Ex Parte Howell

Patent Trial and Appeal Board

Sep 10, 2015

12540466 (P.T.A.B. Sep. 10, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/540,466 08/13/2009 Clifton R. HOWELL 121981-00280 1382
51468 7590 09/11/2015
McCarter & English LLP
ACCOUNT: ILLINOIS TOOL WORKS INC.
245 Park Avenue
NEW YORK, NY 10167
EXAMINER
HARP, WILLIAM RAY
ART UNIT PAPER NUMBER
3651
MAIL DATE DELIVERY MODE
09/11/2015 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CLIFTON R. HOWELL
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Appeal 2013-006184
Application 12/540,466
Technology Center 3600
____________

Before LINDA E. HORNER, STEFAN STAICOVICI, and
MICHAEL L. HOELTER, Administrative Patent Judges.

HORNER, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Clifton R. Howell (Appellant) seeks our review under 35 U.S.C. § 134
of the Examiner’s decision rejecting claims 1, 3‒8, 10‒15, and 17‒20, which
are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates to “an apparatus and
method which uses a separate registration staging drive for registering
packages or bags . . . into a machine, such as a main conveyor, that
processes such packages or bags.” Spec. 1, para. 2. Claims 1, 8, and 15 are
independent claims. Claim 1 is reproduced below.
Appeal 2013-006184
Application 12/540,466

2
1. A staging conveyor for communicating packages or bags
between an initial conveyor and a subsequent conveyor,
comprising:
a lower conveyor belt traversing lower first and second
rollers;
a servo, wherein the lower conveyor belt and the lower first
and second rollers move operatively responsive to the servo;
a computing device controlling operation of the servo; and
a sensor for sensing a position of a package or bag being
transported by the lower conveyor belt and outputting position
data to the computing device, whereby the computing device
calculates a desired speed for a package or bag and outputs data
to the servo to adjust the speed of the lower conveyor belt and
lower first and second rollers.
EVIDENCE
The Examiner relied upon the following evidence:
Niwa US 3,552,088 Jan. 5, 1971
Ross US 5,082,103 Jan. 21, 1992
REJECTIONS
Appellant appeals the Final Action of the Examiner, which includes
the following rejections:
1. Claim 17 under 35 U.S.C. § 112, fourth paragraph, as being of
improper dependent form.
2. Claims 1, 3‒8, 10‒15, and 17‒20 under 35 U.S.C. § 103(a) as
unpatentable over Niwa and Ross.
Appeal 2013-006184
Application 12/540,466

3
ANALYSIS
Appellant does not contest the rejection of claim 17 under 35 U.S.C.
§ 112, fourth paragraph. Br. 5. We summarily affirm this first ground of
rejection.
Appellant argues the claims subject to the second ground of rejection
as a group. Id. We select claim 1 as a representative claim; the remaining
claims subject to the second ground of rejection stand or fall with claim 1.
37 C.F.R. § 41.37(c)(1)(iv) (2014).
Appellant argues the Examiner erred in rejecting claim 1 over Niwa
and Ross because “both . . . references relate to transport of articles and to
wrapping and packaging of articles, rather than transport of packages or
bags.” Br. 5. Appellant asserts that “[t]he handling of the packages or bags
is typically very different from the articles handled in the Ross or Niwa
references.” Id. The Examiner found that the recitation in claim 1 of
“communicating packages or bags” is a statement of intended use that does
not result in a difference in structure between the claimed invention and the
prior art. Final Act. 4; Ans. 12. The Examiner found the structure resulting
from the combination of Niwa and Ross would be capable of this intended
use. Ans. 12. We agree with the Examiner that claim 1 does not distinguish
structurally over the prior art.
The apparatus of Niwa, as modified by Ross, includes conveyors,
servos, computing devices, and sensors that render it capable of
communicating packages or bags. Final Act. 4‒5; see also Niwa, Figs. 1‒3;
Ross, Figs. 1, 2, 4. In fact, as noted by the Examiner, Niwa explicitly
Appeal 2013-006184
Application 12/540,466

4
discloses using its apparatus to transport “packages” because Niwa’s system
wraps article 5 and then conveys it after it has been wrapped. Ans. 13
(citing col. 2, l. 32); see also Niwa, col. 4, ll. 11‒39 (describing wrapping of
the article 5 such that when the article arrives on conveyor belt 9 it is
referred to as a “package”). Appellant has not demonstrated a structural
difference between the apparatus of Niwa, as modified by Ross, and the
claimed apparatus, or provided any persuasive explanation of why the
modified apparatus of Niwa would not be capable of communicating
packages or bags. We find that the Examiner has adequately addressed
Appellant’s arguments in the Final Action and in the Examiner’s Answer.
Final Act. 4‒5; Ans. 12‒13. As such, we adopt the Examiner’s findings and
reasoning as our own.
DECISION
The decision of the Examiner to reject claims 1, 3‒8, 10‒15, and
17‒20 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

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