Ex Parte Lochtefeld et al

Board of Patent Appeals and Interferences

May 31, 2011

11431910 (B.P.A.I. May. 31, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte THOMAS J. LOCHTEFELD and JEFFERY W. HENRY
____________________

Appeal 2009-011101
Application 11/431,910
Technology Center 3700
____________________

Before STEVEN D.A. McCARTHY, KEN B. BARRETT, and FRED A.
SILVERBERG, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-011101
Application 11/431,910

2
STATEMENT OF THE CASE
Thomas J. Lochtefeld and Jeffery W. Henry (Appellants) seek our
review under 35 U.S.C. § 134 of the final rejection of claims 2-11. Claim 1
has been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

THE INVENTION
Claim 2, reproduced below, is representative of the subject matter on
appeal.
2. A hydraulic system for a water ride, comprising:
a first primary pump hydraulically connected to a first
supply conduit so that the first primary pump delivers
pressurized water to the first supply conduit;
a second primary pump hydraulically connected to a
second supply conduit so that the second primary pump delivers
pressurized water to the second supply conduit;
the first and second primary pumps and first and second
supply conduits arranged so that a flow of pressurized water
from the first primary pump to the first conduit is isolated from
a flow of pressurized water from the second primary pump to
the second conduit;
an auxiliary pump;
a pump bypass manifold; and
a plurality of valves;
wherein the valves are arranged relative to the pumps and
manifold so that, through selective actuation of the valves, the
first primary pump can selectively be disconnected from the
first conduit and in its place the auxiliary pump can be
selectively connected via the pump bypass manifold to the first
conduit so that the auxiliary pump delivers pressurized water to
the first conduit in place of the first primary pump and a flow of
pressurized water from the auxiliary pump to the first conduit is
Appeal 2009-011101
Application 11/431,910

3
isolated from the flow of pressurized water from the second
primary pump to the second conduit.

THE REJECTIONS
The following Examiner’s rejections are before us for review:
1. Claims 2-4 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Timbes (US 4,198,043, issued Apr. 15, 1980) (Final Rej.
(Aug. 29, 2007) 2-4; Ans. 3-5);
2. Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Timbes and Wiessner (US 2,328,698, issued Sep. 7, 1943)
(Final Rej. 4-5; Ans. 3);
3. Claims 7-9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Timbes, Wiessner, and Lochtefeld (US 5,213,547, issued
May 25, 1993) (Final Rej. 5-6; Ans. 3); and
4. Claims 9-11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Timbes, Wiessner, Lochtefeld, and Bennett (US
4,787,822, issued Nov. 29, 1988) (Final Rej. 6-8; Ans. 3).

OPINION
The rejection of claims 2-4 as anticipated by Timbes
Appellants argue that “Timbes does not teach all of the limitations of
[independent] Claim 2.” Reply Br. 8; see App. Br. 61. Specifically,
Appellants contend that Timbes fails to disclose a system having the water

1 Unless otherwise noted, citations to the Appeal Brief in this decision refer
to the Appeal Brief filed May 1, 2008, as modified by the “Appeal Brief –
Replacement Portion,” filed May 21, 2008 (replacing Section III, Status of
the Claims).
Appeal 2009-011101
Application 11/431,910

4
flows “isolated” from each other. App. Br. 10; Reply Br. 7. Appellants
maintain that “[i]nstead, Timbes teaches an arrangement in which water
flows share a common manifold 174, with no barriers (such as valves)
between the water flows.” Reply Br. 7.
Claim 2 calls for, inter alia, a plurality of valves
wherein the valves are arranged relative to
the pumps and [pump bypass] manifold so that,
through selective actuation of the valves, … a flow
of pressurized water from the auxiliary pump to
the first conduit is isolated from the flow of
pressurized water from the second primary pump
to the second conduit.
The Examiner found that Timbes discloses Appellants’ claimed valves
(control valves 168), primary and auxiliary pumps (pumps 162), supply
conduits (the respective piping 176 associated with each pump), and pump
bypass manifold (common discharge header or outlet manifold 174). Ans.
3-4 (citing Timbes, figs. 2, 3). The pressure side of each pump 162 is
connected to the common manifold 174 by piping 176. Timbes, col. 10, ll.
11-15. Timbes’s control valves 168 are on the suction side of the pump
rather than the pressure (discharge or outlet) side. Timbes, col. 10, 8-11; fig.
2. As the Examiner found, “there is no shutoff valve between the manifold
[174] and the conduit 176.” Ans. 4 (citing Timbes, figs. 2, 3).
We are not persuaded by the Examiner’s assertions that, in Timbes’s
system, the pressurized flows of water from the pumps are isolated from one
another because “the water would follow the path of least resistance,” or that
the flows are isolated at the initial pump start-up and prior to the flows
actually mixing. Ans. 7. The Examiner has not demonstrated that Timbes
Appeal 2009-011101
Application 11/431,910

5
discloses a hydraulic system where the pressurized water flows are
“isolated” as called for in Appellants’ claim 2.
We reverse the rejection of claim 2 and of claims 3 and 4, which
depend therefrom, as anticipated by Timbes.
The three obviousness rejections
In the Final Rejection from which Appellants appeal, the Examiner
rejected claims 5-11 as obvious in light of the above-listed combinations of
references. Final Rej. 4-8; see Notice of Appeal. In the Appeal Brief,
Appellants acknowledge that claims 2-11 are pending and state that “the
rejection of these claims is now being appealed.” Appeal Brief –
Replacement Portion, filed May 21, 2008, at 1; see also Appeal Brief, filed
May 1, 2008 (the originally-filed brief), at 2. In the section of the Appeal
Brief entitled “Grounds of Rejection to Be Reviewed on Appeal,”
Appellants identify only the Section 102 anticipation rejection of claims 2-4.
App. Br. 5. In the Argument section at pages 6 through 13 of the Appeal
Brief, Appellants only refer to the § 102 rejection, do not mention the § 103
rejections, and do not include headings directed to the § 103 rejections as
required by our rules, see 37 C.F.R. § 41.37(c)(1)(vii) (2007) (“Each ground
of rejection must be treated under a separate heading.”). The Examiner
noted in the Answer that there are three § 103 rejections of which Appellants
are not seeking review on appeal. Ans. 2-3. Appellants filed a Reply Brief,
but did not address the Examiner’s statements in this regard and do not
mention the § 103 rejections. Reply Br. passim; see id. at 3 (again
identifying only the anticipation rejection as the ground of rejection to be
reviewed on appeal).
Appeal 2009-011101
Application 11/431,910

6
As mentioned above, Appellants contested the § 102 rejection by
arguing that Timbes does not disclose every limitation of independent claim
2. Appellants do not present any additional arguments directed to the
remaining claims on appeal, claims 3-11, but merely rely on their
dependency on claim 2 for patentability. See App. Br. 13; Reply Br. 8.
Thus, Appellants argue all of the rejected claims 2-11 as a single group.
However, all of the claims were not rejected as a single group, and are not
all subject to the § 102 rejection. Appellants’ argument that Timbes does
not anticipate claim 2 does not constitute an argument that the Examiner
erred in concluding that the subject matter of claims 5-11 would have been
obvious in light of the combination of references’ teachings. Cf. In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d
413, 425 (CCPA 1981)) (“Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references.”)
As Appellants are not seeking review on appeal of the § 103 rejections
and have not presented any arguments rebutting these obviousness
rejections, Appellants have waived any argument of error, and we
summarily sustain the rejections of claims 5-11 under 35 U.S.C. § 103(a).
See In re Berger, 279 F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the
Board did not err in sustaining a rejection under 35 U.S.C. § 112, second
paragraph, when the applicant failed to contest the rejection on appeal).

DECISION
The decision of the Examiner to reject claims 2-4 is reversed. The
decision of the Examiner to reject claims 5-11 is affirmed.
Appeal 2009-011101
Application 11/431,910

7
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART

mls