Ex parte Langland

Board of Patent Appeals and Interferences

Jul 31, 1997

08294769 (B.P.A.I. Jul. 31, 1997)

Application for patent filed August 23, 1994. According1
to the appellant, the application is a continuation of
Application No. 08/066,047, filed May 25, 1993, now abandoned.
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 27
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte GEORGE R. LANGLAND
____________
Appeal No. 96-4007
Application No. 08/294,7691
____________
ON BRIEF
____________
Before COHEN, FRANKFORT, and NASE, Administrative Patent Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 7, 9, 16 and 17. Claims 12 through
15 have been withdrawn from consideration under 37 CFR § 1.142(b)
as being drawn to a nonelected invention. Claims 8, 10 and 11
have been canceled.
Appeal No. 96-4007
Application No. 08/294,769
2
We AFFIRM-IN-PART.
BACKGROUND
The appellant's invention relates to a conveyance system and
method. Claims 1 and 9 are representative of the subject matter
on appeal and a copy of those claims, as they appear in the
appellant's brief, is attached to this decision.
The prior art references of record relied upon by the
examiner as evidence of obviousness under 35 U.S.C. § 103 are:
Beidler 2,025,371 Dec. 24, 1935
Keller 2,956,520 Oct. 18, 1960
Claims 1 through 7, 9, 16 and 17 stand rejected under
35 U.S.C. § 103 as being unpatentable over Beidler in view of
Keller.
Rather than reiterate the conflicting viewpoints advanced by
the examiner and the appellant regarding the § 103 rejection, we
make reference to the examiner's answer (Paper No. 26, mailed May
24, 1996) for the examiner's complete reasoning in support of the
rejection, and to the appellant's brief (Paper No. 25, filed
April 29, 1996) for the appellant's arguments thereagainst.
Appeal No. 96-4007
Application No. 08/294,769
3
OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellant's specification and
claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the
examiner. Upon evaluation of all the evidence before us, it is
our conclusion that the evidence adduced by the examiner is
sufficient to establish a case of obviousness only with respect
to claims 1, 2, 4, 5, 9, 16 and 17. Accordingly, we will sustain
the examiner's rejection of claims 1, 2, 4, 5, 9, 16 and 17
under 35 U.S.C. § 103. We will not sustain the examiner's
rejection of claims 3, 6 and 7 under 35 U.S.C. § 103. Our
reasoning for this determination follows.
In rejecting claims under 35 U.S.C. § 103, the examiner
bears the initial burden of presenting a prima facie case of
obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d
1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness
is established by presenting evidence that the reference
teachings would appear to be sufficient for one of ordinary skill
in the relevant art having the references before him to make the
proposed combination or other modification. See In re Lintner, 9
Appeal No. 96-4007
Application No. 08/294,769
4
F.2d 1013, 1016, 173 USPQ 560, 562 (CCPA 1972). Furthermore, the
conclusion that the claimed subject matter is prima facie
obvious must be supported by evidence, as shown by some objective
teaching in the prior art or by knowledge generally available to
one of ordinary skill in the art that would have led that
individual to combine the relevant teachings of the references to
arrive at the claimed invention. See In re Fine, 837 F.2d 1071,
1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Rejections based on
§ 103 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, 154
USPQ 173, 177 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
With this as background, we analyze the prior art applied by
the examiner in the rejection of the claims on appeal.
Beidler discloses an apparatus for conveying film from
conveyor belts 63 and 64 to a submerging unit. The conveying
apparatus includes a plurality of chains 41, a plurality of
upstream sprockets wheels 29, 30 and 31, a plurality of
downstream sprockets wheels 40, 40 and 40 and a plurality ofa b
grippers to positively hold the film while it is being conveyed.
Appeal No. 96-4007
Application No. 08/294,769
See page 2, left column, line 6, to page 2, right column,2
line 10, of Beidler.
See page 3, left column, lines 17-19, of Beidler.3
5
Each gripper is formed from a strip of metal having two straight
portions 42 and 43, the latter terminating in a spur 44 operative
to impinge the film (Fig. 11). The straight portion 43 is
relatively short and is shaped to form a loop 45 which embraces
one of the cross bars 46 of a link of the chain. The cross bar
acts as a fulcrum on which the gripper oscillates. Each gripper
is provided with a curved portion 47 between the loop 45 and the
straight portion 42 to permit the straight portions 42 and 43 to
lie approximately parallel with the chain when it is in its
horizontal position. When the conveyor chains 41 pass around the
downstream sprocket wheels, the grippers are caused to swing on
the cross bar of the link and the spurs 44 are drawn from the
film, and hence the film is released (Fig. 10). As shown in2
Figure 5, when the conveyor chains 41 pass around the sprocket
wheels 29, 30 and 31, the grippers are caused to assume an open
position to receive the film. Belts and pulleys may be
substituted for the chains 41 and the sprocket wheels.3
Appeal No. 96-4007
Application No. 08/294,769
See column 3, line 63 to column 4, line 19, of Keller.4
6
Keller discloses a candy can forming machine having a
continuously operating gripper chain 42. The gripper chain 42
consists of a pair of transversely spaced chains 43 and 44
passing around sprockets 45 and 46. The gripper chains are
bridged by gripper jaws 53 and 54 rigidly mounted upon adjacent
links of the carrying chains. When traveling along the lower
flight, the gripper jaws will have their adjacent faces spaced
apart substantially the diameter of the candy cane to be handled.
As the links turn around the sprockets, the gripper jaws assume
radial positions with respect to the sprocket which causes
increased separation between adjacent jaw faces. This permits
ready insertion of the candy canes from the transfer means 12 to
the gripper jaws as well as ready release of the candy canes from
the gripper jaws.4
With respect to the standing § 103 rejection of independent
claims 1 and 9 as being unpatentable over Beidler in view of
Keller, the examiner determined that the only limitation not
disclosed by Beidler is the continuous operation of the belt when
loading. Based on the teachings of Beidler and Keller, the
examiner concluded that it would have been obvious to one of
Appeal No. 96-4007
Application No. 08/294,769
7
ordinary skill in the art to modify Beidler to operate
continuously when loading the grippers as suggested by Keller in
order to speed up the loading process and provide a more
efficient system.
Implicit in this rejection is the examiner’s view that the
above noted modification of Beidler would result in a device and
method which correspond to the conveyance system of claim 1 and
the method for conveying of claim 9 in all respects.
The test for obviousness is what the combined teachings of
the references would have suggested to one of ordinary skill in
the art. See In re Young, 927 F.2d 588, 591, 18 USPQ2d 1089,
1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d 413, 425, 208
USPQ 871, 881 (CCPA 1981). In this case, we are in agreement
with the examiner that the combined teachings of Beidler and
Keller would have been suggestive to one of ordinary skill in the
art at the time of appellant's invention of modifying Beidler's
apparatus so as to operate his conveyor chains 41 continuously,
thereby providing a more efficient system as suggested by
Keller's transfer means 12 continuously supplying articles to the
continuously operated gripper chain 42.
Appeal No. 96-4007
Application No. 08/294,769
8
The appellant's argument (brief, pp. 3 and 5) that Beidler's
conveyor does not operate continuously during loading is
unpersuasive. Nonobviousness cannot be established by attacking
the references individually when the rejection is predicated upon
a combination of prior art disclosures. See In re Merck & Co.
Inc., 800 F.2d 1091, 1097, 231 USPQ 375, 380 (Fed. Cir. 1986).
The appellant's argument (brief, pp. 3-4) that if one
skilled in the art were to combine Beidler and Keller, one would
not arrive at the claimed invention since one would employ
Keller's two-part cradles is unpersuasive. In that regard, we
agree with the examiner that Keller's two-part cradles (e.g.,
members 25 and 26) are part of the transfer means 12 used for
loading Keller's gripper chains 42 and that it is Keller's
gripper jaws 53 and 54, not the two-part cradles, which an
artisan would consider as corresponding to Beidler's grippers.
Thus, in contrast to the appellant's view, it is our opinion that
Keller's two-part cradles would not have provided any suggestion
to an artisan to modify Beidler's grippers.
Appeal No. 96-4007
Application No. 08/294,769
See pages 2-3 of the appellant's brief.5
9
The appellant's argument (brief, p. 4) that if one were to
employ a one-piece gripper as taught by Beidler, it would be
necessary to provide a clutch mechanism which temporarily ceases
movement of the conveyor is unpersuasive since the appellant's
have not submitted any evidence to support this statement.
Attorney's arguments in a brief cannot take the place of
evidence. In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646
(CCPA 1974). Furthermore, we disagree with the appellant's
conclusion. In our opinion, Keller clearly discloses that a
clutch mechanism is not necessary to time the arrival of articles
to the opening of a gripper traversing an arc if a coordinated
transfer means is utilized to supply an article to each gripper
as it opens. As noted above, such continuous operation provides
a more efficient system by speeding up the loading process.
In light of the foregoing, we will sustain the standing
§ 103 rejection of claims 1 and 9.
The appellant has grouped claims 1, 2, 4, 5 and 16 as
standing or falling together. Additionally, the appellant has
grouped claims 9 and 17 as standing or falling together. 5
Appeal No. 96-4007
Application No. 08/294,769
10
Thereby, in accordance with 37 CFR § 1.192(c)(7), we have
determined that dependent claims 2, 4, 5, 16 and 17 must be
treated as falling with independent claims 1 and 9. Thus, it
follows that the examiner's standing § 103 rejection of claims 2,
4, 5, 16 and 17 is also sustained.
Considering next the standing § 103 rejection of dependent
claims 3, 6 and 7, we agree with the appellant that the
limitations recited in these claims are not met by the combined
teachings of Beidler and Keller. With respect to claim 3, the
combined teachings of Beidler and Keller fail to teach or suggest
a conveyance system wherein a workpiece is loaded as the gripping
member traverses a first arc of a greater radius than a second
arc and the workpiece is offloaded as the gripping member
traverses the second arc. While Beidler does disclose the
loading and unloading of workpieces at different arcs, as stated
by the examiner, the arcs provided by the upstream and downstream
sprocket wheels of Beidler have the same radius as shown in
Figure 1. While Keller suggests sprocket wheels 45, 46 having
arcs of different radiuses, Keller clearly suggests loading the
workpiece as the gripper jaws 53, 54 traverse the arc of the
sprocket wheels 45 having the smaller radius. With respect to
Appeal No. 96-4007
Application No. 08/294,769
11
claim 6, the combined teachings of Beidler and Keller fail to
teach or suggest a second biasing means which biases the free end
of the gripping member away from the surface of the conveyor
belt. While the examiner states that arm/finger 59 seen in
Figures 1, 2 and 5 of Beidler biases the gripper open, we see no
basis in Beidler for that statement. Arm/finger 59 is engaged by
film on conveyer belts 63 and 64 to elevate arms 51 and 52 to
disengage the cross arm 48 thus permitting the chains 41 to be
driven. In this regard, arm/finger 59 is not in any way
responsive to the second biasing means (e.g., spring 538 in
Figure 5 or spring 640 in Figure 6) as set forth in the
appellant's claim 6 since the arm/finger 59 does not engage the
grippers and therefore does not bias the grippers away from the
chains 41. Moreover, arm/finger 59 is part of the clutch
mechanism and would be part of the structure removed from Beidler
when Beidler is modified to operate continuously as suggested by
Keller. With respect to claim 7, the combined teachings of
Beidler and Keller fail to teach or suggest a surface of the
gripping member which comprises a foam pad or a serrated edge.
The mere fact that the gripper jaws 53, 54 of Keller "inherently
will not damage the delicate articles" (as asserted by the
examiner) provides no teaching or suggestion of the use of a
Appeal No. 96-4007
Application No. 08/294,769
12
gripping member having a foam pad or serrated edge to grip the
workpiece as required in the appellant's claim 7.
In light of the foregoing, we will not sustain the standing
§ 103 rejection of claims 3, 6 and 7.

CONCLUSION
To summarize, the decision of the examiner to reject claims
1, 2, 4, 5, 9, 16 and 17 under 35 U.S.C. § 103 is affirmed and
the decision of the examiner to reject claims 3, 6 and 7 under
35 U.S.C. § 103 is reversed.
Appeal No. 96-4007
Application No. 08/294,769
13
No period for taking any subsequent action in connection
with this appeal may be extended under 37 CFR § 1.136(a).
AFFIRMED-IN-PART
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
Appeal No. 96-4007
Application No. 08/294,769
14
SHERI M. NOVACK
RAYCHEM CORPORATION
MAIL STOP 120/6600
300 CONSTITUTION DRIVE
MENLO PARK, CA 94025
Appeal No. 96-4007
Application No. 08/294,769
1
APPENDIX
1. A conveyance system comprising an endless flexible belt which
circulates through at least two arcs, at least one structurally
rigid gripping member attached to the belt, the gripping member
having a free end and an anchoring end disposed at opposite ends
of the gripping member, a biasing means which biases the gripping
member in a closed position, and a pivot attachment located at a
medial point on the gripping member between the anchoring end and
the free end, wherein the configuration of the biasing means
causes the gripping member to be opened as it traverses an arced
path and closed against the belt as it traverses a straight path,
without interruption in the movement of the path.
9. A method for conveying a workpiece, the method comprising:
a) conveying a structurally rigid gripping member in a path
which describes a first arc having a predetermined radius,
said gripping member having a free end, an anchoring end
disposed at opposite ends of the gripping member, and a
pivot means located at a medial point on the gripping member
between the anchoring end and the free end, the free end
being open as it traverses the first arc;
b) loading a workpiece into the opening as the gripping member
traverses the first arc, while the gripping member is being
conveyed;
c) conveying the gripping member and workpiece in a path which
is substantially straight, said gripping member being closed
and firmly holding the workpiece at the free end of the
gripping member against the belt as the gripping member
traverses the substantially straight path; and
d) conveying the gripping member in a path which describes a
second arc having a predetermined radius, said gripping
member being open as it traverses the second arc to permit
the exit of the workpiece.
APPEAL NO. 96-4007 - JUDGE NASE
APPLICATION NO. 08/294,769
APJ NASE
APJ FRANKFORT
APJ COHEN
DECISION: AFFIRMED-IN-PART
Prepared By: Delores A. Lowe
DRAFT TYPED: 22 Jul 97
1st Rev. 23 Jul 97
FINAL TYPED: