Ex Parte 7210573 et al

Board of Patent Appeals and Interferences

Aug 30, 2011

90011997 (B.P.A.I. Aug. 30, 2011)

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.
90/009,221 08/01/2008 7,210,573 71977-0049 5376
20915 7590 08/30/2011
MCGARRY BAIR PC
32 Market Ave. SW
SUITE 500
GRAND RAPIDS, MI 49503
EXAMINER
FOSTER, JIMMY G
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
08/30/2011 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
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.
90/011,997 09/02/2008 7210573 71977-0050 7281
20915 7590 08/30/2011
MCGARRY BAIR PC
32 Market Ave. SW
SUITE 500
GRAND RAPIDS, MI 49503
EXAMINER
FOSTER, JIMMY G
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
08/30/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ThermoDrive LLC.,
Patent Owner and Appellant
____________

Appeal 2011-008397
Reexamination Control Nos. 90/009,221 and 90/011,997
Patent 7,210,573 B2
Technology Center 3900
____________

Before SALLY G. LANE, JEFFREY B. ROBERTSON, and
DANIEL S. SONG, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-008397
Reexamination Control Nos. 90/009,221 & 90/011,997
Patent 7,210,573 B2

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ThermoDrive LLC, the owner of the patent under reexamination
(hereinafter the “‘573 Patent”), appeals under 35 U.S.C. §§ 134(b) and 306
from a final rejection of claims 2-10 (Appeal Brief filed October 15, 2010,
hereinafter “App. Br.,” at 4; Final Office Action mailed July 16, 2010). We
have jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We AFFIRM.

STATEMENT OF THE CASE
This merged reexamination proceeding arose from a third-party
request for ex parte reexamination filed by Larry S. Nixon of Nixon &
Vanderhye P.C. on behalf of Volta Belting Technology, Ltd. (Corrected
Request for Ex Parte Reexamination filed August 1, 2008), the subject of
reexamination control number 90/009,221 as well as a request for ex parte
reexamination filed by ThermoDrive LLC (the Patent Owner, see App. Br.
4), as submitted by their representative Joel E. Bair, of McGarry Bair PC
(Corrected Request for Ex Parte Reexamination filed September 2, 2008),
the subject of reexamination control number 90/011,997. These two
reexamination proceedings were merged on May 12, 2009. (Decision
Merging Reexamination Proceedings, May 12, 2009, at 2.) The ‘573 Patent
also claims the benefit under 35 U.S.C. § 119(e) of provisional application
60/319,133, filed on March 5, 2002 (“the ‘133 application”). In addition,
U.S. Patent 7,424,948 B2 (“the ‘948 Patent”), which claims to be a
divisional application of the ‘573 Patent, is the subject of Ex parte
Reexamination Control 90/009,278 (Appeal No. 2011-003655), in which we
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recently affirmed the Examiner’s rejections of the claims over similar prior
art.1
The ‘573 Patent is directed to an endless conveyor belt including a
thermoplastic belt segment that is stretchable through its length and includes
teeth that are integrally and sequentially formed with the conveyor belt
segment by molding the teeth with the belt. (Col. 2, ll. 7-30.)
Claim 10, representative of claims on appeal reads as follows
(underlining omitted; paragraphing added for clarity):
10. In a conveyor having a drive sprocket with sheaves
spaced around its circumference, and an endless belt having
teeth integrally formed with the conveyor belt segment by
molding the teeth with the belt, the improvement wherein
the endless belt is adapted to engage the drive sprocket
with no more tension on the belt than needed to keep one of the
teeth engaged in a sheave on the drive sprocket, and
the endless belt comprises a thermoplastic conveyor belt
segment having opposite ends which is, homogeneous and
unreinforced so as to be stretchable throughout its length up to
3% of its length, and
has an outer surface substantially free of discontinuities
with the teeth extending from an inner surface at a given belt
pitch less than the pitch of the sheaves on the drive sprocket
and integral with the endless belt, and
wherein the endless belt is driven by the drive sprocket
with minimal friction between the endless belt and the drive
sprocket, and driven at low tension, and with the teeth integral
to the belt.

1 Decision in 2011-003655, decided on February 8, 2011, available at
http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd2011003655-
02-08-2011-1.
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(Claims App’x, App. Br. 44.)

The Examiner rejected claims 2-10 as follows (Examiner’s Answer
mailed December 3, 2010, hereinafter “Ans.,” 4-15):
I. Claims 2, 5, 6, and 8-10 under 35 U.S.C. § 103(a) as obvious
over Pollak (US 2004/0089519 A1, published May 13, 2004) in
view of Sheppard (F.N. Sheppard & Co. Belting Specialties
Belt Design Catalog, 2000, pp. 1-52);
II. Claims 2, 5, 6, and 8-10 under 35 U.S.C. § 103(a) as obvious
over Pollak in view of Sheppard, further in view of Cog-Veyor
(Cog-Veyor Belting Manufacturers Catalog);
III. Claims 3 and 6-10 under 35 U.S.C. § 103(a) as obvious over
Cog-Veyor in view of Szonn (US 3,083,583, issued April 2,
1963) and Koch (US 3,404,578, issued October 8, 1968);
IV. Claim 2 under 35 U.S.C. § 103(a) as obvious over Cog-Veyor
in view of Szonn and Koch, further in view of BP ‘908 (British
Patent No. 1,251,908, published November 3, 1971);
V. Claim 3 under 35 U.S.C. § 103(a) as obvious over Pollak in
view of Sheppard, Cog-Veyor, and further in view of Koch;
VI. Claim 4 under 35 U.S.C. § 103(a) as obvious over Pollak in
view of Sheppard, and further in view of Mitchell (US
6,321,904 B1, issued November 27, 2001);
VII. Claim 4 under 35 U.S.C. § 103(a) as obvious over Cog-Veyor
in view of Koch and Szonn, further in view of Mitchell; and
VIII. Claim 5 under 35 U.S.C. § 103(a) as obvious over Cog-Veyor
in view of Koch and Szonn, further in view of Sheppard.
Appeal 2011-008397
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Patent 7,210,573 B2

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ISSUES
The principal issues in this appeal are:
1. Is Appellant entitled to the filing date of the ‘133 provisional
application for the claims on appeal?
2. Is Pollak prior art to claim 10?
3. Does Pollak disclose a conveyor belt segment that is stretchable
throughout its length up to 3% of its length, the recited tension, and having
minimal friction between the belt and the sprocket?
4. Is there sufficient evidence on the record to overcome Appellant’s
characterization of Cog-Veyor as prior art to the ‘573 Patent?
5. Does Cog-Veyor disclose a thermoplastic conveyor belt segment
that is stretchable throughout its length up to 3% of its length, the recited
tension, and having minimal friction between the belt and the sprocket?

FINDINGS OF FACT (“FF”)
1. The ‘573 Patent discloses: “It is recognized that the belt will
not stretch evenly, i.e., it will stretch more between the teeth
than including the teeth . . . Nevertheless, stretch here is
measured overall, regardless of which portion of the belt is
actually stretching under load.” (Col. 3, ll. 58-63.)
2. The ‘573 Patent discloses: “It will be understood that there
need only be enough tension on the endless belt 100 to keep at
least one of its teeth 106 engaged in a sheave 104 of the drive
sprocket 102.” (Col. 3, ll. 1-4.)
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3. The ‘133 Application describes a method for forming an
endless thermoplastic belt by extruding a thermoplastic ribbon
of polyester or polyurethane and passing it through a profile
drum in order to form the individual teeth on one side of the
belt. (Para. [0005] and [0015].)
4. The ‘133 Application discloses that the belt is made of an
“appropriate thermoplastic material such as polyester or
polyurethane,” but does not disclose any specific examples of
polyester or polyurethane used. (Para. [0015].)
5. The ‘133 Application does not expressly disclose whether the
belt is stretchable through its length. (See the ‘133 Application
generally.)
6. Pollak has a publication date of May 13, 2004, and a filing date
(Application 10/290,511) of November 8, 2002.
7. Pollak discloses a closed belt made of non-reinforced plastic.
(Para. [0018].)
8. Pollak discloses a conveyor belt system including a drive pulley
and a closed belt each including a plurality of teeth and a
plurality of recesses. (Para. [0035]; Figs. 1, 2.)
9. Pollak discloses that the pitch of the drive pulley is greater than
the pitch or the distance between the teeth, on a belt by 0.3 to
3% to allow for belt stretch. (Para. [0038].)
10. Pollak discloses that when the closed belt is not loaded, only
one of the teeth of the drive pulley is in contact with one of the
teeth of the closed belt. (Para. [0038].)
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11. Cog-Veyor does not contain a publication date.
12. Appellant cited Cog-Veyor as “Cog-Veyors Belting
Manufacturers catalog, undated but believed to be prior to
2003” in a paper entitled “Citation of Prior Art under 35 U.S.C.
§ 301 and Request for Reexamination” dated April 1, 2008 in
the Reexamination of the ‘573 Patent. (Request for Ex Parte
Reexamination Control 90/011,997, Ex. C.)
13. Cog-Veyor discloses a “Cog-Veyor Posi-Track System”, which
“[d]oes not slip, run off track, needs no tension, [and has]
stretch eliminated.” (P. 23.)
14. Cog-Veyor discloses that in the Posi-Track System, sprockets
intermesh with lugs on the base of Powerbelt belting. (P. 23,
28.)
15. Cog-Veyor discloses that the lug (belt) pitch of 2.46 inches
allows for a 1.5 percent belt stretch. (P. 29, Note (b).)
16. Cog-Veyor discloses that the thermoplastic belts disclosed
therein are capable of 3% belt stretch under load, which is the
industry standard. (P. 7.)

PRINCIPLES OF LAW
“[T]he PTO must give claims their broadest reasonable construction
consistent with the specification . . . . Therefore, we look to the specification
to see if it provides a definition for claim terms, but otherwise apply a broad
interpretation.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). “[A]s applicants may amend claims to narrow their scope,
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a broad construction during prosecution creates no unfairness to the
applicant or patentee.” ICON Health, 496 F.3d at 1379.
In order to be entitled to the benefit of a provisional application, one
requirement is that the invention presently claimed must have been disclosed
in the provisional application in the manner provided by 35 U.S.C. § 112,
first paragraph. See 35 U.S.C. § 119(e)(1); New Railhead Mfg., L.L.C. v.
Vermeer Mfg. Co., 298 F.3d 1290, 1294 (Fed. Cir. 2002).
As explained in Regents of the Univ. of Cal. v. Eli Lilly & Co., 119
F.3d 1559, 1566 (Fed. Cir. 1997),
[t]o fulfill the written description requirement, a patent
specification must describe an invention and do so in sufficient
detail that one skilled in the art can clearly conclude that "the
inventor invented the claimed invention." Lockwood v.
American Airlines, Inc., 107 F.3d 1565, 1572, 41 USPQ2d
1961, 1966 (1997); In re Gosteli, 872 F.2d 1008, 1012, 10
USPQ2d 1614, 1618 (Fed. Cir. 1989) ("[T]he description must
clearly allow persons of ordinary skill in the art to recognize
that [the inventor] invented what is claimed."). Thus, an
applicant complies with the written description requirement "by
describing the invention, with all its claimed limitations, not
that which makes it obvious," and by using "such descriptive
means as words, structures, figures, diagrams, formulas, etc.,
that set forth the claimed invention." Lockwood, 107 F.3d at
1572, 41 USPQ2d at 1966.

In other words, the disclosure must convey with reasonable clarity to
those skilled in the art that the inventor was in possession of the invention.
Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563-64 (Fed. Cir. 1991).
Compliance with the written description requirement is a question of fact.
Id. at 1562-63.
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In KSR, the Supreme Court explained, “[w]hen a work is available in
one field of endeavor, design incentives and other market forces can prompt
variations of it, either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, §103 likely bars its
patentability.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). “A
person of ordinary skill is also a person of ordinary creativity, not an
automaton.” Id. at 421.

ANALYSIS
Issue 1-Provisional Application
Appellant acknowledges that the ‘133 Application does not expressly
disclose a belt stretchable through its length, but contends that in view of the
methods and materials used to make the belt disclosed in the ‘133
Application, one ordinary skill in the art would have understood that the
resulting belt is inherently stretchable up to 3% of its length. (App. Br. 10-
11.)
However, we agree with the Examiner that the ‘133 Application fails
to convey with reasonable clarity to those skilled in the art that the inventor
was in possession of the invention. (Ans. 15-17.) Specifically, the ‘133
Application does not describe any particular polyurethane or polyester that is
used to form the belt therein. (FF 4.) Moreover, we agree with the
Examiner that in order to accept Appellant’s position, all belt segments
made of polyester or polyurethane must inherently have the stretchability
recited in the claim. (Ans. 16.) Appellant has not provided any persuasive
evidence to support the argument that the belt disclosed in the ‘133
Application would inherently be stretchable up to 3% of its length.
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Contrary to Appellant’s arguments, the Examiner’s position with
respect to the prior art belts being stretchable to the degree claimed is not
inconsistent with the Examiner’s position with respect to the ‘133
Application. (App. Br. 11.) That is, the Examiner does not rely solely on
the materials and methods employed in the prior art references to support the
position that each of the prior art belts are stretchable along their length.
Rather, in Cog-Veyor and Pollak, the Examiner points to specific teachings
where each reference discloses that the belts are stretchable. (See Ans. 5 and
8-9; FF 9, 15, and 16.) Accordingly, we agree with the Examiner, that the
appealed claims are not entitled to the benefit of the filing date of the ‘133
Application.

Issues 2 and 3-Rejections I & II based on Pollak
Issue 2
Appellant’s contentions that Pollak is not prior art are based on the
position that Appellant is entitled to the benefit of the ‘133 Application.
(App. Br. 11-12.) However, because we have determined that Appellant is
not entitled to the priority date of the ‘133 Application, Appellant’s
arguments are not persuasive.

Issue 3
Minimal Friction
Appellant contends that Pollak does not disclose that there will be
minimal friction between the belt and the sprocket as a consequence of
differences in belt and sprocket pitch. (App. Br. 12-13.) Specifically,
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although Appellant acknowledges that Pollak discloses a belt pitch less than
the sprocket pitch, and that under no load the belt is driven by only one
tooth, Appellant contends that tension is commonly assumed to be necessary
to operate a belt, and that tension will introduce friction, and that the
freedom of movement between the belt and the sprocket is a function of the
friction between them. (App. Br. 13.) Appellant argues that the difference
between the ‘573 Patent and Pollak is that “the [‘573] patent clearly
recognizes and claims minimal friction between the belt and the sprocket
[while] Pollak [] is either silent about the level of friction between the belt
and the sprocket or infers some friction between the belt and the smooth
cylinders disclosed at Figs. 4c and 4d.” (App. Br. 13.)
However, we are in agreement with the Examiner that the ‘573 Patent
discloses minimizing friction in regard to timing belts (col. 1, ll. 62-64) in
the background section of the ‘573 Patent. (Ans. 19.) Therefore, to the
extent that the ‘573 Patent recognizes “minimal friction,” such recognition
does not provide any particular distinction between the claims and Pollak.
In addition, we are not persuaded that by merely failing to use the words,
“minimal friction” Pollak does not disclose a conveyor belt with the features
recited in the claims. (See Ans. 20.) See also In re Wiseman, 596 F.2d
1019, 1023 (CCPA 1979) ("[The Appellants] are, in effect, arguing that a
structure suggested by the prior art, and, hence, potentially in the possession
of the public, is patentable to them because it also possesses an inherent, but
hitherto unknown, function which they claim to have discovered. This is not
the law. A patent on such a structure would remove from the public that
which is in the public domain by virtue of its inclusion in, or obviousness
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from, the prior art" (emphasis in original)). Indeed, as the Examiner also
stated, the prior art recognized the addition of teeth to a conveyor belt and
drive pulley obviates the need for tension and thus minimizes the friction
previously used for belt transmission. (Ans. 19, citing the ‘573 Patent, col.
1, ll. 62-66.) Further, the Examiner also points to the disclosure of the ‘948
Patent, a divisional of the ‘573 Patent, which attributes minimal friction to
the pitch of the belt teeth being less than the pitch of the sprocket teeth, a
structural feature which Pollak discloses. (Ans. 19-20; FF 9.)
Moreover, we are not persuaded by Appellant’s argument that Pollak's
disclosure of differences in pitch between the belt and the sprocket to allow
for stretching of the closed belt and “for other reasons” necessarily includes
tension. (App. Br. 12-13.) The Mol Declaration,2 relied on by Appellant,
appears to be consistent with the Examiner’s position that friction is
minimized through the use of a positive tooth drive. (Mol Declaration, para.
9.) The use of such a tooth drive mechanism is disclosed in Pollak. (FF 8.)
We additionally observe that the term “minimal friction” has not been
defined in the ‘573 Patent, nor does the ‘573 Patent provide any sort of
values so as to quantify what level of friction qualifies as “minimal friction.”
Thus, the evidence of record supports the Examiner’s position that Pollak
discloses the structural features of a conveyor belt having minimal friction as
claimed.

2Declaration of Edward T. Mol under 37 C.F.R. § 1.132 executed on March
18, 2010. We observe that Appellant has not listed the Mol Declaration in
the Evidence Appendix. However, since both the Appellant and the
Examiner address the Mol Declaration, we do so as well.
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Belt Segment Stretchable throughout its length up to 3% of its length
Appellant contends that Pollak does not disclose the stretchability
recited in the claims because Pollak is directed to stretch at the pitch, and is
silent as to where the stretch is measured -- at the drive sprocket or overall.
(App. Br. 13.) Appellant contends that the ‘573 Patent discloses that in
contrast to Pollak, it is the overall stretchability that is measured. (App. Br.
13-14.) We are not persuaded by Appellant’s arguments. Specifically,
Appellant’s argument that it is known that stretch in a conveyor belt is
localized and not uniform is not inconsistent with the ‘573 Patent, which
discloses that the belt may stretch more in some areas than in others and is
considered stretchable through its length. (FF 1.) Rather, we agree with the
Examiner’s reasoned explanation that when Pollak’s disclosure is considered
in context, one of ordinary skill in the art would understand that the
difference in pitch of 0.3 to 3% between the sprocket and belt is to allow for
stretching of the belt of up to 0.3 to 3%. (Ans. 21-22; FF 9.) As
acknowledged by Appellant, both the ‘573 Patent and Pollak employ similar
methods of conveyor belt operation, where the pitch of the sprocket is
greater than the pitch of the belt and only one of the teeth of the belt and the
sprocket is in contact when the belt is unloaded. (App. Br. 13.) In addition,
the ‘573 Patent recognizes that localized stretching of a belt segment is
sufficient to constitute a belt segment that is stretchable throughout its
length. (FF 1.) Thus, the Examiner’s position that the 3% value disclosed
by Pollak corresponds to the recited limitation that the belt segment is
stretchable throughout its length is supported by the evidence of record.

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Low Tension
Similarly, Appellant’s arguments that Pollak fails to disclose belts
driven with low tension are also unpersuasive. (App. Br. 16.) We agree
with the Examiner, that because Pollak discloses belts driven by only one
belt tooth engaged with only one sprocket tooth, the belts of Pollack will be
under low tension. (Ans. 24.) Indeed, this is consistent with the ‘573
Patent’s disclosure that the amount of tension required is to keep one tooth
of the endless belt engaged with the drive sprocket. (App. Br. 16; FF 2, 10.)
As with the “minimal friction” term, Appellant has not provided a definition
or a way to specifically quantify what constitutes “low tension.”

The Examiner’s Prima Facie Case of Obviousness
We are also not persuaded by Appellant’s arguments that the
Examiner failed to set forth a prima facie case of obviousness by failing to
resolve the level of ordinary skill in the art. (App. Br. 14-15.) Implicit in
the Examiner’s analysis, is a resolution of the level of ordinary skill in the
art, as evidenced by the Examiner’s statement that “F.N. Sheppard teaches
one of ordinary skill in the art to make flat conveyor belts [out] of
thermoplastic [materials].” (Ans. 5.) See Okajima v. Bourdeau, 261 F.3d
1350, 1355 (Fed. Cir. 2001) ("the absence of specific findings on the level of
skill in the art does not give rise to reversible error 'where the prior art itself
reflects an appropriate level and a need for testimony is not shown'"); see
also Union Carbide Corp. v. American Can Co., 724 F.2d 1567, 1573 (Fed.
Cir. 1984). While Appellant has set forth what it considers to be the level of
experience of one of ordinary skill in the art, Appellant does not provide any
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specific arguments as to how the level of one of ordinary skill in the art
would have impacted the Examiner’s rejection.
We are also not persuaded by Appellant’s additional contention that
the Examiner’s reasons for combining do not meet the standard of
articulated reasoning or rational underpinning and that all the Examiner has
done is repeat the language of claim 10. As explained by the Examiner, the
thermoplastic material in Sheppard is disclosed as being used for conveyor
belts, and is thus a known material which is suitable for the intended purpose
disclosed in Pollak. (Ans. 23.) The Examiner also states that the known
properties of thermoplastics include the ability to form a product by heat.
(Ans. 23.) In addition, the Examiner, citing KSR, has taken the position that
utilizing thermoplastic material for the conveyor belt would have been a
predictable variation. (Ans. 23.) In view of these express articulations by
the Examiner, we disagree with Appellant that the Examiner has failed to
articulate a sufficient rationale for combining the prior art.
Further, we agree with the Examiner that the Mol Declaration is
insufficient to establish that the claimed conveyor belt would have been
counter-intuitive to those in the art and that there was an unsolved long-felt
need. As pointed out by the Examiner, Pollak discloses conveyor belts with
high levels of cleanliness that eliminate excess tension. (Ans. 25.)
Accordingly, the Mol Declaration is insufficient to overcome the Examiner’s
evidence of obviousness.
Therefore, we affirm the Examiner’ rejection of claims 2, 5, 6, and 8-
10.

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Issues 4-5-Rejection III based on Cog-Veyor
Issue 4-Status of Cog-Veyor as Prior Art
Appellant contends that Cog-Veyor is not prior art. (App. Br. 19.)
However, as discussed supra, Appellant is not entitled to the priority
date of the ‘133 Application. Accordingly, Cog-Veyor is prior art to the
‘573 Patent if it was published prior to February 2, 2003, the filing date of
the ‘573 Patent. In requesting reexamination, Appellant listed Cog-Veyor
under a heading entitled “Citation of Prior Art” and stated that the date of
Cog-Veyor is “believed to be prior to 2003.” (FF 12.) Appellant contends
that Cog-Veyor’s disclosure that Ontario Belting & Power Transmission
Co., Ltd. (hereinafter “Ontario”), of which Cog-Veyor Systems, Inc. is a
subsidiary, has been in business for “over 65 years” in combination with the
notice on the web-site for Ontario that it has been in business “since 1938”,
means that Cog-Veyor could not have been published prior to 2003. (App.
Br. 19.)
However, we are not persuaded that Appellant’s calculations are
sufficient to outweigh Appellant’s characterization of Cog-Veyor as being
published prior to the February 2, 2003 critical date. Specifically,
Appellant’s calculation at best dates the catalog to the year 2003, but is
insufficient in view of Appellant’s characterization, to establish that Cog-
Veyor was published after February 2, 2003. (Ans. 26-28.) Accordingly,
Cog-Veyor is prior art to the ‘948 Patent.

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Issue 5
Belt Segment Stretchable throughout its length up to 3% of its length
Although Appellant contends that Cog-Veyor does not disclose a belt
segment that is stretchable through its length, Appellant acknowledges that
Cog-Veyor discloses belts that allow for 1.5% belt stretch. (App. Br. 23-24;
FF 15.) Thus, Cog-Veyor expressly discloses a belt stretchable along its
length. Appellant’s argument that Cog-Veyor’s “Posi-Track System”
eliminates stretch and therefore would not be stretchable through its length
(App. Br. 24) is not persuasive in view of Cog-Veyor’s express disclosure of
a stretchable belt. In addition, we agree with the Examiner that while Cog-
Veyor discloses an example of a 1.5% belt stretch, Cog-Veyor additionally
discloses that the industry standard includes a belt stretch of 3%. (Ans. 29-
30; FF 16.) Thus, we agree with the Examiner that the stretchability of the
belt segment, when spliced to make the belt, is greater than 1.5%, and that
Cog-Veyor discloses belts that are stretchable up to 3%. (Ans. 29-30; FF
16.)

Low Tension
Moreover, we agree with the Examiner that Cog-Veyor discloses the
elimination of tension in the belt such that when in use, the belt is under
minimal tension, as evidenced by the stretch produced as a result of the
tension in the belt as the drive sprocket drives the belt against the drag from
the passive pulleys and sprockets. (Ans. 30-31.)

Appeal 2011-008397
Reexamination Control Nos. 90/009,221 & 90/011,997
Patent 7,210,573 B2

18
Minimal Friction
In addition, Appellant’s contention that Cog-Veyor fails to disclose
minimizing friction as recited is not persuasive. Cog-Veyor expressly
discloses that there is no tension in the belt and that the belt includes lugs
(teeth) that engage a sprocket. (FF 13, 14.) We are not persuaded by
Appellant’s arguments that Cog-Veyor does not disclose minimizing friction
in light of the Coefficient of Friction Chart on page 34 of Cog-Veyor,
because Appellant expressly acknowledges that the chart does not relate to
lug driven belts. (App. Br. 25.)
Accordingly, we agree with the Examiner’s position that Cog-Veyor’s
conveyors would operate with minimal friction. The structure described in
Cog-Veyor is sufficiently similar to have shifted the burden to Appellant to
prove that Cog-Veyor’s belts do not have minimal friction between the belt
and the sprocket.

The Examiner’s Prima Facie Case of Obviousness
Regarding Appellant’s additional argument that the Examiner has not
provided adequate rational underpinning to support the combination of
Szonn and Koch with Cog-Veyor, the Examiner has provided clear reasons
for making the recited combination, based on what is disclosed in the prior
art. (Ans. 8-10.) As pointed out by the Examiner, Appellant has failed to
rebut the Examiner’s express motivation to combine the references, namely
to efficiently form teeth at the time of making the belt. (Ans. 32-33.)
Appellant’s bare assertions that the Examiner does not base the conclusion
of obviousness on any factual basis ignore the detailed findings made by the
Appeal 2011-008397
Reexamination Control Nos. 90/009,221 & 90/011,997
Patent 7,210,573 B2

19
Examiner in the rejection. (Ans. 8-10.) Accordingly, we are not persuaded
by Appellant’s arguments.
Appellant does not provide separate arguments for claims 3 and 6-9.
Therefore, we affirm the Examiner’s rejections of the claims.

Rejections IV-VIII
Although Appellant has separately listed Rejections IV-VIII, the
arguments provided by Appellant raise issues similar to the issues addressed
above. (See App. Br. 27-41.) Appellant’s arguments regarding the
Examiner’s prima facie case of obviousness are similar to the arguments
addressed supra. Specifically, Appellant’s allegations that the Examiner has
relied on “conclusory statements” in order to support the conclusion of
obviousness do not address the Examiner’s reasoned statements and analysis
of the prior art. (App Br. 29, 32, 34, 37, 40; Ans. 12-15, 33-37.) Thus,
Appellant’s arguments are not persuasive. Accordingly, we sustain the
Examiner’s rejections as described in Rejections IV-VIII.

CONCLUSION
On this record, we find that:
Appellant is not entitled to the filing date of the ‘133 provisional
application for the claims on appeal;
Pollak is prior art to claim 10;
Pollak discloses a conveyor belt segment that is stretchable
throughout its length up to 3% of its length, the recited tension, and having
minimal friction between the belt and the sprocket;
Appeal 2011-008397
Reexamination Control Nos. 90/009,221 & 90/011,997
Patent 7,210,573 B2

20
There is insufficient evidence on the record to overcome Appellant’s
characterization of Cog-Veyor as prior art to the ‘573 Patent; and
Cog-Veyor discloses a thermoplastic conveyor belt segment that is
stretchable within a range of up to 3% of its total length, the recited tension,
and having minimal friction.

DECISION
The Examiner’s decisions rejecting claims 2-10 under 35 U.S.C.
under 35 U.S.C. § 103(a) are 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

KMF

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