Ex Parte Backlund

Patent Trial and Appeal Board

May 18, 2018

13261708 (P.T.A.B. May. 18, 2018)

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.
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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.
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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.
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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).
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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
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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.
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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