Ex Parte BacklundDownload PDFPatent Trial and Appeal BoardMay 18, 201813261708 (P.T.A.B. May. 18, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/261,708 09/19/2013 2529 7590 MARK P. STONE 400 Columbus A venue Valhalla, NY 10595 05/22/2018 FIRST NAMED INVENTOR Erik Backlund 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 ATTORNEY DOCKET NO. CONFIRMATION NO. PAH-117 5826 EXAMINER YUEN, JESSICA JIPING ART UNIT PAPER NUMBER 3743 NOTIFICATION DATE DELIVERY MODE 05/22/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): stone92349@msn.com aleitner.stonelaw@msn.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERIK BACKLUND 1 Appeal2017-004361 Application 13/261, 708 Technology Center 3700 Before: JAMES P. CALVE, WILLIAM A. CAPP, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 Appellant's Appeal Brief lists Ge stamp Hardtech AB as the real party in interest. Appeal Br. 2. Appeal2017-004361 Application 13/261,708 CLAIMED SUBJECT MATTER The claims are directed to a method and device for crushing and drying a material. See Spec. 1. Claim 1, reproduced below, is illustrative of the claimed subject matter: A method for crushing/ grinding and drying a material or a material mixture (M), in which a cyclone device (10) is used that comprises an outlet (52) for gaseous medium (G) and an outlet (14) for material (M) crushed/ground and dried in the cyclone device (10), said method comprising the steps of recirculating at least a part of the gaseous medium (G) that leaves the cyclone device (10) via an outlet line (52) in such a manner that it re- enters into the cyclone device (10) via a communication line (70) and an inlet line (12), and regulating the flow of said gaseous medium through the communication line (70) by first and second valves (VI, V2) by positioning the first valve (VI) at the point of intersection of the downstream end of the outlet line and the upstream end of the communication line for controlling the quantity of said gaseous medium which is recirculated through said communication line and the quantity of said gaseous medium which is vented to atmosphere, and by positioning the second valve (V2) at the point of intersection of the upstream end of said inlet line and the downstream end of said communication line for controlling the quantity of said gaseous medium entering said inlet line. Claims App. 1. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Field Coles US 1,423,928 July 25, 1922 US 2004/0040178 Al Mar. 4, 2004 REJECTION Claims 1-20 are rejected under 35 U.S.C. § I03(a) as unpatentable over Coles and Field. 2 Appeal2017-004361 Application 13/261,708 OPINION Appellant makes arguments for the patentability of claims 1-20 as a group. Appeal Br. 5. We select claim 1 as representative, and claims 2-20 stand or fall with claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv). The Examiner finds that Coles discloses most of the steps recited in claim 1, but does not disclose a second valve arranged for regulating a gas flow from a communication line to an inlet line and positioned at a point of intersection of the upstream end of the inlet line and the downstream end of the communication line and its claimed functionality. Final Act. 3; see also Adv. Act. 2. The Examiner relies on Field to remedy this deficiency in Coles, stating: Field teaches a damper 33 (same as claimed second valve) that [controls] the recirculation of the gaseous medium and is positioned at the point of intersection of the upstream end of an inlet line 34 and the downstr[ e Jam end of an communication line (not numbered, see sole figure, vertical line between horizontal line 22 and damper 33 is considered as communication Line). Adv. Act. 2; see also Final Act. 3. The Examiner reasons that it would have been obvious to one having ordinary skill in the art at the time the invention was made to modify the[ ]method and device of [Coles] to include a valve (i.e. a second valve) that is arranged for regulating a gas flow from the communication line to the inlet line and is positioned at the point of intersection of the upstream end of the inlet []line and the downstream end of the communication line for controlling the quantity of the gaseous medium entering the inlet line as taught by [F]ield in order to more [accurately] regulate the drying process and carry out the drying of materials in reliable, efficient and economical manner. Adv. Act. 2; see also Final Act. 3--4. 3 Appeal2017-004361 Application 13/261,708 Appellant argues that claim 1 requires the first and second valves (VI and V2) to be positioned at opposite ends of the communication line 70. See Appeal Br. 8 (discussing Appellant's Figure 3). Appellant argues that dampers 33 and 35 of Field are both positioned on the downstream end of the communication line. Therefore, according to Appellant, "modifying the Coles publication in view of the Field patent will only result in a method/device in which both the inlet valve and the recirculation valve will be positioned at the same location, namely, at one end of the communication line." Id.; see also Reply Br. 2-3. Appellant's argument on this point is not persuasive because the Examiner relies on valve 21 of Coles (not damper 33 or 3 5 of Field) for the recited.first valve. See Adv. Act. 2. Appellant does not explain persuasively how the location of damper 35 of Field is pertinent to the rejection of claim 1, much less pertinent to the Examiner's reliance on valve 21 of Coles for the recited first valve. 2 Further, the Examiner sets forth reasoning for implementing the use of damper 33 of Field in the system and method taught by Coles (see Final Act. 3--4, Adv. Act. 2), and Appellant's allegations that the Examiners' proposed modification to Coles relies on improper hindsight, and that there is no suggestion for the modification other than in Appellant's disclosure (see Appeal Br. 8-11), does not persuasively address this reasomng. 2 Although Fields describes damper 35 as being provided on an "inlet" that allows fresh air to enter the system (Fields, 1: 100-110), the "inlet line" required by claim 1 is merely required to be part of a pathway via which gas "re-enters into the cyclone device (10)." Claim 1 does not require the inlet line to provide a pathway by which newly introduced gas enters the system, as a whole, used by the method of claim 1. 4 Appeal2017-004361 Application 13/261,708 In the Reply Brief, Appellant asserts "Applicant's recirculation valve V2 is positioned at the upstream end of the communication line, while the recirculation damper 33 of Field is positioned at the downstream end of the communication line." Reply Br. 2 ( emphasis added). Based on this, Appellant concludes, "the arrangement of the recirculation damper 33 of Field is exactly opposite to the arrangement of the recirculation valve VI as disclosed and claimed by Applicant." Id. We disagree with Appellant's argument because it conflates the requirements of the first and second valves recited in claim 1. Specifically, claim 1 recites, "positioning the second valve (V2) at the point of intersection of the upstream end of said inlet line and the downstream end of said communication line." Claims App. 1 (emphasis added). Thus, Appellant's argument that claim 1 requires the second valve (V2) be "positioned at the upstream end of the communication line" is not commensurate with the scope of claim 1. Further, Appellant's characterization of damper 33 of Field as being positioned "exactly opposite to the arrangement of the recirculation valve VI as disclosed and claimed by Applicant" does not apprise us of Examiner error because the Examiner relies on damper 33 for the second valve (V2), not the first valve (VI), recited in claim 1. Appellant next argues: Both independent claims 1 and 7 clearly recite that the second valve V2 is "for controlling the quantity of said gaseous medium entering said inlet line", and thus V2 is clearly identified as the inlet valve. On the contrary, the Coles publication does not have an inlet valve because air enters the inlet line through a blower 9, and not a valve (see paragraphs [0064] and [0066] of Coles). 5 Appeal2017-004361 Application 13/261,708 Reply Br. 3. Thus, Appellant points to Coles' lack of a second valve, as recited, as evidence of Examiner error. Appellant's argument on this point is unavailing because the Examiner acknowledges that Coles fails to disclose a second valve as recited and modifies the system of Coles, based on the teachings of Field, to include a second valve as recited. See Adv. Act. 2. Thus, Appellant's contention amounts to an individual attack on the references when the rejection is based on their combination. Appellant next contends, "Modification of the Field patent based upon the Coles publication which defeat an intended objective of the Field patent which is to control the flow of incoming air and the recirculation of air at the same position in the system ( see page 1, lines 100-110 of Field)." Reply Br. 3. This contention does not apprise us of Examiner error because the rejection of claim 1 is based on a modification of the system and method disclosed in Coles to include a second valve as recited. See Adv. Act. 2. The rejection of claim 1 does not modify the system or method disclosed in Field. See id. Appellant next contends that "modification of the Coles publication based upon the Field patent would defeat an intended objective of the Coles publication which is to control the flow of incoming gas by a blower and not a valve (see paragraphs [0064] and [0066] of Coles)." Reply Br. 3. We do not agree with Appellant's argument on this point because the intended purpose of Coles relates to a milling and drying method that incorporates a cyclone. See Coles ,r,r 1, 3. Contrary to Appellant's 6 Appeal2017-004361 Application 13/261,708 contention, paragraphs 64 and 66 of Coles merely describe an operation detail underlying this intended purpose. Appellant also asserts that "modifying Coles in view of Field would result in adding an inlet valve to Coles where no inlet valve is intended or needed." Reply Br. 4. Appellant asserts that there is no suggestion for such a modification in the "prior art," and the Examiner must have relied upon impermissible hindsight in rejecting claim 1. Id. Appellant provides no explanation as to why the Examiner's reasoning, set forth on pages 3--4 of the Final Action and on page 2 of the Advisory Action, is inadequate. The Examiner is on sound footing in determining that providing a second valve, in the location proposed, would assist in controlling the quantity of gaseous medium entering the inlet line as well as regulating the drying process based on the express teachings of Fields of such advantage. See Adv. Act. 2; Field 1 :90-99. Referring to an annotated version of the sole Figure included in Field, provided by the Examiner (see Ans. 8), Appellant contends that the Examiner errs in finding a communication line and an outlet line in Field because the Examiner relies on the same element for both lines (Reply Br. 4--5). Specifically, Appellant asserts the claim "includes a separate communication line 70 and a separate outlet line 52 separated by valve VI." Reply Br. 4. This argument is unavailing because the Examiner relies on Coles to teach a communication line with a first valve at its upstream end. Thus, Appellant's contention that the communication line in Field lacks such a valve amounts to an attack on the references individually when the rejection is based on their combination. 7 Appeal2017-004361 Application 13/261,708 Again referring to the annotated figure provided by the Examiner, Appellant contends, "it appears that the 'diagram' seeks to add a valve at the position where line 22 changes direction from horizontal to vertical, where no such valve exists in the actual drawing of the Field patent, which further evidences the hindsight nature of the prior art rejection of the claims." Reply Br. 4--5. We do not discern any annotation indicating the Examiner intends to add a valve to the arrangement depicted in the annotated version of the Figure in Field. 3 See Ans. 8. In any event, the Examiner's proposed modification is to the method and arrangement set forth in Coles, and Appellant does not persuasively dispute that Coles discloses a communication line and a valve corresponding to the first valve as recited in claim 1. We have considered all of Appellant's arguments regarding claim 1, but determine the Examiner has the better position. Accordingly, we affirm the rejection of claim 1. Claims 2-20 fall with claim 1. DECISION The Examiner's rejection of claims 1-20 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 3 There appears to be an unmarked block in the upper left-hand comer of the Examiner's annotated version of the Figure in Fields, but there is no description of this item. 8 Copy with citationCopy as parenthetical citation