Ex Parte Konietzko

Board of Patent Appeals and Interferences

Feb 12, 2010

10381744 (B.P.A.I. Feb. 12, 2010)

1

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ALBRECHT KONIETZKO
____________________

Appeal 2009-005342
Application 10/381,744
Technology Center 3600
____________________

Decided: February 12, 2010
____________________

Before WILLIAM F. PATE III, STEVEN D.A. McCARTHY
and FRED A. SILVERBERG, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 1
decision finally rejecting claims 1, 3, 4, 8 and 9 under 35 U.S.C. 2
§ 102(b) as being anticipated by Planck (US 5,145,250, issued Sep. 8, 1992); 3
finally rejecting claims 5 and 6 under 35 U.S.C. § 103(a) as being 4
unpatentable over Planck and Jerkel (US 6,141,956, issued Dec. 19, 5
Appeal 2009-005342
Application 10/381,744

2
2000);finally rejecting claims 7 and 8 under § 103(a) as being unpatentable 1
over Planck and Gordon (US 5,363,746, issued Nov. 15, 1994); and finally 2
rejecting claims 7 and 10 under § 103(a) as being unpatentable over Planck, 3
Gordon and Acknin (US 5,967,023, issued Oct. 19, 1999). We have 4
jurisdiction under 35 U.S.C. § 6(b) (2002). 5
We REVERSE. 6
Claim 1 is the sole independent claim on appeal: 7
8
1. A method for the use of a program 9
controlled stirrer for producing pharmaceutical or 10
cosmetic recipes, comprising an electric stirring 11
unit whose revolutions can be controlled, which 12
includes a stirring tool extending into a mixing 13
receptacle, whereby the stirring unit is coupled to a 14
micro-processor which determines the length of 15
stirring time and stirring speed at the stirring unit 16
in a program-controlled manner; the program 17
controlled stirrer including a lifting unit, through 18
which the relative position of the stirring tool in 19
the mixing receptacle can be changed during the 20
stirring process, whereby the method includes the 21
following steps: 22
inputting data into at least one data input 23
device, the data defining at least the amount and 24
the category of the recipe to be produced within a 25
given tolerance range and the size of the mixing 26
receptacle; 27
inputting nonvariable data from a data 28
memory which, for preset categories of recipes and 29
sizes of mixing receptacles, contains basic values 30
for the stirring time and stirring speed; 31
determining the length of stirring time and 32
stirring speed in order to produce the desired 33
amount of the recipe by combining the variable 34
and nonvariable data; 35
Appeal 2009-005342
Application 10/381,744

3
determining the optimum stroke rate and 1
lifting speed in order to produce the desired quality 2
of the recipe by combining the variable and 3
nonvariable data; 4
converting the determined length of stirring 5
time and stirring speed into a corresponding initial 6
current or voltage value and controlling the stirring 7
unit with these control parameters; 8
converting the determined stroke rate and 9
lifting speed into corresponding second current or 10
voltage values; 11
storing the control parameters adopted 12
during the production of the recipe, together with 13
identification data in a data memory; 14
outputting the control parameters and/or 15
identification data adopted, through a data output 16
device, in electronic and/or printed form; and 17
controlling the lifting unit with said second 18
current or voltage values. 19
20
Planck describes a machine 10 for preparing bone cement. (Planck, 21
col. 4, ll. 54-58). Planck’s machine 10 includes an electric stirring unit. 22
Planck’s electric stirring unit includes a stirrer element or stirring tool 32 23
which reaches into a cartridge or mixing receptacle 20 to mix the bone 24
cement components. (Planck, col. 5, ll. 39-44 and col. 10, ll. 14-16). 25
Planck’s stirring machine 10 also includes a lifting unit in which a drive 26
motor 26 drives a threaded nut engaged with a spindle 25 to raise or lower 27
the stirrer element 32. (Planck, col. 5, ll. 28-41). Planck discloses that the 28
drive motor 26 can be driven in either direction (Planck, col. 5, ll. 33-36) but 29
not that the motor can be driven at variable speeds. 30
Planck’s stirring machine is controlled by a control apparatus 52 31
(Planck, col. 6, ll. 60-66) including a computer (Planck, col. 7, ll. 15-16). 32
Appeal 2009-005342
Application 10/381,744

4
Planck’s computer 55 receives data from a memory 56 in the form of data 1
fields or characteristic curves and uses the data in computing control steps 2
for preparing various types of bone cement at different room temperatures. 3
(Planck, col. 7, ll. 16-26). 4
More specifically, Planck discloses that the: 5
stirrer element 32 is continuously moved up and 6
down for mixing during the mixing phase, in 7
dependence on the amount of bone cement 8
components present in the cartridge 20, i.e., the 9
height to which the cartridge is filled, whether it is 10
during a programmed time interval or during a 11
predetermined number of up and down strokes, or 12
process-controlled by means of the reversible drive 13
motor 26, which is controlled corresponding to this 14
by the control apparatus 52. The stroke height is 15
set such that the propeller 32 constantly remains 16
immersed in the bone cement mixture in the 17
cartridge 20, and the upward stroke is preferably 18
programmed such that it goes to just below the 19
filled height of this mixture in the cartridge 20, and 20
the downward stroke appropriately goes 21
respectively (for the sake of particularly uniform 22
mixing) to just above the floor 18 of the cartridge 23
20. The computer 55 computes from the data 24
stored in the memory 56 not only the stroke height 25
of the propeller 32 for its stroke motions, but also, 26
taking account of room temperature and the filling 27
amount, the required period of time, or the number 28
of strokes of the propeller 32 up to the end of the 29
mixing phase, for the intimate mixing of the two 30
components to give bone cement. 31
32
(Planck, col. 10, ll. 20-43). 33
The Appellant contends that Planck fails to disclose a method for the 34
use of a programmed stirrer including the steps of determining the optimum 35
Appeal 2009-005342
Application 10/381,744

5
stroke rate and lifting speed in order to produce the desired quality of the 1
recipe by combining the variable and nonvariable data; converting the 2
determined stroke rate and lifting speed into corresponding second current or 3
voltage values; and controlling the lifting unit with the second current or 4
voltage values. (App. Br. 5-7; Reply Br. 3-5). The Examiner finds that: 5
the number of strokes up and down are 6
predetermined within a programmed time interval. 7
. . . 8
Therefore, read in view of lines 36-43 [of Planck], 9
it can be interpreted that [Planck’s] device changes 10
the number of strokes for a given timer period 11
based on room temperature and filling amount, for 12
example, to determine the number of strokes up 13
and down of the propeller in a given 14
amount of time. This is lifting velocity. 15
(Ans. 10-11). 16
The Examiner’s finding is based on the false premise that Planck 17
expressly or inherently discloses predetermining the number of up and down 18
strokes within a programmed time interval. Planck, at column 10, lines 20-19
42, discloses determining either a programmed time interval (that is, a 20
required period of time for mixing) or a predetermined number of up and 21
down strokes (that is, the number of strokes of the stirrer element 32 up to 22
the end of the mixing phase). Planck nowhere discloses determining both a 23
programmed time interval and a predetermined number of up and down 24
strokes. Neither does Planck expressly disclose determining a 25
predetermined number of up and down strokes within a programmed time 26
interval. 27
Planck’s statement that the computer 55 “computes from the data 28
stored in the memory 56 not only the stroke height of the propeller 32 for its 29
Appeal 2009-005342
Application 10/381,744

6
stroke motions, but also . . . the number of strokes of the propeller 32 up to 1
the end of the mixing phase” (Planck, col. 10, ll. 36-43) is consistent with 2
the computer determining the number of up and down strokes which the 3
stirrer element 32 must perform at a fixed stroke rate in order to mix the 4
bone cement components for the required period of time. Planck’s 5
description at column 10, lines 20-43 does not necessarily imply that 6
Planck’s computer either directly determines an optimum stroke rate and 7
lifting speed or indirectly determines either value by computing a number of 8
strokes required for a given time period by any means, much less by 9
combining variable and nonvariable data. Neither does Planck’s description 10
necessarily imply that Planck’s computer controls the lifting unit with 11
current or voltage values obtained by conversion of a determined optimum 12
stroke rate and lifting speed. 13
The disclosure of Planck fails to expressly or inherently support the 14
Examiner’s finding that Planck anticipates subject matter of claim 1. The 15
Examiner erred in rejecting independent claim 1 and its dependent claims 3, 16
4, 8 and 9 under § 102(b) as being anticipated by Planck. 17
Jerkel discloses a device including adjusting units 2, 3 which drive 18
conveyor pumps 4. (Jerkel, col. 4, l. 66 – col. 5, l. 9). Each of Jerkel’s 19
conveyor pumps 4 conveys a flowable material into a mixing device 18, “in 20
particular into a static or dynamic mixer of common design.” (Jerkel, col. 5, 21
ll. 4-9). The mixing device 18 feeds a mixture of the flowable materials to 22
an application device such as a paint pistol. (Jerkel, col. 1, ll. 9-18). Jerkel 23
does not describe further the mixing device 18 or any electronic control of 24
the mixing device 18. In the rejection of claims 5 and 6 under § 103(a), the 25
Examiner relies on Jerkel as disclosing “comparing actual values to ‘desired 26
Appeal 2009-005342
Application 10/381,744

7
values’ (construed to be target values) regarding flow rates and mixture 1
ratios between components in a mixture.” (Ans. 5). 2
Gordon discloses a kitchen appliance which can accomplish the tasks 3
of chilling, heating and mixing recipe ingredients for food products 4
according to programmable sequences of preparation steps. (Gordon, col. 4, 5
ll. 21-25). Gordon discloses including a bar-code device in the kitchen 6
appliance to allow an operator the flexibility of entering food preparation 7
instructions from a recipe book or a premixed product package. (Gordon, 8
col. 10, ll. 61-65). Although Gordon discloses up-and-down relative 9
movement between a detachable food container 25 containing the recipe 10
ingredients and a mixing blade 36 as the recipe ingredients are mixed. (See, 11
e.g., Gordon, col. 7, ll. 39-41), Gordon does not appear to disclose 12
determining an optimum stroke rate or lifting speed for the mixer. 13
Acknin discloses a mechanical fabrication process for salty or sweet 14
dishes such as pizzas using baking dough and ingredients contained in 15
special dosing units. (Acknin, col. 1, ll. 5-8). Acknin discloses providing 16
dosing units for the dough and ingredients with identification such as bar 17
codes for use by a computerized system in selecting the processing program 18
for processing the dough and ingredients. (Acknin, col. 3, ll. 57-62). 19
Acknin discloses no details of any mixing step. 20
The Examiner provides no reasoning sufficient to show how Jerkel 21
might make up the deficiencies of Planck in connection with the rejection of 22
dependent claims 5 and 6; how Gordon might make up the deficiencies of 23
Planck with respect to the rejections of dependent claims 7 and 8; or how 24
Gordon might make up the deficiencies of Planck with respect to the 25
rejections of dependent claims 7 and 10. The Examiner erred in rejecting 26
Appeal 2009-005342
Application 10/381,744

8
claims 5 and 6 under § 103(a) as being unpatentable over Planck and Jerkel; 1
in rejecting claims 7 and 8 under § 103(a) as being unpatentable over Planck 2
and Gordon; and in rejecting claims 7 and 10 under § 103(a) as being 3
unpatentable over Planck, Gordon and Acknin. 4
5
DECISION 6
We REVERSE the Examiner’s decision rejecting claims 1 and 3-10. 7
8
REVERSED 9
10
11
Klh 12
13
MAYER & WILLIAMS PC 14
251 NORTH AVENUE WEST 15
2ND FLOOR 16
WESTFIELD, NJ 07090 17