Ex Parte KraftDownload PDFBoard of Patent Appeals and InterferencesMay 26, 201111873117 (B.P.A.I. May. 26, 2011) Copy Citation 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 3 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 4 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. App App top t direc the s Turn rend toge to th func finds desc entir to al be [s 12 Th clari eal 2010-0 lication 11 o the botto t substant trainer bas The Exa er 954, Fi {Tu ers claim 1 ther with r e inlet of t tional lang that the d ribed by T e height of low for an ic: have b roughout ty, regardl 03586 /873,117 m of the c ially all of kets. miner find gure 2A, re rner 954 F obvious. ails 19, as he strainer uage [“dir ifference b urner is th the cham y extreme een] obvio this Opinio ess of thei hamber, a the stream s that the produced ig. 2A sho (Ans. 5.) a deflecto baskets.12 ects”] “is etween th at the [side ber due to flow of wa us to one o n, elemen r presentat 5 nd the flui of fluid th debris-coll below: ws a debr The Exam r bulkhead Accordin [not] paten e claimed -by-side] the by-pas ter. The E f ordinary t labels ar ion in the d deflector at enters ecting dev is collectin iner ident that direc g to the E table.” (I invention cages 12 d s weir [10 xaminer skill from e presente original do plate is a the chamb ice shown g device} ifies elem ts the inco xaminer, t d.) The Ex and the de o not exte 2] which i argues tha the teach d in bold f cument. rranged to er to enter in ent 102, ming fluid he aminer vice nd the s provided t “it would ing of ont for 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). App App in Tu wou the E have (Id.) nece Exam the p Turn eal 2010-0 lication 11 Similarly rner 819, {Tu ld have ren xaminer’s been] obv Once aga ssarily dir iner has n rovision f er’s disclo 03586 /873,117 , the Exam Figure 4, s rner 819 F dered the view, fram ious to ha in, howev ects all the ot explain or the over sed invent iner argu hown belo igure 4 sh claimed st e 100 is ve the filte er, the Exa fluid to en ed why it flow safet ion. 7 es that the w: ows a debr raining ap a bulkhead r/filters to miner has ter primar would hav y feature t debris col is collecti paratus ob plate, and substantia not explai y bag 72. e been ob hat is a pri lecting de ng device} vious. (A “it would lly fill the ned why f Moreove vious to “d ncipal com vice show ns. 7) In be [sic: vault.” rame 100 r, the esign out” ponent o n f 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 kmm Copy with citationCopy as parenthetical citation