Ex Parte Lentes et al

Patent Trial and Appeal Board

Aug 29, 2017

13034114 (P.T.A.B. Aug. 29, 2017)

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.
13/034,114 02/24/2011 Frank-Thomas Lentes 4979 1167
278 7590
MICHAEL J. STRIKER
1077 Northern Boulevard
Roslyn, NY 11576
EXAMINER
RASHID, FAZLE A
ART UNIT PAPER NUMBER
1774
NOTIFICATION DATE DELIVERY MODE
08/31/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
striker@strikerlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK-THOMAS LENTES, KARIN NAUMANN,
CHRISTOPH BERNDHAEUSER, ERHARD ZEMSCH, and
VOLKER TRINKS
Appeal 2016-001609
Application 13/034,1141
Technology Center 1700
Before RAE LYNN P. GUEST, DONNA M. PRAISS, and
MONTE T. SQUIRE, Administrative Patent Judges.
GUEST, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1—24 under 35 U.S.C. § 102(b) as anticipated by or,
alternatively, under 35 U.S.C. § 103(a) as unpatentable over Spremulli2
alone or further in view of additional prior art. See generally Examiner’s
Final Office Action, dated November 19, 2014 (“Final Act.”); Examiner’s
1 Appellants identify the real party in interest as Schott AG. Appellants’
Appeal Brief 3, filed June 12, 2015 (hereinafter “App. Br.”).
2 U.S. Patent 2,831,664, issued April 22, 1958 to Paul F. Spremulli
(“Spremulli”).
Appeal 2016-001609
Application 13/034,114
Answer, dated September 3, 2015 (“Ans.”). We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention relates to a stirring device for homogenizing a
glass melt for forming glass or glass ceramic products of high quality and
reduced inclusions and/or defects. Specification (“Spec.”) 1:6—11. The
stirring device effectively suppresses the formation of gas bubbles. Id. at
6:12—16. The stirring device comprises particularly designed paddles with
supporting “built-in elements” that provide support and stabilization for the
paddles but are fully concealed by the stirrer paddle in the direction of
rotation, to reduce the re-boil tendency. Id. at 7:10—20. Figures 2 and 4b of
the present invention are reproduced below.
2
Appeal 2016-001609
Application 13/034,114
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Figure 2 depicts a side view of the stirrer device assembled in a
mixing device 1. Id. at 14:14—15. The structure of the stirring device has a
stirring shaft 10 and stirrer paddles 11. Id. at 16:1—18, 17:10-11.
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Appeal 2016-001609
Application 13/034,114
U
Figure 4b depicts a cross-sectional view of a stirrer paddle 11 showing
the arrangement and the dimensioning of the built-in element 1 IE. Id. at
15:7-8,23:15-16.
Sole independent claim 1 is exemplary of the subject matter on
appeal and is reproduced below:
1. A device for homogenizing a glass melt (3), said
device comprising
a mixing vessel (2) for containing said glass melt (3); and
at least one stirring device (1), which is arranged in said
mixing vessel (2) for said glass melt (3), said mixing vessel
having an inlet (4) and an outlet (5);
wherein said at least one stirring device (1) comprises a
stirrer shaft (10) rotatable in a direction of rotation (U) and a
plurality of stirrer paddles (11) arranged at intervals from each
other along the stirrer shaft (10), at least a majority of the
plurality of stirrer paddles (11) being constructed as paddle­
shaped elements, which each have a front-facing paddle area
(11 A) for displacing the glass melt, a rear-facing paddle area
(1 IB) and at least one built-in element (1 IE) extending from
the rear-facing paddle area (1 IB), said built-in element (1 IE)
extending from the rear-facing paddle area (1 IB) to the stirrer
shaft (10);
wherein said at least one built-in element (1 IE) has an
edge (1 IK) which extends from the stirrer shaft (10) in a radial
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Appeal 2016-001609
Application 13/034,114
direction (R) along the rear-facing paddle area (1 IB) with an
edge length which is less by a specified distance (X) than a
length (L) of the rear-facing paddle area (1 IB) in the radial
direction (R).
App. Br. 24, Claims App’x. Claim 24 is an independent claim directed only
to the stirring device (1) of claim 1. Id. at 28—29.
Appellants present substantially identical arguments with respect to
each of the rejections, namely, that the Examiner’s findings with respect to
the teachings of Spremulli are incorrect, and Appellants do not separately
address any particular claim on appeal. App. Br. 18—22. Thus, all rejected
claims stand or fall with claim 1 for all of the rejections and, for brevity, we
do not address each rejection separately.
Unless otherwise indicated, we adopt the Examiner’s findings in the
Answer as our own and add any additional findings of fact appearing below
for emphasis.
II. Discussion
Figures 1—3 of Spremulli are reproduced below.
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Appeal 2016-001609
Application 13/034,114
Figure 1 of Spremulli depicts an elevational view, partly in section,
for a glass mixing vessel containing a stirring assembly adapted to stir glass
to a high state of homogeneity. Spremulli, col. 1,1. 70 to col. 2,1. 3. Figure
2 depicts a sectional view taken along line 2-2 of Figure 1, and Figure 3
depicts a sectional view taken along line 3-3 of Figure 1. Id. at col. 2,11. 4—
5.
The Examiner finds that Spremulli teaches a mixing vessel 10 having
a stirring device and having a shaft 14 from which extend four levels (shown
in Figure 1 by representative blades 11,21,31, and 41). Id. at Fig. 1; col. 2,
11. 16—50. Each of the four levels is depicted in Figure 1 as having three
“blades such as 11 each having an inner section having a concave surface
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Appeal 2016-001609
Application 13/034,114
such as 17 (Fig. 2) and a convex surface such as 18 and having an adjoining
outer section having a concave surface such as 19 and a convex surface such
as 20” as well as a “transverse strengthening strut, web or disc such as 25.”
Id. at col. 2,11. 16—24, 35—36. Spremulli teaches that “[bjlades 21-23 are
identical to blades 11-13 [of Figure 2] but, as can be seen from Fig. 3, are
inverted and are preferably positioned clockwise.” Id. at col. 2,11. 39-41.
The Examiner finds that member 25 is provided “extending from the
rear-facing paddle area,” which is described as “rear-facing area 19-20,
Figure 2.” Ans. 3.
Appellants contend that the Examiner erred in interpreting elements
19 and 20 as rear-facing in Figure 2, and argue that, in fact, concave surface
17 and convex surface 20 are rear-facing and concave surface 19 and convex
surface 18 are front-facing because they are the surfaces that push or move
the molten glass during operation in accordance with the counter clockwise
direction of the arrow in Figure 2. App. Br. 13. We understand the
Examiner’s position to be that “rear-facing” can alternatively be interpreted
as “bent rearwards” as embodied by the section of blade 11 in Spremulli that
comprises surfaces 19 and 20.
We understand Appellants’ interpretation of “front-facing paddle
area” and “rear-facing paddle area,” as recited in the claims, as being
respectively defined by the surfaces of the blade that push or move the glass
during operation of the mixer, i.e., convex surface 18 and concave surface
19 in Figure 2, and the surface opposite thereto, i.e., concaved surface 17
and convex surface 20 in Figure 2. However, we agree with the Examiner
that Appellants have provided no reason to so limit the meaning of the term
“rear-facing paddle area” as suggested. Initially, we note that the claim uses
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Appeal 2016-001609
Application 13/034,114
the phrase “rear-facing paddle area” and not “rear facing paddle surface.”
Thus, an area of a device is not limited to a surface of a device, but can refer
to any region or “area” of the device. Further, we are not constrained by the
terms as they are referenced with respect to how the fluid moves vis-a-vis
the paddles as shown in Figures 2 and 4b of the Specification. To the
contrary, we are advised not to read limitations from specific embodiments
in the written description into the claims. In re Paulsen, 30 F.3d 1475, 1480
(Fed. Cir. 1994); In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993)
(“[L]imitations are not to be read into the claims from the specification.”).
Moreover, even adopting the Appellants’ claim interpretation to the
extent that the Specification’s written description is somehow limited to
mean a surface of a blade with respect to the movement of the blade through
the material being mixed, Spremulli anticipates. We agree with the
Examiner that Figure 3 shows the configuration with the same paddles
positioned in the opposite direction of Figure 2, such that surfaces 54 and 39
of blade 21 are “front-facing” and the equivalent “strut, web, or disc 25” in
Figure 3 is adjacent a rear facing surface (opposite surfaces 54 and 39) as
defined by the direction of the blade as it moves through the material being
mixed. Ans. 14—15 (citing the direction of the arrow in Figure 3 of
Spremulli); see Spremulli, col. 2,1. 24). Furthermore, we agree with the
Examiner that the device as described in Spremulli is capable of being
operated by rotating the shaft in either direction. Id. The patentability of an
apparatus claim depends on the claimed structure, not on the use or purpose
of that structure. Catalina Marketing Int 7, Inc. v. Coolsavings.com, Inc.,
289 F.3d 801, 809 (Fed. Cir. 2002). Appellants do not provide any specific
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Application 13/034,114
arguments in response in a Reply Brief or otherwise to rebut the Examiner’s
alternative reasoning.
Appellants also contend that Spremulli teaches away from the
objective of the present invention because “Spremulli’s paddle or blade
11 . . . induces turbulence.” App. Br. 13. Appellants’ basis for this
argument is that Spremulli teaches that “a greater shearing and improved
mixing (is) obtained.” Id.
We are not persuaded by Appellants’ assertion, without supporting
evidence, that Spremulli’s device “induces turbulence.” We agree with the
Examiner that Spremulli does not state any degree of “turbulence,” but
rather has the same objective as the present invention, namely providing
homogeneity to the glass material. See Spremulli, col. 1,11. 26—33; Spec.
17—18. Attorney argument cannot take the place of evidence in the record.
In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
With respect to the obviousness rejection of claims 2 and 3,
Appellants contend that the Examiner erred in finding that Spremulli teaches
that the “strut, web, or disc 25” has an edge “along the rear-facing area” with
an edge length which is 20 to 30 percent less than the length of the rear
facing paddle area. App. Br. 16. However, Appellants’ entire argument
against the Examiner’s finding is that they “cannot agree” with the
Examiner’s finding. Id. Such assertions are not generally persuasive
without further explanation as to why the Examiner’s finding is erroneous.
See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that the
Board had reasonably interpreted 37 C.F.R. § 41.37(c)(l)(vii) as requiring
“more substantive arguments in an appeal brief than a mere recitation of the
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Application 13/034,114
claim elements and a naked assertion that the corresponding elements were
not found in the prior art”).
Further, we agree with the Examiner that “[i]t would have been
obvious to one having ordinary skill in the art at the time of the invention to
modify the size of member 25 of element 11 to achieve the claimed specified
distance to achieve a desired strengthening of the stirrer paddles, as is
disclosed as a desirable in Spremulli (column 2, lines 22-32)” and that “a
change in size is generally recognized as being within the level of ordinary
skill in the art.” Ans. 16 (citing In re Rose, 105 USPQ 237 (CCPA 1955)).
Appellants do not dispute the Examiner’s conclusions of obviousness in this
regard.
Similarly, with respect to claim 5, Appellants contend that the
Examiner erred in finding that Spremulli teaches a gap between the paddles
and the inner wall of said mixing vessel of 4.5 to 10.5 percent of the inner
diameter of the mixing vessel. Id. Appellants argue that the gap is at most
1.5% of the diameter or 3% of the diameter. App. Br. 17.
The Examiner points out that Spremulli teaches a 4 inch diameter
cylinder and a 3/8 inch wall clearance. Spremulli, col. 4,11. 55—58. We
agree with the Examiner that a 3/8 inch clearance accounts for 9.375% of a 4
inch diameter cylinder. Ans. 15—16. Appellants’calculations, which are
based on measurements in Figure 2, are not persuasive of reversible error.
There is no statement in Spremulli that the Figures are drawn to scale.
Moreover, despite the teachings of Figure 2, Spremulli expressly teaches an
embodiment that has the specific gap percentage recited in claim 5.
Spremulli, col. 4,11. 55—59. Finally, as discussed above, we agree with the
Examiner’s unrefuted determination that size variations are obvious because
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Application 13/034,114
the skilled artisan would have optimized the sizes of the various
components, consistent with the teachings taught by Spremulli, based on the
particular glass mixing objectives. Ans. 16.
IV. CONCLUSION
On the record before us and for the reasons discussed above, we
sustain the rejections maintained by the Examiner.
V. ORDER
We affirm the Examiner’s rejections of claims 1, 4, 7, 8, 10—12, lb-
21, and 24 under pre-AIA 35 U.S.C. § 102(b) as being anticipated by
Spremulli and claims 2, 3, 5, and 6 under pre-AIA 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under pre-AIA 35 U.S.C. § 103(a) as
obvious over Spremulli.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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