Ex Parte CurrierDownload PDFBoard of Patent Appeals and InterferencesMar 13, 200810994748 (B.P.A.I. Mar. 13, 2008) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JON D. CURRIER ____________ Appeal 2008-0973 Application 10/994,748 Technology Center 1700 ____________ Decided: March 13, 2008 ____________ Before CHUNG K. PAK, PETER F. KRATZ, and LINDA M. GAUDETTE, Administrative Patent Judges. KRATZ, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal from the Examiner’s final rejection of claims 1-19, the only claims that remain pending in this application. We have jurisdiction pursuant to 35 U.S.C. § 6. Appeal 2008-0973 Application 10/994,748 Appellant’s asserted invention is directed to a filter assembly having a vortex fluid distributor. The filter is disclosed as being useful in maintaining aquatic structures, such as a water fountain, an ornamental garden pond, or a drainage pool (Specification 1). Claim 1 is illustrative and reproduced below: 1. A filter assembly for filtering water in an aquatic structure, comprising: a housing having a flow inlet and a flow outlet; filter media supported in the housing between the flow inlet and the flow outlet so that fluid entering the flow inlet will flow through the filter media and out the flow outlet; and means supported in the housing for distributing the fluid substantially evenly through the filter media. The Examiner relies on the following prior art references as evidence in rejecting the appealed claims: Siposs 4,368,118 Jan. 11, 1983 Lee 5,935,436 Aug. 10, 1999 Moya US 2004/0238430 A1 Dec. 2, 2004 Claims 1-4, 7-11, 13-16, 18, and 19 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Siposs. Claims 1, 2, 7, and 8 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Moya. Claims 5, 6, 12, and 17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Siposs in view of Lee. We reverse all of the stated rejections. 2 Appeal 2008-0973 Application 10/994,748 It is well settled that the burden of establishing a prima facie case of non-patentability resides with the Patent and Trademark Office (PTO). See In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984). Concerning the anticipation rejections, the Examiner has not carried the burden of establishing that either Siposs or Moya furnish a description of subject matter corresponding to the requirements of any of the appealed claims rejected as being anticipated thereby. With regard to the anticipation rejection of claims 1-4, 7-11, and 13 over Siposs and the anticipation rejection of claims 1, 2, 7, and 8 over Moya, the Examiner reversibly errs by failing to appropriately take into account the means plus function limitation of each of independent claims 1 and 7, as argued by Appellant (Br. 12-18 and 20-22). In particular, the Examiner has not reasonably established that either Siposs or Moya describes structure that corresponds to the “means … for distributing the fluid …” as recited in independent claims 1 or 7. In this regard, we agree with Appellant that the above-noted limitation as recited in either claim 1 or claim 7 invokes the sixth paragraph of 35 U.S.C. § 112. Hence, the limitations in question in each of these rejected independent claims, when given their broadest reasonable construction as they would be understood by one of ordinary skill in the art, require fluid distribution structure corresponding to the fluid distribution structure described in Appellant's Specification at page 6, line 9 through page 7, line 21, and as depicted in the drawing figures referred to therein, or the equivalent thereof. The Examiner maintains that Siposs “discloses a filter assembly having a distributor of the type recited (see Figs. 2-5), and this is all that is required by the [rejected] claims…” (Ans. 3). The Examiner further explains that “[t]he distributor of Siposs includes a conically shaped body 3 Appeal 2008-0973 Application 10/994,748 portion (see Figs. 4 and 5; and col. 4, lines 2-3) that supports a plurality of evenly spaced curved vanes (see Figs. 2 and 3; and col. 4, line 10) so as to produce a constant flow velocity to the filter (see col. 4, lines 5-8)” causing “liquid to flow in substantially the same manner as Appellant’s disclosed distributor to produce substantially the same results” such that the “reference distributor should be considered to be at least an equivalent, if not an exact duplicate, of the “means for … distributing the fluid” recited in appealed claims 1 and 7” (Ans. 4-5). However, the Examiner has not fairly articulated how the disparately constructed and arranged flow distributor structure of Siposs, including flow cone (36) together with the central filled or covered cone (52) supported by plate (54) that extends downwardly into cone (52) and the associated curved vanes on the underside of plate (54) of Siposs, which structure deflects fluid flow from continuing in an upward direction in the flow cone (36) to an outward then downward direction on the periphery of the flow cone (36) of Siposs (Figs. 2-5) reasonably corresponds to the claimed and disclosed distributor (38, Figs.1-3) of Appellants and the strikingly different fluid flow patterns that would be generated thereby. In this regard, the Examiner has not made out a plausible case for establishing that the flow distributor structure of Siposs is the equivalent of the structure invoked via the sixth paragraph of 35 U.S.C. § 112 by the means plus function limitations recited in rejected independent claims 1 and 7. Similarly, with respect to the Examiner’s rejection of claims 1, 2, 7, and 8 as being anticipated by Moya, the Examiner has reversibly erred by presenting incomplete and unproven assertions as to the equivalency of the flow pipe ends (31 and 32) of Moya and the distributor structure invoked by 4 Appeal 2008-0973 Application 10/994,748 the means plus function limitations of rejected independent claims 1 and 7. Indeed, a cursory review of the specification of Moya and an inspection of the distribution pipes thereof reveals a markedly different structure and fluid flow obtained thereby than that disclosed by Appellant's flow distribution structure, which structure of Appellant's is required by the means plus function limitations of claims 1 and 7 via application of the sixth paragraph of 35 U.S.C. § 112. As for the remaining anticipatorily rejected claims 14-16, 18 and 19, which latter claims are rejected for lack of novelty over Siposs, we agree with Appellant that the Examiner also erred in rejecting these latter claims. This is so because the Examiner has not carried the burden of identifying where in Siposs there is found a description of all of the vortex distributor structure for furnishing substantially even flow, as required by independent claims 14 and 19. In particular, we note the Examiner’s conclusive statement that all that these claims require in structure is found in Siposs (Ans. 2). However, the mere expression of this conclusion does not make out a sustainable prima facie case of anticipation where, as here, Appellant traverses that holding by asserting that the so rejected claims require a different novel flow distribution structure as part of the claimed apparatus over that described in Siposs. In this regard, we note the requirement in independent claims 14 and 19 for a distributor with a conically shaped body portion with an opening and fluid communication between upper and lower portions thereof, and with a plurality of vanes supported on or extending from the upper side thereof. Here, the Examiner does not address these claim features; much less persuasively explain how structure disclosed in Siposs is read on by these claims. In this regard, the factual determination of 5 Appeal 2008-0973 Application 10/994,748 anticipation requires the disclosure in a single reference of every element of the claimed invention. In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). It follows that we reverse both of the Examiner’s anticipation rejections, on this record. As for the separate obviousness rejection of dependent claims 5, 6, 12, and 17 over the proposed combined teachings of Siposs and Lee, we note that the Examiner does not proffer an explanation as to how Lee in combination with Siposs would render the aforementioned missing claim requirements for flow distribution structure as called for in any of independent claims 1, 7 and 14, that is incorporated in these separately rejected claims by virtue of their respective dependencies thereon, obvious to one of ordinary skill in the art at the time of the invention. It follows that, even if we could have agreed with the Examiner’s proposed modification of the optional filter of Siposs based on the disparate teachings of Lee as being obvious to one of ordinary skill in the art, such a modification would not result in the claimed structure. Accordingly, the Examiner’s obviousness rejection is also reversed. CONCLUSION The decision of the Examiner to reject claims 1-4, 7-11, 13-16, 18, and 19 under 35 U.S.C. § 102(b) as being anticipated by Siposs; to reject claims 1, 2, 7, and 8 under 35 U.S.C. § 102(b) as being anticipated by Moya; 6 Appeal 2008-0973 Application 10/994,748 and to reject claims 5, 6, 12, and 17 under 35 U.S.C. § 103(a) as being unpatentable over Siposs in view of Lee is reversed. REVERSED cam FELLERS, SNIDER, BLANKSHIP, BAILY & TIPPENS BANK ONE TOWER 100 NORTH BROADWAY, SUITE 1700 OKLAHOMA CITY, OK 83102-8820 7 Copy with citationCopy as parenthetical citation