Ex parte Brand et al.

Board of Patent Appeals and Interferences

Jul 27, 1999

08248003 (B.P.A.I. Jul. 27, 1999)

Application for patent filed May 24, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 27
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JACOB BRAND and CORNELIS VAN DER ZOUWEN
_____________
Appeal No. 97-1973
Application No. 08/248,003 1
______________
HEARD: July 15, 1999
_______________
Before McQUADE, CRAWFORD and GONZALES, Administrative Patent
Judges
GONZALES, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 4 through 8, which are all of the claims
Appeal No. 97-1973
Application No. 08/248,003
Claim 4 was amended and claim 9 was canceled subsequent to the final2
rejection. See Paper No. 15.
2
pending in this application. 2
We REVERSE.
The invention is directed to a bucket dredger. Claim 4
is illustrative of the subject matter on appeal and is
reproduced in the "Appendix" to appellants' brief.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Gray 640,762 Jan. 09,
1900
Whisler 2,132,198 Oct. 04,
1938
Von Bolhar 2,528,195 Oct. 31,
1950
Claims 4 through 8 stand rejected under 35 U.S.C. §
103 as being unpatentable over Gray in view of Whisler in
combination with Von Bolhar.
The full text of the examiner's rejection and response to
the argument presented by appellants appears in the answer
(Paper No. 21), while the complete statement of appellants’
argument can be found in the brief (Paper No. 20).
OPINION
Appeal No. 97-1973
Application No. 08/248,003
3
In reaching our decision in this appeal, we have given
careful consideration to the appellants' specification and
claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the
examiner.
Claim 4, the only independent claim before us for review,
recites a bucket dredger comprising a swivelling ladder for
connecting to a vessel, a driven upper wheel at the top end of
the ladder and a polygonal lower wheel at a lower end of the
ladder, the lower wheel having upright edges, at least one
endless chain guided on the wheels and buckets bound to a
plurality of shackles of the at least one chain. The buckets
are further defined in claim 4 as including a bottom wall
provided with two ribs extending downwardly substantially
parallel to the side walls of the bucket and substantially
along a length of the bottom wall. Claim 4 also recites that
the ribs, in an assembled state of the bucket, extend adjacent
to the at least one chain and that the upright edges on the
Appeal No. 97-1973
Application No. 08/248,003
We note that strict antecedent basis is lacking for the recitation of3
"the side walls" in line 10 of claim 4. Correction of this informality is in
order upon return of the application to the jurisdiction of the examiner.
4
lower wheel engage and support the ribs.3
It is the examiner's view (answer, page 3) that all of
the subject matter recited in claim 4 is disclosed by Gray,
except for (1) the upright edges on the lower wheel and (2)
the relative positioning of the ribs and upright edges such
that the upright
edges engage and support the ribs. However, the examiner
finds these features to be taught by Whisler and Von Bolhar,
respec-tively, and takes the position that it would have been
obvious to one of ordinary skill in the art to add upright
edges to the bottom wheel taught by Gray in order to confine
the chain against lateral displacement and to locate the ribs
taught by Gray between the chain and upright edges in order to
provide a more stable connection between the buckets and chain
(answer, pages 3 and 4).
Appeal No. 97-1973
Application No. 08/248,003
5
Gray discloses a bucket dredger comprising a pivoted
ladder E, a top tumbler A mounted on shaft a, gears B,b for
driving shaft a, a polygonal lower tumbler M, links C,C' which
form an endless chain and buckets D bound to a plurality of
links C (lines 60-69). The buckets further include a bottom
wall d provided with downwardly bent sides or ribs e which are
substantially parallel to the side walls of the bucket (Figure
3) and extend substantially along a length of the bottom wall
(Figure 3a). When the buckets are assembled with the endless
chain, the sides or ribs e are clamped between the links C
together with the ends of the rim H, and the side pieces of
the body portion. A shim f is inserted between the link and
the side
piece in order to completely fill the space between the links
C. See Figure 7 and page 2, lines 22-25 and 37-58.
Whisler discloses a tumbler used for confining a chain of
buckets against lateral displacement (page 1, left-hand
column, lines 1-9) including a confining flange 2a. See, for
Appeal No. 97-1973
Application No. 08/248,003
Claim 4 actually calls for "upright edges on the lower wheel engaging4
and supporting the ribs" (emphasis supplied).
6
example, Figure 6.
Von Bolhar discloses a dredge digging structure having
buckets 81 mounted on a plurality of link bodies 51 of an
endless chain 21. In order to mount the buckets 81 on the
link bodies 51, the side walls of the buckets are provided
with lugs 86 and 87 having reenforcing flanges 88 and 89 and
terminate in bosses 90 and 91. When assembled to the chain,
the bosses 90 and 91 are aligned with bosses 93 and 94 located
on the lateral faces of the link bodies 51. See col. 4, lines
31-43.
Appellants argue, inter alia, that none of the applied
references teach "an upright edge 'engaging and supporting' a
rib as recited" (brief, page 6). In response, the examiner4
argues that
Whisler places upright edges on the lower wheel and Von
Bolhar changes the location of Gray's ribs to be between
the chain and the upright edges, thus allowing the
upright edges to engage and support the ribs. (answer,
page 5)
As indicated above, the examiner asserts that one of ordinary
Appeal No. 97-1973
Application No. 08/248,003
7
skill in the art would have been motivated to relocate Gray's
sides or ribs e between the chain and upright edges on the
lower wheel in order to provide a more stable connection
between the bucket and the chain (answer, page 4). We do not
agree. Gray locates the sides or ribs e, the ends of the rim
H, the side pieces of the body portion and the shim f between
the double links C for a very specific reason, namely, in
order to completely fill the space between the links C. Gray
teaches that the advantage of such an arrangement is that it
prevents particles of rock or gravel from lodging between the
double links C and that this is an important feature of his
invention (page 2, lines 53-59). Thus, Gray actually teaches
away from the modification proposed by the examiner.
Furthermore, there is no indication in Von Bolhar that by
locating the bosses 90 and 91 on the bucket between the link
51 and the "paddle" that the "paddle" will necessarily engage
and support the bosses 90 and 91. We conclude that it is
highly speculative to suggest that if Gray were modified as
proposed in the rejection, the upright edges on the lower
wheel would engage and support the sides or ribs e as
Appeal No. 97-1973
Application No. 08/248,003
We note that Von Bolhar neither describes nor illustrates the details5
of the lower tumbler 18.
Rejections based on § 103 must rest on a factual basis with these6
facts being interpreted without hindsight reconstruction of the invention from
the prior art. The examiner may not, because of doubt that the invention is
patentable, resort to speculation, unfounded assumption or hindsight
reconstruction to supply deficiencies in the factual basis for the rejection.
See In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert.
denied, 389 U.S. 1057 (1968).
8
specified and required by appealed claim 4. Accordingly, we5
cannot sustain the stated rejection of claim 4 based on the
disclosures in Gray, Whisler and Von Bolhar.6
Claims 5 through 8 are dependent on claim 4 and contain
all of the limitations of that claim. Accordingly, the
examiner’s rejection of claims 5 through 8 under 35 U.S.C. §
103 will not be sustained.
The decision of the examiner is reversed.
REVERSED
JOHN P. McQUADE )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MURRIEL E. CRAWFORD ) APPEALS AND
Appeal No. 97-1973
Application No. 08/248,003
9
Administrative Patent Judge ) INTERFERENCES
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
vsh
Appeal No. 97-1973
Application No. 08/248,003
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