Ex Parte Brown

Board of Patent Appeals and Interferences

Dec 10, 2007

09769590 (B.P.A.I. Dec. 10, 2007)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte EDMUND W. BROWN
____________

Appeal 2007-2733
Application 09/769,590
Technology Center 3600
____________

Decided: December 10, 2007
____________

Before HUBERT C. LORIN, JENNIFER D. BAHR, and LINDA E. HORNER,
Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Edmund W. Brown (Appellant) seeks our review under 35 U.S.C. § 134 of
the final rejection of claims 22-30, 32, 34, 35, and 37-40, which are all of the
claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b)
(2002).

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SUMMARY OF DECISION
We AFFIRM.

THE INVENTION
The Appellant’s claimed invention is to a dampening cylinder for a transfer
mechanism for transferring a load between an upper conveyor and a lower
conveyor (Spec. 1:5-6). Claim 22, reproduced below, is representative of the
subject matter on appeal.
22. A dampening cylinder, comprising:
a cylindrical housing having first and second ends
and an inner surface defining a cavity in the housing for
receiving a fluid therein;
a piston slidably extending through the cavity in
the housing;
a flange projecting from the piston and positioned
within the cavity so as to divide the cavity in the housing
into first and second portions, the flange terminating at a
radially outer edge which forms a slidable interface with
the inner surface of the housing; and
a flow conduit having a first end communicating
with the first portion of the cavity in the housing and a
second end communicating with the second portion of
the cavity in the housing, the flow conduit including:
first and second flow control valves for
controlling the flow of fluid through the flow
conduit between the first and second portions of
the cavity in the housing, each flow control valve
including a flow regulator having a plurality of
user selectable discrete settings for controlling the
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flow rate of the fluid flowing between the first and
second portions of the cavity and for providing a
discrete metered fluid flow through a
corresponding flow control valve;
wherein the fluid flowing between the first
and second portions of the housing flows through
the flow conduit and wherein the first flow control
valve controls the flow rate of the fluid into the
second portion and the second flow control valve
controls the flow rate of the fluid into the first
portion.

THE REJECTION
The Examiner relies upon the following as evidence of unpatentability:
Kroeker US 4,969,643 Nov. 13, 1990
Kozhevnikov GB 1 275 827 May 24, 1972
The following rejection is before us for review:
1. Claims 22-30, 32, 34, 35, and 37-40 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Kozhevnikov and Kroeker.

ISSUE
The Appellant contends that the Examiner erred in rejecting claims 22-30,
32, 34, 35, and 37-40 because “neither of the cited references shows or suggests a
dampening cylinder wherein flow regulators control the rate of fluid flowing
between the first adjacent and second portions of the cavity in the housing” and
because there is no motivation to modify the valves of Kozhevnikov (App. Br. 14-
20; Reply Br. 5). The Examiner determined that it would have been obvious to
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replace the valves of Kozhevnikov with the user-selectable, discrete control valves
of Kroeker to achieve a finer level of control over the valves (Id.).
The Appellant further contends that the Examiner erred in rejecting claims
30, 32, 34, 35, and 37-39 because “nothing in the cited references shows or
suggests a dampening cylinder wherein the fluid flowing into and out of the first
portion of the housing flows solely through the first opening and the fluid flowing
into and out of the second portion of the housing flows solely through the second
opening in the housing” (App. Br. 18-19). The Examiner found that
Kozhevnikov’s check valve 38 and valve 35 operate as the claimed first and
second flow control valves (Answer 4).
The issue before us is whether the Appellant has shown that the Examiner
erred in rejecting claims 22-30, 32, 34, 35, and 37-40 under 35 U.S.C. § 103(a) as
unpatentable over Kozhevnikov and Kroeker.

FINDINGS OF FACT
We find that the following enumerated findings are supported by at least a
preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed.
Cir. 1988) (explaining the general evidentiary standard for proceedings before the
Office).
1. Kozhevnikov relates to an apparatus to balance out forces of inertia in
reciprocating masses (Kozhevnikov 1:11-13).
2. Kozhevnikov discloses a balancing device with two maximum pressure
valves 35, where each maximum pressure valve 35 includes a housing
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47, a disc valve 48, a piston 49, a spring 50, a spring washer 51, and an
adjustment screw 52 (Kozhevnikov 3:30-31 and 47-50; Fig. 2).
3. Each of the maximum pressure valves 35 is connected with the respective
working spaces of air cylinder 1 (Kozhevnikov 4:25-29).
4. The working pressure spaces C of the maximum pressure valves 35 are
permanently connected with each other through main 36 and each of the
high pressure spaces D of these valves is connected with main 36 through
pipings 37, which include non-return valves 38 (Kozhevnikov 3:30-36
and 4:29-35, Fig. 2).
5. As such, Kozhevnikov discloses a flow conduit formed by pipings 36 and
37, the flow conduit having a first end (left end) communicating with a
first portion of the cavity in the housing (the working space on the left
side of air cylinder 1) and a second end (right end) communicating with
the second portion of the cavity in the housing (the working space on the
right side of air cylinder 1).
6. The spring 50 of maximum pressure valve 35 biases the disc valve 48 in
a closed position, such that adjustment of the adjustment screw 52 adjusts
the force needed to press against disc valve 48 to open maximum
pressure valve 35 (Kozhevnikov, Fig. 2).
7. At a predetermined point during movement of piston 2 in air cylinder 1,
the left maximum pressure valve 35 opens. The point is determined
based on the setting of the adjustment screw 52. When the left valve 35
opens, the excess air from the left working space of air cylinder 1 passes
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by disc valve 48 and is forced through the piping of main 36, to the
piping 37 on the right side, and then via the non-return valve 38 on the
right side, to the right working space of air cylinder 1. Thus, air pressure
in the left working space of air cylinder 1 does not exceed a definite
preset value. (Kozhevnikov 4:54-61; Fig. 2).
8. As such, Kozhevnikov discloses that the flow conduit includes first and
second flow control valves (maximum pressure valves 35) for controlling
the flow of fluid through the flow conduit between the first and second
portions of the cavity in the housing (between the left and right working
spaces of the air cylinder 1), wherein the fluid flowing between the first
and second portions of the housing flows through the flow conduit and
wherein the first flow control valve (the maximum pressure valve 35 on
the left side) controls the flow of the fluid into the second portion (the
working space on the right side of air cylinder 1) and the second flow
control valve (the maximum pressure valve 35 on the right side) controls
the flow of the fluid into the first portion (the working space on the left
side of air cylinder 1).
9. The purpose of the maximum pressure valves 35 of Kozhevnikov is to
maintain a steady rolling process when the main 33 of bypass valve 34 is
shut off (Kozhevnikov 4:36-65).
10. The springs 50 of each maximum pressure valve 35 are set to maintain
equality between the air pressure in the working spaces of the air cylinder
1 for a given steady rolling process (Kozhevnikov 4:36-53). Once
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movement of piston 2 disturbs the equality of the air pressure on the left
and right working spaces of air cylinder 1, the appropriate maximum
pressure valve 35 opens to restore equality of the air pressure
(Kozhevnikov 4:54-59).
11. Once the valve 35 opens, the air is allowed to flow from one working
space to the other with no care taken as to the rate of flow through the
flow conduit.
12. It would be preferable, however, to be able to control this rate of flow
through the flow conduit, so that the rate at which equality of the air
pressure is restored can be controlled to match the specific steady rolling
process.
13. The maximum pressure valves 35 of Kozhevnikov operate when the main
33 is shut off (Kozhevnikov 4:49-59). The main 33 is shut off once stand
7 has been accelerated and the forces of inertia have reached a definite
permanent value characteristic for the steady mill operation
(Kozhevnikov 3:91-98). As such, while the main 33 is shut off, the
maximum pressure valves 35 and check valves 38 operate to allow the
fluid flowing into and out of the first portion of the housing to flow solely
through the first opening and the fluid flowing into and out of the second
portion of the housing to flow solely through the second opening in the
housing.
14. Kroeker relates to an exercise apparatus having a resistance against
exertion by the user (Kroeker, col. 1, ll. 4-6).
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15. The resistance is provided by a hydraulic system which includes a
cylinder 36 having a piston rod 38 and a piston 56 (Kroeker, col. 4,
ll. 54-57; Fig. 4).
16. Cylinder 36 has openings 76 and 78 (Kroeker, col. 4, ll. 66-67).
17. A line 80 communicates with cylinder opening 76 and a T-junction
member 96 through a check valve 84, which allows flow from the
cylinder but not to the cylinder, and an adjustable flow control valve 88,
adjustable by rotatable knob 92 (Kroeker, col. 4, l. 67 – col. 5, l. 3). Flow
control valve 88 allows free flow towards the cylinder and controlled
flow away from the cylinder toward T-junction member 96 (Kroeker,
col. 5, ll. 3-6).
18. A line 82 communicates with cylinder opening 78 and T-junction
member 96 through a check valve 86, which allows flow from the
cylinder but not to the cylinder, and an adjustable flow control valve 90,
adjustable by rotatable knob 94 (Kroeker, col. 5, ll. 6-10). Flow control
valve 90 allows free flow towards the cylinder and controlled flow away
from the cylinder toward T-junction member 96 (Kroeker, col. 5,
ll. 10-13).
19. A line 98 connects T-junction member 96 to a reservoir 58, forming an
inlet pressure line (Kroeker, col. 5, ll. 13-15).
20. As such, Kroeker teaches using flow control valves 88 and 90 to provide
controlled flow from the working spaces of the cylinder 36 to the T-
junction member 96, wherein the amount of controlled flow allowed
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through flow control valves 88 and 90 is set by the user by rotating knobs
92 and 94, respectively. Thus, Kroeker teaches using flow control valves
88 and 90 having flow regulators 92 and 94, with a plurality of user
selectable discrete settings, for controlling the flow rate of the fluid for
providing a discrete metered fluid flow (i.e., controlled flow) through a
corresponding flow control valve 88 and 90.

PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences between the
subject matter sought to be patented and the prior art are such that the subject
matter as a whole would have been obvious at the time the invention was made to a
person having ordinary skill in the art to which said subject matter pertains.’” KSR
Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1734 (2007). The question of
obviousness is resolved on the basis of underlying factual determinations including
(1) the scope and content of the prior art, (2) any differences between the claimed
subject matter and the prior art, (3) the level of skill in the art, and (4) where in
evidence, so-called secondary considerations. Graham v. John Deere Co., 383
U.S. 1, 17-18 (1966). See also KSR, 127 S.Ct. at 1734 (“While the sequence of
these questions might be reordered in any particular case, the [Graham] factors
continue to define the inquiry that controls.”)

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ANALYSIS
The Appellant argues the references individually. While neither reference
individually discloses all of the elements of claim 22, the combination of
Kozhevnikov and Kroeker would have led one having ordinary skill in the art to
the claimed dampening cylinder.
Kozhevnikov discloses a flow conduit formed by pipings 36 and 37 having a
first end (left end) communicating with a first portion of the cavity in the housing
(the working space on the left side of air cylinder 1) and a second end (right end)
communicating with the second portion of the cavity in the housing (the working
space on the right side of air cylinder 1) (FF 1-4). Kozhevnikov further discloses
that the flow conduit includes first and second flow control valves (maximum
pressure valves 35) for controlling the flow of fluid through the flow conduit
between the first and second portions of the cavity in the housing (between the left
and right working spaces of the air cylinder 1), wherein the fluid flowing between
the first and second portions of the housing flows through the flow conduit and
wherein the first flow control valve (the maximum pressure valve 35 on the left
side) controls the flow of the fluid into the second portion (the working space on
the right side of air cylinder 1) and the second flow control valve (the maximum
pressure valve 35 on the right side) controls the flow of the fluid into the first
portion (the working space on the left side of air cylinder 1) (FF 5-8).
The Appellant argues that the valves 35 and 38, once opened, allow air to
pass, under pressure, without regard to or means for controlling the rate of the air
flow (App. Br. 15; Reply Br. 3). Even if that is the case, the Examiner relied on
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Kroeker, not Kozhevnikov, for teaching of flow control valves that control the rate
of the air flow through the valves. As such, the Appellant’s argument is
unpersuasive because it is directed to each reference individually, whereas the
Examiner’s rejection relied on the combined teachings of the two references. One
cannot show nonobviousness by attacking references individually where the
rejections are based on combinations of references. See In re Keller, 642 F.2d 413,
208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375
(Fed. Cir. 1986). The Examiner relied on Kroeker to teach using flow control
valves having a flow regulator with a plurality of user selectable discrete settings
for controlling the flow rate of the fluid flowing between the first and second
portions of the cavity and for providing a discrete metered fluid flow through a
corresponding flow control valve (Answer 3). We agree with the Examiner’s
findings as to the scope and content of Kroeker.
Kroeker teaches using flow control valves 88 and 90 to provide controlled
flow from the working spaces of the cylinder 36 to the T-junction member 96,
wherein the amount of controlled flow allowed through flow control valves 88 and
90 is set by the user by rotating knobs 92 and 94, respectively. Thus, Kroeker
teaches using flow control valves 88 and 90 having flow regulators 92 and 94, with
a plurality of user selectable discrete settings, for controlling the flow rate of the
fluid for providing a discrete metered fluid flow (i.e., controlled flow) through a
corresponding flow control valve 88 and 90 (FF 14-20).
The Appellants argue that “[t]he alleged discrete flow metering provided in
the Kroeker et al., ‘643 patent controls the flow of the fluid exiting corresponding
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portions of the interior of the hydraulic cylinder into a reservoir, while the flow of
fluid into the portions of the cavity are controlled by suction” (App. Br. 16; Reply
Br. 4). This argument is unpersuasive because it is again directed to the Kroeker
reference individually rather than addressing the Examiner’s combination of
Kroeker with Kozhevnikov. The Examiner did not rely on Kroeker to teach that
the flow control valves control flow between first and second portions of the cavity
of the housing. Rather, the Examiner merely relied on Kroeker to teach that flow
control valves having flow regulators are known in the dampening cylinder art and
that it would have been obvious to have used such flow control valves in the device
of Kozhevnikov to provide “a finer level of control than is possible with the design
of the valves of [Kozhevnikov]” and thus to control flow through the flow conduit
between the left and right side working spaces of Kozhevnikov’s air cylinder 1
(Answer 3).
The Appellant further argues that there is no motivation to combine the prior
art references because “[t]here is no need to control the flow rate of the air passing
between the first and second portions of the cavity [of Kozhevnikov]” (Reply Br.
5). We disagree.
The purpose of the maximum pressure valves 35 of Kozhevnikov is to
maintain a steady rolling process when the main 33 of bypass valve 34 is shut off
(FF 9). The springs 50 of each maximum pressure valve 35 are set to maintain
equality between the air pressures in the working spaces of the air cylinder 1 for a
given steady rolling process (FF 10). Once movement of piston 2 disturbs the
equality of the air pressures on the left and right working spaces of air cylinder 1,
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the appropriate maximum pressure valve 35 opens to restore equality of the air
pressure (FF 10). As asserted by the Appellant, once the valve 35 opens, the air is
allowed to flow from one working space to the other with no care taken as to the
rate of flow through the flow conduit (FF 11). It would be preferable, however, to
be able to control this rate of flow through the flow conduit using the flow control
valves of Kroeker, so that the rate at which equality of the air pressure is restored
can be controlled to match the specific steady rolling process (FF 12). As such, it
would have been obvious to one having ordinary skill in the art to replace the
maximum pressure valves 35 of Kozhevnikov with the flow control valves 88, 90
of Kroeker having flow regulators to allow for a plurality of user selectable
discrete settings for providing a discrete metered fluid flow to provide for more
precise control of the flow rate through the flow conduit. The use of Kroeker’s
flow control valves 88 and 90 for Kozhevnikov’s maximum pressure valves 35 is
mere substitution of one element for another known in the field that does no more
than yield predictable results. See KSR, 127 S. Ct. at 1740 (citing United States v.
Adams, 383 U.S. 39, 50-51 (1966)).
The Appellant further contends that the Examiner erred in rejecting claims
30, 32, 34, 35, and 37-39 because the device of Kozhevnikov includes the main 33
interconnecting the first and second working spaces of air cylinder 1, and thus
Kozhevnikov does not disclose a dampening cylinder wherein the fluid flowing
into and out of the first portion of the housing flows solely through the first
opening and the fluid flowing into and out of the second portion of the housing
flows solely through the second opening in the housing (App. Br. 18-19). The
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Examiner found that Kozhevnikov’s check valve 38 and valve 35 operate as the
claimed first and second flow control valves (Answer 4). We agree with the
Examiner.
As disclosed in Kozhevnikov, the maximum pressure valves 35 operate
when the main 33 is shut off, i.e., once stand 7 has been accelerated and the forces
of inertia have reached a definite permanent value characteristic for the steady mill
operation (FF 13). As such, while the main 33 is shut off, the maximum pressure
valves 35 and check valves 38 operate to allow the fluid flowing into and out of the
first portion of the housing to flow solely through the first opening and the fluid
flowing into and out of the second portion of the housing to flow solely through the
second opening in the housing (FF 13).

CONCLUSIONS OF LAW
We conclude the Appellant has failed to show that the Examiner erred in
rejecting claims 22-30, 32, 34, 35, and 37-40 under 35 U.S.C. § 103(a) as
unpatentable over Kozhevnikov and Kroeker.

DECISION
The decision of the Examiner to reject claims 22-30, 32, 34, 35, and 37-40 is
affirmed. 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).

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AFFIRMED

JRG

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