Ex Parte Koenig

Patent Trial and Appeal Board

Jun 28, 2013

11724392 (P.T.A.B. Jun. 28, 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.
11/724,392 03/15/2007 Klaus Koenig 2006P07222US 3209
24131 7590 06/28/2013
LERNER GREENBERG STEMER LLP
P O BOX 2480
HOLLYWOOD, FL 33022-2480
EXAMINER
SUAREZ, ERNESTO A
ART UNIT PAPER NUMBER
3653
MAIL DATE DELIVERY MODE
06/28/2013 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 KLAUS KOENIG
____________

Appeal 2011-002136
Application 11/724,392
Technology Center 3600
____________

Before GAY ANN SPAHN, MICHAEL C. ASTORINO, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 8, 9, and 11. Claims 1-7, 10, and 12-14
have been withdrawn by the Examiner. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2011-002136
Application 11/724,392

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Claimed Subject Matter
Claim 8 is the sole independent claim on appeal, is representative of
the subject matter on appeal, and is reproduced below.
8. A method of singulating objects in a transport system,
comprising:
providing a first guide within a processing area;
coupling a second guide carrying a predetermined
number of objects to the first guide, wherein the objects are
disposed side by side in a stacking direction on the second
guide;
moving the first guide and the second guide at a
predetermined constant velocity in the stacking direction;
transferring at least one object located on the second
guide closest to the first guide from the second guide to the first
guide in the stacking direction; and
within the processing area, processing the object
transferred to the first guide.

Rejections
Claims 8, 9, and 11 are rejected under 35 U.S.C. § 102(b) as
anticipated by Cordia (US 5,341,915, iss. Aug. 30, 1994).
Claims 8, 9, and 11 are rejected under 35 U.S.C. § 102(b) as
anticipated by Mueller (US 6,209,710 B1, iss. Apr. 3, 2001).1

OPINION
Anticipation by Cordia
The Appellant argues claims 8, 9, and 11 as a group. App. Br. 5, 10.
We select claim 8 as representative of the group. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).

1 The Examiner provides two alternative applications of Mueller in rejecting
claims 8, 9, and 11. Ans. 5-7.
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The Examiner finds Cordia discloses “coupling a second guide
([conveyor belt ]25a . . .) carrying a predetermined number of objects (T) to
the first guide [(conveyor belt 22a)], wherein the objects are disposed side
by side in a stacking direction (arrow A) on the second guide; (Figs. 3-5).”
Ans. 4. The Appellant contends that the conveyor belt 25a and the conveyor
belt 22a are not coupled; rather, they are separated by conveyor 26 and are
not mechanically connected. App. Br. 7-8; see Reply Br. 2-3.
The Appellant’s contentions are not persuasive. The term “coupling”
is not explicitly defined in the Specification. In the absence of an express
definition of a claim term in the specification or a clear disclaimer of scope,
the claim term is interpreted as broadly as the ordinary usage of the term by
one of ordinary skill in the art reasonably would permit. In re ICON Health
& Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In re Morris, 127
F.3d 1048, 1054 (Fed. Cir. 1997). An ordinary usage of the term “couple,”
as a verb (used with object), is “to join; connect.” (DICTIONARY.COM
UNABRIDGED, (“couple,” def. 9), http://dictionary.reference.com/browse/
coupling (last visited June 24, 2013)). The Examiner finds that the second
guide 25a and the first guide 22a are coupled because Cordia’s second guide
25a is coupled, i.e., joined or connected, to first guide 22a indirectly through
shaft 56, belt 26a, and shaft 41. See Ans. 9, Cordia, fig. 3. Although claim 8
recites “coupling a second guide . . . to the first guide,” the claim does not
require coupling the second guide to the first guide directly. See e.g.,
Ullstrand v. Coons, 147 F.2d 698, 700 (CCPA 1945)(The accepted
definition of the term “connected” is restricted to neither a direct nor an
indirect connection, and it is therefore applicable to an indirect connection.).
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Application 11/724,392

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The Examiner finds that Cordia’s first guide 22a and second guide
25a, which both move at a velocity of V3, read on the moving step of claim
8, i.e., “moving the first guide and the second guide at a predetermined
constant velocity in the stacking direction.” Ans. 4. The Appellant contends
that Cordia’s conveyor belts 22a and 25a do not move at all. See App. Br. 9,
Reply Br. 3. In response, the Examiner finds that conveyor belts 22a and
25a move at a velocity of V3 and that the movement of the objects on the
conveyor belts indicates that the conveyor belts are moving. See Ans. 10. In
the Reply Brief, the Appellant contends that the conveyor belts do not move
they rotate and “[t]he rotation does not change the position of the belts.”
Reply Br. 3.
The term “rotate” means “to turn about an axis or a center: revolve;
especially: to move in such a way that all particles follow circles with a
common angular velocity about a common axis.” MERRIAM-WEBSTER
UNABRIDGED, (“rotate,” intransitive verb, def. 2), http://www.merriam-
webster.com/dictionary/rotate (last visited June 24, 2013)) (emphasis
added). As per the definition, a rotating conveyor belt is synonymous with a
moving conveyor belt. As such, the Appellant’s contentions are not
persuasive.
The Examiner finds that Cordia discloses “within the processing area
(Fig. 1), processing the object transferred to the first guide [22a],” as recited
in claim 1. Ans. 4; see also Ans. 8. The Appellant contends that Cordia’s
conveyor belt 22a is not within the processing area and does not process
objects, but rather moves or transports objects. See App. Br. 6-7; Reply Br.
3-5. The Appellant acknowledges that “Cordia explicitly discloses ‘a
conveyor system to precisely feed articles[, i.e., objects)], such as food
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product containers, includes a series of convey[o]rs to phase and control the
articles along the flow for further processing downstream.’” App. Br. 7
(citing Cordia, Abstract). The Appellant asserts that the dictionary
definition of “process” is “a series of actions to produce a change or
development.” App. Br. 6 (citing COLLINS ENGLISH DICTIONARY AND
THESAURUS) (emphasis added).
For the purposes of this appeal only, even if we assume that the
Appellant’s proffered definition of “process” is included in the broadest
reasonable interpretation, the Appellant’s contention is not persuasive of
Examiner error. Cordia’s conveyor belt 22a performs a series of actions by
first, moving or transporting objects, and second, by phasing and controlling
those objects. As for the second action, Cordia describes “[i]f the article is
out of phase, such as in a position along the flow path A before or after
where it should be, then the phasing conveyor 22 is accelerated or
decelerated momentarily to reposition the article properly.” Cordia, col. 8,
l. 66-col. 9, l. 2. That is, a series of the first and second actions produce a
change or development by moving and repositioning the objects for the
conveyor 23 and the target conveyor 11, which are located downstream of
the phasing conveyor 22. See Cordia, fig. 1. As such, since belt 22a of
Cordia’s phasing conveyor 22 “processes” objects, the Examiner’s finding
that belt 22a reads on the step of “processing the object transferred to the
first guide,” as recited in claim 1, is supported by a preponderance of the
evidence. Additionally, because belt 22a of phasing conveyor 22 processes
objects, the Examiner’s finding that the processing step occurs “within the
processing area,” as recited in claim 8, is also supported by a preponderance
of the evidence.
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For the above reasons, the Examiner’s rejection of claims 8, 9, and 11
as anticipated by Cordia is sustained.
Anticipation by Mueller
The Examiner applies the teachings of Mueller in two alternative
ways to reject claim 8. Under a first alternative, the Examiner finds that
Mueller discloses “coupling a second guide (30, 3ʹ) carrying a predetermined
number of objects (1) to the first guide [(5)].” Ans. 5. See Mueller, fig. 11.
Mueller’s elements 5, 30, and 3ʹ are described as a holding means, timing
tappets, and a conveyor, respectively. Mueller, col. 9, ll. 27-46. The
Appellant contends that Mueller’s holding means 5, and timing tappets 30
and conveyor 3ʹ are “not coupled (mechanically connected) to each other.”
Reply Br. 6. In response, the Examiner finds that:
the first [(5)] and second [(30, 3ʹ)] guides must be operatively
coupled for the combined effect of conveying and setting a
predetermined distance (d) between the bottles [(1)] i.e. objects
(See column 9; Lines 27-50), if the guides were not coupled,
the objects would not be able to be conveyed and Mueller’s
disclosed method and device for conveying containers would be
inoperable.
Ans. 12.
Mueller’s timing tappets 30 and conveyor 3ʹ appear to be positioning
and carrying container 1. See Mueller, col. 9, ll. 27-46, fig. 11. As
discussed supra, the term “coupling” refers to joining or connecting either
directly or indirectly. In this case, one of ordinary skill in the art would not
understand positioning and carrying to correspond to joining or connecting,
i.e., coupling. As such, Mueller does not disclose coupling the timing
tappets 30 and the conveyor 3’ to bottle 1. Accordingly, Mueller does not
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disclose, either directly or indirectly, coupling the timing tappets 30 and the
conveyor 3’ to the holding means 5.
Thus, the first alternative rejection of claims 8, 9, and 11 is not
sustained.
Under a second alternative, the Examiner finds that Mueller’s
conveyor 3 is a first guide and conveyor 3ʹ and timing tappets 30 is a second
guide. Ans. 6; Mueller, col. 9, ll. 27-46, fig. 11. As such, the Examiner
finds that Mueller discloses moving the first guide 3 and the second guide 3ʹ,
30 at a predetermined constant velocity in the stacking direction, as called
for by claim 8. Ans. 6. The Appellant correctly points out that “Mueller
explicitly discloses that the speed (V.1) of the conveyor (3ʹ) is higher than
the speed (V) of the conveyor (3).” App. Br. 12. See Mueller, fig. 11, col.
9, ll. 41-46.
At the outset, it is apparent that the Examiner and the Appellant
interpret the moving step of claim 8, i.e., “moving the first guide and the
second guide at a predetermined constant velocity in the stacking direction,”
as recited by claim 8, differently. See Ans. 12-13. The Appellant contends
that “the claim language of claim 8 explicitly requires that the first and
second guides are moved at one and the same predetermined velocity.”
Reply Br. 9. The Examiner concludes that the moving step of claim 8 does
not recite or require that the “first and second guide move at the same
velocity.” Ans. 13. We agree with the Appellant’s interpretation of the
moving step of claim 8. Accordingly, since the velocity of conveyor 3ʹ is
higher than the velocity of conveyer 3, the velocities are not the same.
Thus, the Examiner’s second alternative rejection of claims 8, 9, and
11 is not sustained.
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Application 11/724,392

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DECISION
We AFFIRM the rejection of claims 8, 9 and 11 under 35 U.S.C.
§ 102(b) as anticipated by Cordia.
We REVERSE the rejections of claims 8, 9 and 11 under 35 U.S.C.
§ 102(b) as anticipated by Mueller.
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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