Ex Parte Muller

Board of Patent Appeals and Interferences

Feb 26, 2010

10258188 (B.P.A.I. Feb. 26, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte ERWIN MULLER
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Appeal 2009-001965
Application 10/258,188
Technology Center 3600
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Decided: February 26, 2010
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Before WILLIAM F. PATE, III, STEVEN D.A. McCARTHY, and
KEN B. BARRETT, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Erwin Muller (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s decision rejecting claims 1-7, 9, 11, and 12. The Examiner
has withdrawn the rejection of claims 8 and 10. Ans. 2; see id. at 5. We
have jurisdiction under 35 U.S.C. § 6(b).
Appeal 2009-001965
Application 10/258,188

2
SUMMARY OF THE DECISION
We REVERSE.

THE INVENTION
Appellant’s claimed invention pertains to an arrangement for
transporting sheet-like articles such as newspapers or periodicals. Spec. 1,
ll. 3-5; 4, ll. 11-15. Claim 1, reproduced below, is representative of the
subject matter on appeal.
1. An arrangement for transporting printed products which
have at least one edge, comprising:
a plurality of conveying elements which, during
operation of said transporting arrangement are movable along a
conveying section and are arranged, one conveying element
behind another conveying element, on the conveying section;
at least some of said conveying elements having
transporting clamps which are arranged thereon, each of said
transporting clamps being effective to selectively grip a printed
product at least one edge;
each of said transporting clamps being mounted on a
conveying element such that each transporting clamp is
displaceable back and forth relative to the conveying element
on which it is mounted between at least two positions in a
displacement direction which is determined in relation to the
conveying elements; and
a stationary control arrangement, said transporting
clamps being movable past said stationary control arrangement;
said stationary control arrangement being effective to
individually and selectively displace individual ones of said
transporting clamps from one position of said at least two
positions into another of said at least two positions in response
to a control signal received from a computer while not
displacing others of said transporting clamps as they move past
said stationary control arrangement.
Appeal 2009-001965
Application 10/258,188

3
THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Brooke US 3,747,737 July 24, 1973
Blaser US 5,251,891 Oct. 12, 1993

Before us for review is the Examiner’s rejection of claims 1-7, 9, 11,
and 12 under 35 U.S.C. § 103(a) as being unpatentable over Brooke and
Blaser.

ISSUE
The Examiner found that Brooke discloses the subject matter of the
sole independent claim on appeal, claim 1, except for the stationary control
arrangement being controlled in response to a control signal received from a
computer. Ans. 3-4. The Examiner further found that Blaser discloses a
control signal received from a computer, and concluded that it would have
been obvious to combine Brooke’s stationary control arrangement with a
computer control signal as taught by Blaser to arrive at Appellant’s claimed
invention. Id. at 5, 6. Appellant contends that it makes no sense to combine
the references. Reply Br. 3. Specifically, Appellant asserts that Brooke’s
stationary control arrangement cannot be changed or influenced, and
therefore it cannot be controlled by a computer signal. Id. Thus, the issue
on appeal is:
Has the Examiner failed to articulate reasoning with some rational
underpinning to support the legal conclusion of obviousness?
Appeal 2009-001965
Application 10/258,188

4
FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence.
1. Brooke discloses a conveyor 10 having two parallel chains 24-
24 with carrier members 26 between them. Brooke, col. 2, ll. 48-54; figs. 1,
2. Bar 36 is slideably mounted on the carrier, and supports instrumentalities
12, each comprising a pair of confronting jaws 38-38. Id., col. 2, ll. 54-64.
The bar is movable transversely on the carrier and has a cam roller 82
mounted on one end of the bar which is engaged in cam groove 84 in one of
two cam plates 86. Id., col. 3, ll. 31-36. The cam plates are fastened by
brackets 88-88 to each side member 18 of the conveyor supporting frame.
Id., col. 2, ll. 32-39; col. 3, ll. 35-38; fig. 2.
2. The cam grooves converge along the lower run of the conveyor
thereby transversely displacing the instrumentalities (the jaws) via the cam
rollers. Brooke, col. 3, ll. 41-48. The transverse displacement of each jaw
pair is a function of the distance from the respective cam groove 84 on cam
plate 86 to the center line of the conveyor 10. Id.; see id. fig. 2. The
locations of the cam plates 86 are fixed relative to the conveyor center line.
See id., col. 1, ll. 48-54; col. 3, ll. 41-43.

PRINCIPLE OF LAW
In order to establish obviousness, an examiner must articulate
reasoning with some rational underpinning to support the legal conclusion of
obviousness. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
Appeal 2009-001965
Application 10/258,188

5
ANALYSIS
Claim 1 recites a stationary control arrangement being effective to
individually and selectively displace individual clamps in response to a
control signal from a computer. The Examiner found that Brooke’s cam
plates correspond to the stationary control arrangement. Ans. 4. The
Examiner relies on the secondary reference, Blaser, only for the teaching of
a control signal from a computer. Id. at 6.
We conclude that the Examiner has not adequately explained why it
would have been obvious to add Blaser’s computer control signal to
Brooke’s device. The displacement of Brooke’s clamps (the jaw pairs) is
controlled by the location of each cam plate relative to the conveyor center
line. Facts 1, 2. The locations of the cam plates are fixed. Fact 2. Thus, the
stationary control arrangement (the cam plates) cannot respond to any
external influence, and the addition of a control signal from a computer will
not affect clamp displacement. As such, the Examiner’s reasoning lacks the
necessary rational underpinning, and we are constrained to reverse the
obviousness rejection.

CONCLUSION
The Examiner has failed to articulate reasoning with some rational
underpinning to support the legal conclusion of obviousness.
Appeal 2009-001965
Application 10/258,188

6
DECISION
The decision of the Examiner to reject claims 1-7, 9, 11, and 12 is
reversed.

REVERSED

mls

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