Ex parte LOGIC

Board of Patent Appeals and Interferences

Apr 20, 1998

08262993 (B.P.A.I. Apr. 20, 1998)

Application for patent filed June 20, 1994.1
1
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(2) is not binding precedent of the Board.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. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JEFF LOGIC

_____________
Appeal No. 97-1005
Application 08/262,9931
______________
ON BRIEF
_______________
Before CALVERT, FRANKFORT and STAAB, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
Appeal No. 97-1005
Application 08/262,993
2
DECISION ON APPEAL
This is a decision on appeal from the examiner's
final rejection of claims 12 through 23. Claims 1 through 11
and 24, the only other claims pending in the application,
stand withdrawn from further consideration under 37 CFR §
1.142(b).
Appellant's invention relates to an apparatus for
continuously cutting extruded metal tubing generally of the
type used in parallel flow heat exchangers. As explained in
the specification (page 1) and as seen in Figure 1 of the
drawings, such extruded tubing is of flattened cross section
having tube major and minor dimensions. In the "Background"
section of appellant's specification (pages 1-4) it is noted
that prior art methods and apparatus for cutting such extruded
metal tubing were relatively slow in that the tubing was
intermittently advanced and then halted while some operation
was performed on it. This approach is indicated to have
Appeal No. 97-1005
Application 08/262,993
3
resulted in production of a given number of tube lengths being
unduly time consuming and, thus, expensive. As indicated on
page 4 of the specification, an object of the present inven-
tion is to provide a method and
apparatus for cutting such extruded flattened metal tubing
while
the same is continuously being fed, to thereby maximize pro-
duction and, thus, provide economy in the tube cutting opera-
tion. Claims 12 and 21 are representative of the subject
matter on appeal and a copy of those claims may be found in
the Appendix to appellant's brief.
The prior art references of record relied upon by
the examiner as evidence of obviousness of the claimed subject
matter are:
Chamberlin 2,158,400 May 16,
1939
Appeal No. 97-1005
Application 08/262,993
4
Brockmuller 3,730,411 May 1,
1973
Hofmann et al. (Hofmann) 4,577,789 Mar. 25,
1986
Stroup, Jr. (Stroup) 5,143,268 Sept. 1,
1992
Claims 12 through 14 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Stroup in view of
Brockmuller.
Claims 15 through 17 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Stroup in view of Brockmuller
as applied to claim 12 above, and further in view of Hofmann.
Claims 18 through 23 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Stroup in view of Brockmuller
as applied to claim 12 above, and further in view of
Chamberlin.
Appeal No. 97-1005
Application 08/262,993
5
Reference is made to the examiner's answer (Paper
No. 15, mailed April 9, 1996) and to the supplemental
examiner's answer (Paper No. 17, mailed May 28, 1996) for the
examiner's reasoning in support of the above-noted rejections.
Appellant's arguments against the examiner's rejections are
found in appellant's brief (Paper No. 13, filed January 16,
1996), reply brief (Paper No. 16, filed April 22, 1996) and
supplemental reply brief (Paper No. 18, filed June 13, 1996).
OPINION
Our evaluation of the obviousness issues raised in
this appeal has included a careful assessment of appellant's
specification and claims, the applied prior art references,
and the respective positions advanced by appellant and the
examiner. As a consequence of our review, we have reached the
conclusion that none of the examiner's rejections before us on
appeal will be sustained. Our reasons follow.
Looking at the basic combination of Stroup and
Brockmuller, we share appellant's view (brief, pages 7-8) that
Appeal No. 97-1005
Application 08/262,993
6
the operation of the system in Stroup is clearly incremental
or intermittent and not continuous as required in appellant's
claims
on appeal. The examiner concedes as much on page 7 of the
examiner's answer, but then attempts to rationalize why the
intermittent and repetitious feeding arrangement of Stroup may
nonetheless be considered "continuous." The examiner
concludes with regard to Stroup that "while the stock moves
incrementally, it is still being continuously fed" (answer,
page 8). We find no support for such a seemingly anomalous
position in the Stroup patent. Moreover, we find nothing in
Stroup which is responsive to appellant's "means . . . for
continuously feeding tubing along the path at a first speed"
in combination with "cutting nip defining means including
means for moving said blades at the same speed at which tubing
is moving in said path" as set forth in claim 12 on appeal.
Thus, for this reason alone we would reverse the examiner's
rejection of claims 12 through 14 under 35 U.S.C. § 103. In
addition, we also share appellant's view (brief, pages 8-11)
Appeal No. 97-1005
Application 08/262,993
7
that the examiner's proposed combination of Stroup and
Brockmuller is based on hindsight derived from appellant's
application. In this regard, we note that column 1, lines 51-
59, of Stroup appear to clearly teach away from employing the
type of tensile force separation proposed by the examiner in
severing of the flat heat exchange tubing therein. For these
reasons, we
will not sustain the examiner's rejection of claims 12 through
14 based on the teachings of Stroup and Brockmuller.
Having reviewed the patents to Hofmann and
Chamberlin also applied by the examiner, we find nothing
therein which overcomes or supplies the deficiencies of the
basic combina- tion of Stroup and Brockmuller as discussed
above. In addition, we note our agreement with appellant's
position (reply brief, pages 1-3) concerning the examiner’s
proposed modification of Brockmuller as employed in Stroup
based on the further teachings of Chamberlin. As for the
Appeal No. 97-1005
Application 08/262,993
8
examiner's invoking of "Official Notice" on pages 10-11 of the
answer, we are in agreement with appellant's view as expressed
on page 5 of the reply brief. Accordingly, it follows that the
examiner's respective rejections of claims 15 through 17 and
18 through 23 under 35 U.S.C. § 103 will likewise not be
sustained.
Based on the foregoing, the decision of the examiner
rejecting claims 12 through 23 under 35 U.S.C. § 103 is
reversed.
REVERSED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
) BOARD OF
PATENT
CHARLES E. FRANKFORT ) APPEALS AND
Appeal No. 97-1005
Application 08/262,993
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Administrative Patent Judge )
INTERFERENCES
)
)
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
Appeal No. 97-1005
Application 08/262,993
10
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