Ex Parte Becella

Board of Patent Appeals and Interferences

Oct 13, 2010

10472840 (B.P.A.I. Oct. 13, 2010)

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.
10/472,840 09/23/2003 Marion Becella 41281.0004 4816
26712 7590 10/13/2010
HODGSON RUSS LLP
THE GUARANTY BUILDING
140 PEARL STREET
SUITE 100
BUFFALO, NY 14202-4040
EXAMINER
MUROMOTO JR, ROBERT H
ART UNIT PAPER NUMBER
3765
MAIL DATE DELIVERY MODE
10/13/2010 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 MARION BECELLA
____________________

Appeal 2009-006876
Application 10/472,840
Technology Center 3700
____________________

Before STEVEN D.A. McCARTHY, KEN B. BARRETT, and
FRED A. SILVERBERG, Administrative Patent Judges.

SILVERBERG, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING 1

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”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-006876
Application 10/472,840

2
STATEMENT OF THE CASE
Marion Becella (Appellant) filed a Request for Rehearing (hereinafter
“Request”) under 37 C.F.R. § 41.52 of the Decision mailed May 20, 2010
(hereinafter “Decision”). In that Decision we affirmed the rejection of
claims 1-6, 8-13, 19 and 20 under 35 U.S.C. § 103(a) as being unpatentable
over Tate (US 4,821,780, issued Apr. 18, 1989) in view of the Instant
Specification2, and the rejection of claims 7 and 14-18 under 35 U.S.C.
§ 103(a) as being unpatentable over Tate in view of the Instant Specification,
and further in view of Habegger (US 4,767,389, issued Aug. 30, 1988).

SUMMARY OF DECISION
We DENY Appellant’s REQUEST FOR REHEARING.

ANALYSIS
Request 1
Appellant contends that in reaching our decision we misapprehended
the accepted definition of “belt” such that a conveyor belt is not the same as
a drive belt since a “belt” is either a drive belt or a conveyor belt (Request
2).
We disagree as we find that a conveyor belt can be a drive belt.
As we previously found, the ordinary meaning of the word “drive”
includes “the means for giving motion to a machine or a machine part”
(Decision 7, Fact 15), and the ordinary meaning of the word “belt” includes
“a continuous band of tough flexible material for transmitting motion and
power or conveying materials” (Decision 7, Fact 16). Therefore, a person

2 Appellant’s Admitted Prior Art in the Specification (Spec.1: 1-Spec. 2: 4)
Appeal 2009-006876
Application 10/472,840

3
having ordinary skill in the art would understand that a “drive belt” includes
a continuous band of material for transmitting motion and power to a
machine or machine part (Decision 10). See In re Am. Acad. of Sci. Tech.
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (When construing claim
terminology in the United States Patent and Trademark Office, claims are to
be given their broadest reasonable interpretation consistent with the
specification, reading claim language in light of the specification as it would
be interpreted by one of ordinary skill in the art.)
As we previously found, a person having ordinary skill in the art
would understand that a conveyor belt usually comprises a belt having a
continuous loop of material that is rotatable about at least two rollers or
rolling shafts, wherein one of the rollers or rolling shafts is powered and at
least one of the other rollers or rolling shafts is non-powered (Decision 6-7,
Fact 12) (Decision 11).
Furthermore, to the extent that Appellant argues that Tate does not
disclose the subject matter of claim 1 because Tate allegedly does not
disclose a drive belt, it is noted that the term “drive belt” (like the term
“conveyor belt”) relates to the function or intended use which the belt
performs in a larger environment. As reflected in the previous paragraphs,
Tate’s belt is capable of transferring power from a powered roller to a non-
powered roller. In this sense, the structure disclosed by Tate is capable of
performing the function or of achieving the intended use of a drive belt.
The Examiner has made a finding that that a papermaker’s fabric such
as Tate’s “does transmit driving motion from a driving roller to a non-driven
roller.” (Ans. 4). The Examiner has a sound basis for finding that Tate’s
belt has this property. (See, e.g., Decision 6, Fact 11, citing Tate, col. 5, l.
Appeal 2009-006876
Application 10/472,840

4
21-col. 6, l. 3 (“The lower-most layer B may be rigidly woven by larger
threads so that it can maintain the runnability of the fabric, the smooth
surface thereof, tension durability, resistance against the showering water
and wear resistance.”) (emphasis added)). Claim 1 fails to recite a specific
environment in which the belt must be capable of serving as a drive belt.
Appellant presents no evidence that there exists an example of a belt
according to the teachings of Tate which lacks the capacity to serve as a
drive belt in some reasonable environment. The Examiner found that
Appellant’s unsupported arguments of counsel regarding the capacity of
Tate’s belt to serve as a drive belt were not commensurate with the scope of
claim 1 (see Ans. 7) and Appellant has not persuasively explained how this
finding is erroneous.
Thus, as we previously found, a belt in a conveyor belt is a drive belt
since the belt is capable of transferring power from the powered roller or
rolling shaft to the non-powered roller or rolling shaft, wherein the non-
powered roller or rolling shaft is a machine or machine part (Decision 7,
Fact 13) (Decision 11).

Request 2
Appellant contends that Decision Facts 5 and 6 should not be
accorded weight in finding that a papermaker’s fabric is a drive belt
(Request 2) since no showing has been made that papermaker’s fabrics are
used with non-driven rollers and since there is no evidence that a
papermaker’s fabric transmits power or motion from a powered roller to a
non-powered roller (Request 2).
Decision Facts 5 and 6 refer to findings of the Examiner.
Appeal 2009-006876
Application 10/472,840

5
In Decision Fact 5, the Examiner found that “[a] papermaker’s fabric
could be broadly considered a ‘drive belt’ as recited, as the fabric does
transmit driving motion from a driving roller to a non-driven roller.”
In Decision fact 6, the Examiner found that
[t]he papermaker’s fabric in Tate is used as a belt
to both convey and as a process belt in the
papermaking process. Also rollers around which
the fabric is wrapped drive the belt. The
papermaker’s fabric disclosed is clearly a “drive
belt” by both appellant’s own definition and the
broadest reasonable interpretation of the term
“drive belt.”
As we previously found, Appellant has not contested the Examiner’s
finding that Tate’s papermaker’s fabric is in the form of a conveyor belt (see
Decision Fact 4) (Decision 11).
As set forth supra, a conveyor belt may comprise a belt having a
continuous loop of material that is rotatable about at least two rollers or
rolling shafts, wherein one of the rollers or rolling shafts is powered and at
least one of the other rollers or rolling shafts is non-powered. Since a
conveyor belt may be used with non-powered rollers and since a
papermaker’s fabric is in the form of a conveyor belt, we find that
papermaker’s fabrics are capable of being used with non-powered rollers
(see also Decision 11).
The term “drive belt” as used in the preamble of claim 1 has not been
ignored or treated as superfluous. As set forth supra, we previously found a
belt in a conveyor belt is a drive belt since the belt is capable of transferring
power from the powered roller or rolling shaft to the non-powered roller or
rolling shaft, wherein the non-powered roller or rolling shaft is a machine or
machine part (Decision 7, Fact 13) (Decision 11).
Appeal 2009-006876
Application 10/472,840

6
Appellant contends that in finding that any belt that is driven by a
roller is a drive belt the term “drive” in “drive belt” loses any meaning.
As stated supra, we consulted a general dictionary definition of the
words “drive” and “belt” for guidance as to how the words “drive belt”
would be viewed by a person of ordinary skill in the art. Thus, we find that
the word “drive” in “drive belt” does not lose any meaning.
Thus, we find that Decision Facts 5 and 6 are based on sound
reasoning and have been accorded weight in finding that a papermaker’s
fabric is a drive belt.

Request 3
Appellant contends that since a “traction layer” describes the portion
of a drive belt that provides tensile strength, which is not necessarily the
portion which contacts the roller, the finding that the traction layer could be
effectively coated with a rubber coating by coating only the yarns does not
follow and, thus, the affirmation of the rejection of claim 20 was in error
(Request 3-4).
We did not find that only the lower-most portion of a belt that
contacts rollers or rolling shafts is a traction layer. What we previously
found is that a person having ordinary skill in the art would understand that
the lower-most portion of a belt that contacts rollers or rolling shafts is a
traction layer (Decision 7, Fact 14). Appellant does not seem to dispute this
finding.
Even though the Examiner found that “[t[he portion of the fabric that
contacts the rollers would then be considered the ‘traction layer’ as recited”
(Rejection 2), it appears that Appellant waited until rehearing to assert that
Appeal 2009-006876
Application 10/472,840

7
“the traction layer of a drive belt is that layer which provide[s] the tensile
strength to draw, or pull, along the longitudinal dimension of the belt”
(Request 3). Appellant has waived this assertion by not making it in the
Appeal Brief or the Reply Brief. 37 C.F.R. § 41.52(a)(1). Even were the
argument properly before us, however, Tate describes the lower most layer
B of Tate’s belt as being “rigidly woven by large threads so that it can
maintain . . . tension durability.” (Tate, col. 5, l. 40-col. 6, l. 3). The lower
most portion of Tate’s belt is a “traction layer” in the sense that the lower
most portion provides tension durability or tensile strength to draw along the
longitudinal dimension of the belt.
We further found that providing Tate’s yarns with a coating of rubber
only where the yarns contact the rollers could have been reasonably
predicted to yield the result of improving traction between the rollers and the
yarn of the belt (Decision 14). See KSR Int'l Co. v. Teleflex Inc., 550 U.S.
398, 417 (2007) (holding that “if a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.”).
Accordingly, we find that our affirmation of the rejection of claim 20
was not due to misapprehending or overlooking the Appellant’s arguments.

CONCLUSION
The arguments in Appellant’s Request have not convinced us that we
erred in affirming the rejection of claims 1-6, 8-13, 19 and 20 under 35
U.S.C. § 103(a) as being unpatentable over Tate and the Instant
Specification, and the rejection of claims 7 and 14-18 under 35 U.S.C.
Appeal 2009-006876
Application 10/472,840

8
§ 103(a) as being unpatentable over Tate, the Instant Specification, and
Habegger.

DECISION
Appellant’s Request for Rehearing has been granted to the extent that
we have reconsidered our Decision in light of the arguments in Appellant’s
Request, but is denied with respect to our making any modification to the
Decision.
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)(1)(iv) (2007).
DENIED

mls

HODGSON RUSS LLP
THE GUARANTY BUILDING
140 PEARL STREET
SUITE 100
BUFFALO, NY 14202-4040