Ex parte Finney

Board of Patent Appeals and Interferences

Jan 8, 1998

08239029 (B.P.A.I. Jan. 8, 1998)

Application for patent filed May 6, 1994. According to1
appellant, this application is a continuation-in-part of
Application 08/219,192 filed March 28, 1994, now U.S. Patent No.
5,464,320 issued November 7, 1995, which is a continuation-in-
part of Application 08/074,023 filed June 2, 1993, now abandoned.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is not
binding precedent of the Board.
Paper No. 28
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte CLIFTON D. FINNEY
__________
Appeal No. 96-3062
Application 08/239,0291
__________
ON BRIEF
__________
Before ABRAMS, STAAB and McQUADE, Administrative Patent Judges.
ABRAMS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the decision of the examiner finally
rejecting claims 21 through 23 and 34 through 38. At that point,
claims 1 through 20 had been canceled, claims 27 through 33
Appeal No. 96-3062
Application 08/239,029
Our understanding of this reference was obtained from a2
PTO translation into English, a copy of which is attached to this
decision.
2
allowed, and claims 24 through 26 indicated as containing
allowable subject matter. Subsequently, the appellant canceled
claims 21 through 26. Claims 34 through 38 therefore remain
before us on appeal.
The appellant's invention is directed to a superventuri
power source. The subject matter before us on appeal is
illustrated by reference to claim 34, which appears in an
appendix to the appellant’s Appeal Brief.
THE REFERENCES
The references relied upon by the examiner to support the
final rejection are:
French patent (Jourdain) 516,675 Sep. 5, 19232
French patent (Bloch) 891,697 Mar. 15, 19442
Bailey, F. G. (Bailey), “Turbine,” McGraw-Hill Encyclopedia of
Science and Technology, vol. 18, New York (1992), p. 618.
THE REJECTIONS
Claims 34 and 35 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Bloch in view of Jourdain.
Appeal No. 96-3062
Application 08/239,029
3
Claims 36 through 38 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Bloch in view of Jourdain and Bailey.
The rejections are explained in the Examiner's Answer.
The opposing viewpoints of the appellant are set forth in
the Appeal Brief and the Reply Brief.
OPINION
After consideration of the positions and arguments presented
by both the examiner and the appellant, we have concluded that
neither of the rejections should be sustained. Our reasons for
this decision follow.
Independent claim 34 stands rejected under 35 U.S.C. § 103
as being obvious in view of the teachings of Bloch and Jourdain.
The examiner bears the initial burden of presenting a prima facie
case of obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993) and In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). This is
established when the teachings of the prior art itself would
appear to have suggested the claimed subject matter to one of
ordinary skill in the art. See In re Bell, 991 F.2d 781, 783, 26
USPQ2d 1529, 1531 (Fed. Cir. 1993) and In re Rinehart, 531 F.2d
1048, 1051, 189 USPQ 143, 147 (CCPA 1976). The mere fact that
Appeal No. 96-3062
Application 08/239,029
4
the prior art structure could be modified does not make such a
modification obvious unless the prior art suggests the
desirability of doing so. See In re Gordon, 733 F.2d 900, 902,
221 USPQ 1125, 1127 (Fed. Cir. 1984).
Claim 34 is directed to a superventuri power source
comprising a series of at least two venturi tubes (alpha and
beta) arranged and related in a manner specified in the claim and
a turbine “adjacent the throat of the beta-venturi tube to
recover useful rotary mechanical power from flow of the selected
medium” through the power source. We share the examiner’s view
that all of the subject matter recited in claim 34 is disclosed
in the Bloch reference except for the presence of a turbine
adjacent to the throat of the second (beta) venturi tube, that
is, the structure set forth in the final two lines of the claim.
The system disclosed by Bloch has three venturi tubes and a
deflector. A single turbine is provided, positioned in the
throat of the alpha venturi tube (A-A’). The objective of the
Bloch invention is to reduce the dimensions of the turbine. This
is accomplished by recompressing the fluid exiting from the
turbine and venturi tube so that it can exit more freely. In
order to recompress the fluid exiting the turbine, a plurality of
concentric venturi tubes (B-B and C-C) and a deflector (D-D) are
Appeal No. 96-3062
Application 08/239,029
A short tube with a tapering constriction in the middle3
that causes an increase in the velocity of the flow of fluid and
a corresponding decrease in fluid pressure. See, for example,
Mirriam Webster’s Collegiate Dictionary, Tenth Edition, 1996,
page 1311.
5
positioned downstream of the first venturi. According to Bloch,
“only one portion of the stream of fluid that is actually used
passes through the rotor” (translation, page 1), that is, through
the alpha venturi tube. The remaining portions of the stream of
fluid, which pass through the other venturi tubes and the
deflector, influence the area downstream of the alpha tube in
such a manner as to recompress the fluid exhausting therefrom,
allowing it to flow more freely.
Jourdain describes the prior art pertinent to his invention
as comprising a turbine in a main cone, with a plurality of
guiding cones arranged around the main cone to improve the power
efficiency of the turbine. He characterizes his invention as an
improvement in which a series of turbines is substituted for the
series of guiding cones arranged around the main cone of the
prior art devices. See translation, page 1. As shown in the
drawing, a turbine is located in the constricted portion of each
of a series of “cones” which, in our view, would have been
recognized by one of ordinary skill in the art as being, in
actuality, venturi tubes.3
Appeal No. 96-3062
Application 08/239,029
6
The function of the downstream venturi tubes in the Bloch
invention is to improve the efficiency of a power source in which
a turbine is operated in the throat of a venturi tube by creating
certain conditions which affect the fluid exiting the alpha
turbine. From our perspective, absent any evidence to the
contrary, it would appear that placing a second turbine in one of
the downstream venturi tubes would disturb their function, that
is, would interfere with their ability to recompress the fluid
issuing from the turbine. In our view, this would cause the
Bloch invention to become inoperable for its intended purpose,
thus serving as a disincentive to one of ordinary skill in the
art to modify the Bloch apparatus in the manner proposed by the
examiner. See In re Gordon, 733 F.2d at 902, 221 USPQ at 1127
(Fed. Cir. 1984).
For this reason, it is our opinion that the teachings of
Bloch and Jourdain fail to establish a prima facie case of
obviousness with regard to the subject matter of claim 34, and we
will not sustain the rejection of this claim or of claim 35,
which depends therefrom. Nor will we sustain the rejection of
claims 36 through 38, for the teachings of Bailey, the added
reference, fail to overcome the deficiency in the basic
combination.
Appeal No. 96-3062
Application 08/239,029
7
The decision of the examiner is reversed.
REVERSED
NEAL E. ABRAMS )
Administrative Patent Judge)
)
)
)
LAWRENCE J. STAAB ) BOARD OF PATENT
Administrative Patent Judge) APPEALS AND
) INTERFERENCES
)
)
JOHN P. McQUADE )
Administrative Patent Judge)
Appeal No. 96-3062
Application 08/239,029
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Clifton D. Finney
14919 Little Leaf Court
Houston, TX 77082