Ex Parte Niedworok

Patent Trial and Appeal Board

Feb 10, 2013

11778856 (P.T.A.B. Feb. 10, 2013)

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.
11/778,856 07/17/2007 Carsten Niedworok RF-45 1180
54630 7590 02/11/2013
ROBERTS & ROBERTS, LLP
ATTORNEYS AT LAW
P.O. BOX 484
PRINCETON, NJ 08542-0484
EXAMINER
HARP, WILLIAM RAY
ART UNIT PAPER NUMBER
3651
MAIL DATE DELIVERY MODE
02/11/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte CARSTEN NIEDWOROK
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Appeal 2010-011525
Application 11/778,856
Technology Center 3600
________________

Before JOSEPH A. FISCHETTI, BIBHU R. MOHANTY, and JAMES A.
TARTAL, Administrative Patent Judges.

TARTAL, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-011525
Application 11/778,856

2

STATEMENT OF THE CASE1
Carsten Niedworok (Appellant) seeks our review under 35 U.S.C
§ 134 of the Examiner’s final decision rejecting claims 1-20. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
Appellant’s claimed invention relates to a method of filling large-
capacity storage silos with a fluidizable material, and to an arrangement for
filling the same. Spec. 1.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method of filling a large-capacity silo with a
fluidizable material while preventing air-flow or gas-flow
separation, comprising: conducting a material-charging
operation in a controlled manner via a delivery line, a delivery
channel and air- or gas-delivery channels into a top part of the
large-capacity silo, towards a silo wall, and downwards to a
surface of the fluidizable material above a base of the large-
capacity silo, and further conducting a uniform and controlled
suction-extraction operation for air or gas, which is carried out
by means of one or more annular suction-extraction lines,
arranged directly beneath the silo top part, or via annular
suction gaps on fluidizable material-outflow heads.
The Examiner relies upon the following evidence:
Hough US 3,827,578 Aug. 6, 1974
Ahrens US 4,491,419 Jan. 1, 1985
Karlsen US 6,632,063 B1 Oct. 14, 2003
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ahrens, Karlsen, and Hough.

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed Mar. 10, 2010) and the Examiner’s Answer (“Ans.,” mailed May
19, 2010).
Appeal 2010-011525
Application 11/778,856

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FINDINGS OF FACT
We find that the findings of fact which appear in the Analysis below
are supported by at least a preponderance of the evidence. Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general
evidentiary standard for proceedings before the Office).
ANALYSIS
Appellant argues claims 1-20 as a group (App. Br. 5-12). We select
claim 1 as the representative claim for this group, and the remaining claims
2-20 each stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii).
We are unpersuaded by Appellant’s contention that various features of
the claimed invention are not disclosed by the cited references. Appellant
asserts that Ahrens fails to disclose air or gas-delivery channels that not only
charge materials into the silo, but also “serve to extract air from the silo.”
App. Br. 7. Claim 1, however, contains no such requirement, and limitations
from the Specification will not be read into the claims. See In re Van Geuns,
988 F.2d 1181, 1184 (Fed. Cir. 1993). We also reject Appellant’s claim that
Ahrens fails to show a material-charging operation “towards a silo wall” as
claimed. As the Examiner notes, the claim requires nothing more than what
Ahrens shows: channels sloped towards a silo wall.
Appellant also argues that Karlsen does not disclose air or gas-
delivery channels. App. 9. The Examiner, however, relies on Ahrens for the
disclosure of air or gas-delivery channels, not Karlsen. Ans. 4. Thus,
Appellant has not addressed the combination of prior art references as a
whole but simply improperly argues the merits of references individually.
See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness
Appeal 2010-011525
Application 11/778,856

4
is not . . . that the claimed invention must be expressly suggested in any one
or all of the references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in the art”).
We are also not persuaded by Appellant’s argument that Hough does
not disclose the claimed “suction gaps,” but instead teaches “suction
chutes.” App. Br. 10. We agree with the Examiner that there is no structure
in the claims that would differentiate the “chute” of Hough from the “gaps”
as claimed and find Appellant’s argument is not commensurate with the
scope of the claim. Moreover, claim 1 is not limited to only suction gaps,
but instead requires “suction gaps” or “suction-extraction lines.” Thus, the
claim limitation is satisfied if either of the alternatives is disclosed and
Appellant has not overcome the Examiner’s determination that Karlsen
discloses “suction-extraction lines.”
We are also unpersuaded by Appellant’s argument that both Ahrens
and Karlsen teach away from the claimed invention. Appellant contends
that Ahrens discloses that stored material is extracted from the bottom of the
silo and returned to the top and that when material is charged into the silo it
is directed away from the silo walls. App. 7. Appellant further asserts that
Karlsen discloses a plurality of distributor pipes which run along the length
of the interior wall of the silo, states that problems related to air induced
segregation are present under conditions where the falling height of a
material is high, and teaches that it is important to make the material feed as
airtight as possible. App. 8-9. In each instance where Appellant attacks the
prior art, Appellant has identified alleged differences, but has not
convincingly shown that the prior art reference criticizes, discredits, or
otherwise discourages the solution claimed in the application. See In re
Appeal 2010-011525
Application 11/778,856

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Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (“The prior art's mere
disclosure of more than one alternative does not constitute a teaching away
from any of these alternatives because such disclosure does not criticize,
discredit, or otherwise discourage the solution claimed in the ...
application.”). It would have been obvious to combine features of the
method and apparatus for mixing materials in a silo disclosed by Ahrens
with Karlsen’s suction extraction lines and Hough’s suction chutes to arrive
at a method that improves the ability to reduce the separation of materials
according to particle size when filing a silo as claimed.

CONCLUSIONS OF LAW
We conclude that the Appellant has not overcome the Examiner’s
rejection of claims 1-20 under 35 U.S.C. § 103(a) as being unpatentable over
Ahrens, Karlsen, and Hough.

DECISION
We AFFIRM the decision of the Examiner to reject claims 1-20.
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) (2011).
AFFIRMED

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