Ex Parte Feichtinger et alDownload PDFPatent Trials and Appeals BoardMay 30, 201914351869 - (D) (P.T.A.B. May. 30, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/351,869 04/14/2014 20350 7590 06/03/2019 KILPATRICK TOWNSEND & STOCKTONLLP Mailstop: IP Docketing - 22 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 Klaus Feichtinger 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 80164-005100US-904447 8496 EXAMINER SHAFI, LEITH S ART UNIT PAPER NUMBER 1744 NOTIFICATION DATE DELIVERY MODE 06/03/2019 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): ipefiling@kilpatricktownsend.com KTSDocketing2@kilpatrick.foundationip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KLAUS FEICHTINGER and MANFRED HACKL Appeal2018-005966 Application 14/351,869 Technology Center 1700 Before CATHERINE Q. TIMM, JEFFREY R. SNAY, and DEBRA L. DENNETT, Administrative Patent Judges. DENNETT, Administrative Patent Judge. DECISION ON APPEAL 1 STATEMENT OF THE CASE Appellant2 appeals under 35 U.S.C. § 134(a) from a rejection of claims 2---6 and 8-28. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 In our Decision, we refer to the Specification filed April 14, 2014 ("Spec."); the Non-Final Office Action dated June 30, 2017 ("Non-Final Act."); the Appeal Brief filed December 27, 2017 ("App. Br."); the Examiner's Answer dated March 30, 2018 ("Ans."); and the Reply Brief filed May 22, 2018 ("Reply Br."). 2 Appellant is the Applicant, EREMA Engineering Recycling Maschinen und Anlagen Gesellschaft M.B.H., identified as the real party in interest. App. Br. 3. Appeal2018-005966 Application 14/351,869 The claims are directed to apparatuses for treatment of plastic material. Claim 28, reproduced below from the Claims Appendix of the Appeal Brief, illustrates the claimed subject matter: 28. An apparatus for treatment of plastic material, the apparatus comprising: a container configured to hold the plastic material for initial treatment, wherein the container comprises a sidewall having an outlet aperture configured to pass initially treated plastic material from the container; a mixing and/or comminution implement comprising a blade configured to rotate about an axis of rotation in a direction of rotation so as to initially treat the plastic material in the container by at least one of mixing, heating, and comminuting the plastic material; and a conveyor, compnsmg: a housing comprising an intake aperture configured to receive the initially treated plastic material from the output aperture of the container, and a screw in the housing, wherein the screw is configured to rotate within the housing to further treat the initially treated plastic material by at least one of plastifying and agglomerating the initially treated plastic material and to convey the initially treated plastic material away from the intake aperture in a first direction, wherein an imaginary continuation of a central longitudinal axis of the screw infinitely extending in a direction opposite the first direction, does not intersect the axis of rotation of the mixing and/ or comminution implement, wherein a scalar product of a first direction vector that is parallel with the first direction and second direction vector that is tangential to a circle described by the radially outermost point of the mixing and/or comminution implement at a point on the circle nearest the outlet aperture is zero or negative, 2 Appeal2018-005966 Application 14/351,869 and wherein a ratio (V) of an active container volume (SV) to a feed volume (BV) of the container, where V = SV/BV, conforms with 4 :S V :S 30, where the active container volume (SV) is defined by the formula SV = D3(1r/4), where Dis an internal diameter of the container, where the feed volume (BV) is defined by the formula BV = D2(1r/4)H, and where His a height of the intake aperture. REFERENCES The Examiner relies on the following prior art in rejecting the claims on appeal: Bacher et al. US 6,719,454 B 1 ("Bacher '454") Bacher et al. US 6,883,953 Bl ("Bacher '953") Bacher et al. US 7,309,224 B2 ("Bacher '224") Magni et al. EP 1 273 412 Al ("Magni") REJECTIONS Apr. 13, 2004 Apr. 26, 2005 Dec. 18,2007 Jan. 8, 2003 The Examiner maintains the following rejections under 35 U.S.C. § I03(a): 3,4 Rejection 1. Claims 28, 2, 8, 9, 11, 13, 14, 16, 18-20, and 26 as obvious over Magni and Bacher '953. Non-Final Act. 4--8. Rejection 2. Claims 3---6, 10, 12, 15, 21-25, and 27 as obvious over Magni and Bacher '953, further in view of Bacher '224. Id. at 8-13. 3 In the Answer, the Examiner withdrew the rejection of claim 15 under 35 U.S.C. § 112(b) as indefinite. Ans. 18-19. 4 Because this application claims priority to a foreign application filed before the March 16, 2013, effective date of the America Invents Act, we refer to the pre-AIA version of the statute. 3 Appeal2018-005966 Application 14/351,869 Rejection 3. Claim 17 as obvious over Magni and Bacher '953, further in view of Bacher '454. Id. at 13-14. OPINION Rejection 1. As to the rejection of claims 28, 2, 8, 9, 11, 13, 14, 16, 18-20, and 26 as obvious over Magni and Bacher '953, Appellant argues for patentability of claims 28, 2, 8, 9, 11, 13, 14, 16, 18-20, and 26 as a group. App. Br. 9-12. We select the sole independent claim, claim 28, as representative of the group. 37 C.F.R. § 4I.37(c)(l)(iv). Claims 2, 8, 9, 11, 13, 14, 16, 18-20, and 26 stand or fall with claim 28. The Examiner finds that Magni teaches all elements of claim 28 except the last limitation: a ratio (V) of an active container volume (SV) to a feed volume (BV) of the container, where V = SV/BV, conforms with 4 :S V :S 30, where the active container volume (SV) is defined by the formula SV = D3(n/4), where Dis an internal diameter of the container, where the feed volume (BV) is defined by the formula BV = D2(n/4)H, and where His a height of the intake aperture. Non-Final Act. 4--5. The Examiner finds that the disclosure of Bacher '953 reads on the limitation absent from Magni. Id. at 5. The Examiner determines that it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the ratio of the active container volume to the feed volume of Magni to incorporate the ratio taught by Bacher '953, motivated by an increase of the dwell time and of the output, as well as ensuring the screw could take up large quantities of synthetic plastic material pressed into the intake opening. Id. (citing Bacher '953 col. 4, 11. 15-21 and col. 8, 11. 46-51). The Examiner notes that claim 28 is an 4 Appeal2018-005966 Application 14/351,869 apparatus claim, and that limitations directed to the capabilities or intended use of the apparatus are given patentable weight to the extent that such capabilities or intended uses effect the structure of the claimed apparatus. Id. Appellant argues that the Non-Final Office Action refers to Magni Figures 2 and 4 as teaching wherein a scalar product of a first direction vector that is parallel with the first direction and second direction vector that is tangential to a circle described by the radially outermost point of the mixing and/or comminution implement at a point on the circle nearest the outlet aperture is zero or negative. App. Br. 11. Magni' s Figures 2 and 4 are reproduced below: Magni Figure 2 is a schematic top view of the container and part of the devices in Magni's invention. Magni ,r 12. Vertical container 15 is provided with stirring element 2 fitted rotatably on the base of container 1 and provided with plurality of blades 3. Magni ,r 13. Blades 3a are fitted stationary on the wall and collaborate with blades 3 to stir and disintegrate 5 Labels to elements are presented in bold font, regardless of their presentation in the original document. 5 Appeal2018-005966 Application 14/351,869 thermoplastic material and soften it without melting it. Magni ,r 13. Means 4 for feeding a filling to container 1 is on the side of container 1, and means 5 collects the final material (softened polymeric base with filler added from container 1 ). Magni ,r 13. Means 5 is composed of an extruder provided with screw Sa and means for filtering, gassing, etc. Magni ,r 14. Extruder 5 is positioned tangentially to container 1 and communicates with it through opening 19. Magni ,r 15. Magni Figure 4 is a schematic view of a detail of the outlet of the filler feed in the stirring container. Magni ,r 12. Outlet 12 of screw 10 is located in the lower portion of container 3 where the thermoplastic material has been softened by the disintegrating and stirring action performed by blades 3 and 3a. Magni ,r 18. Outlet 12 is protected by screen 13 positioned upstream of outlet 12 in relation to the movement of the material, indicated by arrow R. Magni ,r 19. Appellant argues that the Examiner fails to provide any evidence that Magni Figure 4 is a top view. App. Br. 11. Appellant further argues that the Examiner characterizes the direction of conveyance of the material in extruder 5 to the left in Magni Figure 2, but provides no evidence in support. Id.; Reply Br. 3--4. Appellant contends, therefore, that Figures 2 and 4 cannot teach the disputed "wherein a scalar product ... " limitation. App. Br. 11. In the Reply Brief, Appellant argues that the device of Magni illustrated in Figure 4 is not the same device as illustrated in Magni Figure 2 because shield 13 is shown in Figure 4 but not in Figure 2. Reply Br. 4. Appellant's arguments are unpersuasive of reversible error by the Examiner. Magni describes the figures to be to a single embodiment and states that Figure 4 is a schematic view of a detail of the outlet of the filler 6 Appeal2018-005966 Application 14/351,869 feed in the stirring container. Magni ,r 12, 14. The Examiner's finding that one of ordinary skill in the art at the time of the invention would have considered Figures 2 and 4 together is reasonable. In addition, claim 28 is drawn to an apparatus, but only the container, mixing and/or comminution element, and conveyor are affirmatively claimed limitations. See App. Br. 5 (Claims App'x). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be emp 1oyed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex par/e AfashanL 2 USPQ2d 1647 (BPAJ 1987), JVforeover, '"a prior art reference may anticipate ... an apparatus claim ... if the reference discloses an apparatus that is reasonably capable of operating so as to meet the claim limitations, even if it does not meet the claim limitations in all modes of operation." Parker Vision, Inc. v. Qualcomm Inc., 903 F.3d 1354, 1361 (Fed. Cir. 2018). For the reasons above, we sustain the rejection of claim 28 as obvious over JV1agni and Bacher ~953. ,._, Rejections 2 and 3. The Examiner finds claims 3--6, 10, 12, 15, 21- 25, and 27 as obvious over Magni and Bacher '953, further in view of Bacher '224, and claim 17 as obvious over Magni and Bacher '953, further in view of Bacher '454. Non-Final Act. 8-14. For each of these rejections, Appellant relies on its arguments for patentability of claim 28 over Magni and Bacher '953, stating that the additional references do not remedy the 7 Appeal2018-005966 Application 14/351,869 deficiencies of Magni. App. Br. 12-14. Because Appellant fails to identify deficiencies in Magni's disclosure, we sustain Rejections 2 and 3. DECISION For the above reasons, we affirm the Examiner's rejection of claims 2---6 and 8-28. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation