Ex Parte 7424948 et al

Board of Patent Appeals and Interferences

Feb 8, 2011

90009278 (B.P.A.I. Feb. 8, 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.
90/009,278 09/18/2008 7424948 71977-0052 /
LSN-4094-15
9098
20915 7590 02/09/2011
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
02/09/2011 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 2011-003655
Reexamination Control 90/009,278
Patent 7,424,948 B2
Technology Center 3900
____________

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

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
shown on the PTOL-90A cover letter attached to this decision.
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ThermoDrive LLC, the owner of the patent under reexamination
(hereinafter the “‘948 Patent”), appeals under 35 U.S.C. §§ 134(b) and 306
from a final rejection of claims 1-15 (Appeal Brief filed November 25, 2009,
hereinafter “App. Br.,” at 4; Final Office Action mailed July 29, 2009). We
have jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We AFFIRM.

STATEMENT OF THE CASE
This 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. (Request for Ex Parte
Reexamination filed September 18, 2008). The‘948 Patent is said to be a
divisional of Application 10/505,063 filed on February 3, 2008, now United
States Patent 7,210,573 (hereinafter “the ‘573 Patent”), which is the subject
of Reexamination Control 90/011,997. The ’948 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”).
The ‘948 Patent is directed to a conveyor 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. 7-9.)

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Claims 1 and 9 representative of claims on appeal read as follows
(with underlining to show additional subject matter relative to the original
patent claims):
1. A thermoplastic conveyor belt segment having an
outer surface substantially free of discontinuities and an inner
surface with a plurality of teeth extending therefrom at a given
belt pitch and opposite ends,
the belt segment being stretchable through its length,
wherein the teeth are integrally and sequentially formed with
the conveyor belt segment,
whereby the belt segment can be made to a selected
length and the ends spliced together to form an endless
conveyor belt of predetermined size.

9. A conveyor comprising:
a drive sprocket having a plurality of sheaves spaced
from each other at a given sprocket pitch;
an idler spaced from the sprocket; and
an endless, unreinforced, substantially homogeneous
thermoplastic belt, elastically stretchable through its length, and
wrapped around the sprocket and the idler wherein the belt has
a plurality of inwardly facing teeth, each tooth sized to be
loosely received in a sprocket sheave, and the belt having a belt
pitch less than the sprocket pitch below the maximum elasticity
of the belt, the teeth being integrally and sequentially formed
with the remainder of the belt;
and minimal friction between the belt and the sprocket,
whereby when the sprocket is caused to rotate, the belt
will be driven by the engagement of at least one tooth in a
sheave.

(Claims App’x, App. Br. 31-32.)
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The Examiner rejected claims 1-15 as follows (Examiner’s Answer
mailed July 29, 2010, hereinafter “Ans.,” 4-15):
I. Claims 1, 2, and 5-8 under 35 U.S.C. § 102(b) as anticipated by
Koch (US 3,404,578, issued October 8, 1968);
II. Claims 1-3, 5, 6, 8-11, 13, and 14 under 35 U.S.C. § 102(a) as
anticipated by Cog-Veyor (Cog-Veyor Belting Manufacturers
Catalog);
III. Claims 1, 2, 5, 6, 8-10, 13, and 14 under 35 U.S.C. § 102(e) as
anticipated by Pollak (US 2004/0089519 A1, published May
13, 2004);
IV. Claims 2, 9, 10, and 13-15 under 35 U.S.C. § 103(a) as obvious
over Koch in view of Cog-Veyor;
V. Claim 4 under 35 U.S.C. § 103(a) as obvious over Koch in view
of Sanduja (US 6,039,964, issued March 21, 2000);
VI. Claim 12 under 35 U.S.C. § 103(a) as obvious over Koch in
view of Cog-Veyor, and further in view of Sanduja;
VII. Claims 5 and 6 under 35 U.S.C. § 103(a) as obvious over Koch
in view of Breher (US 3,880,558, issued Apr. 29, 1975);
VIII. Claims 13 and 14 under 35 U.S.C. § 103(a) as obvious over
Koch in view of Cog-Veyor, and further in view of Breher; and
IX. Claims 4 and 12 under 35 U.S.C. § 103(a) as obvious over Cog-
Veyor or Pollak, in view of Sanduja.

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For Rejections IV-IX, Appellant relies on the arguments made for
Rejections I-III. (App. Br. 22-30.) Therefore, our comments with respect to
Rejections I-III apply equally to Rejections IV-IX.

ISSUES
The principal issues in this appeal are:
1. Does Koch disclose a thermoplastic conveyor belt segment that is
stretchable through its length and with sequentially formed teeth as recited in
claim 1?
2. Does Koch disclose a thermoplastic conveyor belt segment that is
stretchable within a range of up to 3% of its total length as recited in claim 2
or is unreinforced as in claim 8?
3. Is Appellant entitled to the filing date of the ‘133 provisional
application for the claims on appeal?
4. Is there sufficient evidence on the record to overcome Appellant’s
characterization of Cog-Veyor as prior art to the ‘948 Patent?
5. Does Cog-Veyor disclose a thermoplastic conveyor belt segment
that is stretchable through its length and with sequentially formed teeth as
recited in claim 1 and having minimal friction as recited in claim 9?
6. Does Cog-Veyor disclose a conveyor belt segment stretchable
within a range of up to 3% of its total length as recited in claims 2 and 10?
7. Is Pollak prior art to claim 1?
8. Does Pollak disclose a conveyor having minimal friction between
the belt and the sprocket as required by claim 9?

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FINDINGS OF FACT (“FF”)
1. The ‘948 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. 59-64.)
2. The ‘948 Patent discloses:
The belt has a plurality of inwardly facing teeth, each
tooth sized to be loosely received in a sprocket sheave.
Further, the belt has a belt pitch less than the sprocket
pitch below the maximum elasticity of the belt . . . There
is minimal friction between the belt and the sprocket, so
that when the sprocket is caused to rotate, the belt will be
driven by the engagement of at least one tooth in a
sheave.

(Col. 2, ll. 26-34.)
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].)
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5. The ‘133 Application does not expressly disclose whether the
belt is stretchable through its length. (See the ‘133 Application
generally, Request, Ex. F.)
6. Koch discloses belts with teeth, including conveyor belts, made
from thermoplastically processed polyurethanes interspersed
with fibers. (Col. 2, ll. 10-19; col. 6, ll. 2-7.)
7. Koch discloses that the fibers increase strength, but limit
stretchability. (Col. 2, ll. 44-56.) Koch also discloses that the
strength, extensibility, coefficient of elasticity, and flexibility of
the belt may be varied within wide limits by varying the type
and amount of fibers and the isocyanate component in the
polyurethane. (Col. 2, ll. 57-61.)
8. Koch discloses that the belt is produced by customary processes
including extrusion pressing. (Col. 3, ll. 9-16.)
9. Koch discloses a comparative example of a belt that is formed
“[w]ithout addition of fibers.” (Col. 4, ll. 49-75; Table.)
10. Cog-Veyor does not contain a publication date.
11. 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, Ex. C.)
12. 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.)
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13. Cog-Veyor discloses that in the Posi-Track System, sprockets
intermesh with lugs on the base of Powerbelt belting. (P. 23,
28.)
14. Cog-Veyor discloses that the lug (belt) pitch of 2.46 inches
allows for a 1.5 percent belt stretch. (P. 29, Note (b).)
15. Cog-Veyor discloses that the thermoplastic belts disclosed
therein are capable of 3% belt stretch under load, which is the
industry standard. (Page 7.)
16. Pollak has a publication date of May 13, 2004, and a filing date
(Application 10/290,511) of November 8, 2002.
17. Pollak discloses a closed belt made of non-reinforced plastic.
(Para. [0018].)
18. Pollak discloses a closed belt that stretches between 0.3 to 3%.
(Para. [0038].)
19. Pollak discloses that the pitch of the drive pulley is greater than
the pitch or the distance between the teeth, on a belt. (Para.
[0038].)

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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ANALYSIS
Claim Interpretation
We begin by interpreting the phrase “belt segment being stretchable
through its length” as recited in claim 1. Appellant contends that the
Examiner has ignored the Specification of the ‘948 Patent as it would be
interpreted by one of ordinary skill in the art. (App. Br. 10.) We disagree.
First, in discussing stretchability, the ‘948 Patent discloses that
although the belt may stretch more in some areas than in others, it is the
overall stretchability that is measured. (FF 1.) Second, independent claim 1
does not recite any particular degree of stretchability. Thus, we interpret the
phrase “belt segment being stretchable through its length” to encompass a
belt segment that is stretchable to any extent at any portion along the belt.

Issues 1 and 2-Rejections based on Koch
Appellant contends Koch does not disclose a belt segment stretchable
through its length or sequentially formed teeth. (App. Br. 10.)
We agree with the Examiner’s position that Koch discloses a
conveyor belt that is stretchable through it length. Contrary to Appellant’s
arguments, Koch does not disclose eliminating stretchability in the belts
disclosed therein. (FF 7; Ans. 16-17.) Rather, Koch discloses belts with
limited stretchability, and further discloses that extensibility of the belt may
be varied over wide limits. (FF 7.) Consistent with our claim interpretation
above, independent claim 1 contains no limitations as to the amount of
stretchability required in the claims. Therefore, Koch’s belts having limited
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stretchability are belts that are stretchable throughout their length as recited
in claim 1.
Further, as acknowledged by Appellant, Koch discloses at least some
localized extensibility in the described belts. (App. Br. 13.) This is
consistent with the discussion of stretchability in the ‘948 patent as outlined
above. (FF 1.) In addition, Appellant’s arguments that claim 1 is limited to
elastic stretch as a distinguishing feature over Koch are not persuasive.
(App. Br. 12.) Claim 1, unlike claim 9, is not limited to elastic stretch. (See
Ans. 17.) Accordingly, we agree with the Examiner that Koch discloses a
belt that is stretchable through its length.
We are also not persuaded by Appellant’s arguments that Koch fails
to disclose that the teeth are sequentially formed. Even if we were to accept
Appellant’s position that “sequentially” refers to the manner in which the
teeth are formed rather than the spatial arrangement of the teeth, the present
claims are directed to conveyor belt segments and conveyors, not methods of
production. Therefore, this limitation is a product-by-process limitation, and
Appellant has not shown a structural difference between the teeth disclosed
in Koch and the teeth recited in the claim. (Ans. 19-20.) In re Marosi, 710
F.2d 799, 803 (Fed. Cir. 1983) (“[w]here a product-by-process claim is
rejected over a prior art product that appears to be identical, although
produced by a different process, the burden is upon the applicants to come
forward with evidence establishing an unobvious difference between the
claimed product and the prior art product.”). In addition, Koch’s
arrangement of teeth is consistent with the Examiner’s interpretation of
“sequentially” as relating to a spatial arrangement. Thus, we agree with the
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Examiner that Koch discloses “wherein the teeth are integrally and
sequentially formed with the conveyor belt segment” recited in claim 1.
Issue 2
Claim 2
Appellant contends that Koch does not disclose the range recited in
claim 2. (App Br. 16.) The Examiner’s position is that Koch discloses that
the stretchability of the belt is 10%, which means that the belt is capable of
stretching within a range of up to 3% as recited in claim 3. (Ans. 5.)
We agree with Appellant. Claim 2 recites that the belt segment “is
stretchable within a range of up to 3% of its total length.” Thus, even if we
were to accept the Examiner’s position that the extension ranges disclosed in
Koch are usable stretch limits rather than ultimate stretch limits to failure,
claim 2 recites an upper limit of “up to 3%.” Accordingly, a belt that has an
extension of 10% is capable of stretching beyond the 3% upper limit recited
in the claims. Therefore, we reverse the Examiner’s rejection of claim 2 as
being anticipated by Koch.

Claim 8
Appellant also contends that Koch does not disclose an unreinforced
belt. (App. Br. 16.) The Examiner’s position is that “unreinforced” does not
distinguish over Koch because the polyamide fibers employed do not define
reinforcement, but define a filler intermixed with the polyurethane. (Ans. 6.)
Alternatively, the Examiner states that Koch discloses a comparative belt
that does not contain any fibers. (Ans. 6.)
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Though we agree with Appellant that the polyamide fibers disclosed
in Koch provide reinforcement, Koch expressly discloses a comparative
example that is devoid of fibers. (FF 9.) Thus, for this reason, we agree
with the Examiner that Koch discloses an unreinforced belt segment.

Issue 3-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 through its length. (App. Br. 20-21.)
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. Specifically, the ‘133 Application does
not describe any particular polyurethane or polyester that is used to form the
belt therein. (FF 3-5.) Appellant has not provided any persuasive evidence
to support the argument that the belt disclosed in the ‘133 Application would
inherently be stretchable through its length.
Contrary to Appellant’s arguments, the Examiner’s position with
respect to the prior art belts being stretchable along their length is not
inconsistent with the Examiner’s position with respect to the ‘133
Application. 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 each
of Koch, Cog-Veyor, and Pollak, the Examiner points to specific teachings
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where each reference discloses that the belts are stretchable. (See Ans. 4, 7,
10; FF 7, 14, 18.) 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 4-6-Rejections based on Cog-Veyor
Issue 4-Status of Cog-Veyor as Prior Art
Appellant contends that Cog-Veyor is not prior art, and further that
Cog-Veyor fails to disclose a belt segment stretchable through its length or
sequentially formed teeth. (App. Br. 17.)
As discussed supra, Appellant is not entitled to the priority date of the
‘133 Application. Accordingly, Cog-Veyor is prior art to the ‘948 Patent if
it was published prior to February 2, 2003, the filing date of the ‘573 Patent,
of which the ‘948 Patent claims to be a divisional. In requesting
reexamination in the ‘573 Patent, 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 11.) Appellant contends that
the disclosure of Cog-Veyor 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. 18.)
However, we are not persuaded that Appellant’s calculations are
sufficient to outweigh Appellant’s characterization of Cog-Veyor as being
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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. 21-22.) Accordingly,
Cog-Veyor is prior art to the ‘948 Patent.
Issue 5
Though 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 inch belt stretch. (App. Br. 19;
FF 14.) 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. 19, FF 12) is not persuasive in view of Cog-Veyor’s express
disclosure of a stretchable belt.
In addition, Appellant’s contention that Cog-Veyor fails to disclose
minimizing friction as recited in claim 9 is not persuasive. Specifically, the
‘948 Patent discusses minimal friction between the belt and the sprocket
such that when the sprocket is rotated, the belt will be driven by the
engagement of at least one tooth of the belt in a sheave of the sprocket. (FF
2.) Similarly, Cog-Veyor expressly discloses that there is no tension in the
belt and that the belt includes lugs (teeth) that engage a sprocket. (FF 12,
13). 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 33 of Cog-Veyor, because Appellant expressly acknowledges that
the chart does not relate to lug driven belts. (App. Br. 20.)
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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.
Appellant’s argument that Cog-Veyor lacks any disclosure of how the
teeth are formed is likewise unpersuasive. (App. Br. 19.) As explained
above, “sequentially formed” is a product-by-process limitation, or relates to
a spatial arrangement of the teeth, and Appellant’s have not sufficiently
established a structural difference between the teeth recited in the claims and
the teeth in Cog-Veyor.
Issue 6
Regarding claims 2 and 10, Cog-Veyor discloses that the industry
standard includes a belt stretch of 3%. (FF 15.) Thus, we agree with the
Examiner that Cog-Veyor discloses belts that are stretchable up to 3%.
(Ans. 23-24).

Issues 7 and 8-Rejections based on Pollak
Issue 7
The Examiner has provided a detailed analysis with explanation as to
where Pollak discloses the limitations of claim 1. (Ans. 9-11, and 25).
Appellant’s only argument with respect to claim 1 as being anticipated by
Pollak, is that Pollak is not prior art. (App. Br. 20-21.) However, we have
determined that Appellant is not entitled to the priority date of the ‘133
Application. We find the Examiner’s position and reasoning to be supported
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by Pollak. (FF 17-19.) Therefore, we affirm the Examiner’ rejection of
claim 1 and the claims dependent therefrom.

Issue 8
Regarding claim 9, Appellant contends that Pollak fails to disclose
minimal friction between the belt and the pulley. (App. Br. 21-22.)
Consistent with our discussion above with respect to Cog-Veyor, we agree
with the Examiner, that Pollak’s conveyors would inherently have minimal
friction as a result of the belt engaging the teeth on the sprocket. (Ans. 10-
11.) Pollak discloses that the belt is driven by engagement of at least one
tooth of the belt with a tooth (sheave) of the drive pulley. (FF 19.)
Accordingly, we agree with the Examiner’s position that Pollak’s conveyors
would operate with minimal friction. The structure described in Pollak is
sufficiently similar to have shifted the burden to Appellant to prove that
Pollak’s belts do not have minimal friction between the belt and the
sprocket.
As to Appellant’s general contentions that Pollak does not disclose an
endless, unreinforced, substantially homogenous belt wherein the teeth are
sequentially formed (App. Br. 20), Appellant has not offered any substantive
explanation why Pollak fails to disclose such limitations of the claims.
Again, the Examiner has provided a detailed analysis with explanation as to
where Pollak discloses the recited limitations. (Ans. 9-11, and 25) We find
the Examiner’s position and reasoning to be supported by Pollak. (FF 17-
19.) Accordingly, Appellant’s contentions are not persuasive.

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CONCLUSION
On this record, we find that:
Koch discloses a thermoplastic conveyor belt segment that is
stretchable through its length and with sequentially formed teeth as recited in
claim 1;
Koch does not disclose a thermoplastic conveyor belt segment that is
stretchable within a range of up to 3% of its total length as recited in claim
2;
Koch discloses a thermoplastic conveyor belt segment that is
unreinforced as recited in claim 8;
Appellant is not entitled to the filing date of the ‘133 provisional
application for the claims on appeal;
There is insufficient evidence on the record to overcome Appellant’s
characterization of Cog-Veyor as prior art to the ‘948 Patent;
Cog-Veyor discloses a thermoplastic conveyor belt segment that is
stretchable through its length and with sequentially formed teeth as recited in
claim 1 and having minimal friction as recited in claim 9;
Cog-Veyor discloses a conveyor belt segment stretchable within a
range of up to 3% of its total length as recited in claims 2 and 10;
Pollak is prior art to claim 1; and
Pollak discloses a conveyor having minimal friction between the belt
and the sprocket as required by claim 9.

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DECISION
The Examiner’s decisions to reject claims 1 and 5-8 under 35 U.S.C.
§ 102(b), claims 1-3, 5, 6, 8-11, 13, and 14 under 35 U.S.C. § 102(a), claims
1, 2, 5, 6, 8-10, 13, and 14 under 35 U.S.C. § 102(e), and claims 2, 4-6, 10,
and 12-15 under 35 U.S.C. under 35 U.S.C. § 103(a) are affirmed.
However, the Examiner’s rejection of claim 2 under 35 U.S.C.
§102(b) is reversed.
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

cu

FOR PATENT OWNER:
MCGARRY BAIR PC
32 MARKET AVE. SW
SUITE 500
GRAN RAPIDS, MI
49503

Appeal 2011-003655
Reexamination Control 90/009,278
Patent 7,424,948 B2

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