Ex Parte Bitter

Board of Patent Appeals and Interferences

Jun 26, 2008

11077596 (B.P.A.I. Jun. 26, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte MARCUS BITTER
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Appeal 2008-0792
Application 11/077,596
Technology Center 3700
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Decided: June 26, 2008
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Before WILLIAM F. PATE, III, TERRY J. OWENS, and STEVEN D.A
MCCARTHY, Administrative Patent Judges.

PATE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellant appeals from a rejection of claims 1-3, 6, 8, 10 and 12.
The rejection is withdrawn as to claims 3, 8 and 12 in the Examiner’s
Answer (Ans. 2). Claims 4, 5, 7, 9 and 11, which are all of the other
pending claims, stand objected to as being dependent from a rejected claim
but allowable if rewritten in independent form.

THE INVENTION
The Appellant claims a hydraulic arrangement which, the Appellant
states (Spec. ¶ 0001), is “utilized in construction and/or loading vehicles,
such as telescopic loading or front loading vehicles, on which a boom or
lever can be raised or lowered by means of a lifting cylinder.” Claim 1 is
illustrative:

1. A hydraulic arrangement comprising:
a hydraulic cylinder having a first chamber and a second chamber, a
first supply pipe connected to the first chamber and a second supply
pipe connected to the second chamber;
a volumetric control valve assembly located within a
hydraulic pipe and arranged between the first and second chamber;
a hydraulic fluid feeder in fluid communication with a
hydraulic reservoir; and
a controller having a raise position, a lower position, a
neutral position, and a float position to control the hydraulic cylinder,
the second supply pipe being fluidly connected to the hydraulic
reservoir when the controller is in the float position, and the first and
second supply pipes being substantially prevented from being fluidly
connected to the hydraulic fluid feeder when the controller is in the
float position.

THE REFERENCE
Bettin US 6,068,064 May 30, 2000

THE REJECTION
Claims 1, 2, 6 and 10 stand rejected under 35 U.S.C. § 102(b) over
Bettin.
Appeal 2008-0792
Application 11/077,596

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OPINION
Appellant does not dispute that Bettin discloses the structure required
in independent claim 1 save for the volumetric control assembly required in
the second subparagraph thereof. We are in agreement with the Appellant
that the valve 250 disclosed in Bettin and relied upon by the Examiner as the
called for volumetric control valve is actually a pressure relief valve. Such a
valve opens in response to an over-pressure situation and when opened does
not provide a control over the flow volume as a volumetric control valve
would do. Both pressure relief valves and flow or volumetric control valves
are standard in this art and are well known to those of ordinary skill. They
are not the same or interchangeable, and the clear reference to a volumetric
control assembly in claim 1 precludes a finding that the claimed subject
matter rejected by the Examiner lacks novelty over the Bettin disclosure.
With regard to the dissent, we merely state that a pressure relief valve
and a volumetric control assembly are different, the art recognizes this to be
true, and no amount of sophistry can change this simple fact.

DECISION
The rejection of claims 1, 2, 6, and 10 under 35 U.S.C. § 102(b) over
Bettin is reversed.

REVERSED
Appeal 2008-0792
Application 11/077,596

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OWENS, Administrative Patent Judge, dissenting.
The Appellant separately argues only claims 1 and 10 (Br. 6-7).
I therefore limit my discussion to those claims. See
37 C.F.R. § 41.37(c)(1)(vii)(2007).
Claim 1
Bettin discloses an agricultural implement having a ground engaging
tool and a fluid control circuit for controlling the engagement of the ground
engaging tool with the ground (col. 1, ll. 6-13). The fluid control circuit
includes a fluid cylinder (240) (which corresponds to the Appellant’s
hydraulic cylinder) having a first chamber (on the piston base side of the
cylinder in fig. 6), a second chamber (on the rod side of the cylinder in
fig. 6), a first supply pipe connected to the first chamber and a second supply
pipe connected to the second chamber (fig. 6), a pump (262) (which
corresponds to the Appellant’s hydraulic fluid feeder) in communication
with what appears as a hydraulic reservoir in figure 6, and a closed-center
control valve (270’) having a lower position (270A), a raise position (270B),
a neutral position (270N), and a float position (270F) (col. 7, ll. 3-29;
col. 10, ll. 33-37). In the float position, as shown in figure 6, the second
supply pipe is fluidly connected to the hydraulic reservoir, and the first and
second supply pipes are prevented from being fluidly connected to
pump 262. The Examiner relies upon Bettin’s pressure relief valve 250
(col. 9, ll. 12-15; fig. 6) as corresponding to the Appellant’s volumetric
control valve assembly located within a hydraulic pipe and arranged
between the first and second chambers (Ans. 3).
Appeal 2008-0792
Application 11/077,596

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The Appellant argues (Br. 6): “Bettin et al. does not disclose the
claimed volumetric control valve assembly, which controls the rate of fluid
flow. Contrary to the Examiner’s position, the pressure relief valve of Bettin
et al. does not function as a volumetric control valve assembly.”
The Appellant’s Specification exemplifies the volumetric control
valve assembly (52) (¶¶ 0041-0050), but does not define the term
“volumetric control valve assembly.” Bettin’s pressure relief valve 250
preferably is adjustable to vary the preselected pressure at which it opens
(col. 9, ll. 27-30). Hence, that pressure relief valve provides volumetric
control by permitting flow at a low pressure setting that is prevented at a
higher pressure setting.
I therefore am not convinced of reversible error in the rejection of
claim 1 and its dependent claims 2 and 6.
Claim 10
Claim 10, which depends from claim 1, requires that “the valve
assembly includes a flow regulator that changes a volumetric flow rate and
limits the volumetric flow rate to a given maximum value.”
The Appellant argues that “no such flow regulator is present in Bettin
et al.” (Br. 6).
Bettin’s pressure relief valve 250 changes the volumetric flow rate, at
a particular setting, from zero flow when the valve is closed to greater than
zero flow when the valve opens. When pressure relief valve 250 opens, the
volumetric flow rate is limited to the maximum permitted by the size of the
pressure relief valve’s flow passage.
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Application 11/077,596

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Hence, I am not persuaded of reversible error in the rejection of
claim 10.
The majority argues that volumetric control valve assemblies are well
known in the art.
During patent prosecution, claims are to be given their broadest
reasonable interpretation consistent with the Specification, as the claim
language would have been read by one of ordinary skill in the art in view of
the Specification. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989); In re
Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983). The Appellant’s Specification
does not define “volumetric control valve assembly”, and does not indicate
that “volumetric control valve assembly” means anything less than an
assembly having a valve capable of volumetric control. Because Bettin’s
pressure relief valve 250 is adjustable to vary the preselected pressure at
which it opens (col. 9, ll. 28-30), it is capable of volumetric control. When
pressure relief valve 250 is set to open at a low pressure it permits
volumetric flow at that pressure. When pressure relief valve 250 is set to
open at a higher pressure it does not permit volumetric flow at the low
pressure but permits it at the higher pressure. That is volumetric control, and
the Appellant’s claims do not require any more volumetric control than that.
To read the claims as requiring volumetric control in any particular manner
would be improperly reading limitations from the Specification (or
elsewhere) into the claims. See In re Prater, 415 F.2d 1393, 1405 (CCPA
1969).

Appeal 2008-0792
Application 11/077,596

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I therefore dissent from the majority’s decision to reverse the
Examiner’s rejection.

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