Ex Parte ConradDownload PDFPatent Trial and Appeal BoardMay 22, 201512460738 (P.T.A.B. May. 22, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/460,738 07/22/2009 Armin Conrad 210,351 8272 38137 7590 05/22/2015 ABELMAN, FRAYNE & SCHWAB 666 THIRD AVENUE, 10TH FLOOR NEW YORK, NY 10017 EXAMINER KRAMER, DEVON C ART UNIT PAPER NUMBER 3746 MAIL DATE DELIVERY MODE 05/22/2015 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ARMIN CONRAD ____________ Appeal 2013-005243 Application 12/460,7381 Technology Center 3700 ____________ Before ANNETTE R. REIMERS, THOMAS F. SMEGAL, and LISA M. GUIJT, Administrative Patent Judges. SMEGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Armin Conrad (Appellant) seeks our review under 35 U.S.C. § 134 of the Examiner’s Non–Final Rejection2 of claims 2–6, 10, and 11 under 35 U.S.C. § 102(b) as anticipated by Puech (US 6,224,326 B1, iss. May 1, 2001); claims 7 and 8 under 35 U.S.C. § 103(a) as unpatentable over Puech and Hofmann (2007/0258836 A1, pub. Nov. 8, 2007); and claim 9 under 35 U.S.C. § 103(a) as unpatentable over Puech and Ruggles (US 5,017,022, iss. 1 According to Appellant, the real party in interest is Pfeiffer Vacuum GmbH. Appeal Br. 2. 2 Mailed June 12, 2012. Appeal 2013–005243 Application 12/460,738 2 May 21, 1991).3 Claim 1 has been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Claim 11 is the sole independent claim and is reproduced below, with emphasis on certain disputed claim limitations. 11. A vacuum pump, comprising a shaft; a pump inlet; a pump outlet, a pumping system arranged on the shaft for pumping gas from the pump inlet to the pump outlet; and first and second dynamic gas bearings provided on opposite sides of the pumping system for supporting the shaft for rotation, the pumping system having two pumping sections for pumping a compressed gas from the pump inlet in a direction of the gas bearing adjacent to a respective pumping section. Appeal Br. 11, Claims App. (emphasis added). ANALYSIS Anticipation of claims 2–6, 10, and 11 by Puech Appellant argues claims 2–6, 10, and 11 as a group. See Appeal Br. 4–8. We select independent claim 11 as the representative claim for this group such that the remaining claims stand or fall with claim 11. See 37 C.F.R. §41.37(c)(1)(iv) (2014) . We have considered Appellant’s arguments 3 Appellant does not include the rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over Puech and Ruggles in the Appeal Brief or Reply Brief. See Appeal Br. and Reply Br., generally. However, Appellant states that (1) the Appeal Brief is “in support of an appeal from the rejection of claims 2 through 11 by the Examiner” (Appeal Br. 1); and (2) “Appellant respectfully disagrees with the rejection of claims 2-11 over the applied prior art” (Id. at 4). Accordingly, we consider Appellant’s omission of the rejection of claim 9 to be an inadvertent error. Appeal 2013–005243 Application 12/460,738 3 raised in the Appeal Brief and Reply Brief, but do not find them persuasive to demonstrate error in the Examiner’s rejection of claim 11 as being anticipated by Puech. The Examiner finds Puech to disclose a vacuum pump system for pumping gas from a pump inlet to a pump outlet that also includes: first (13) and second (14) dynamic gas bearings provided on opposite ends of the pumping system for supporting the shaft for rotation, the pumping system [8, 9, 10, 19] having two pumping sections (8, 19) (10, 19) for pumping a compressed gas from the pump inlet in a direction of the gas bearing adjacent to a respective pumping section (col. 3: lines 15–42) [as recited in claim 11]. Non-Final Act. 3. According to Appellant, there is a contradiction in the Examiner’s present interpretation of the Puech reference, because “the correct interpretation of the Puech reference is that [set forth] in the Final Office Action dated January 17, 2012.” Appeal Br. 4–5. However, the Examiner disagrees, noting “that the interpretation of Puech in the most recent Non- Final Office Action dated 12 June 2012 is the correct interpretation of Puech because this Office Action is in response to Appellant’s request for continued examination.” Answer 3. Thus, the Examiner’s Non-Final Rejection—from which this appeal was taken—finds Puech to disclose a “pumping system” as described above, not as described in an earlier communication, which is not the subject of this appeal. See In re Webb, 916 F.2d 1553, 1556 (Fed. Cir. 1990). Thus, Appellant’s argument is without merit. Appellant acknowledges that the Puech pump “includes first and second gas bearings (13, 14) (col. 3, lines 33–34) for supporting the shaft Appeal 2013–005243 Application 12/460,738 4 (12) for rotation and arranged on opposite side[s] of an electric motor (15) for rotating the shaft” and that “[o]ne of the gas bearings (13) is located adjacent to one side of the pumping system (stator blades (6, 7) and rotor blades (16–18)),” but contends that the other “gas bearing (14) is located remotely from the pumping system.” Appeal Br. 5–6. Based on the assertion that the pumping system of Puech does not include gas bearing (14), Appellant advances two arguments: (1) Puech does not disclose or suggest “first and second bearings provided on opposite sides of the pumping system of the pump”; and (2) Puech does not disclose or suggest “a pumping system having two pumping sections for pumping a compressed gas from the pump inlet in a direction of the gas bearing adjacent to a respective pumping system.” Appeal Br. 6. At the outset, the Examiner points out that “Appellant’s interpretation of the Puech pumping system being rotor blade stages (16, 17, 18) is not the Examiner’s interpretation made in the rejection of claim 11 as stated in the Office Action dated 06/12/2012.” Answer 4. We agree, having already found this argument to be without merit. See discussion supra. Further, Appellant’s first argument is not commensurate with the language of claim 11, which does not require “two bearings located on opposite sides of a pumping system for pumping gas from the pump inlet to the pump outlet (see Reply Br. 3 (emphasis added)), but merely recites that first and second bearings are “provided on opposite sides of the pumping system for supporting a shaft for rotation.” See Appeal Br. 11, Claims App. (emphasis Appeal 2013–005243 Application 12/460,738 5 added). Moreover, we note that Appellant acknowledges that Puech discloses “first and second gas bearings (13, 14) . . . for supporting the shaft (12) for rotation.” See Appeal Br. 5. Also in response to Appellant’s first argument, the Examiner finds that the pumping system disclosed by Puech “includes the interface between the outer tubular Holweck stator portion 9 and the tubular Holweck rotor 19 and [] the interface between the inner tubular Holweck stator portion 10 and the tubular Holweck rotor 19.” Answer 5. The Examiner further finds that As shown in figure 1 [of Puech], the first (13) and second (14) bearings are provided on opposite sides of the interface between the outer tubular Holweck stator portion 9 and the tubular Holweck rotor 19 (bearing 13 on the top side and bearing 14 on the bottom side as shown in fig. 1) and also on opposites sides of the interface between the inner tubular Holweck stator portion 10 and the tubular Holweck rotor 19 (bearing 13 on the top side and bearing 14 on the bottom side as shown in fig. 1), therefore the first (13) and second (14) bearings of Puech are on opposite[] side[s] of the pumping system (8, 9, 10, 19), meeting claim 11. Id. Appellant does not apprise us of any error in the Examiner’s findings or conclusions. In response to Appellant’s second argument, the Examiner points out that “Appellant’s argument that the ‘elements 8, 9, 10, 19 form a single stage, one pumping section (col. 3, lines 61–64)’ is not persuasive.” Answer 5. The Examiner again explains that the pumping section of Puech “is interpreted as [to include] the interface between the outer tubular Holweck stator portion 9 and the tubular Holweck rotor 19 and [] the interface between the inner tubular Holweck stator portion 10 and the tubular Holweck rotor 19,” and that “[b]oth of these interfaces contain channels for pumping a compressed gas and therefore meet the pumping Appeal 2013–005243 Application 12/460,738 6 section limitation.” Id. at 6. (emphasis added). In addition, the Examiner finds that Puech discloses [] first (13) and second (14) bearings as gas bearings (col. 4: lines 40-49) and further discloses the pumping sections (8, 9, 10, 19) pump a compressed gas from the inlet (3) to the outlet (5) and therefore the pumping sections (8, 9, 10, 19) pump compressed gas from the pump inlet (3) in a direction of the gas bearing (13, 14) (a direction toward the outlet 5) adjacent to a respective pumping section, meeting claim 11. Id. at 7. (emphasis added). Appellant does not apprise us of any error in the Examiner’s findings or conclusions. Furthermore, in contending that “rotor blade stages (16, 17, 18) which form part of the pumping system [of Puech] are located above the upper bearing (13)” (see Appeal Br. 6), Appellant continues the argument that we previously determined to be without merit for not being responsive to the Examiner’s rejection from which this Appeal was taken. See discussion supra. Appellant also contends that “Puech has not [sic] disclosure whatsoever as to how the gas is communicated to the bearings,” and that “[i]t appears that the bearing gas system is completely independent from the pumping system, as Puech contemplates an interchangeable use of magnetic and gas bearings (claim 7, line 2).” Appeal Br. 6. Again we find that Appellant’s argument is not commensurate with the language of claim 11, which recites “two pumping sections for pumping a compressed gas from a pump inlet in a direction of the gas bearing adjacent to a respective pumping section,” not that gas “is communicated to the bearings." See Appeal Br. 11, Claims App.; see also Ans. 6. Appeal 2013–005243 Application 12/460,738 7 Regarding Appellant’s assertion that “the bearing gas system is completely independent from the pumping system” (see Appeal Br. 6), the Examiner finds that “Puech discloses the gas bearings (13, 14) in figure 1, where it also discloses that the gas bearing (13) and the interface between the inner tubular Holweck stator portion 10 and the tubular Holweck rotor 19 share a same fluid volume” and that “a fluid is capable of being communicated between the bearing (13) and the interface (10, 19), therefore the bearing gas system does not appear to be completely independent from the pumping system.” Answer 7. Appellant fails to apprise us of any error in the Examiner’s findings or conclusions. Appellant also introduces a new argument in the Reply Brief at page 3, contending that the Puech structure “is not capable of compensating the axial forces produced by the pressure difference between the inlet area and the outlet bearing area.” We need not address the substance of this assertion, however, for procedural reasons. In other words, Appellant did not present this argument in the Appeal Brief, and thus did not set forth this argument prior to the Reply Brief to permit the Examiner an opportunity to fully respond. See 37 C.F.R. § 41.41(b)(2) (2014) (“Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner’s answer . . . will not be considered by the Board for purposes of the present appeal, unless good cause is shown.”). For the reasons set forth above, we discern no error in any of the Examiner’s findings and agree that the vacuum pump disclosed by Puech anticipates claim 11. Thus, we sustain the Examiner’s rejection of claim 11 and claims 2–6 and 10 falling therewith, under 35 U.S.C. §102(b) as anticipated by Puech. Appeal 2013–005243 Application 12/460,738 8 Obviousness of claims 7 and 8 over Puech and Hofmann; and claim 9 over Puech and Ruggles Appellant does not separately argue claims 7–9. See Appeal Br. 9; see also id. at 8 (“Claims 2-10 stand or fall together with claim 11.”); Reply Br. 5. Therefore, we sustain the rejections of claims 7and 8 as unpatentable over Puech and Hofmann and claim 9 as unpatentable over Puech and Ruggles for the same reasons stated above with respect to claim 11. DECISION We AFFIRM the Examiner’s rejections. 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). AFFIRMED Klh Copy with citationCopy as parenthetical citation