Ex Parte Crudgington et al

Patent Trials and Appeals Board

Jun 19, 2013

11395625 - (R) (P.T.A.B. Jun. 19, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PETER FRANCIS CRUDGINGTON
and AARON BOWSHER
____________

Appeal 2011-005823
Application 11/395,625
Technology Center 3600
____________

Before JAMES P. CALVE, WILLIAM A. CAPP, and
BEVERLY M. BUNTING, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

STATEMENT OF THE CASE
Appellants have requested a rehearing (“Request”) under 37 C.F.R.
§ 41.52 asking that we reconsider our June 21, 2013 decision (“Decision”).
Requests for Rehearing are limited to matters overlooked or misapprehended
by a Panel in rendering a decision. See 37 C.F.R. § 41.52. In the Decision,
we affirmed prior art rejections of claims 1, 4, 7, 9, and 12-20 and reversed
rejections of claim 18 under 35 U.S.C. § 112, first and second paragraphs.
Appeal 2011-005823
Application 11/395,625

2
Claims 1, 4, and 12-14, and 18 as anticipated by Turnquist ‘966
Appellants argue first that claim 1 requires “a bristle pack mounted in
a holder” and the Board alleges that a holder is disclosed in Turnquist ‘966,
column 3, lines 1-5, which merely discloses a brush seal attached to a casing
and does not disclose a bristle pack being mounted in anything. Request 1-
2. Appellants assert that the Board treated the entire element 152 as a front
plate including a thick portion at the top and a thinned or cut away part at the
lower part of element 152 so there is no element to correspond to a holder.
Request 2-3. These arguments do not persuade us that we overlooked or
misapprehended any point argued on appeal. The Decision discussed the
Examiner’s finding that Turnquist ‘966 discloses a holder and front plate
that is cut away or thinned on a side facing the bristles as illustrated by the
Examiner at pages 12-13 of the Answer. Decision 4. The Examiner made
these findings in the Final Rejection that was appealed and again in the
Answer. Final Rej. 4, 10; Ans. 5, 12-13. Appellants did not challenge the
Examiner’s finding that Turnquist ‘966 has a holder in their Appeal Brief, or
persuade us that the Examiner erred in finding that Turnquist ‘996 discloses
a front plate 152 that is thinned and cut away on a side facing the bristles.
App. Br. 16-17. “Arguments not raised in the briefs before the Board . . . are
not permitted in the request for rehearing except as permitted by paragraphs
(a)(2) and (a)(3) of this section.” 37 C.F.R. § 41.52(a)(1). Appellants have
not shown good cause why their new argument that Turnquist ‘966 does not
disclose a holder is entitled to consideration under 37 C.F.R. § 41.52(a)(2),
and 37 C.F.R. § 41.52(a)(3), directed to new grounds of rejection, does not
apply. Appellants’ argument that the upper thick portion of plate 152 cannot
be both the holder and a part of the front plate is therefore untimely and not
Appeal 2011-005823
Application 11/395,625

3
persuasive.1 Moreover, Turnquist ‘966 discloses that the metal-wire bristles
150 may be attached to a backing plate 124 by welding. Col. 5, ll. 49-54.
Appellants argue that claim 18 requires a surface on the free end of
the front plate “facing toward the free end of the bristle pack” and another
surface of the front plate “facing the bristle pack.” Request 5. Appellants
construe these limitations to require that both surfaces face some portion of
the bristle pack. Id. We are not persuaded by these arguments that we
overlooked or misapprehended any point argued on appeal. Turnquist ‘966
discloses a vertical surface of the front plate 152 that faces the bristle pack
150. See figs. 2, 3. Turnquist ‘966 also discloses a horizontal surface at the
bottom of the front plate 152 that faces toward a free end of the bristle pack.
The free end of the bristle pack is at the bottom of brush seal segment 110
and the second surface of front plate 152 faces toward the bottom of brush
seal segment 110. Appellants’ proposed claim construction would read the
term “toward” out of this limitation in claim 18, rendering it superfluous,
which is a claim construction that our supervising court proscribes. See
Stumbo v. Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007).
Claims 1, 4, 7, 9, and 12-14 as anticipated by Milliner
Appellants argue that the Board alleges that Milliner discloses a
holder as element 6, which is the topmost solid portion in Figure 2 and the
bristles 8 are not mounted in element 6 but instead are mounted below and

1 Appellants disclose essentially the same arrangement of a bristle pack 11
sandwiched between a front plate 13 and a rear plate 14 with an upper part
of the plates serving as a holder 12. Spec. 3, ll. 9-11 (“In Figure 1 a brush
seal, generally indicated at 10 includes a bristle pack 11 mounted in a holder
12 and having front and rear plates 13 and 14 which are integral or attached
to the holder 12.”) (emphasis added); figs. 1-13.
Appeal 2011-005823
Application 11/395,625

4
external to element 6, and element 6 cannot serve as both the claimed holder
and the claimed front plate. Request 4-5. This new argument is untimely
and does not persuade us that we overlooked or misapprehended any points
argued on appeal. The Decision upheld the Examiner’s finding that Milliner
discloses a holder and a front plate that is cut away or thinned on a side
facing the bristles as illustrated at pages 13-14 of the Answer. Decision 6-7.
The Examiner made these findings in the Final Rejection. Final Rej. 5, 10-
11. Appellants have not shown good cause for failing to challenge the
Examiner’s finding that Milliner discloses a holder in their Appeal Brief.
Moreover, Milliner discloses bristles 8 sandwiched between annular side
plates 10, 12 and held at an upper portion of the plates as Appellants disclose
in their Specification (see note 1 supra), and a free end of front plate 10 is
cut away or thinned on a side facing the bristle pack 8.
Claims 18 as anticipated by Turnquist ‘522
Appellants argue that Turnquist ‘522 does not disclose a front plate
with two surfaces facing the bristle pack as recited in claim 18 because the
Examiner relies on a curved portion that is not a surface because it lies under
a solid abradable portion 150, and the Board takes a new position that part of
the front plate 140 at the top of the bristle seal 210 faces a free end of bristle
pack 220. Request 7. These arguments do not persuade us of overlooking
or misapprehending any points argued on appeal. The Board adopted the
Examiner’s findings as illustrated on Figure 4 of Turnquist ‘522. Decision
9; Ans. 18. We agreed with the Examiner that Turnquist ‘522 discloses a
front plate 140 with a surface that faces the bristle pack 220 as illustrated on
Figure 4 by an arrow pointing to a window in the plate 140 through which an
upper part of the bristle pack 220 extends and the window includes a surface
Appeal 2011-005823
Application 11/395,625

5
facing the bristle pack 220. Ans. 18. Figure 4 discloses a tooth 200 with a
chamfer surface that faces toward the free end of the bristle pack 220. The
Examiner also found that Turnquist ‘522 discloses a curved surface facing
the bristles 220. Ans. 7. This additional finding was not essential to our
holding; however, we agree that this curved surface faces bristles 220. The
fact that an abradable portion 150 contacts the curved surface does not alter
the fact that the curved surface faces the bristles 220. Claim 18 recites a
brush seal “comprising” and thus covers devices with all of the claimed
features and additional elements. See In re Skvorecz, 580 F.3d 1262, 1267-
68 (Fed. Cir. 2009); In re Crish, 393 F.3d 1253, 1257 (Fed. Cir. 2004).
Appellants disclose an embodiment with two front plates with one plate 13
interposed between the other plate 20 and a bristle pack 11, yet Appellants
characterize both elements as front plates. See Spec. 3, ll. 27-30; Fig. 2.
Claims 15-20 as anticipated by Tong
Appellants argue that claim 18 requires “a formation for reducing the
influence of swirling fluid on the high pressure side of the bristle pack,” and
the Board’s argument that the brush seal of Tong is capable of reducing the
influence of swirling fluid on the high pressure side of the bristle pack is an
inaccurate assessment of Tong, which discloses a spacer plate 249 designed
to seal with a holder 244, 344 and is incapable of being exposed to a high
pressure side of the seal. Request 8-9. This argument does not persuade us
that we overlooked or misapprehended any points argued on appeal. The
spacer plate 249 includes an axially projecting flange 248 at its upper end
(figs. 4-6) and this flange 248 seats in a groove of the seal holder 244, but a
lower part of the spacer plate 249 is spaced from the bristles 262 and has a
chamfered surface, as claimed, so the Examiner had a sound basis to find
Appeal 2011-005823
Application 11/395,625

6
that Tong discloses structure capable of reducing the influence of swirling
fluid on a high pressure side of the bristle pack, as recited in claim 18.
Appellants also argue that claim 15 is improperly rejected based on
Tong because claim 1 was not rejected as anticipated by Tong. Request 10.
This argument does not persuade us that we overlooked or misapprehended
any points argued on appeal. The Examiner found that Tong discloses all of
the limitations of claim 15 (and claim 1 from which claim 15 depends). See
Ans. 8-9, 19-20. Appellants did not challenge these findings. App. Br. 25-
26. Instead, Appellants argued that claim 15 depends from claim 1 and the
Examiner did not state that Tong anticipates claim 1, which indicates that
claim 1 is allowable with respect to Tong, so that claim 15 depends from an
allowable claim and also is allowable. Id. We were not persuaded by this
argument because the Examiner established that Tong discloses all of the
elements of claim 15 and claim 1 from which claim 15 depends, and the
Examiner also stated that claim 1 was not allowable over Tong. Ans. 19.
DECISION
Appellants’ Request has been granted to the extent that we have
reconsidered our Decision in light of the arguments in Appellants’ Request,
but is denied with respect to our making any modification to the Decision.
Upon reconsideration, the prior art rejections of claims 1, 4, 7, 9, and 12-20
are 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)(1)(iv).

DENIED
mls