Ex Parte Kirkman

Patent Trial and Appeal Board

Apr 30, 2013

11998241 (P.T.A.B. Apr. 30, 2013)

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.
11/998,241 11/29/2007 Thomas R. Kirkman 18979 USA 5929
27081 7590 04/30/2013
OWENS-ILLINOIS, INC.
ONE MICHAEL OWENS WAY, THREE O-I PLAZA
PERRYSBURG, OH 43551-2999
EXAMINER
SZEWCZYK, CYNTHIA
ART UNIT PAPER NUMBER
1741
MAIL DATE DELIVERY MODE
04/30/2013 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
____________

Ex parte THOMAS R. KIRKMAN
____________

Appeal 2011-012493
Application 11/998,241
Technology Center 1700
____________

Before PETER F. KRATZ, LINDA M. GAUDETTE, and
JAMES C. HOUSEL, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1-13. We have jurisdiction pursuant to
35 U.S.C. § 6.

Appeal 2011-012493
Application 11/998,241
2
Appellant’s claimed invention is directed to a bottom plate lift
mechanism for a glassware forming machine. The lift mechanism includes a
bottom plate assembly, a housing on which the bottom plate assembly is
mounted, a lift mechanism operatively coupled to the housing for selectively
raising and lowering the housing and bottom plate assembly, and a plurality
of interchangeable cooling air control cartridges. The housing includes a
cooling air chamber and an opening to said chamber for receiving a cooling
air control cartridge to control passage of wind through the chamber to the
bottom plate assembly. The bottom plate assembly includes a passage for
feeding cooling air thereto.
According to Appellant (Spec. p. 2, ll. 10-22):
A plurality of control cartridges are interchangeably
insertable through the opening into the chamber for selectively
controlling passage of cooling air to the bottom plate assembly
in different cooling modes of operation associated with the
cartridges.

The cooling air chamber preferably includes a passage
through the housing, and the opening in the housing opens into
the passage for selective placement of the cartridge into the
passage. The cooling air cartridge may comprise a damper
cartridge with a damper for adjustably blocking the air passage
to regulate the flow of cooling wind to the bottom plate
assembly, such as by manual adjustment or adjustment by
means of a pneumatic valve. The cartridge alternatively may be
a compressed air cooling cartridge with a damper sleeve for
blocking the air passage through the housing and a fitting for
connection to a source of compressed air to supply compressed
cooling air to the bottom plate assembly instead of cooling
wind received through the cooling air chamber in the housing.

Appeal 2011-012493
Application 11/998,241
3
Claim 1 is illustrative and reproduced below:
1. A bottom plate lift mechanism for a glassware forming
machine, which includes:

a bottom plate assembly having at least one bottom plate on a
base with a passage for feeding cooling air to said bottom plate,

a housing on which said bottom plate assembly is mounted, said
housing having a cooling air chamber and means for directing
cooling wind into said chamber,

a lift mechanism operatively coupled to said housing for
selectively raising and lowering said housing and said bottom
plate assembly,

said housing having an opening to said cooling air chamber for
receiving a cooling air control cartridge to control passage of
cooling wind through said chamber to said bottom plate
assembly, and

a plurality of cooling cartridges for interchangeable
insertion through said opening into said chamber for selectively
controlling passage of cooling air to said bottom plate assembly
in different cooling modes of operation associated with said
cartridges.
The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Tijerina-Ramos 2005/0235697 A1 Oct. 27, 2005
Kammonen 6,123,096 Sep. 26, 2000
Jones 4,579,576 Apr. 1, 1986

Claims 1-4 and 8-13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Tijerina-Ramos in view of Kammonen. Claims 5-7 stand
rejected under 35 U.S.C. § 103 as being unpatentable over Tijerina-Ramos
in view of Kammonen and Jones.
We reverse the stated rejections. Our reasoning follows.
Appeal 2011-012493
Application 11/998,241
4
The Examiner refers to Figure 10C of Tijerina-Ramos and maintains
that (Ans. 4):
Tijerina-Ramos (herein referred to as TR) teaches a
bottom mold plate mechanism comprising a bottom plate
assembly (figure 10C) having three bottom plate with passages
for cooling air (380a, 380b, 380c), a housing (374) having a
cooling air chamber (371), a lift mechanism (366), an opening
in the housing (372a, 372b) which would be capable of holding
cooling cartridges. TR is silent to the use of cooling cartridges.

The Examiner found that “KAMMONEN teaches a pneumatic
cartridge control valve” and further teaches that “the cartridges control a
supply of air at a controlled pressure for the purposes of cooling” (column 1,
ll. 10-15). Based on the combined teachings of TR and Kammonen, the
Examiner proposes that “[i]t would have been obvious to one of ordinary
skill in the art to use the pneumatic cartridge valve of KAMMONEN in the
apparatus of TR because TR is silent to the control mechanism of the air
source and KAMMONEN discloses that it is well known for use in IS
machines (col. 1 lines 7-9)” (Ans. 4).
In alleged support, the Examiner asserts “the cooling air supplies
372a, 372b [of TR] as the logical location for [the placement of the] cooling
air control cartridges” of Kammonen (Ans. 6).
However, the Examiner’s obviousness position respecting the asserted
logical valve location is not well served by the teachings of TR. This is
because TR discloses locating slide valves (SV) for cooling fluid for the
blow molding apparatus at a different location than the Examiner’s asserted
logical location, such as a location at or near the machine support frame
and/or apparatus support frame, as basically argued by Appellants (App. Br.
10 -13; Reply Br. 2; TR, paras. 138-140, 150-152, 242-244, 252, and 253,
Appeal 2011-012493
Application 11/998,241
5
Figs. 1A, 1B, 3J, 3K, 3L, 9A-F, 10C). The Examiner has not pointed to any
teachings in Kammonen specifying a location for the pneumatic cartridge
valve thereof that corresponds to the Examiner’s asserted logical location at
372a and 372b, as shown in Figure 10C of TR.
In this regard, the Examiner further undercuts the obviousness theory
that the Examiner’s proposed cartridge valve location in TR is the logical
location by simultaneously maintaining that “it is impossible to determine
from the figures” whether the passages 372a and 372b are not long enough,
as argued by Appellant, “because both TR and KAMMONEN do not
disclose the scale of the figures nor do they disclose the lengths of the
components” (Ans. 7; see Reply Br. 3).
Moreover and as further argued by Appellants, the Examiner has not
adequately articulated the Examiner’s proposed obviousness position as to
the required plurality of cooling cartridges for interchangeable insertion into
the housing chamber for selective control of the cooling air passage to the
bottom plate assembly in different cooling modes of operation associated
with the cartridges, as required by the claim 1 (App. Br. 11 and 13; see
Specification, p. 1, ll. 10-22, p. 6, l. 20-p. 7, l. 15, and Application Drawing
Figs. 9-11).
On this record, we agree with Appellant that the Examiner’s proposed
modification of TR in the first stated rejection appears to be premised on an
impermissible use of hindsight after review of Appellant’s disclosure rather
than on an apparent reason to modify TR based on the combined teachings
of the applied references. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421
(2007) (The fact finder must be aware “of the distortion caused by hindsight
bias and must be cautious of arguments reliant upon ex post reasoning;”
citing Graham v. John Deere Co., 383 U.S. 1, 36 (1966) (warning against a
Appeal 2011-012493
Application 11/998,241
6
“temptation to read into the prior art the teachings of the invention in
issue”)). Rejections based on § 103(a) must rest on a factual basis with these
facts being interpreted without hindsight reconstruction of the invention
from the prior art. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).
It follows that we reverse the Examiner’s obviousness rejection of
claims 1-4 and 8-13 over TR and Kammonen.
As regards the separate obviousness rejection of dependent claims 5-7
over TR, Kammonen, and Jones, we note that the Examiner relies on Jones
for features found in the separately rejected claims and does not articulate
how Jones might obviate all of the deficiencies of the base combination of
TR and Kammonen, as discussed above. It follows that we shall likewise
reverse the Examiner’s separate obviousness rejection of claims 5-7 on this
appeal record.
ORDER
The Examiner’s decision to reject the appealed claims is reversed.

REVERSED

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