Ex Parte Kehrer

Board of Patent Appeals and Interferences

Dec 22, 2009

10780243 (B.P.A.I. Dec. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte FLORIAN KEHRER
__________

Appeal 2009-006299
Application 10/780,243
Technology Center 1700
____________

Decided: December 22, 2009
____________

Before JEFFREY T. SMITH, MICHAEL P. COLAIANNI, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals the final rejection of claims 1, 2, 4-8, 10, 13, 15-18,
and 20 under 35 U.S.C. § 134. We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellant describes a liquid distributor having a primary distribution
stage (3) with a plurality of outlet openings and a secondary distribution
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stage (4 and 5) which is arranged below the primary distribution stage and
includes distribution gutters (5) (Spec. 1; Fig. 2).
Claims 1, 2, 4, 5, 6, and 7 are illustrative:
1. A liquid distributor comprising

at least one channel for receiving a flow of liquid, said channel having
a plurality of outlet apertures at longitudinally spaced apart points for an
outflow of liquid from said channel in a plurality of streams;

an areal guide means extending below said channel to receive and
laterally disperse at least one of the streams of liquid flowing from said
apertures of said channel, said guide means having a drip edge at a lower
end for dispensing drops of the liquid received thereon along longitudinally
spaced apart points; and

at least one gutter disposed below said channel with said guide means
passing therethrough, said gutter having a throttle means for distributing the
liquid descending on said guide means by means of a hydrodynamic
balance.

2. A liquid distributor as set forth in claim 1 wherein said gutter is
disposed in parallel to said channel.

4. A liquid distributor as set forth in claim 1 wherein said gutter
includes a pair of walls defining said throttle means.

5. A liquid distributor as set forth in claim 4 wherein said walls
define a downwardly tapering region and a gap with said guide means
disposed in and extending through said gap, said guide means being in
contact with each said wall.

6. A liquid distributor as set forth in claim 5 wherein said guide
means is a mesh having a fine mesh structure for distribution of a liquid with
low viscosity.

7. A liquid distributor as set forth in claim 5 wherein said guide
means is a mesh having a coarse mesh structure to define broad gaps
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between said mesh and said walls of said gutter for distribution of a liquid
with high viscosity.

The Examiner relies on the following prior art reference as evidence
of unpatentability:
Acker 4,846,266 Jul. 11, 1989

The rejections provided by the Examiner are as follows:
1. Claims 1, 4, 5, 8, 10, 15-17, and 20 are rejected under 35 U.S.C.
§ 102(e) as being unpatentable over Acker.
2. Claims 2, 6, 7, 13, and 18 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Acker.
Regarding rejection (1), Appellant argues claims 1, 4, and 5. Claims 8,
10, 15-17, and 20 stand or fall therewith.
Regarding rejection (2), Appellant argues claims 6 and 7. Accordingly,
the rejection of claims 2, 13, and 18 stand or fall therewith.

REJECTION (1): § 102(b) Rejection

ISSUES
1. Has Appellant shown that the Examiner reversibly erred in
finding that Acker teaches “an areal guide means . . . having a
drip edge at a lower end for dispensing drops of the liquid
received thereon along longitudinally spaced apart points” and
“at least one gutter disposed below said channel with said guide
means passing therethrough, said gutter having a throttle means
for distributing the liquid descending on said guide means by
means of a hydrodynamic balance” as recited in claim 1? We
decide this issue in the negative.
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2. Has Appellant shown that the Examiner reversibly erred in
finding that Acker teaches the claimed “gutter includes a pair of
walls defining the throttle means” (claim 4) and “said walls
define a downwardly tapering region and a gap with said guide
means disposed in and extending through said gap, said guide
means being in contact with each said wall” (claim 5)? We
decide this issue in the negative.

PRINCIPLES OF LAW
To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently. In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).
A patent applicant is free to recite features of an apparatus
either structurally or functionally. See In re Swinehart, 58
C.C.P.A. 1027, 439 F.2d 210, 212, 169 USPQ 226, 228 (CCPA
1971) (“[T]here is nothing intrinsically wrong with [defining
something by what it does rather than what it is] in drafting
patent claims.”). Yet, choosing to define an element
functionally, i.e., by what it does, carries with it a risk. As our
predecessor court stated in Swinehart, 439 F.2d at 213, 169
USPQ at 228:
where the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the
claimed subject matter may, in fact, be an inherent
characteristic of the prior art, it possesses the authority to
require the applicant to prove that the subject matter shown to
be in the prior art does not possess the characteristic relied on.

Schreiber, 128 F.3d at 1478.
Absence of a prior art disclosure relating to function does not
defeat a finding of anticipation. Schreiber, 128 F.3d at 1477. Applicant has
the burden of showing that the prior art apparatus or device does not
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inherently possess the functionally defined limitations of the claimed
apparatus. Id.
FACTUAL FINDINGS (FF)
1. The Specification indicates that tapering walls 51, 52 of the gutter 5
function as throttle means 25, which exerts a resistance on the
stream of the fluid 20 that is flowing down the guide means 4 (Spec.
5; Fig. 2).
2. The Examiner relies on Acker’s Figure 7 embodiment and finds that
the Figure 7 embodiment teaches a tapering region with a gap which
functions as a throttle means (Supp. Ans. 3, 5-6). Appellant does
not contest this particular finding.
3. With regard to the Figure 7 embodiment, Acker discloses:
Due to the porosity in the porous plastic material 52, the flow of
water is inhibited to substantially distribute evenly throughout the
trough 14 above the porous material 52 and the water can flow
through the porous spacing elements . . . .
(col. 4, ll. 15-20).
Acker shows that the oblique walls 24 extend above and along the
porous body 52 (Fig. 7). The Examiner finds that the combination
of the porous body 52 that slows the liquid and the tapering walls
would provide a throttling effect and a hydrodynamic balancing of
the liquid (Supp. Ans. 5-6).
4. The Examiner finds that Acker’s and Appellant’s drip edges are
similarly structured (i.e., spaced apart porous drip points) which
must function in the same manner (Supp. Ans. 6). Similarly, the
Examiner finds that Acker’s structure is capable of producing drips
if the operating parameters (e.g., volume of liquid) are appropriately
selected (Supp. Ans. 7). Appellant does not contest these findings.
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5. Acker does not disclose using the spacing elements 26 in the Figure
7 embodiment.

ANALYSIS
Issues (1) and (2): Claim Features not Taught
Issue (1)
Appellant argues Acker fails to teach the areal guide means feature or
the gutter having throttle means feature of claim 1 (Br. 5-12). Appellant
further argues that the tapering side walls constituting the throttle means of
claims 4 and 5 are missing from Acker (Br. 13). We do not agree.
Appellant argues that Acker’s tapering walls are not throttle means
and that the liquid descends through porous material 52, not on the porous
material as required by the claims (Br. 6-7). The Specification describes the
throttle means as including tapering walls. Accordingly, we agree with the
Examiner (Supp. Ans. 3, 5-6) that Acker’s oblique walls would constitute a
throttle means as claimed.
Moreover, as the liquid permeates through the pores of the porous
plastic material, the liquid moves over and, thus, on the plastic material
forming the pores as it progresses through the pores toward the edge. As the
liquid permeates the porous material, the oblique walls channel and
distribute the fluid through the narrowing opening and toward the edge.
We also note that Acker’s figure 7 illustrates that a portion of the
oblique walls extend above the porous material. As such, the oblique walls
would function to distribute the descending liquid across the porous
material. Acker discloses that the porous material inhibits flow of the water
to distribute evenly the liquid throughout the trough and across the porous
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material. For these reasons, Appellant’s argument that the tapering side
walls (i.e., throttle means) do not distribute liquid descending on the porous
material is unpersuasive.
Appellant argues that Acker’s alternating finger and slot arrangement
would prevent any uniform distribution of water from the bottom of the
material such that Acker’s structure would not distribute the liquid by means
of a hydrodynamic balance (Br. 7). However, the Examiner finds that
Acker’s drip edges have a similar structure as Appellant’s drip edges such
that a similar uniform distribution would be present in Acker’s device (Supp.
Ans. 6). Appellant has not shown error in this finding.
Moreover, Acker discloses that the porous material is structured to
evenly distribute the liquid. In other words, the combination of the trough
structure, which contains the liquid, and the porous material provide an even
distribution (i.e., a hydrodynamic balance) of the liquid across the entire
porous material. Appellant’s argument is unpersuasive.
Regarding the guide means feature, Appellant argues that Acker does
not teach an “areal” guide means; Appellant defines “areal” as pertaining to
an area (Br. 8). The Examiner finds that porous material 52 must have
surfaces that have areas such that material 52 may be considered an “areal
guide means” (Supp. Ans. 6-7). Appellant has not shown the Examiner’s
finding to be erroneous.
Appellant argues that Acker does not have a drip edge for dispensing
drops because there is no disclosure that the water forms drops (Br. 8).
However, an absence of disclosure relating to function does not defeat a
finding of anticipation. Schreiber, 128 F.3d at 1477. Appellant’s argument
fails to address the Examiner's determination that Acker’s structure is
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capable of performing the claimed function (i.e., dispensing drops) if the
operating conditions applied to the structure are properly selected.
Appellant has the burden of showing that Acker’s invention is incapable of
performing the claimed function. Id.
Attempting to satisfy the burden, Appellant argues that Acker’s figure
7 embodiment must include spacer elements 26 to function, which would
prevent a flow or dripping of water from the bottom edge of the triangular
portions of the porous material (Br. 9-12). However, Acker does not
disclose that spacer elements 26 are used with the figure 7 embodiment.
Indeed, Acker discloses that the figure 7 embodiment is an alternative to the
other disclosed embodiments that use spacer elements 26.
Moreover, Appellant has the burden of establishing by way of clear
and convincing evidence that an embodiment in a patent is inoperable. In re
Spence, 261 F.2d 244, 246 (CCPA 1958). However, Appellant merely
provides attorney argument that Acker’s figure 7 embodiment is inoperable
absent spacer 26 (Br. 9-12), which is insufficient to satisfy the clear and
convincing evidence standard and thus is unpersuasive.

Issue (2)
With regard to claim 4, Appellant argues that Acker does not teach a
pair of walls defining the throttle means (Br. 13). We are unpersuaded by
this argument for the reasons noted above with regard to Issue (1).
Specifically, Acker teaches oblique walls that function in the same manner
as Appellant’s throttle means as discussed above.
With regard to claim 5, Appellant argues that Acker does not disclose
that the throttle means includes wall that define a gap with the guide means
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disposed in and extending through the gap (Br. 13). Appellant contends that
the porous material is contained completely within the gutter 14 (Br. 13).
Contrary to Appellant’s arguments, the Examiner finds that the porous
material extends through and below the walls of the gutter (Supp. Ans. 8).
Appellant has not shown these finding to be erroneous. In fact, Acker’s
figure 7 plainly shows that porous material extends through a gap formed by
the oblique walls of the trough 14. Appellant’s argument is without
persuasive merit.
For the above reasons, we affirm the Examiner’s § 102(b) rejection of
claims 1, 4, 5, 8, 10, 15-17, and 20 over Acker.

Rejection (2): § 103(a) Rejection over Acker
ISSUE
Has Appellant shown that the Examiner reversibly erred in
determining that it would have been obvious to one of ordinary skill in the
art to position a gutter parallel to the channel (claim 2) or use a fine or
coarse mesh for guide means (claims 6 and 7, respectively)? We decide this
issue in the negative.
FINDINGS OF FACT
6. The Examiner determines, and Appellant does not contest, that
orienting the channels (i.e., pipes) and gutters (i.e., trough) parallel
would have been within the skill of an ordinary artisan because the
“modification from a perpendicular relationship would not
materially effect the operation of the apparatus, in view of the
uniform distribution capabilities of the guide means as taught by
Acker” (Supp. Ans. 4; Br. and Reply Br. generally).
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7. The Examiner further determines, and Appellant does not contest,
that in view of Acker’s disclosure of multiple useable materials for
the guide means, it would have been obvious to substitute a mesh
structure of any known mesh size for the porous material, as taught
by figure 7 of the reference, since such would allow for the use of
the reference apparatus with a liquid having a viscosity that would
be too great to use with the porous plastic material. (Supp. Ans. 4;
Br. and Reply Br. generally).

PRINCIPLE OF LAW
The applicant bears the procedural burden of showing error in the
Examiner’s rejections. See, e.g., In re Kahn, 441 F.3d 977, 985-86 (Fed.
Cir. 2006) (“On appeal to the Board, an applicant can overcome a rejection
[under § 103] by showing insufficient evidence of prima facie obviousness”)
(citation and internal quote omitted).

ANALYSIS
With regard to claim 2, Appellant argues that it would not have been
obvious to orient Acker’s pipes parallel to trough 14 because the trough 14
would sag in the middle thereby defeating the purpose of uniform
distribution of water along the length of the trough (Br. 14).
With regard to claims 6 and 7, Appellant argues that Acker does not
teach a fine or coarse mesh structure for the distribution of a liquid with a
low viscosity or high viscosity (Br. 14-15).
However, Appellant’s arguments fail to address the Examiner’s
determination that Acker’s teachings suggest selecting the particular mesh
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size or parallel orientation of the pipe and trough such that the claimed
invention would have been obvious to one of ordinary skill in the art (FF 6-
7). In other words, Appellant has not shown reversible error in the
Examiner’s stated rejection.
Furthermore, Appellant’s arguments regarding claim 2 are
unpersuasive because they fail to provide any objective supporting evidence
that Acker’s troughs would be insufficiently strong to support a parallel
orientation of the pipe. Instead, Appellant relies on mere attorney argument.
We affirm the Examiner’s § 103(a) rejection of claims 2, 6, 7, 13, and
18 over Acker.
DECISION
The Examiner’s § 102 and § 103 rejections are affirmed
The Examiner’s decision is affirmed.

ORDER
AFFIRMED

cam

FRANCIS C. HAND, ESQ.
C/O CARELLA, BYRNE, BAIN, GILFILLAN,
CECCHI, STEWART & OLSTEIN
5 BECKER FARM ROAD
ROSELAND, NJ 07068