Ex Parte Bennington et al

Patent Trial and Appeal Board

Oct 25, 2013

11849626 (P.T.A.B. Oct. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte WILLIAM JOHN BENNINGTON II and BRIAN ROBERT BECK
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Appeal 2012-000983
Application 11/849,626
Technology Center 3600
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Before MICHAEL C. ASTORINO, MICHELLE R. OSINSKI, and
NINA L. MEDLOCK, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1 and 4-12. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We REVERSE.
Appeal 2012-000983
Application 11/849,626

2
Claimed Subject Matter
Claim 1, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below.
1. A dewatering device for aggregate product, comprising:
a housing having an entrance end and an exit and [sic
end];
an inclined dewatering screw rotatably mounted with said
housing, and positioned below said entrance end; and
a vibrator dewatering screen having an entrance and
mounted with said housing adjacent said exit end of said
housing for receipt of aggregate product that has passed through
said dewatering screw;
said dewatering screw having an associated recycle
system to recycle fines that have passed through the vibratory
dewatering screen back to the dewatering screw; and
a vibrator motor or motors, mounted to linearly and
horizontally move said dewatering screen.

Rejections
Claims 1, 4-7, and 12 are rejected under 35 U.S.C. § 102(b) as
anticipated by Bergart (US 6,168,102 B1, iss. Jan. 2, 2001).
Claims 8-11 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Bergart.

OPINION
The Examiner finds that Bergart’s dewatering screw 10 has an
associated recycle system to recycle fines that have passed through vibratory
dewatering screen 12 back to the dewatering screw 10. See Ans. 4, Bergart,
col. 4, l. 53 – col. 5, l. 4, fig. 1C (element 12), and fig. 5 (element 10). The
Appellants contend that the Examiner’s finding is speculative. See Reply
Br. 2-4.
Appeal 2012-000983
Application 11/849,626

3
The Appellants’ contention is persuasive. Although the Examiner
correctly finds that Bergart discloses a filtering system (see Ans. 4-5, 7-8
(citing col. 4, ll. 59+)), as the Appellants point out, the filtering system
filters water, not fines (see App. Br. 5, Reply Br. 2). In response, the
Examiner most notably finds “the recycled water [that] is recycled back
through the recycling system may still have fines from the dewatering screen
that have not been filtered and, therefore, would be capable of recycling
fines back to the dewatering screw.” Ans. 8. Accordingly, the dispute
between the Appellants and the Examiner is whether adequate evidence or
technical reasoning is of record to support the Examiner’s finding that the
Bergart’s filtering system includes the capability to recycle fines.
The Examiner does not identify, nor can we identify, any details of
Bergart’s filtering system between conveyor 12 and rotary drum washer 11
other than its capability to filter water from conveyor 12 and recirculate the
water to rotary drum washer 11. Col. 4, ll. 59-63.1 In other words, it is
unclear what matter would be able to exit Bergart’s filtering system other
than matter akin to the recycled water. Accordingly, the Examiner’s finding
that Bergart’s filtering system includes the capability to recycle fines is
speculative and as such, inadequately supported. See Reply Br. 4.
Thus, the rejection of claim 1 and its dependent claims as anticipated
by Bergart is not sustained.

1 It is notable that Bergart discloses “a filter apparatus (not shown) . . .
cleans the solution for reuse in the washing and presoaking stages[, i.e.,
stages 11 and 9, respectively, of Figure 1C].” Col. 6, ll. 26-27.
Additionally, Figure 1C, a schematic diagram showing a portion of Bergart’s
glass recycling system, states “utilizing recirculated clear water” (emphasis
added), at glass wash presoak 9.
Appeal 2012-000983
Application 11/849,626

4
The remaining rejection based on Bergart relies on the same erroneous
finding discussed above. See Ans. 6. As such, we cannot sustain the
rejection under 35 U.S.C. § 103(a) of claims 8-11 as unpatentable over
Bergart.

DECISION
We REVERSE the rejections of claims 1 and 4-12.

REVERSED

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