Ex Parte Kraft

Board of Patent Appeals and Interferences

May 26, 2011

11873117 (B.P.A.I. May. 26, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte WAYNE KRAFT
________________

Appeal 2010-003586
Application 11/873,117
Technology Center 1700
________________

Before ADRIENE LEPIANE HANLON, MARK NAGUMO, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-003586
Application 11/873,117

2
A. Introduction1
Wayne Kraft (“Kraft”) timely appeal under 35 U.S.C. § 134(a) from
the final rejection2 of claims 1-38, which are all of the pending claims. We
have jurisdiction. 35 U.S.C. § 6. We REVERSE.
The subject matter on appeal relates to a fluid strainer apparatus.
Representative Claim 1 reads:
1. A fluid strainer apparatus adapted to remove debris from a stream
of fluid, the apparatus comprising:
(A) a housing including a front portion, a back portion, a pair of
spaced apart side portions, a bottom portion and a top portion
defining a chamber,
said front portion having at least one fluid input port and said
back portion having at least one fluid outlet port for flowing the
stream of fluid through said housing;
(B) a fluid deflector bulkhead plate extending transversely across
said chamber between said side portions proximately to said front
portion and having a plurality of first slotted openings formed
therein; and
(C) a plurality of strainer baskets adapted to be disposed side-by-
side within said chamber and supported therein in a mounted state,
each said strainer basket including
(1) a top portion, a bottom portion, a back portion, spaced-apart
side portions extending from proximal the top portion of the

1 Application 11/873,117, Fluid Strainer Assembly, filed 16 October 2007
as a continuation of an application filed 3 October 2002, now U.S. Patent
7,282,142, which claims the benefit of a provisional application
filed 22 April 2002. The specification is referred to as the
“117 Specification,” and is cited as “Spec.” The real party in interest is
listed as the inventor, Mr. Wayne Kraft. (Appeal Brief, filed 26 May 2009
(“Br.”), 1.)
2 Office action mailed 25 September 2008.
Appeal 2010-003586
Application 11/873,117

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chamber to proximal the bottom portion of the chamber, and an
open front portion, wherein
(2) at least one of said top portion, said bottom portion, said
back portion and said side portions is perforated,
wherein each said strainer basket, when supported in the mounted
state, has the open front portion thereof aligned with a respective
first slotted opening; and
wherein the first slotted openings and the open front portions of the
mounted strainer baskets together extend across substantially the
entirety of the cross-sectional area of said fluid input port such that
said fluid deflector plate directs the fluid stream that enters the
fluid inlet port into the open front portions of said strainer
baskets, and substantially all of the stream of fluid enters said
strainer baskets and exits through perforated ones of said top
portion, said bottom portion, said back portion and said side
portions and thereafter flows out of the fluid outlet port.
(Claims App., Br. 19-20; indentation, paragraphing, and emphasis added.)
The Examiner maintains the following grounds of rejection:3
A. Claims 1-6, 11, 12, 21-31 and 33-38 stand rejected under
35 U.S.C. § 103(a) in view of Turner 9544 or Turner 819.5
B. Claims 7 and 13 stand rejected under 35 U.S.C. § 103(a) in
view of the combined teachings of Turner 954 or Turner 819,
and Bachand.6

3 Examiner’s Answer mailed 16 July 2009 (“Ans.”).
4 Richard R. Turner et al., Debris Collecting Apparatus, U.S. Patent
6,478,954 B1 (12 November 2002), which is based on an application
filed 6 June 2001.
5 Richard R. Turner and Steven Hurwitt, Apparatus for Trapping, Signalling
Presence of and Collecting Debris in Waterways, U.S. Patent 5,562,819
(1996).
6 Steven P. Bachand et al., Water Strainer/Purifier and Method of Using
Same, U.S. Patent 5,810,999 (1998).
Appeal 2010-003586
Application 11/873,117

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C. Claim 9 stands rejected under 35 U.S.C. § 103(a) in view of the
combined teachings of Turner 954 and Nicholas.7
D. Claim 8 stands rejected under 35 U.S.C. § 103(a) in view of the
combined teachings of Turner 954, Nicholas, and Ennis.8
E. Claims 14-20 and 35-38 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Turner 954 or Turner 819, and Ferraro.9
F. Claim 32 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings Turner 954 or Turner 819, and Caroll.10
G. Claims 1-20 stand rejected under obviousness-type double
patenting in view of claim 1 of Kraft.11
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
The claimed strainer apparatus comprises a housing having an entry
port, and, near the entry port, a fluid deflector bulkhead plate across the
chamber, having at least two side-by-side openings, each of which holds a
basket open towards the entry port. The sides of the baskets extend from the

7 Douglas Ian Nicholas, Stormwater Sediment and Litter Trap, U.S. Patent
6,379,541 B1 (30 April 2002), based on an application accorded a 102(e)
date of 19 April 1999.
8 G. Thomas Ennis and Robert G. Chelton, Water Filtration System, U.S.
Patent 4,652,368 (1987).
9 Michael J. Ferraro, Swimming Pool Vacuum System, U.S. Patent
Re. 36,913 (2000).
10 Paul L. Carroll, II and Sterling L. Carroll, Filtered Sanitation System,
U.S. Patent 6,238,563 B1 (2001).
11 Wayne J. Kraft, Fluid Strainer Assembly, U.S. Patent 7,282,142 B2 (16
October 2007), based on an application filed 3 October 2002.
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Appeal 2010-003586
Application 11/873,117

6
Turner to have the basket fill the entire chamber, if such extreme flow is not
contemplated.” (Id. at 6.)
As Kraft argues, the Examiner’s findings and reasoning is flawed in
several ways. First, weir 102 is an open mesh metal screen with large
openings that is designed to permit continued flow in the event that the
net 17 of trap 12 is filled to capacity, or when the flow into the inlet 13 is
greater than can pass through trap 12. (Turner 954, col. 5, ll. 59-65.) The
purpose of Turner’s invention is to collect floating debris from water flows
in which extreme flow conditions are expected. Removing a safety device in
such a circumstance would destroy the purpose of the invention, and
therefore would not have been obvious. Moreover, the Examiner has
disregarded the requirement that the deflector plate direct substantially all of
the stream of fluid into the strainer baskets. It is not apparent, nor has the
Examiner explained why weir 102 or frame 19 directs substantially all of the
flow into net 12, or why it would have been obvious to make such a
modification. Ignoring functional limitations is legal error—a functional
limitation covers all embodiments performing the recited function. In re
Swinehart, 439 F.2d 210, 213 (1971); cited with approval by Geneva
Pharmaceuticals, Inc. v. GlaxoSmithKline PLC, 349 F.3d 1373, 1383-84
(Fed. Cir. 2003).
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Appeal 2010-003586
Application 11/873,117

8
We conclude that Kraft has demonstrated harmful error in the
Examiner’s rejection of the claims as obvious in view of Turner 954 or
Turner 819, and we reverse Rejection A. The Examiner has not relied on the
other references cited in Rejections B through F in any way that corrects the
deficiencies of either Turner reference. Accordingly, we also reverse
Rejections B through F.
As for the obviousness-type double patenting rejection (“ODP”) in
view of Kraft, we observe that the present specification and drawings are
identical to the original Kraft specification and drawings.13 Moreover, any
restriction requirements entered in the parent application have been mooted
by the Examiner’s consideration of all claims filed in the present case.
Kraft argues that the patented claims do not include the requirements
that the spaced-apart side portions of the strainer baskets extend from near
the top of the chamber to near the bottom of the chamber, and that the
Examiner’s rationale that fully extended side portions are necessary to form
the chamber is incorrect. (Br. 15-16.) The Examiner’s expressed rationale
is indeed faulty, as the Examiner appears to have conflated the surrounding
chamber with the internal straining baskets.
Kraft argues further that the requirement that the “first slotted
openings” and “open front portions of the mounted strainer baskets” together
extend across substantially all of the fluid input port are not recited in the
claims of Kraft 142. (Br. 15.) The Examiner argues that the limitation in

13 See the Declaration and Power of Attorney filed 14 January 2008, stating
that the [117] specification was previously filed.
Appeal 2010-003586
Application 11/873,117

9
claim 1 of Kraft 142, that “said fluid deflector plate directs the fluid stream
that enters the fluid inlet port into the open front portions of said strainer
baskets such that substantially all of the stream of fluid enters said strainer
baskets,” “further functionally describes what the additional structure recited
in claims 1, 11, and 14, making the claims obvious over the claims of Kraft.”
(Ans. 16, quoting Kraft 142, col. 12, ll. 31-35). The problem with the
Examiner’s argument is that the function recited in the reference claim does
not require the relations between the structures recited in the appealed
claims.
Obviousness is a legal conclusion based on findings of fact regarding,
among other factors, the differences between the claimed invention and the
teachings of the prior art, and the knowledge and skills of the ordinary
worker in the art. The Examiner’s factual findings in the present ODP
rejection are facially incorrect and are therefore inadequate to support the
Examiner’s legal conclusion. Our primary function is review. We therefore
decline to undertake findings of fact in the first instance that might support
the rejection.
C. Order
We REVERSE all the rejections of record.
REVERSED

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