Ex Parte Cunningham

Board of Patent Appeals and Interferences

Feb 19, 2004

09277534 (B.P.A.I. Feb. 19, 2004)

1
` The opinion in support of the decision being entered
today was not written for publication and
is not binding precedent of the Board.
Paper No. 29
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte DENNIS J. CUNNINGHAM
_______________
Appeal No. 2004-0312
Application No. 09/277,534
_______________
ON BRIEF
_______________
Before GARRIS, PAK, and WARREN, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the final rejection of
claims 1-3, 5, 7-12, 14 and 15. The only other claims in the
application, which are claims 4, 6, 13 and 16-20, stand withdrawn
from further consideration by the examiner.
Appeal No. 2004-0312
Application No. 09/277,534
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The subject matter on appeal relates to a glass workpiece
transporting and locating system, to a glass processing machine,
and a to glass workpiece feeding device. With reference to the
appellant’s drawing, the appealed subject matter comprises a
glass cutting table 20, having a movable bridge 24 associated
therewith; the bridge includes vacuum chucks 42 which overlap a
glass workpiece W supported on a glass workpiece feeding table 34
whereby the workpiece can be engaged by the chucks for feeding
the workpiece to the glass cutting table (i.e., via movement of
bridge 24); and means (e.g., see elements 38, 40 and 44) for
aligning the glass workpiece which is supported on the glass
workpiece feeding table. This appealed subject matter is
adequately illustrated by independent claims 1, 7 and 14, a copy
of which taken from the appellant’s brief is appended to this
decision.
The references set forth below are relied upon by the
examiner in the § 102 and § 103 rejections before us:
Curtze et al. (Curtze) 3,424,357 Jan. 28, 1969
Lisec (Lisec ‘555) 4,667,555 May 26, 1987
Perobelli et al. (Perobelli) 5,507,616 Apr. 16, 1996
Lisec (Lisec ‘244) 5,944,244 Aug. 31, 1999
(effectively filed May 27, 1997)
Appeal No. 2004-0312
Application No. 09/277,534
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All of the claims on appeal stand rejected under the second
paragraph of 35 U.S.C. § 112 for failing to particularly point
out and distinctly claim the subject matter which the appellant
regards as his invention.
Claims 1-3, 5, 14 and 15 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Perobelli.
Claims 1, 5 and 14 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Curtze.
Claim 14 stands rejected under 35 U.S.C. § 102(b) as being
anticipated by Lisec ‘555.
Claims 1 and 5 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Lisec ‘555 and Curtze.
Claims 7-9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable Lisec ‘555 in view of Lisec ‘244.
Finally, claims 7 and 8 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Curtze in view of Lisec
'244.
On page 6 of the brief (i.e., the second supplemental appeal
brief filed January 23, 2003), the appellant indicates that the
appealed claims do not stand or fall together. Accordingly, to
Appeal No. 2004-0312
Application No. 09/277,534
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the extent necessary for assessing the merits of the above noted
rejections, we will individually consider each claim which has
been separately grouped and argued by the appellant. See 37 CFR
1.192(c) (2002).
For a complete exposition of the opposing viewpoints
expressed by the appellant and by the examiner regarding the
rejections before us, we refer to the aforementioned brief and
reply brief as well as to the answer.
OPINION
For the reasons which follow, we will sustain the examiner’s
§ 102 rejection of claim 14 as being anticipated by Perobelli,
but we will not sustain any of the other rejections advanced on
this appeal.
The inquiry under the second paragraph of § 112 is to
determine whether the claims set out and circumscribe a
particular area with a reasonable degree of precision and
particularity. It is here where the definiteness of the language
employed must be analyzed, not in a vacuum but, always in light
of the teachings of the prior art and of the particular
application disclosure as it would be interpreted by one
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possessing the ordinary level of skill in the pertinent art. In
re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 238 (CCPA 1971).
We find that the claim language under review, when analyzed
as instructed above, circumscribes an area of subject matter with
a reasonable degree of precision and particularity. Contrary to
the examiner’s viewpoint, the appealed claims are not rendered
indefinite simply because the subject matter thereof is defined
in terms of structure, such as a glass cutting table, which is
not part of the claimed subject matter. As correctly indicated
by the appellant, defining claimed subject matter in such terms
is common and aids in understanding this subject matter by
describing it with respect to the environment (e.g., a glass
cutting table) in which it is used. Further, we cannot agree
with the examiner that such description confuses whether the
structure in question, such as a glass cutting table, is part of
the claimed subject matter (i.e., a combination) or not (i.e., a
sub-combination). Indeed, the examiner’s position on this matter
is undermined by the fact that his claim interpretation vis-a-vis
the application of prior art generally corresponds to the claim
interpretation given by the appellant in the reply brief.
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The examiner also considers the appealed claims to be
indefinite because structural cooperation is allegedly lacking
for certain claimed features. However, a claim is not
necessarily indefinite merely because the claim does not recite
the structural cooperation of claimed features or elements. See
generally, In re Gustafson, 331 F.2d 905, 141 USPQ 585 (CCPA
1964). The lack of such recitation simply causes a claim to be
broad, not indefinite, as properly explained by the appellant.
In re Gardner, 427 F.2d 786, 788, 166 USPQ 138, 140 (CCPA 1970).
For the above stated reasons, we cannot sustain the
examiner’s § 112 second paragraph rejection of claims 1-3, 5,
7-12, 14 and 15.
We will sustain, however, the examiner’s § 102 rejection of
claim 14 as being anticipated by Perobelli. As reflected by his
comments on page 3 of the reply brief, the appellant, in essence,
concedes that claim 14 is directed to the sub-combination of “a
workpiece feeding table” and “at least one vacuum chuck”. We
share the examiner’s finding that the Perobelli apparatus
includes elements which correspond to this sub-combination in
terms of both structure and function. In particular, the
examiner has identified patentee’s stand 9 as corresponding to
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Application No. 09/277,534
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the here claimed workpiece feeding table and patentee’s suckers
41 as corresponding to the here claimed at least one vacuum
chuck.
There is no persuasive merit in the appellant’s belief that
this rejection is improper because Perobelli’s aforenoted
structure is not used in the environment of or in cooperation
with a glass cutting table having a movable bridge extending
thereacross which is the use described in appealed claim 14.
The critical consideration here is that claim 14 fails to
distinguish, in terms of either structure or function, over the
above discussed elements of patentee’s apparatus. See In re
Yanush, 477 F.2d 958, 959-60, 177 USPQ 705, 706 (CCPA 1973), and
In re Glass, 474 F.2d 1015, 1019, 176 USPQ 529, 532 (CCPA 1973).
Stated otherwise, the structure and function involved in moving
Perobelli’s sheets 10 from stand 9 via suckers 41 corresponds to
the structure and function involved in moving appellant’s
workpiece W from feeding table 34 via vacuum chucks 42 in
accordance with the requirements of appealed claim 14.
Under these circumstances, it is appropriate that we sustain
the examiner’s § 102 rejection of claim 14 as being anticipated
by Perobelli.
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Application No. 09/277,534
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On the other hand, we cannot sustain the corresponding § 102
rejection based on Perobelli of claims 1-3, 5 and 15. In this
regard, claim 1 (and correspondingly claims 2, 3 and 5 which
depend therefrom) requires “a means for aligning the glass
workpiece which is supported on said glass workpiece feeding
table”, and claim 15 requires “a retractable stop on said bridge
engaging an edge of the glass workpieces on said workpiece
feeding table for aligning the glass workpieces”. The examiner
considers elements 25 or 28 of Perobelli’s apparatus to satisfy
these claimed features. We cannot agree. This is because
patentee’s aforementioned elements are not associated in any way
with stand 9 (which the examiner equates to the appellant’s glass
workpiece feeding table) or the separating sheets (which the
examiner equates to the appellant’s glass workpieces) thereon and
therefore are plainly incapable of performing the function of
aligning a workpiece on a table as required by the claims under
review.
The § 102 rejections based on Curtze and Lisec ‘555
respectively also cannot be sustained. Each of independent
claims 1 and 14 requires at least one vacuum chuck which
possesses the capability of overlapping a glass workpiece
supported on a glass workpiece feeding table when in the position
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Application No. 09/277,534
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defined by these claims (i.e., when the claimed feeding table is
adjacent a cutting table and when the claimed at least one vacuum
chuck is at one end of the previously mentioned cutting table).
In expressing his anticipation position, the examiner has failed
to address whether the vacuum chuck of Curtze and Lisec ‘555
would possess this overlapping capability. It is clear to us,
however, that the prior art vacuum chucks would be incapable of
performing the overlapping function required by the here claimed
vacuum chucks. This is because the vacuum chucks of Curtze and
Lisec ‘555 are located completely within the boundaries of their
respective cutting tables. In contrast, the appellant’s vacuum
chucks 42 extend beyond the boundaries of his cutting table 20 so
as to overlap feeding table 34 and the glass workpiece W thereon.
We here emphasize that a claim is not anticipated by prior art
which lacks structure capable of performing a functional
limitation of the claim. In re Mott, 557 F.2d 266, 269, 194 USPQ
305, 307 (CCPA 1977); Compare in re Yanush, 477 F.2d at 960, 177
USPQ at 706 and In re Glass, 474 F.2d at 1019, 176 USPQ at 532.
For these reasons, we cannot sustain either the § 102
rejection of claims 1, 5 and 14 based on Curtze or the § 102
rejection of claim 14 based Lisec ‘555.
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Application No. 09/277,534
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The above discussed deficiencies of Curtze and Lisec ‘555
would remain even if modified in the manner proposed by the
examiner in his § 103 rejections. It follows that we
additionally cannot sustain the § 103 rejection of claims 1 and 5
as being unpatentable over Lisec ‘555 and Curtze. Moreover,
because appealed independent claim 7 requires at least one vacuum
chuck having the same capability discussed above, we likewise
cannot sustain the § 103 rejection of claims 7-9 based on Lisec
‘555 in view of Lisec ‘244 or the § 103 rejection of claims 7 and
8 based on Curtze in view of Lisec ‘244.
In summary: we have sustained the examiner’s § 102 rejection
of claim 14 as being anticipated Perobelli; however we have not
sustained any of the other rejections advanced by the examiner on
this appeal.
The decision of the examiner is affirmed-in-part.
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Application No. 09/277,534
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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
BRADLEY R. GARRIS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHUNG K. PAK ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
CHARLES F. WARREN )
Administrative Patent Judge )
BRG/vsh
Appeal No. 2004-0312
Application No. 09/277,534
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BLYNN L. SHIDELER
THE BLK LAW GROUP
3500 BROOKTREE ROAD
SUITE 200
WEXFORD, PA 15090
Appeal No. 2004-0312
Application No. 09/277,534
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APPENDIX
Claims 1, 7, 14
1. A glass workpiece transporting and locating system
for a glass cutting table comprising:
a bridge extending across the glass cutting table
and movable along the length of the glass cutting
table;
a glass workpiece feeding table adjacent the glass
cutting table and supporting a glass workpiece to be
fed to the glass cutting table;
at least one vacuum chuck carried by said bridge
at a position overlapping said glass workpiece feeding
table when said bridge is at one end of the glass
cutting table; and
a means for aligning the glass workpiece on said
glass workpiece feeding table.
7. A glass processing machine comprising:
an air float table for supporting a glass
workpiece thereon;
a glass workpiece processing tool engagable with
the glass workpiece supported on said air float table;
a workpiece feeding table adjacent said air float
table supporting glass workpieces to be fed to said air
float table; and
at least one vacuum chuck movable along at least a
portion of said air float table and a portion of said
workpiece feeding table, said at least one vacuum chuck
engagable with glass workpieces on said workpiece
feeding table for feeding the glass workpieces to said
air float table.
Appeal No. 2004-0312
Application No. 09/277,534
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APPENDIX
cont.
14. A glass workpiece feeding device for a glass
cutting table, the cutting table having an air float
table supporting glass workpieces, a bridge extending
across said air table movable along the length of the
air table and supporting a glass cutting head for
scoring glass workpiece supported thereon, said
workpiece feeding device including:
a workpiece feeding table adjacent the air table
of the glass cutting table and supporting glass
workpieces to be fed to the air table; and
at least one vacuum chuck attached to the bridge
of the glass cutting table, said at least one vacuum
chuck positioned to overlap said glass workpiece
feeding table when the bridge is at one end of the
glass cutting table whereby said at least one vacuum
chuck is engagable with the glass workpiece on said
workpiece feeding table for feeding the glass workpiece
to the air flow table.