Ex Parte Blankenburg

Board of Patent Appeals and Interferences

May 30, 2006

10329617 (B.P.A.I. May. 30, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KARL BLANKENBURG
____________

Appeal No. 2006-0951
Application No. 10/329,617
____________

ON BRIEF
____________

Before FRANKFORT, BAHR and NAPPI, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal from the examiner's rejection of claims 1-3 and 5-8.
Claims 4 and 9-12 stand withdrawn from consideration.
We AFFIRM-IN-PART.
Appeal No. 2006-0951 Page 2
Application No. 10/329,617

BACKGROUND
The appellant's invention relates to a vacuum assisted toilet wherein a vacuum is
created downstream of the toilet and upstream of the discharge pipe leading to a sewer
pipe or a waste holding tank (present specification, page 1). A copy of the claims under
appeal is set forth in the appendix to the appellant's brief.

Applied Prior Art

Varis et al. (Varis) 4,184,506 Jan. 22, 1980
Olin et al. (Olin) 4,297,751 Nov. 3, 1981
Friedman et al. (Friedman) 5,621,924 Apr. 22, 1997

The Rejections
The following rejections are before us for review. The rejection under 35 U.S.C.
§ 112, second paragraph set forth in the final rejection (mailed January 13, 2004) has
been withdrawn by the examiner on page 3 of the answer (mailed March 17, 2005).
The objection to the specification as failing to provide proper antecedent basis for the
claimed subject matter relates to a petitionable matter and not to an appealable matter.
See Manual of Patent Examining Procedure (MPEP) '' 1002 and 1201. Accordingly,
we will not review the issue raised by the appellant on page 5 of the brief.
Claims 5 and 8 stand rejected under 35 U.S.C. § 102(b) as being anticipated by
Olin.
Claims 1, 5 and 8 stand rejected under 35 U.S.C. § 103 as being unpatentable
Appeal No. 2006-0951 Page 3
Application No. 10/329,617

over Olin in view of Varis.
Claims 2, 3, 6 and 7 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Olin in view of Varis and Friedman.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding this appeal, we make reference to the examiner's answer for the
examiner's complete reasoning in support of the rejections and to the appellant's brief
(filed April 2, 2004) and reply brief (filed May 18, 2005) for the appellant's arguments
thereagainst.

OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art, and to the respective
positions articulated by the appellant and the examiner. As a consequence of our
review, we make the following determinations.
We turn our attention first to the rejection of claims 5 and 8 as being anticipated
by Olin. Claim 5 reads on Olin as follows. Olin discloses a partial vacuum sewage
system comprising a water-closet 1 having a toilet bowl for containing waste liquid, a
flush knob 11 for effecting a flush impulse, a discharge passage (sewer pipe 2 and
emptying device 3) having one end in fluidic communication with the discharge port of
the water-closet and another end (the end of emptying device 3 in which flap 17 is
Appeal No. 2006-0951 Page 4
Application No. 10/329,617

disposed) connected to a waste outlet, a flap 17 fluidically coupled in the emptying
device portion 3 of the discharge passage for controlling the flow of waste liquid through
the discharge passage, the flap being normally closed at the time of flushing and until
after the vacuum in sewer pipe 2 has dissipated, at which time it is opened by a power
cylinder to empty the sewage present in collecting chamber 13 (column 4, lines 41-47),
a valve 24 fluidly connected to the discharge passage between the flap 17 and the
discharge port of the water-closet, and a vacuum source (compressed air pipe 6,
compressed air valve 12 and vacuum generating ejector 5) connectable to the
discharge passage by the valve 24.
When the flush knob 11 is actuated, control device 25 of the system opens valve
12 of compressed air pipe 6 connected to ejector 5, thereby generating a vacuum.
When a sufficient vacuum has been generated, valve 12 is closed, the suction effect of
ejector 5 ceases and discharge valve 9 of water-closet 1 is opened. The valve 24 is
operable in response to the activation of flush knob 11, inasmuch as such activation
causes automatic control device 25 to open valve 12 so that vacuum is generated,
thereby opening the valve 24, which closes when the suction effect of ejector 5 ceases.
Appellant argues, on page 7 of the brief, that “since discharge valve 9 is in a
closed position unless there is a vacuum, Olin lacks a discharge passage in continuous
direct fluidic communication with the discharge port of the toilet and the waste outlet as
set forth in Appellant’s claim 5.” This argument is not commensurate in scope with
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Application No. 10/329,617

claim 5, which recites “a discharge passage having one end in continuous direct fluidic
communication with the discharge port of the toilet and another end fluidically
connectable to a waste outlet.” Claim 5 does not require continuous direct fluidic
communication of the “another end” to the waste outlet or to the discharge port of the
toilet.
As for the discharge passage having one end in continuous direct fluidic
communication with the discharge port of the toilet, Olin characterizes the discharge
valve 9 as part of the water-closet (column 4, lines 10-11 and 15-16). As such, the
examiner’s reading of the toilet discharge port on the connection between Olin’s valve 9
and sewer pipe 2 (answer, page 5) is well founded. With that reading of the discharge
port, the upstream end of sewer pipe 2 is in continuous direct fluidic communication with
the discharge port of the toilet, as required by claim 5.
In light of the above, we are not persuaded by appellant’s argument of any error
on the part of the examiner in determining that claim 5 is anticipated by Olin. The
rejection of claim 5 as being anticipated by Olin is sustained.
As noted above, Olin does teach all the limitations of claim 5. A disclosure that
anticipates under 35 U.S.C. ' 102 also renders the claim unpatentable under 35 U.S.C.
' 103, for "anticipation is the epitome of obviousness." Jones v. Hardy, 727 F.2d 1524,
1529, 220 USPQ 1021, 1025 (Fed. Cir. 1984). See also In re Fracalossi, 681 F.2d 792,
794, 215 USPQ 569, 571 (CCPA 1982); In re Pearson, 494 F.2d 1399, 1402, 181
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Application No. 10/329,617

USPQ 641, 644 (CCPA 1974). Thus, we sustain the examiner's rejection of appealed
claim 5 under 35 U.S.C. ' 103 as being unpatentable over Olin in view of Varis.
We shall not, however, sustain the rejection of claim 8 as being anticipated by
Olin. Claim 8 recites “a volume of air removed by application of the vacuum source to
the discharge passage is defined by the leading edge of the contents of the toilet bowl
after activation of the flushing actuator, the interior of the discharge passage and the
flow[ ]1 valve.” Olin’s valve 9, which is closed at the time when the flush knob is actuated
and flush water flows into the lower part of the water-closet bowl, separates the
contents of the water-closet bowl from the interior of the discharge passage (sewer pipe
2), such that the volume of air removed by application of the vacuum source in Olin’s
sewer system is defined by the valve 9 (not the leading edge of the contents of the
bowl), the interior of the sewer pipe 2 and the flap 17.
The examiner’s application of Varis in combination with Olin provides no cure for
the deficiency of Olin noted above. It follows that the rejection of claim 8 as being
unpatentable over Olin in view of Varis also cannot be sustained.
We turn now to the rejection of claim 1 as being unpatentable over Olin in view of
Varis. Claim 1 recites, in relevant part, a valve fluidically coupled to the vacuum source
and the discharge passage between the flap valve and the first opening, the valve being

1 The term “flow valve” lacks clear antecedent basis in the claim. In light of appellant’s underlying
disclosure (specification, page 7), we presume “flow” should be “flap” and interpret it as such for purposes
of this appeal. This informality is nonetheless deserving of correction.
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Application No. 10/329,617

operative to apply vacuum from the vacuum source to the discharge passage, and
control means, responsive to the flushing actuator, for controlling the valve to maintain
the valve in a vacuum-applying position for a pre-determined time period after actuation
of the flushing actuator and close the valve prior to the waste liquid from the toilet bowl
reaching the valve in the discharge passage.
Olin’s non-return valve 24 stays open during the time that the valve 12 stays
open and ejector 5 generates a vacuum. According to Olin, “[w]hen a sufficient vacuum
has been generated, compressed air valve 12 is closed” (column 4, lines 8-9) and the
suction effect of ejector 5 is ceased. Olin lacks a control system for controlling valve 24
to maintain the valve in a position applying vacuum to the discharge passage (sewer
pipe 2) for a pre-determined period of time after actuation of the flushing actuator, as
called for in claim 1. To make up for this deficiency, the examiner turns to Varis.
Varis discloses a vacuum sewer system comprising a collecting chamber 5
having a bottom flap 8, the collecting chamber being connected through a collecting
suction pipe 6 to a vacuum pump 7. The system also includes an automatic control
device 10 that starts and stops the motor 11 of the vacuum pump 7 and opens and
closes, by means of three-way valve 12, the connection between the collecting chamber
5 and the vacuum pump or atmosphere. When the vacuum pump starts, the valve is in
the position shown in Figure 1 and vacuum is applied in the collecting chamber 5. At
the same time, sewage may flow from the sewer pipe 2 into the collecting chamber.
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Application No. 10/329,617

When a sufficiently low pressure has been obtained in sewer pipe 2, the pressure
transducer 13 stops the vacuum pump motor by means of control device 10. When the
vacuum pump stops, valve 12 is moved by control device 10 to a position such that
collecting chamber 5 is connected to atmosphere. With the collecting chamber
connected to atmospheric pressure, the collecting chamber is self-discharging because
the weight of the sewage therein is sufficient to open the bottom flap 8. In order to
ensure the emptying of collecting chamber 5, valve 12 can be connected to a pressure
source instead of to atmosphere.
As explained in the above discussion of the Varis sewer system, while the valve
12 of Varis is directly controlled by the control device 10, it is not controlled “to maintain
the valve in a position applying vacuum to the discharge passage for pre-determined
period of time after actuation of the flushing actuator, and closing the valve prior to
waste liquid from the toilet bowl reaching the valve in the discharge passage” as called
for in appellant’s claim 1. Accordingly, even the combined teachings of Olin and Varis
fail to provide any teaching or suggestion to provide such control of the valve for
applying vacuum from the vacuum source to the discharge passage to meet the terms
of claim 1. It follows that the rejection of claim 1 as being unpatentable over Olin in view
of Varis cannot be sustained.
The examiner’s application of the teachings of Friedman in rejecting claims 2 and
3, which depend from claim 1, provides no cure for the deficiency in the combination of
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Application No. 10/329,617

Olin in view of Varis discussed above. The rejection of claims 2 and 3 as being
unpatentable over Olin in view of Varis and Friedman thus cannot be sustained.
Finally, we turn our attention to the rejection of claims 6 and 7 as being
unpatentable over Olin in view of Varis and Friedman. Claim 6 depends from claim 5
and further recites a means for creating the source of vacuum and a vacuum level
switch for controlling a level of vacuum for the vacuum source, both the vacuum
creating means and the vacuum level switch being controlled by the control means.
Claim 7 depends from claim 5 and further recites a vacuum reservoir coupled to the
vacuum source and a vacuum level switch connected to the vacuum reservoir for
modifying a level of vacuum within the vacuum reservoir.
Olin discloses a means (compressed air pipe 6, compressed air valve 12 and
ejector 5) for creating a vacuum source and an automatic control device 25 for shutting
the valve 12 to cease the suction effect of ejector 5 “[w]hen a sufficient vacuum has
been generated” (column 4, lines 8-9), but does not describe the details of how such
vacuum level control is achieved. Olin further discloses that an auxiliary tank 15 can be
connected to the suction duct 14 leading to the ejector upstream of the non-return valve.
As evidenced by Friedman (column 6, lines 42-53), the use in vacuum assisted
sewer systems of a vacuum switch 66 for shutting off vacuum generating means, such
as a pump, when the vacuum within a tank reaches a predetermined level was
conventional at the time of appellant’s invention. Accordingly, it would have been
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Application No. 10/329,617

obvious to one of ordinary skill in the vacuum assisted sewer system art to utilize a
conventional vacuum switch in Olin’s sewer system to shut the valve 12 to implement
the function, broadly described by Olin, of ceasing the suction effect of ejector 5 when a
sufficient vacuum is sensed, in auxiliary tank 15, for example.
In light of the above, we conclude that the combined teachings of Olin in view of
Varis and Friedman are sufficient to establish that the subject matter of claims 6 and 7
would have been obvious to one of ordinary skill in the art at the time of appellant’s
invention. The rejection is sustained.

CONCLUSION
To summarize, the rejection of claims 5 and 8 as being anticipated by Olin is
sustained as to claim 5 and reversed as to claim 8, the rejection of claims 1, 5 and 8 as
being unpatentable over Olin in view of Varis is sustained as to claim 5 and reversed as
to claims 1 and 8, and the rejection of claims 2, 3, 6 and 7 as being unpatentable over
Olin in view of Varis and Friedman is sustained as to claims 6 and 7 and reversed as to
claims 2 and 3. The decision of the examiner is AFFIRMED-IN-PART.
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Application No. 10/329,617

No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
AFFIRMED-IN-PART

CHARLES E. FRANKFORT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JENNIFER D. BAHR ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ROBERT NAPPI )
Administrative Patent Judge )
Appeal No. 2006-0951 Page 12
Application No. 10/329,617

Attn: William M. Hanlon, Jr.
YOUNG & BASILE, P.C.
SUITE 624
3001 WEST BIG BEAVER ROAD
TROY, MI48084-3107

M/BM TEAM

APPEAL NO. 2006-0951
APPLICATION NO. 10/329,617

Copies:

______ APJ BAHR

______ APJ NAPPI

______ APJ FRANKFORT

DECISION: AFFIRMED-IN-PART

PREPARED: Sep 7, 2006

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