Ex parte Kietzer

Board of Patent Appeals and Interferences

May 16, 2000

08508738 (B.P.A.I. May. 16, 2000)

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journal and (2) is not binding precedent of the Board.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. 23
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte KLAUS KIETZER
_____________
Appeal No. 1998-2026
Application No. 08/508,738
______________
HEARD: MAY 1, 2000
_______________
Before COHEN, MCQUADE, AND BAHR, Administrative Patent Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims
6 through 10, all of the claims remaining in the application.

Appellant’s invention pertains to an apparatus for the
dustfree discharge of fine dust from a dust collector of a
cleaning vehicle. A basic understanding of the invention can
Appeal No. 1998-2026
Applicatin No. 08/508,738
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be
Appeal No. 1998-2026
Applicatin No. 08/508,738
Our understanding of this document is derived from a1
reading of a translation thereof prepared in the United States
Patent and Trademark Office. A copy of the translation is
appended to this opinion.
3
derived from a reading of exemplary claim 6, a copy of which
appears in APPENDIX “A” of the brief (Paper No. 18).
As evidence of anticipation, the examiner has applied the
documents listed below:
Price et al. 3,638,561 Feb. 1, 1972
(Price)
Constructions Mecaniques 2,330,039 Jan. 10, 1974
Agricoles
(Germany)1
The following rejections are before us for review.
Claims 6 through 10 stand rejected under 35 U.S.C. §
102(b) as being anticipated by Price.
Claims 6 and 7 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by the German reference (2,330,039).
The full text of the examiner's rejections and response
Appeal No. 1998-2026
Applicatin No. 08/508,738
As disclosed in the specification, “[t]he shutoff flap2
is kept closed for generating a counterpressure, until the
desired compaction is reached. Then, the shutoff valve is
opened as a result of the pressure, under which the piston ram
is operated in the compacting phase...” (pages 3 and 4) “The
pressure control of the flap by the pressure of the piston ram
of the compression device” allows continuously compacted
cylindrical chunks to form “in any desired degree of
compaction.” (page 4) “[T]he shutoff flap 9 is kept opened or
closed by a further piston-cylinder unit 19, 20 with the aid
of an interposed control unit (not shown) that is responsive
to the pressure of piston ram 17 (Figure 1) of the
piston/cylinder unit.” (page 8)
4
to the argument presented by appellant appears in the answer
(Paper No. 19), while the complete statement of appellant’s
argument can be found in the brief (Paper No. 18).

As indicated in the brief (page 4), claims 6 through 10
stand or fall together. In accordance with 37 CFR §
1.192(c)(7), we select claim 6 for review, infra, with the
remaining claims standing or falling therewith.
OPINION
In reaching our conclusion on the anticipation issues
raised in this appeal, this panel of the board has carefully
considered appellant’s specification and claim 6, the applied2
Appeal No. 1998-2026
Application No. 08/508,738
In our evaluation of the applied references, we have3
considered all of the disclosures of each document for what it
would have fairly taught one of ordinary skill in the art.
See In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA
1966).
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teachings, and the respective viewpoints of appellant and the3
examiner. As a consequence of our review, we make the
determinations which follow.
Initially, we note that anticipation under 35 U.S.C.
§ 102(b) is established only when a single prior art reference
discloses, either expressly or under principles of inherency,
each and every element of a claimed invention. See In re
Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed.
Cir. 1997); In re Paulsen, 30 F.3d 1475, 1478-79, 31 USPQ2d
1671, 1673 (Fed. Cir. 1994); In re Spada, 911 F.2d 705, 708,
15 USPQ2d 1655, 1657 (Fed. Cir. 1990); and RCA Corp. v.
Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ
385, 388 (Fed. Cir. 1984). However, the law of anticipation
does not require that the reference teach specifically what an
appellant has disclosed and is claiming but only that the
claims on appeal "read on" something disclosed in the
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Application No. 08/508,738
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reference, i.e., all limitations of the claims are found in
the reference. See Kalman v. Kimberly-Clark Corp., 713 F.2d
760, 772, 218 USPQ 781, 789 (Fed. Cir. 1983), cert. denied,
465 U.S. 1026 (1984).
The rejection based upon the Price reference
We reverse the rejection of claim 6 under 35 U.S.C.
§ 102(b) as being anticipated by Price. It follows that the
rejection of claims 7 through 10 is likewise reversed since
these claims stand or fall with claim 6, as indicated above.
This panel of the board fully comprehends the examiner’s
analysis of the Price teaching (answer, pages 4 through 7).
However, akin to appellant’s position (brief, page 5), we are
of the view, based upon the overall teaching of Price, that
one having ordinary skill in the art would not consider the
movement of the centrally pivoted bottom door 42 (Fig. 1) to
be away from the discharge end of the compactor “in the
direction of discharge,” as set forth in claim 6. It is for
this reason that the rejection of claims 6 through 10 must be
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Application No. 08/508,738
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reversed.
The rejection based upon the German reference
We affirm the rejection of claim 6 under 35 U.S.C. §
102(b) as being anticipated by the German reference. It
follows that the rejection of claim 7 is likewise affirmed
since this claim stands or falls with claim 6, as indicated
above.
From appellant’s perspective (brief, pages 7 through 9),
the German reference does not disclose a means for biasing a
counterpressure means toward a discharge end of a compression
chamber to apply a controlled counterpressure to the material
being compressed, since the door or floor 4 (bottom) of the
grape press is merely locked in a closed position and does not
provide the capability of performing a semi-stationary
compressing function in which a blocking plug of compacted
dust is permitted to move in a controlled manner. We disagree
for the following reasons.
In our opinion, one having ordinary skill in the art
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would have fairly understood the grape press of the German
reference as being capable of compressing fine dust, alone or
with grapes. Further, we perceive that, in its latched
position (Fig. 1), the closed, offset-pivoted bottom 4 (flap
valve) of the German reference, in conjunction with
controllable pressure sensor 12, valve 15, and hydraulic
cylinder 7, acts to apply a controlled counterpressure to the
material being compressed, as now claimed. Therefore, we are
not in accord with appellant’s understanding (brief, page 9)
that the German document fails to disclose the biasing means
of the present invention.
This panel of the board points out that the argued “semi-
stationary” compressing operation in which a blocking plug is
movable in a controlled manner (brief, page 8) is simply not
commensurate with the underlying disclosure which clearly
addresses only opened and closed positions for the shutoff
flap 9; see footnote 3, supra. Consistent with the
specification, appellant’s Figures 3a and 3b show the closed
position of the shutoff flap and Figure 4 shows the opened
position.
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REMAND TO THE EXAMINER
A. The examiner should consider certain language in claim 6
as to an issue of its conformance with the description
requirement of 35 U.S.C. § 112, first paragraph. More
specifically, we recognize that the recitation of the
counterpressure means being movable “in the direction of
discharge” of compressed dust, was first included in a new
claim 6, in an amendment (Paper No. 10) submitted subsequent
to the filing of the application. Turning to the original
disclosure, it addresses a piston ram or rod that operates in
a compression tube to compact fine dust and eject a compacted
mass, with a counterpressure means or shutoff flap closing the
compression tube at its discharge end. As depicted, the
centrally pivoted shutoff flap pivots in its movement between
its opened (Fig. 4) and closed (Fig. 3b) positions. As such,
the direction of the movement of the pivoted counterpressure
means or shutoff flap (along an arc) does not correspond to
the now claimed direction of discharge of compressed dust.
Thus, the overall original disclosure appears to fail to
descriptively support the claimed direction of movement of the
Appeal No. 1998-2026
Application No. 08/508,738
This document is referenced on page 2 of appellant’s4
application, and a copy thereof is appended to Paper No. 6 in
the application file.
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counterpressure means in the direction of discharge of the
compressed dust.
B. The examiner should also evaluate whether the recitation of
“at least a component of such movement of said flap being in
the direction of the discharge of compressed dust from said
discharge opening” in dependent claim 9 is inconsistent with
the recital of movement of the counterpressure means “in the
direction of discharge of compressed dust from said
compression chamber” in independent parent claim 6, thereby
rendering claim 9 indefinite under 35 U.S.C. § 112, second
paragraph.
C. With a resolution of the description issue discussed in
“A.” above, the examiner should additionally assess the
subject matter of claims 6 through 10 in light of, for
example, the apparatus of a German document (DE 4 94 211)4
considered with the advantageous feature in the art of
counterpressure and biasing means as disclosed by each of
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Price and the German reference (2,330,039).
In summary, this panel of the board has:
reversed the rejection of claims 6 through 10 under 35 U.S.C.
§ 102(b) as being anticipated by Price; and
affirmed the rejection of claims 6 and 7 under 35 U.S.C. §
102(b) as being anticipated by the German reference
(2,330,039).
Additionally, we have remanded the application to the
examiner to consider the three matters discussed above.
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The decision of the examiner is affirmed-in-part.
AFFIRMED-IN-PART AND REMANDED
)
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JOHN P. MCQUADE )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JENNIFER D. BAHR )
Administrative Patent Judge )
ICC/sld
Appeal No. 1998-2026
Application No. 08/508,738
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SAMUEL G. LAYTON, JR.
BELL, SELTZER, PARK & GIBSON
P.O. BOX DRAWER 34009
CHARLOTTE, N.C. 28234