Ex Parte Balk

Patent Trial and Appeal Board

Jun 28, 2013

11587269 (P.T.A.B. Jun. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte WOUTER BALK
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Appeal 2011-007607
Application 11/587,269
Technology Center 3600
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Before: JOHN C. KERINS, JAMES P. CALVE, and
SCOTT A. DANIELS, Administrative Patent Judges.

DANIELS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-007607
Application 11/587,269

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STATEMENT OF THE CASE
Wouter Balk (Appellant) appeals under 35 U.S.C. § 134 from a
rejection of claims 1-9 and 11-20. App. Br. 4. Claims 1, 4 and 11 are the
independent claims. Claims 10, 21 and 22 are objected to as being
dependent upon a rejected base claim. App. Br. 4. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
THE INVENTION
The claims are directed to a method and device for buffering products
along a packaging or filling line, for example in a bottling plant where “[t]he
handling rate may be temporarily higher or lower at different locations in the
line.” Spec. 1. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A method of buffering products, in particular
substantially cylindrical containers, said method
comprising
carrying the products upwards on a moving,
inclined first conveying surface at a first flow rate
towards a guide member for transferring the
products from the first conveying surface to a
second conveying surface, the guide member being
disposed adjacent an upper end of the first
conveying surface, such that the products on the
first conveying surface can be stopped by and
accumulate against the guide member, and
guiding the products from the guide member
onto the second conveying surface, and conveying
the products onwards on the second conveying
surface at a second flow rate, the second flow rate
being different from the first flow rate,
wherein in said carrying of the products upward
on the first conveying surface, the first conveying
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surface is inclined at an angle and is provided with
a surface condition such that the dragging force
exerted on the products from the first conveying
surface is greater than the force of gravity being
exerted on the products in a direction along the
first conveying surface, so as to allow the products
to move relative to the first conveying surface as
the first conveying surface carries the products
upwards.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sikorski
Steeber
Leathers
US 3,866,739
US 6,152,291
US 6,419,078 B1
Feb. 18, 1975
Nov. 28, 2000
Jul. 16, 2002

REJECTIONS
The Examiner made the following rejections:
Claims 1, 3, 4, 6-8, 11, 16, and 18 stand rejected under 35 U.S.C.
§102(b) as being anticipated by Steeber. Ans. 3.
Claims 2, 5, 12-15, 17 and 191 stand rejected under 35 U.S.C §103(a)
as being unpatentable over Steeber and Sikorski. Ans. 6.
Claim 9 stands rejected under 35 U.S.C §103(a) as being unpatentable
over Steeber and Leathers. Ans. 8.
Claim 20 stands rejected under 35 U.S.C §103(a) as being
unpatentable over Steeber, Sikorski and Leathers. Ans. 8.

1 Claims 12-15, 17 and 19 are not specifically listed in the Answer in the
statements of this ground of rejection. Ans. 3, 6. The claims, however,
depend from either claim 2 or claim 5, and the Examiner addresses the
claims and the rationale behind the obviousness rejection immediately after
the discussion of claims 2 and 5 as being obvious over Steeber and Sikorski.
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ANALYSIS
Claims 1, 3, 4, 6-8, 11, 16, and 18 as anticipated by Steeber
Each of the Examiner’s rejections relies on a finding that Steeber
discloses all the limitations of independent claims 1, 4 and 11, including
inter alia carrying products on a moving, inclined first (infeed) conveyor A
towards a guide member D for transfer to a second (outfeed) conveyor B,
that the guide member D is located at an upper end of the first conveyor A,
and that the products can be stopped and accumulate on the first conveyor
surface A against the guide member D. Ans. 3-4.; see Steeber figs. 1 and 4.
The Examiner also found that Steeber discloses the conveyor surface
A inclined at an angle and having “a surface condition…so as to allow the
products 10 to move relative to the first conveying surface (A) as the first
conveying surface (A) carries the products 10 upwards.” Ans. 4 citing
Steeber fig. 4, (emphasis added). The Examiner explained that in Steeber
the conveyors were driven in such a manner as to minimize the drag of
conveyors on the supporting track, and therefore the products move relative
to the conveying surface when considering “the track system being a[]part of
the conveying surface.” Ans. 10 citing Steeber col. 5 ll. 62-65.
Appellant argues that figure 4 of Steeber does not disclose a surface
condition of the first conveying surface which allows the products supported
on the first conveying surface “to move relative to the first conveying
surface as the first conveying surface carries the products upwards” as
recited in claim 1. App. Br. 11-12. Appellant asserts specifically that
Steeber is entirely silent with respect to the movement of articles relative to
the conveyors and that the necessity to provide drive to overcome any drag
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between the conveyors and the supporting track does not explain “the
movement of articles on any of the conveyors.” Reply Br. 4. We agree.
The Examiner initially relies on the moving infeed conveyor A from
Steeber as meeting the limitation of a “first conveying surface.” Ans. 3.
The Examiner then characterizes the claimed first conveying surface as the
stationary supporting track 58 upon which Steeber’s infeed conveyor A rides
by finding that the product is moved relative to the conveying surface where
the track system is a part of the conveying surface. See Ans. 10. However,
the supporting track 58, best shown in Steeber figure 9 comprising parallel
strips 62, 64 and explained at column 6, lines 23-26 of Steeber, is a different
structure from the infeed conveyor A. While the track 58 may support the
first conveyor A, it is not the moving or driveable conveying surface
carrying the products. The Examiner has erred in finding that the claimed
“first conveying surface” is on one hand satisfied by Steeber’s moving
infeed conveyor A, and on the other hand also satisfied subsequently by a
different element, i.e. Steeber’s stationary supporting track 58. Thus, the
rejection of independent claims 1, 4 and 11 and their respective dependent
claims 3, 6-8, 16, and 18 as anticipated by Steeber is not sustained.
Additionally, the Examiner also found incorrectly that Steeber
discloses that products on the first conveyor surface can “accumulate against
the guide member” as called for in each of claims 1, 4 and 11. Ans. 4. The
Examiner reasoned that stopping the infeed conveyor A met Appellant’s
accumulation limitation. Ans. 9. The word “accumulate” however means
more than merely carried, or supported. A common definition of
“accumulate” is: “to collect or gather something in an increasing quantity.”
CHAMBERS 21ST CENTURY DICTIONARY (2001)
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(http://www.credoreference.com/entry/chambdict/accumulate) (last visited
June 26, 2013). If the infeed conveyor A is stopped, the quantity of products
at the guide member cannot increase. For this reason we also cannot sustain
the anticipation rejection of claims 1, 4 and 11 and their respective
dependent claims.
Claims 2, 5, 9, 12-15, 17, 19 and 20 as unpatentable over Steeber and
Sikorski, Steeber and Leathers, and Steeber, Sikorski and Leathers

The rejections of claims 2, 5, 12-15, 17 and 19 as unpatentable over
Steeber and Sikorski, of claim 9 over Steeber and Leathers, and of claim 20
over Steeber, Sikorski and Leathers, rely upon the same unsubstantiated
findings as discussed above, and neither Sikorski nor Leathers remedies the
Examiner’s incorrect findings with respect to claims 1, 4 and 11. Thus, we
also cannot sustain these rejections.

DECISION
For the above reasons, the Examiner’s rejection of claims 1-9 and 11-
20 is REVERSED.

REVERSED

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