90012610 (P.T.A.B. Jan. 23, 2015)

Ex Parte 5470208 et al

Patent Trial and Appeal BoardJan 23, 2015

90012610 (P.T.A.B. Jan. 23, 2015)

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. 90/012,610 09/14/2012 5470208 OKC02598 6198 33900 7590 01/23/2015 Hall Estill Attorneys at Law (MDMMY) 100 NORTH BROADWAY SUITE 2900 OKLAHOMA CITY, OK 73102-8820 EXAMINER DOERRLER, WILLIAM CHARLES ART UNIT PAPER NUMBER 3993 MAIL DATE DELIVERY MODE 01/23/2015 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE _____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _____________ Ex parte HAROLD D. KLETSCHKA _____________ Appeal 2014-009369 Reexamination Control 90/012,610 Patent 5,470,208 Technology Center 3900 ______________ Before ROBERT E. NAPPI, KEN B. BARRETT, and KEVIN C. TROCK, Administrative Patent Judges. NAPPI, Administrative Patent Judge. DECISION ON APPEAL Patent Owner (“Owner”) appeals under 35 U.S.C. § 134(b) and 306 from the Final Rejection of claims 1, 8, 11, and 14. Claims 2 through 7, 9 10, 12, 13, and 15 through 37 are not subject to reexamination. We have jurisdiction under 35 U.S.C. §§ 134(b) and 306. We affirm. STATEMENT OF THE CASE This proceeding arose from a request for ex parte reexamination filed September 14, 2012 (Control No. 90/012,610), requesting reexamination of U.S. Patent 5,470,208 (hereinafter the ’208 patent) issued to Harold D. Appeal 2014-009369 Reexamination Control 90/012,610 Patent 5,470,208 2 Kletschka on November 28, 1995. The USPTO granted the request (see Order granting Ex Parte Reexamination, mailed December 10, 2012). The ’208 patent relates to a fluid pump with a rotary impeller (see Abstract of the ’208 patent). Claim 1 is representative and reproduced below: 1. A fluid pump comprising: a housing defining a pumping chamber, a pumping chamber inlet port and a pumping chamber outlet port; a rotatable impeller disposed in said pumping chamber for rotation about an axis; a polarized electromagnetic means associated with said impeller and said housing for rotating said impeller about said axis; a plurality of diamagnets fixed with respect to said impeller; and a plurality of magnet means fixed with respect to said housing, disposed in magnetic communication with said plurality of diamagnets, and oriented generally axially and radially with said plurality of diamagnets to thereby stabilize said impeller in both the axial and radial directions by magnetic forces levitating said impeller. REFERENCES Emslie US 3,493,274 Feb. 3, 1970 McMichael US 5,177,387 Dec. 4, 1990 Rigney US 5,220,232 Sept. 3, 1991 Mikine JP 1-257792 Oct. 13, 1989 Appeal 2014-009369 Reexamination Control 90/012,610 Patent 5,470,208 3 REJECTIONS AT ISSUE 1 The Examiner has rejected original claims 1, 8, 11, and 14 under 35 U.S.C. § 103(a) as unpatentable over Mikine in view of Emslie. Final Rejection 8–9. The Examiner has rejected original claims 1, 8, 11, and 14 under 35 U.S.C. § 103(a) as unpatentable over Mikine in view of Rigney. Final Rejection 10–11. The Examiner has rejected original claims 1, 8, 11, and 14 under 35 U.S.C. § 103(a) as unpatentable over Mikine in view of McMichael. Final Rejection 11–13. ANALYSIS Rejection of Claims 1, 8, 11, and 14 under 35 U.S.C. § 103(a) as unpatentable over Mikine in view of Emslie. Owner argues that each of independent claims 1, 8, 11, and 14 recite a levitating impeller that rotates about an axis. Appellant argues “a skilled artisan would understand the term levitating to mean, the process by which an object, in this case an impeller, not a shaft, nor a bearing set supporting a shaft (as taught by Emslie '274), but the impeller in and of itself, is suspended by a physical force against gravity, in a stable position without solid physical contact.” Appeal Brief 7. Further, the Appellant states: The claimed invention does away with the requirements for 1 Throughout this opinion we refer to the Final Rejection mailed September 25, 2014, Examiner’s Answer mailed on May 21, 2014, and Owner’s Brief filed March 27, 2014. Appeal 2014-009369 Reexamination Control 90/012,610 Patent 5,470,208 4 shaft seals, by eliminating the need for rotating shafts through the use of a levitating impeller. That is, the impeller of the present invention is suspended by a physical force against gravity, in a stable position without solid physical contact. Appeal Brief 10. We decline to construe the claims as argued by Appellant because it is contrary and not supported by the express limitations in the claim. Initially, we note representative claim 1 states the magnets “stabilize said impeller in both the axial and radial directions by magnetic forces levitating said impeller.” Thus, the claim is not limited to levitating against the force of gravity, but rather levitating against both radial and axial forces. (see also column 2, lines 45–58 of the ’208 patent). Representative claim 1 also does not recite a limitation directed to doing away with a shaft seal. Further, we disagree with the Appellant’s assertion that claim requires that the impeller itself, not a shaft or bearing set supporting the shaft, is levitated (i.e., the impeller is directly levitated). Representative claim 1 states the levitating is performed by magnetic communication between diamagnets fixed with respect to the impeller and magnet means fixed with respect to the housing. Thus, by the terms of claim 1, the impeller is not directly levitated, rather the diamagnets fixed with respect to the impeller levitate the impeller. Appellant’s asserted interpretation, that the impeller, not a shaft, is levitated (impeller is directly levitated) is not supported by Appellant’s Specification. The Specification in Figures 1, 3, 5, and 6, depict diamagnets (item 75’ which interact with magnet means, item 75, on the housing) mounted on axial extending neck portions, (see column 2, line 64 through column 3, line 20)). Thus, we do not find that Appellant’s Specification Appeal 2014-009369 Reexamination Control 90/012,610 Patent 5,470,208 5 supports the interpretation that levitation of the impeller is supporting the impeller itself directly against gravity. Rather, we construe, the claim in light of the Specification, that levitation of the impeller, means that the impeller is stabilized in position, against axial and radial directions by the interaction of magnets fixed with respect to the impeller (which may include structure such as a neck portion and magnets fixed with respect to the housing. Appellant further argues the Examiner’s rejection is in error as Mikine teaches the blades of the impeller are mounted on a shaft and support column, which provides physical contact with the impeller and provides a conduit for the supply of current to the impeller’s superconducting magnets. Appeal Brief 7. 2 The Examiner provides a comprehensive response to Appellant’s argument stating that Appellant overlooks Mikine’s teaching that as the impeller alone generates the rotation, the coupling shaft and the motor are no longer needed. Answer 4–5. We have reviewed the Examiner’s response to Appellant’s arguments and the evidence relied upon by the Examiner. As identified by the Examiner, the Appellant’s arguments directed to Mikine’s Figure 7, are not persuasive as this is the prior art which Mikine is improving. Answer 5. Figures 1 through 6 of Mikine depict Mikine’s invention. In as much as Appellant is arguing that these Figures depict a shaft (item 14 Figure 5 and 6) we are not persuaded of error. As discussed above the claim is not limited to levitating an impeller not having 2 We have reviewed the cited passages in Mikine and find no discussion of a conduit for the supply of current to the impeller’s superconducting magnets discussed by Appellant. Appeal 2014-009369 Reexamination Control 90/012,610 Patent 5,470,208 6 a shaft. Further Mikine describes the impeller consists of a shaft and vanes (i.e. the shaft is part of the impeller, see sentences 5-7 on page 5 of the translation ) which as discussed infra, when combined with the teachings of using magnetic levitation teaches the claimed limitation. Finally, Appellant argues Emslie teaches a magnetic bearing system that uses a bearing set, and that a single bearing is inoperative in supporting a rotating mass. Appeal Brief 7. Appellant states that Emslie contains no teaching of “a mass attached to a shaft that is cantilevered off a single bearing.” Appeal Brief 8. Appellant asserts the only combination of Mikine and Emslie would use the magnetic bearings of Emslie in the device of Mikine’s Figure 7 which is inoperative. Appeal Brief 8. We are not persuaded of error by these arguments. The Examiner finds that Emslie teaches diamagnetics providing both axial and radial stabilization (and levitation). Answer 4. Further, as discussed above, the Examiner identifies that Figure 7, is the prior art of Mikine and not the teachings relied upon in the rejection of claim 1. Answer 5. We concur with the Examiner’s findings. We additionally note the claims do not recite a single bearing to support a rotating mass or a shaft cantilevered off a single bearing, thus, Appellant’s arguments that Emslie does not contain such teachings is not commensurate with the claims and as such are not persuasive of error. As none of Appellant’s arguments have persuaded us of error in the Examiner’s rejection of claims 1, 8, 11, and 14 based upon Mikine and Emslie, we sustain the Examiner’s rejection. Appeal 2014-009369 Reexamination Control 90/012,610 Patent 5,470,208 7 Rejection of claims 1, 8, 11, and 14 under 35 U.S.C. § 103(a) as unpatentable over Mikine in view of Rigney. Appellant argues the deficiency of Mikine addressed above fail to be cured by the teachings of Rigney. Appeal Brief 8. Appellant asserts that Rigney teaches a magnet superconductive bearing which would be combined with the bearings in Mikine’s Figure 7 device and as such, the rejection would suffer from the same deficiency as discussed with respect to Emslie. Appeal Brief 9. We are not persuaded of error in the Examiner’s rejection by these arguments. The Examiner provides a response to Appellant argument similar to that discussed above, in that the Examiner finds that Mikine teaches an impeller that can generate its own rotation, thus not needing a coupling shaft/motor (unlike the prior art shown in Figure 7 which Appellant’s arguments are based). Answer 5. Further, the Examiner finds Rigney teaches magnets providing both axial and radial stabilization (and levitation). Answer 5. Based upon these findings the Examiner considers the claims obvious. Answer 5. We have reviewed the Examiner’s response and the evidence relied upon in the Examiner’s response and concur with the Examiner. Thus, Appellant has not persuaded us of error and we sustain the Examiner’s rejection of claims 1, 8, 11, and 14 based upon Mikine in view of Rigney. Rejection of claims 1, 8, 11, and 14 under 35 U.S.C. § 103(a) as unpatentable over Mikine in view of McMichael. Appellant argues the deficiency of Mikine addressed above fail to be cured by the teachings of McMichael. Appeal Brief 9. Appellant asserts that McMichael teaches a magnet superconductive bearing, which would, Appeal 2014-009369 Reexamination Control 90/012,610 Patent 5,470,208 8 combined with the bearings in Mikine’s Figure 7 device and as such, the rejection would suffer from the same deficiency as discussed with respect to Emslie. Appeal Brief 9. We are not persuaded of error in the Examiner’s rejection by these arguments. The Examiner provides a response to Appellant’s argument similar to that discussed above. We have reviewed the Examiner’s response and the evidence relied upon in the Examiner’s response and concur with the Examiner. Thus, Appellant has not persuaded us of error and we sustain the Examiner’s rejection of claims 1, 8, 11, and 14 based upon Mikine in view of McMichael. DECISION The decision of the Examiner rejecting claims 1, 8, 11, and 14 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). AFFIRMED kis Appeal 2014-009369 Reexamination Control 90/012,610 Patent 5,470,208 9 Patent Owner Daniel P. Dooley Hall Estill Attorneys at Law (MDMMY) 100 NORTH BROADWAY SUITE 2900 OKLAHOMA CITY OK 73102-8820