Ex Parte Nord et al

Patent Trial and Appeal Board

Mar 26, 2013

10579374 (P.T.A.B. Mar. 26, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/579,374 05/12/2006 Peter Nord OUTT 3475 8229
7812 7590 03/26/2013
CHERNOFF, VILHAUER, MCCLUNG & STENZEL, LLP
601 SW Second Avenue, Suite 1600
Portland, OR 97204
EXAMINER
GOLIGHTLY, ERIC WAYNE
ART UNIT PAPER NUMBER
1714
MAIL DATE DELIVERY MODE
03/26/2013 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 PETER NORD and ROLF ANDERSON
____________

Appeal 2011-005157
Application 10/579,374
Technology Center 1700
____________

Before CHUNG K. PAK, BEVERLY A. FRANKLIN, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134 from the Examiner's
rejection of claims 23-32. We have jurisdiction under 35 U.S.C. § 6.

STATEMENT OF THE CASE
Claims 23 and 32 are representative of the subject matter on appeal
and are set forth below:
23. Apparatus for removing a deposit accumulated in electrolytic
refining on a surface of an electrode, comprising:
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a support structure for supporting the electrode substantially
stationarily in a generally vertical orientation, at least one element for
restraining a lower edge of the electrode against horizontal movement, and
at least one element for restraining an upper edge of the electrode against
horizontal movement,
at least one stripping element that is turnable about a horizontal axis
spaced from the electrode, the stripping element having an end that is spaced
from the horizontal axis and moves vertically relative to the electrode during
turning of the stripping element and engages the deposit on the surface of the
electrode intermediate the lower and
upper edges of the electrode, and
a control element coupled drivingly to the stripping element for
turning the stripping element,
whereby cooperation of the stripping element and the elements for
restraining the lower and upper edges of the electrode against horizontal
movement causes bending of the electrode.

32. A method of removing a metal deposit accumulated in electrolytic
refining on a surface of a cathode, comprising:
supporting the cathode substantially stationarily in a generally vertical
orientation,
restraining upper and lower edges of the cathode against horizontal
movement,
providing at least one stripping element that is turnable about a
horizontal axis spaced from the cathode, and
turning the stripping element about the horizontal axis, whereby an
end of the stripping element that is spaced from the horizontal axis engages
the deposit on the surface of the cathode intermediate the lower and upper
edges of the cathode and moves vertically relative to the cathode and causes
bending of the cathode.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Redhead US 4,595,421 Jun. 17, 1986
Middlin US 4,840,710 Jun. 20, 1989
Bonderoff CA 2,164,910 Jun. 12, 1997

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THE REJECTIONS
1. Claims 23-24, 26-28, and 30-32 are rejected under 35 U.S.C. §103(a)
as being unpatentable over Redhead in view of Middlin.
2. Claims 23-32 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bonderoff in view of Middlin.
ANALYSIS

As an initial matter, Appellants have not presented separate arguments
for all of the rejected claims. Rather, Appellants’ arguments are principally
directed to independent claim 23 and 32. Any claim not separately argued
will stand or fall with its respective independent claim. See 37 C.F.R.
§ 41.37(c)(1)(vii).
We adopt the Examiner’s findings pertinent to the issues raised by
Appellants. We therefore incorporate the Examiner’s position as set forth in
the Answer. We add the following for emphasis only.

Rejection 1
Issue:
We refer to pages 4-6 of the Answer regarding the Examiner’s
position. We focus on the aspect of the Examiner’s position therein
regarding the Examiner’s acknowledgment that Redhead does not teach:
a support structure for supporting the electrode substantially
stationarily in generally vertical orientation, at least one element for
restraining a lower edge of the electrode against horizontal movement;
and at least one element for restraining an upper edge of the electrode
against horizontal movement; and whereby cooperation of the
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stripping element and the elements for restraining the lower and upper
edges of the electrode against horizontal movement causes bending of
the electrode.
The Examiner relies upon Middlin for teaching this aspect of the
claimed invention, and concludes it would have been obvious to have
incorporated the teachings of Middlin into Redhead for the reasons stated on
page 6 of the Answer.
It is Appellants’s position that the specific applications of Redhead
and Middlin are different. Appellants state that Redhead teaches deposits
that are frangible and adhere relatively loosely to the anodic surface of an
electrode, and are removable by flexible poultry plucker fingers that scrape
the deposit from the electrode. Appellants state that Middlin is concerned
with removing a sheet of copper that adheres firmly to the cathode sheet, and
is too hard and cohesive to be affected significantly by a scraping
mechanism of the kind shown by Redhead. Br. 6-7.
We are not convinced of error by the above line of argument. As the
Examiner points out on page 15 of the Answer, arguments of counsel cannot
take the place of factually supported evidence. In other words, it is
respectfully noted that Appellants’ arguments must be considered mere
attorney speculation not supported by evidence. In re Scarborough, 500
F.2d 560,566 182 USPQ 298,302 (CCPA 1974). The assertion that the
deposits of Redhead would continue to conform to the underlying surface in
the event that the anode was bent in the manner taught by Middlin is
unsupported by sufficient factual evidence. That is, Redhead teaches that
the deposit results from purified lead that is deposited onto the surface.
Redhead, col. 1, ll. 43-46. Redhead teaches that this dissolution leaves
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behind a layer of metallic impurities that adhere to the surface, known as
lead slimes. Redhead, col. 1, ll. 46-48. Redhead teaches that traditionally,
removal of these deposits have been effected by hand scraping procedures.
Redhead, col. 2, ll. 14-16. Other procedures have been the use of high water
pressure sprays, or the use of powered spray brushes. Redhead, col. 2, ll. 22-
27. Redhead teaches that the coatings are “both relatively hard substances,
and commonly tightly adhere to the underlying metal electrode surface”.
Redhead, col. 2, ll. 44-47. We therefore are not convinced that the technique
described Middlin is not applicable to the apparatus and method of Redhead.
In view of the above, we affirm Rejection 1.

Rejection 2
The Examiner’s position with regard to Bonderoff in view of Middlin
is similar to Rejection 1, the difference being that the primary reference of
Bonderoff is applied rather than Redhead. Ans. 8-10.
Appellants’ arguments are similar to their arguments presented with
respect to Rejection 1. Appellants argue that:
. . . like Redhead et al, CA ‘910[Bonderoff] is concerned with
apparatus for cleaning a frangible, pliant, relatively loosely adhering
deposit from an anode. For similar reasons to those discussed above in
connection with the rejection over Redhead et al in view of Middlin et
al, appellant submits that bending of the anode shown by CA
‘910 [Bonderoff] would not affect separation of the scale from the
anode and therefore a person of ordinary skill in the art would see no
advantage to employing a mechanism for bending the electrode in the
apparatus disclosed by CA ‘910 [Bonderoff].
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Bonderoff involves a technique of cleaning scale from the surface of
an electrode with a force that is sufficient to dislodge the scale from the
electrolyte. Bonderoff, Abstract. Bonderoff explains the kinds of deposits
that occur from electrolytic process. Bonderoff, p. 1., ll. 15-39, p. 2, ll. 1-20.
Bonderoff explains the various methods used for cleaning the deposits or
scale from the surface, which include hand scraping, high pressure water
sprays, or powered rotary brushes. Bonderoff, p. 2, l. 21 through p. 4, l. 33.
Based upon these teachings of Bonderoff, we are similarly not convinced by
Appellants’ argument that the bending of an anode as taught by Middlin
would not effect separation of the scale of Bonderoff because the deposit is
frangible, pliant, and relatively loose adhering deposit.
In view of the above, we therefore affirm Rejection 2.

CONCLUSIONS OF LAW AND DECISION
Each rejection is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED

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