Ex Parte Currier

Board of Patent Appeals and Interferences

Mar 13, 2008

10994748 (B.P.A.I. Mar. 13, 2008)

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.
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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
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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
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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
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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;

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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

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