Appellant has shown that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill in the art
that the double decker screen pictured in the Möckeln Brochures is vibrated
by the motor also pictured.
4. Whether the Appellant has shown that the Examiner erred in
finding that the screening devices shown in the Möckeln Brochures include a
hopper that is positioned above, and/or disposed over, a feed end of a
material-transport conveyor that is inclined.
5. Whether the Appellant has shown that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill in the art
to replace a trommel screen used in the screening devices pictured in the
RSTI Brochure with a vibrating screen assembly.
6. Whether the Appellant has shown that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill in the art
to modify prior art screening devices shown in the Möckeln Brochures to
include an under-screen conveyor and an adjustable conveyor disclosed in
Royer.

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Douglas describes a screening apparatus for screening
particulate materials such as gravel or similar granular material (Pg. 5, ll. 6-
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12). In the embodiment of Figure 2, the screening apparatus includes a base
frame 6a, a hopper 1a, a conveyor 3a (i.e., material-transport conveyor), and
a conventional vibratory screen box 12a (i.e., screen assembly) having a
drive motor 11a. (Pg. 5, ll. 6-12, 23-33; Pg. 7, ll. 1-4; Fig.2).

2. In the Background of the Invention, Douglas states:
A typical tiltable vibratory screen has a nest of two or more
screens arranged in such a manner that material which passes through
the uppermost and coarsest screen then falls under gravity upon the
surface of a subsequent and finer screen.
(Pg. 1, ll. 32-36).

3. Douglas describes a plurality of collection chutes 18a that
receive “separate screened portions of the material, after treatment by the
vibratory screen,” and illustrates three different chutes 18a arranged to
receive portions of the material from the illustrated screen box 12a,
including from the lower deck of the screen assembly 12a (Pg. 6, ll. 1-4;
Fig.2).

4. Douglas further states:
Although not shown in detail, the apparatus may be provided
with additional conveyors and/or elevators to carry screened material
away from the vicinity of the screening apparatus, and the base frame
6 may be mounted firmly on a foundation, or arranged to be mounted
on wheels or tracks.
(Pg. 8, ll. 3-8).

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5. Douglas does not describe an adjustable conveyor that is
adjustable between an inoperative position and an extended position, or a
hitch structure.

6. Eriksson describes a screening apparatus including a feeder
conveyor 10, an elevator 12, a screen box 14, an end boom elevator 16, and
two lateral boom elevators 18, 20 (i.e., adjustable conveyors) mounted to a
wheeled trailer 22 with a tow bar. (Col. 2, ll. 33-38; Fig.1).

7. Eriksson also describes that the lateral boom elevators are
“mounted to be rotatable such that in an out-of-use position they can be
positioned flanking both sides of said support and inclined in the opposite
direction thereto.” (Col. 1, l. 66-col. 2, l. 2). In this regard, Eriksson
describes Figures 1 and 2 as showing the two lateral boom elevators 18, 20
as extending outwardly in-use, and describes Figure 3 as showing the lateral
boom elevators pivoted to an out-of-use transport position (Col. 3, ll. 29-34;
Figs.1-3).

8. Cheyette describes a stepped screen assembly 12 which
improves the material separating properties of a vibrating screen, the screen
assembly 12 including portions that are at a lower plane than a preceding
portion (Col. 1, ll. 15-21, 43-46; Col. 2, ll. 54-56; Fig.1). Cheyette also
describes that the disclosed screen is vibrated using a vibrating mechanism
24 which may include an eccentric weight rotated by a motor (Col. 2, ll. 9-
13; Fig.1).
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9. Cheyette states:
In order effectively to separate material fed from the feeding
hopper 9 to the screen assembly 12, I have found that marked
advantages are obtained by cascading the series or bays of rods. That
is to say, each series of rods is disposed in a plane at a level lower
than the preceding series. Thus, as material progressively passes from
the material receiving end of the screen assembly to the material
discharging end, the material will slide or roll down each of the series
of rods until it reaches the end of that series and then will fall by the
force of gravity to the next series of rods. In effect, this gravitational
movement of the material supplements the vibratory motion given to
the screen assembly.
(Col. 2, ll. 52-64).

10. Möckeln SvH-5 Brochure illustrates and describes a sorting
plant that is mounted to a chassis (i.e., elongate vehicle frame), the sorting
plant including a hopper, an inclined material-transport conveyor, and an
inclined screen assembly having twin decks (Pgs. 1 and 2; photograph and
figure).

11. As part of the Specification, the Möckeln SvH-5 Brochure also
states:
Electrical distribution centre with fusebox, starting switchgear and
also cut-outs for all motors as well as for two optional out-feed
conveyors and weldingset.
(Pg. 2).

12. As part of the Specification, Möckeln SvH-5 Brochure further
states that the double decker screen includes a 4.0kW electric motor, the
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photograph and drawing showing the inclined screen assembly with a motor
mounted thereto. (Pgs. 1 and 2).

13. Möckeln SvH-5 Brochure does not describe an adjustable
conveyor that is adjustable between an inoperative position and an extended
position.

14. Möckeln SvH-3 Brochure illustrates and describes a sorting
plant which is substantially similar to the sorting plant illustrated and
described in the Möckeln SvH-5 Brochure. (Pgs. 1 and 2).

15. As part of the Specification, the Möckeln SvH-3 Brochure also
states that an optional hopper “for mounting below the screen to serve the
optional feed-out conveyors[.]” is available. (Pg. 2, right column).

16. RSTI Brochure includes a photograph of model RSTI T-620-D
trommel screen apparatus which includes a vehicle frame with wheels, an
inclined transport-conveyor below a hopper, and a trommel screen (i.e., a
screen assembly) (Photograph spanning Pgs. 2 and 3). The photograph of
RSTI T-620 also shows two stacking conveyors and a conveyor located
below the drum (i.e., under-screen conveyor) (Photograph spanning Pgs. 2
and 3; App. Br. 14).

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17. RSTI Brochure also describes that RSTI T-620 Portable
functions to separate three products; two via the screen and one out of the
end (Pg. 3).

18. RSTI Brochure does not describe a screening device with a
vibrating screen assembly or an adjustable conveyor that is adjustable
between an inoperative position and an extended position.

19. Royer illustrates a trommel screen apparatus including a vehicle
frame, a hopper, an elevator belt, a rotating screen drum, an under-screen
conveyor, and two lateral conveyor belts. (Figures of Pgs. 1 and 2; App. Br.
15).

20. In Royer, the lateral conveyor belts are adjustable to an
inoperable position next to the vehicle frame for traveling. (Figures of Pgs. 1
and 2; App. Br. 15 (citing Constr. Equip. Co. v. Powerscreen, No. 96-1574-
AS (D. Or.) Opinion, pgs. 3-4)).

21. The Specification of the ‘564 patent states “[a]s is conventional,
both decks, and the screening in the deck, are vibrated or oscillated back-
and-forth by suitable means which promotes movement of loose material
down the incline of a given deck as separation occurs, with smaller sized
material dropping through the screen to the region below it.” (Col. 4, ll. 3-8).

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22. The Specification of the ‘564 patent, in referring to Figure 1,
states “[h]opper 30 is disposed over a lower inclined portion of the inclined
transport conveyor.” (Col. 2, ll. 62-63).

23. The term “above” is defined as “in, at, or to a higher place”.
Merriam-Webster’s Collegiate Dictionary (11th Ed. 2007).

PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
In KSR, the Supreme Court emphasized “the need for caution in
granting a patent based on the combination of elements found in the prior
art,” and reaffirmed principles based on its precedent that “[t]he combination
of familiar elements according to known methods is likely to be obvious
when it does no more than yield predictable results.” KSR, 550 U.S. at 415-
16. The Court also affirmed that “when a patent claims a structure already
known in the prior art that is altered by the mere substitution of one element
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for another known in the field, the combination must do more than yield a
predictable result.” Id. at 416.
The Court also noted that “[t]o facilitate review, this analysis should
be made explicit.” Id. at 418, (citing In re Kahn, 441 F.3d 977, 988 (Fed.
Cir. 2006) (“[R]ejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness”)). However, “the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id.
With respect to claim construction, we determine the scope of the
claims in patent applications not solely on the basis of the claim language,
but upon giving claims their broadest reasonable construction in light of the
specification as it would be interpreted by one of ordinary skill in the art. In
re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am. Acad. of Sci.
Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Where no explicit
definition for a term is given in the specification, the term should be given
its ordinary meaning and broadest reasonable interpretation. See E-Pass
Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1368 (Fed. Cir. 2003). “[T]he
ordinary and customary meaning of a claim term is the meaning that the
term would have to a person of ordinary skill in the art in question at the
time of the invention . . .” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed.
Cir. 2005) (en banc). This is the standard for claim interpretation in both
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original examination and re-examination. See In re Yamamoto, 740 F.2d
1569, 1571 (Fed. Cir. 1984).

ANALYSIS
Rejection of claims 2 and 7 over Douglas and Eriksson
The Examiner contends that Douglas discloses the limitations of these
independent claims except for a lateral conveyor that is adjustable from an
operational position to an inoperable position during transport, or a hitch
structure (FF 1-5; Ans. 8 and 9). The Examiner contends that these
deficiencies are remedied by Eriksson that discloses a screening apparatus
with an adjustable conveyor and a tow bar (FF 6 and 7; Ans. 9) to conclude
that “[i]t would have been obvious to one of ordinary skill in the art to
adjustably mount the lateral conveyors and provide a hitch structure, as
taught by Eriksson, because it allows for ease of transport of the screening
apparatus.” (Ans. 9).
The Appellant contends that Douglas does not disclose “an adjustable
conveyor mounted on the vehicle frame to receive material retained on the
lower deck of the screen assembly, as recited in independent claims 2 and
7[.]” but instead, merely includes collection chutes 18a (App. Br. 16 and 17).
The Appellant also argues that while Douglas “discusses that additional
conveyors and/or elevators may be used, there is no disclosure or suggestion
in Douglas of an adjustable conveyor, much less an adjustable conveyor
mounted on a vehicle frame. Thus, Douglas fails to disclose or suggest all
of the subject matter recited in independent claims 2 and 7.” (App. Br. 17).
The Appellant further argues that Eriksson does not disclose a screen
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assembly that inclines in the direction recited in independent claims 2 and 7
(App. Br. 17).
The Appellant’s arguments regarding the deficiencies of Douglas and
Eriksson are not persuasive. As noted by the Examiner (Ans. 20),
“[n]on-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.” See In re Merck, 800 F.2d 1091, 1097 (Fed.
Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981). The Examiner
has conceded that Douglas fails to disclose the recited adjustable conveyor
and the hitch structure (FF 5; Ans. 8 and 9). These deficiencies are
remedied by Eriksson which discloses a screening apparatus with an
adjustable conveyor and a tow bar (FF 6 and 7; Ans. 9).
The Appellant also argues that “Eriksson teaches away from
modifying the screen box to incline downwardly towards the trailer's
opposite end because such a modification would make the screening
apparatus inoperable.” (App. Br. 17.) However, as the Examiner noted
(Ans. 23), the rejection does not propose modifying Eriksson in the manner
argued against by the Appellant. Douglas already describes a screen box
which inclines in the manner claimed (FF 1).
The Appellant’s further contention that “there is no disclosure or
suggestion to combine the teachings of Douglas and Eriksson” is not
persuasive because Douglas clearly teaches the use of additional conveyors
to carry the screened material away from the screen (FF 4), such conveyors
being described in Eriksson (FF 6 and 7). Moreover, precise teachings
directed to the specific subject matter of the challenged claim are not
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required. See KSR, 550 U.S. at 418. What is required is articulation of a
rational reason for combining the references in the manner suggested. Id. In
this regard, the Examiner has set forth a reason with a rational underpinning
for combining the references in the manner suggested (Ans. 9), which is
sufficient to conclude obviousness of the claimed invention. KSR, 550 U.S.
at 417.
The Appellant further argues that Douglas also teaches away from
mounting a conveyor of Eriksson “because mounting the conveyor on the
base frame would not allow that conveyor to consistently receive material
from the vibratory screen during operation” since “the discharge end of the
screen would be moving relative to the feed end of the conveyor as the
screen is being automatically tilted during operation.” (App. Br. 17 and 18.)
However, this argument is unpersuasive because it is based on speculative
sizing and positioning of the added conveyor suggested by Eriksson, and as
noted by the Examiner, the argument does not consider the references “in
context of the knowledge, skill, and reasoning ability of one of ordinary skill
in the art” (Ans. 21).
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). However, mere description of an implementation in the
prior art that differs from the Appellants’ claimed invention, without more,
does not show that the prior art is “teaching away” from the invention
claimed. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
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The Appellant further contends that the Examiner erred by narrowing
the legal standard for determining whether the prior art teaches away to
focus “solely on whether the references were likely to produce the desired or
predictable results.” (Reply Br. 2.) In particular, the Appellant argues that if
the combination of references suggested results in an inoperable device, the
references teach away from the suggested combination (Reply Br. 2 and 3,
citing In re Sponnoble, 405 F.2d 578, 587 (CCPA 1969) (prior art found to
teach away from the combination suggested because the material of the prior
art was unsuitable for use in the claimed invention due to the material’s
fundamental frictional properties which would have resulted in an
inoperative device if applied to the claimed invention)).
Unlike Sponnoble, the Appellant does not argue that there is some
fundamental property or characteristic associated with the adjustable
conveyor of Eriksson which, when implemented on the screening apparatus
of Douglas, would render the screening apparatus inoperable. Instead, the
Appellant’s argument is based on a speculative implementation or bodily
incorporation of the adjustable conveyor of Eriksson on the screening
apparatus of Douglas. Thus, the Appellant’s reliance on Sponnoble is
misguided.
In the above regard, as also noted by the Examiner (Ans. 24), “[t]he
test for obviousness is not whether the features of a secondary reference may
be bodily incorporated into the structure of the primary reference; nor is it
that the claimed invention must be expressly suggested in any one or all of
the references. Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.” See In
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re Keller, 642 F.2d 413, 425 (CCPA 1981). “[I]t is not necessary that the
inventions of the references be physically combinable to render obvious the
invention under review.” In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983);
see also In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the
teachings of references does not involve an ability to combine their specific
structures.”). Instead, “if a technique has been used to improve one device,
and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.” KSR, 550 U.S. at
417.
In the present case, there has been no persuasive evidence submitted
in the record that the suggested addition of an adjustable conveyor to the
screening apparatus of Douglas would be beyond the skill of one of ordinary
skill in the art. Indeed, the art of record (e.g., FF 4, 7, 11, 15, 16 and 19)
establishes that provisions of conveyors in screening devices are well known
and within the skill of those practicing in the art of screening devices. The
Appellant’s claimed invention improves the device of Douglas by merely
adding a known adjustable conveyor for mobile screening devices to thereby
attain a predictable result, such combination being obvious and unpatentable.
See KSR, 550 U.S. at 415-16. Thus, in view of the above, the Appellant has
not shown that the Examiner erred in rejecting independent claims 2 and 7 as
being obvious based on Douglas and Eriksson.

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Rejection of claims 13, 14, 19 and 20 over Douglas, Eriksson, and
Cheyette
The Examiner rejected these claims over Douglas and Eriksson
discussed supra, and further relying on Cheyette for disclosing a screen
assembly with different levels or steps (FF 8 and 9; Ans. 9). The Examiner
concludes that “it would have been obvious to include two different levels of
a step in the upper deck of the screen assembly to more effectively separate
the finer materials from the coarser materials.” (Ans. 9).
The Appellant initially relies on the dependencies from claims 2 or 7
for patentability of these claims (App. Br. 18). However, claims 2 and 7 are
not patentable as discussed supra.
The Appellant further argues that Cheyette fails to disclose an
adjustable conveyor (App. Br. 18 and 19). However, the Examiner relies on
Eriksson, not on Cheyette, for the recited adjustable conveyor (Ans. 9).
Again, arguments attacking references individually where the rejection is
based upon the teachings of a combination of references are unpersuasive.
In re Merck, 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d
413, 425 (CCPA 1981).
The Appellant further contends that even if Douglas, Eriksson and
Cheyette are combined, such combination fails to disclose or suggest “an
adjustable conveyor mounted on the vehicle frame to receive material
retained on the lower deck of the screen assembly.” (App. Br. 19.)
However, the Appellant’s contention is not persuasive because Douglas
illustrates a screen assembly with multiple collecting chutes 18a including
material received from the lower deck of the screen assembly 12a (FF 3).
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Thus, the Appellant has failed to show that the Examiner erred in
rejecting claims 13, 14, 19 and 20 as obvious over Douglas, Eriksson and
Cheyette.

Rejection of claims 2 and 7 as unpatentable over the Möckeln SvH-5
Brochure and Eriksson
The Examiner also rejected independent claims 2 and 7 contending
that the Möckeln SvH-5 Brochure describes the claimed invention except for
the adjustable conveyor (FF 10-15; Ans. 10 and 11). The Examiner relies on
Eriksson to remedy this deficiency and concludes that “[i]t would have been
obvious to one of ordinary skill in the art to adjustably mount the lateral
conveyors, as taught by Eriksson, because it allows for positioning the
lateral conveyors along the side of the screen apparatus during transport and
when not in use.” (FF7; Ans. 10 and 11).
The Appellant’s arguments directed to the deficiencies of the Möckeln
SvH-5 Brochure and Eriksson individually (App. Br. 19-21) are
unpersuasive since the rejection is based on a combination of the references.
Moreover, the Appellant’s argument that Eriksson teaches away from
modifying the screen box to incline in the manner claimed because such a
modification would make the screen apparatus inoperable (App. Br. 21;
Reply Br. 3) is not persuasive because the Examiner does not rely on
Eriksson for disclosing an inclined screen box, but rather, for describing
adjustable conveyors (Ans. 11).
The Appellant also argues that the Möckeln SvH-5 Brochure teaches
away from including an adjustable conveyor since framing or supports for an
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adjustable conveyor would take up the void space underneath the material
discharge chutes and interfere with containers or storage trailers for the
discharged material, thereby making the Möckeln SvH-5 sorting plant
unsatisfactory for its intended purpose (App. Br. 20). The Appellant further
contends that the adjustable conveyor would “cause the sorting plants to be
weighted improperly during operation” and lack of disclosure regarding
mounting of conveyors below the screen is evidence that such conveyors
were not intended in Möckeln SvH-5 (Id.). The Appellant also argues that
one would not incorporate an adjustable conveyor in the Möckeln SvH-5
sorting plant because regardless of whether the conveyor is adjustable or not,
the Möckeln SvH-5 sorting plant would require special transportation
arrangements as an oversized load (App. Br. 20 and 21).
However, all of these arguments are not persuasive because they are
based on speculation as to how an adjustable conveyor is implemented in the
Möckeln SvH-5 sorting plant, and/or bodily incorporation of the adjustable
conveyor of Eriksson to the sorting plant shown in Möckeln SvH-5. Such
arguments fail to take into consideration “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 at 425; see also In re Sneed, 710 F.2d at 1550; In
re Nievelt, 482 F.2d at 968. The Appellant’s claimed invention improves the
Möckeln SvH-5 sorting plant by merely adding an adjustable conveyor for
mobile screening devices well known in the pertinent art to thereby attain a
predictable result, such combination being obvious and unpatentable. KSR,
550 U.S. at 415-17.

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Rejection of claims 13, 14, 19 and 20 as unpatentable over the
Möckeln SvH-5 Brochure, Eriksson, and Cheyette
The Examiner rejected these dependent claims relying on Cheyette for
disclosing a screen assembly with different levels or steps (FF 8 and 9), the
Examiner concluding that “it would have been obvious to include two
different levels of a step in the upper deck of the screen assembly to more
effectively separate the finer materials from the coarser materials.” (Ans. 11
and 12).
The Appellant initially relies on the dependencies from claims 2 or 7
for patentability of these claims (App. Br. 22). However, claims 2 and 7 are
not patentable as discussed supra.
The Appellant further argues that Cheyette fails to disclose an
adjustable conveyor (App. Br. 22). However, the Examiner relies on
Eriksson for the recited adjustable conveyor (Ans. 11), not on Cheyette.
The Appellant also argues that the Möckeln SvH-5 Brochure teaches
away from including an adjustable conveyor of Eriksson because such
elevators would likely cause the sorting plants to be weighted improperly
and that the lack of disclosure regarding mounting of conveyors below the
screen is evidence that such conveyors were not intended for Möckeln SvH-
5 sorting plant (App. Br. 22 and 23). However, these arguments are
unpersuasive for the same reasons discussed supra relative to the
Examiner’s rejection of these claims based on the combination of Douglas,
Eriksson, and Cheyette.
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Therefore, in view of the above, the Appellant has not shown that the
Examiner erred in rejecting claims 13, 14, 19 and 20 as unpatentable over
the Möckeln SvH-5 Brochure, Eriksson, and Cheyette.

Rejection of claims 1, 5, 6 and 8 as unpatentable over the Möckeln
SvH-5 and SvH-3 Brochures, the RSTI Brochure, and Eriksson
The Examiner rejected these claims contending that the combination
of the Möckeln SvH-5 Brochure and Eriksson describes most of the
limitations of these claims, but relies on the Möckeln SvH-3 Brochure for
teaching use of a feed-out conveyor to transport material that passes through
both screens of a screen assembly, and relies on the RSTI Brochure for
teaching the recited under-screen conveyor and a lateral conveyor that
receives material from the discharge end of the under-screen conveyor (FF
6-18; Ans. 12 and 13). The Examiner concludes that “[i]t would have been
obvious to one of ordinary skill in the art to include a power driven under-
screen conveyor in order to efficient [sic, efficiently] move the material that
passed through both screens to a location spaced from the screening
apparatus.” (Ans. 13).
The Appellant again argues that the Möckeln Brochures do not
include an adjustable conveyor, that they teach away from including the
adjustable conveyor because it is likely to be weighted improperly, and that
the lack of disclosure regarding mounting of conveyors below the screen is
evidence that such conveyors were not intended in the screening apparatus
described in the Möckeln Brochures (App. Br. 23 and 24). However, these
arguments are unpersuasive for the reasons already discussed supra.
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The Appellant further argues that while the Möckeln Brochures
disclose twin deck screens, they do not disclose a vibrating screen assembly
(App. Br. 24). The Examiner contends that the Möckeln Brochures “clearly
teach that the double decker screen is attached to a motor, and therefore, it
would have been obvious to one of ordinary skill in the art that the motor
vibrates the double decker screen as a vibrating screen is commonly used in
the art to separate materials.” (Ans. 28; see also Ans. 12).
Indeed, based on the preponderance of the evidence in the record, the
Appellant has not established reversible error with the Examiner’s
conclusion that it would have been obvious to one of ordinary skill in the art
that the double decker screen pictured in the Möckeln Brochures is vibrated.
In this regard, the Appellant does not submit any evidence or specific
argument to rebut the Examiner’s conclusion as to the function of the
pictured motors of the Möckeln Brochures. To the contrary, the
Specification of the Appellant’s ‘564 patent states that screen assemblies are
conventionally vibrated by a suitable means (FF 21). The evidence of record
also appears to support the Examiner’s conclusion, the vibratory screen box
12a of Douglas being described and illustrated as including a drive motor
11a (FF 1 and 2), and the stepped screen of Cheyette being described as
including a vibrating mechanism 24 which may have an eccentric weight
rotated by a motor (FF 8). Thus, based on the preponderance of the
evidence, the Appellant has not shown that the Examiner’s conclusion with
respect to the Möckeln Brochures is erroneous. Clearly, mere provision of a
mechanism for vibrating the screen assembly which is well known and
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practiced in the art cannot serve to impart patentability to an otherwise
unpatentable screening apparatus.
The Appellant also argues that the Möckeln Brochures do not disclose
a hopper that is mounted on a vehicle frame above the feed end of the
material-transport conveyor as recited in claim 1, or a material-receiving
hopper disposed over the feed end of the material transport conveyor as
recited in dependent claim 5 (App. Br. 24).
With respect to claim 1, we agree with the Examiner that the Möckeln
Brochures illustrate a hopper that is mounted on the vehicle frame above the
feed end of the material-transport conveyor. In this regard, we observe that
claim 1 requires the hopper to be mounted above the feed end of the
material-transport conveyor, and not the entirety of the material-transport
conveyor. We further observe that “[w]here no explicit definition for a term
is given in the specification, the term should be given its ordinary meaning
and broadest reasonable interpretation.” See E-Pass Techs., Inc. v. 3Com
Corp., 343 F.3d 1364, 1368 (Fed. Cir. 2003). In this regard, the term
“above” is defined as: “in, at, or to a higher place.” (FF 23). The Möckeln
Brochures illustrate a hopper that is positioned above, i.e., at a higher place,
than the feed end of the material-transport conveyor. Thus, the Appellant’s
argument to the contrary with respect to claim 1 is not persuasive.
However, we must agree with the Appellant with respect to claim 5
which, by virtue of its ultimate dependency on claim 3, recites “a material-
receiving hopper disposed over the feed end of the material-transport
conveyor.” We do not find the Examiner’s interpretation of “over” to
encompass the relative positioning between the hopper and the inclined
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conveyor shown in the Möckeln Brochures to be reasonable. While the term
“over” has many meanings including “above”, we do not think one of
ordinary skill in the art would construe “over” so broadly in view of the
context of the claim which recites “disposed over”, and the use thereof
within the specification (FF 22). Instead, one of ordinary skill in the art
would understand the claim to require the hopper to be positioned vertically
over the feed end of the material-transport conveyor. The Möckeln
Brochures do not disclose a hopper that is so positioned as required by claim
5 (App. Br. 24). The Möckeln Brochures do disclose a hopper that is over
an intermediate, horizontally mounted conveyor, but this conveyor is not
inclined as required by the claim. Thus, the Appellant’s argument with
respect to dependent claim 5 is persuasive and the Appellant has shown that
the Examiner erred in rejecting claim 5 as well as claim 6 that depends from
claim 5 as unpatentable over the Möckeln SvH-5 and SvH-3 Brochures, the
RSTI Brochure, and Eriksson.
The Appellant’s arguments pointing to the deficiencies of the RSTI
Brochure and Eriksson (App. Br. 25-27) are not persuasive because the
Appellant’s arguments are directed to the references individually.
Moreover, the Appellant’s various arguments that the RSTI Brochure and
Eriksson teach away from various modifications to the disclosed devices
(App. Br. 25-28) are not persuasive because the Examiner does not suggest
making the modifications argued against by the Appellant.
The Appellant further argues that all of the prior art references teach
away from providing an under-screen conveyor because “those references
are rather disparate with regard to under-screen conveyors, thereby making it
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unlikely that one skilled in the art would be motivated to make the proposed
combination.” (App. Br. 28.) However, description of an implementation in
the prior art that differs from the Appellants’ claimed invention, without
more, does not show that the prior art is “teaching away” from the invention
claimed. In re Fulton, 391 F.3d at 1201.
With respect to dependent claims 6 and 8, the Appellant merely relies
on their dependencies from claims 5 and 7 for patentability (App. Br. 28).
Thus, we do not sustain the Examiner’s rejection with respect to claim 6
which depends from claim 5, but sustain the rejection of claim 8 which
depends from claim 7, claim 7 having been found unpatentable over
Möckeln SvH-5 Brochure and Eriksson as discussed supra.
In view of the above, the Appellant has not shown that the Examiner
erred in rejecting claims 1 and 8 as unpatentable over the Möckeln SvH-5
and SvH-3 Brochures, the RSTI Brochure, and Eriksson. However, the
Appellant has shown that the Examiner erred with respect to the rejection of
dependent claims 5 and 6.

Rejection of claims 9, 10, 19, and 20 as unpatentable over the
Möckeln SvH-5 and SvH-3 Brochures, the RSTI Brochure, Eriksson, and
Cheyette
The Examiner rejected these dependent claims relying on Cheyette for
disclosing a screen assembly with at least two different levels or a step,
concluding that providing such a feature would have been obvious to one of
ordinary skill in the art (FF 8 and 9; Ans. 13 and 14).
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The Appellant initially relies on the dependencies from claims 1 or 7
for patentability of these claims (App. Br. 29). However, claims 1 and 7 are
not patentable as discussed supra, claim 7 having been found unpatentable
over Möckeln SvH-5 Brochure and Eriksson. The Appellant further argues
that Cheyette fails to disclose an adjustable conveyor (App. Br. 29). This
argument is not persuasive because the Examiner does not rely on Cheyette
for the recited conveyor (Ans. 14). Moreover, the Appellant’s arguments
that the Möckeln Brochures teaches away from including an adjustable
conveyor (App. Br. 29 and 30) are not persuasive for the reasons previously
discussed. Therefore, the Appellant has not shown that the Examiner erred
in rejecting claims 9, 10, 19, and 20 as unpatentable over the Möckeln
Brochures, the RSTI Brochure, Eriksson, and Cheyette.

Rejection of claims 1, 2, and 5-8 as unpatentable over the RSTI
Brochure, the Möckeln SvH-5 Brochure, and Eriksson
The Examiner rejected these claims contending that the RSTI
Brochure discloses screening devices having most of the recited features
including an under-screen conveyor and an elongated inclined transport
conveyor located below the hopper, but does not disclose a hitch structure, a
vibratory screen assembly with two decks, or an adjustable lateral conveyor
(FF 16-18; Ans. 14 and 15). The Examiner relies on the Möckeln SvH-5
Brochure for disclosing a vibratory screen assembly with two decks (FF 12),
and contends that “[i]t would have been obvious to one of ordinary skill in
the art to substitute the double screen deck assembly of Möckeln, including
the teaching of structure to convey the material retained on the lower deck of
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the screen assembly, for the double screen trommel assembly of the RSTI
brochure as both structure accomplish substantially similar function and are
well known in the art.” (Ans. 16). Like the prior rejections, the Examiner
relies on Eriksson for teaching the use of adjustable lateral conveyors (FF 6
and 7; Ans. 16).
The Appellant again unpersuasively argues the cited references
individually (App. Br. 30-35). In addition, the Appellant again submits
arguments contending that the Möckeln Brochures and Eriksson teach away
from the claimed invention (App. Br. 32-36). However, these arguments are
unpersuasive for the reasons already discussed supra.
The Appellant also argues that the RSTI Brochure teaches away from
providing a vibrating screen assembly “because vibrating the rotating drum
likely would interfere with rotation of the drum” and “replacing the rotating
drum with a screen assembly having at least two decks would render the
trommel screens unable to separate material properly.” (App. Br. 30 and
31.) However, the Appellant misunderstands the Examiner’s rejection
and/or the trommel devices described in the RSTI Brochure.
The rotating drums shown in the RSTI Brochure are trommel screens
that separate materials (FF 16 and 17). The Examiner’s rejection does not
propose using both the trommel screen and the screen deck assembly, but
rather replaces the trommel screen in the apparatus shown in the RSTI
Brochure with the screen deck assembly of the device in the Möckeln SvH-5
Brochure contending that they are equivalent devices. The Supreme Court
has stated that “when a patent claims a structure already known in the prior
art that is altered by the mere substitution of one element for another known
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in the field, the combination must do more than yield a predictable result.”
KSR, 550 U.S. at 416. The Appellant has not proffered any persuasive
evidence that the claimed invention attains an unpredictable result, or that
such substitution would be beyond the skill of one of ordinary skill in the art.
Hence, this argument is not persuasive.
The Appellant also argues that the Möckeln SvH-5 Brochure fails to
disclose a hopper that is above and/or over a material-transport conveyor as
recited in claims 1 and 5 (App. Br. 33). However, we note that in this
rejection, the Examiner relies upon the RSTI Brochure for disclosing this
recited feature (FF 16; Ans. 14 and 15), not the Möckeln SvH-5 Brochure.
With respect to claims 6 and 8, the Appellant merely relies on their
dependencies for patentability. Hence, these claims fall with claims 5 and 7.
Thus, in view of the above, the Appellant has not shown that the Examiner
erred in rejecting claims 1, 2 and 5-8 as unpatentable over the RSTI
Brochure, the Möckeln SvH-5 Brochure, and Eriksson.

Rejection of claims 9, 10, 13, 14, 19 and 20 under 35 U.S.C. § 103(a)
as unpatentable over the RSTI Brochure, the Möckeln SvH-5 Brochure,
Eriksson, and Cheyette
The Examiner rejected these dependent claims relying on Cheyette for
disclosing a screen assembly with different levels or steps (FF 8 and 9),
concluding that providing such a feature would have been obvious to one of
ordinary skill in the art (Ans. 17 and 18).
The Appellant’s Appeal Brief misidentifies claims 1, 2 and 5-8 as
having been rejected based on these combination of references (App. Br.
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36). To the extent that the Appellant’s intent was to incorporate the
arguments submitted relative to the Examiner’s rejection of claims 1, 2 and
5-8 based on the combination of the RSTI Brochure, the Möckeln SvH-5
Brochure, and Eriksson, we do not find such arguments persuasive for the
reasons already discussed supra. In addition, the Appellant’s arguments
directed to Cheyette individually (App. Br. 36 and 37), and the alleged
teaching away by the Möckeln Brochures (App. Br. 37) are not persuasive
for the reasons previously discussed. Therefore, the Appellant has not
shown that the Examiner erred in rejecting claims 9, 10, 13, 14, 19 and 20 as
unpatentable over the RSTI Brochure, the Möckeln SvH-5 Brochure,
Eriksson, and Cheyette.

Rejection of claims 1, 2, and 5-8 as unpatentable over the Möckeln
SvH-5 and SvH-3 Brochures, and Royer
The Examiner also rejected these claims contending that the only
features missing from the teachings of the Möckeln SvH-5 and SvH-3
Brochures are the power driven under-screen conveyor and an adjustable
conveyor which are disclosed in Royer (FF 10-15, 19 and 20; Ans. 18).
Hence, the Examiner contends that “[i]t would have been obvious to one of
ordinary skill in the art to include a power driven under-screen conveyor in
order to efficiently move the material that passed through both screen to a
location from the screening apparatus, and to include an adjustable conveyor
in order to move the conveyor to an inoperative position for ease of transport
of the screening apparatus.” (Ans. 18 and 19).
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The Appellant again argues the cited references individually (App. Br.
38 and 39), and submits arguments contending that the Möckeln Brochures
teach away from the claimed invention (App. Br. 38 and 39). However,
these arguments are unpersuasive for the reasons already discussed supra.
The Appellant’s argument that the Möckeln Brochures do not disclose
a hopper mounted on a vehicle frame above a material-transport conveyor
(App. Br. 38) is not persuasive in view of the broadest reasonable
construction of the term “above” as discussed supra. However, the
Appellant’s argument that the Möckeln Brochures do not disclose a hopper
disposed over a material-transport conveyor (App. Br. 38 and 39) as recited
in claim 5 (which ultimately depends from claim 3) is persuasive as also
discussed supra.
The Appellant further contends that Royer does not disclose a screen
assembly having a feed end adjacent and in receiving relation to the
discharge end of a material-transport conveyor (App. Br. 39). However, as
noted by the Examiner (Ans. 32 and 33), the rejection relies on the Möckeln
Brochures for disclosing such a screen assembly.
The Appellant further argues that “Royer teaches away from
providing such a screen assembly because it would defeat the purpose of the
shredding device that is explicitly included to shred larger material before
material enters the rotating screen drum.” (App. Br. 39.) However, the
Appellant’s argument is not persuasive because the Examiner’s rejection
does not propose such a modification to Royer, but instead, relies on Royer
merely for teaching the under-screen conveyor and the adjustable conveyor
(Ans. 18).
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With respect to claims 6 and 8, the Appellant merely relies on their
dependencies from claims 5 and 7 for patentability. Thus, we do not sustain
the Examiner’s rejection with respect to claim 6 which depends from claim
5, but sustain the rejection of claim 8 which depends from claim 7.
Thus, in view of the above, the Appellant has not shown that the
Examiner erred in rejecting claims 1, 2, 7 and 8 as unpatentable over the
Möckeln SvH-5 and SvH-3 Brochures, and Royer. However, the Appellant
has shown that the Examiner erred in rejecting claims 5 and 6 as
unpatentable over Möckeln SvH-5 and SvH-3 Brochures, and Royer.

Rejection of claims 9, 10, 13, 14, 19 and 20 under 35 U.S.C. § 103(a)
as unpatentable over the Möckeln SvH-5 and SvH-3 Brochures, Royer, and
Cheyette
The Examiner rejected these dependent claims relying on Cheyette for
disclosing a screen assembly with different levels or a step (FF 8 and 9),
concluding that providing such a feature would have been obvious to one of
ordinary skill in the art (Ans. 19 and 20).
The Appellant relies on the patentability of claims 1 and 7 from which
these claims ultimately depend (App. Br. 40) but claims 1 and 7 are not
patentable as discussed supra. In addition, the Appellant’s arguments
directed to Cheyette individually (App. Br. 40), and the alleged teaching
away by the Möckeln Brochures (App. Br. 40 and 41) are not persuasive for
the reasons previously discussed.
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Therefore, the Appellant has not shown that the Examiner erred in
rejecting claims 9, 10, 13, 14, 19 and 20 as unpatentable over the Möckeln
Brochures, Royer Trommel and Cheyette.

CONCLUSIONS
1. The Appellant has not shown that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill in the art
to modify prior art screening devices shown in Douglas, the Möckeln
Brochures, and the RSTI Brochure, to include an adjustable conveyor
described in Eriksson.
2. The Appellant has not shown that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill in the art
to modify prior art screening devices so that the screen assembly includes a
step as described in Cheyette.
3. The Appellant has not shown that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill in the art
that the double decker screen pictured in the Möckeln Brochures is vibrated
by the motor also pictured.
4. The Appellant has not shown that the Examiner erred in finding
that the screening devices in the Möckeln Brochures include a hopper
positioned above the feed end of an inclined material-transport conveyor.
5. The Appellant has shown that the Examiner erred in finding
that the screening devices in the Möckeln Brochures include a hopper
disposed over the feed end of the inclined material-transport conveyor.
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6. The Appellant has not shown that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill in the art
to replace a trommel screen with a vibrating screen assembly.
7. The Appellant has not shown that the Examiner erred in
concluding that it would have been obvious to one of ordinary skill in the art
to modify prior art screening devices shown in the Möckeln Brochures to
include an under-screen conveyor and an adjustable conveyor as disclosed
by Royer.

ORDERS
1. The Examiner’s rejection of claims 2 and 7 under 35 U.S.C.
§ 103(a) as unpatentable over Douglas and Eriksson is AFFIRMED.
2. The Examiner’s rejection of 13, 14, 19 and 20 under 35 U.S.C.
§ 103(a) as unpatentable over Douglas, Eriksson, and Cheyette is
AFFIRMED.
3. The Examiner’s rejection of claims 2 and 7 under 35 U.S.C.
§ 103(a) as unpatentable over the Möckeln SvH-5 Brochure and Eriksson is
AFFIRMED.
4. The Examiner’s rejection of claims 13, 14, 19 and 20 under 35
U.S.C. § 103(a) as unpatentable over the Möckeln SvH-5 Brochure,
Eriksson, and Cheyette is AFFIRMED.
5. The Examiner’s rejection of claims 1 and 8 under 35 U.S.C.
§ 103(a) as unpatentable over the Möckeln SvH-5 and SvH-3 Brochures, the
RSTI Brochure, and Eriksson is AFFIRMED.
Appeal 2009-005265
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Patent 5,234,564

38
6. The Examiner’s rejection of claims 5 and 6 under 35 U.S.C.
§ 103(a) as unpatentable over the Möckeln SvH-5 and SvH-3 Brochures, the
RSTI Brochure, and Eriksson is REVERSED.
7. The Examiner’s rejection of claims 9, 10, 19, and 20 under 35
U.S.C. § 103(a) as unpatentable over the Möckeln SvH-5 and SvH-3
Brochures, the RSTI Brochure, Eriksson, and Cheyette is AFFIRMED.
8. The Examiner’s rejection of claims 1, 2 and 5-8 under 35
U.S.C. § 103(a) as unpatentable over the RSTI Brochure, the Möckeln SvH-
5 Brochure, and Eriksson is AFFIRMED.
9. The Examiner’s rejection of claims 9, 10, 13, 14, 19 and 20
under 35 U.S.C. § 103(a) as unpatentable over the RSTI Brochure, the
Möckeln SvH-5 Brochure, Eriksson, and Cheyette is AFFIRMED.
10. The Examiner’s rejection of claims 1, 2, 7 and 8 are obvious
under 35 U.S.C. § 103(a) as unpatentable over the Möckeln SvH-5 and SvH-
3 Brochures and Royer is AFFIRMED.
11. The Examiner’s rejection of claims 5 and 6 are obvious under
35 U.S.C. § 103(a) as unpatentable over the Möckeln SvH-5 and SvH-3
Brochures and Royer is REVERSED.
12. The Examiner’s rejection of claims 9, 10, 13, 14, 19 and 20
under 35 U.S.C. § 103(a) as unpatentable over the Möckeln SvH-5 and SvH-
3 Brochures, Royer, and Cheyette is AFFIRMED.

Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

Appeal 2009-005265
Reexamination Control 90/008,447
Patent 5,234,564

39
AFFIRMED

KMF

KOLISCH HARTWELL, P.C.
200 PACIFIC BUILDING
520 SW YAMHILL STREET
PORTLAND, OR 97204

cc.
THIRD PARTY REQUESTOR
Edwin R. Acheson, Jr.
Frost Brown Todd LLC
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