Ex Parte Platt

Board of Patent Appeals and Interferences

May 19, 2006

09981231 (B.P.A.I. May. 19, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte STEVE A. PLATT
____________

Appeal No. 2006-0848
Application No. 09/981,231
____________

ON BRIEF
____________

Before JERRY SMITH, SAADAT, and MACDONALD, Administrative Patent Judges.
JERRY SMITH, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on the appeal under 35 U.S.C. § 134 from the examiner’s rejection
of claims 9, 10, 15-19, 24-28, 39, 41-45, 50-57, 71, 72 and 74. Pending claims 1-8, 11-
14, 20-23, 29-37, 40, 46-49, 58-70 and 73 have been indicated by the examiner to
contain allowable subject matter. Claim 38 has been cancelled.

The disclosed invention pertains to a wind powered generator and a tower for
supporting such a wind powered generator.
Representative claim 9 is reproduced as follows:
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9. A wind powered generator support assembly for supporting a wind powered
generator comprising:

a tower; and

a vertical elevator on the tower, the elevator including a track and a carriage
configured to move along the track, the carriage including a pivot ring configured to
accept the wind powered generator therein for allowing the wind powered generator to
rotate about the carriage;

wherein the vertical elevator is configured to vertically lift the wind powered
generator with the carriage to position the wind powered generator at a top of the tower.

The examiner relies on the following references:
Salter 4,110,631 Aug. 29, 1978
Abe 4,311,434 Jan. 19, 1982
Barnes 4,374,631 Feb. 22, 1983
Fergusson 5,244,346 Sep. 14, 1993
Douthit 6,239,507 May 29, 2001
Willis et al. (Willis) 6,278,198 Aug. 21, 2001

The following rejections are on appeal before us:
1. Claims 9, 10, 15, 17-19, 24, 26 and 71 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by the disclosure of Abe.

2. Claims 18 and 19 stand rejected under 35 U.S.C. § 102(e) as being anticipated by
the disclosure of Willis.
3. Claims 16 and 25 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over the teachings of Abe in view of Douthit.
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4. Claims 27 and 28 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over the teachings of Abe in view of Barnes.
5. Claims 39, 41-45, 50, 52 and 54-56 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the teachings of Salter in view of Abe.
6. Claim 51 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the
teachings of Salter in view of Abe and Douthit.
7. Claim 53 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the
teachings of Salter in view of Abe and Barnes.

8. Claim 57 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the
teachings of Abe in view of Ferguson. 9. Claims 72 and 74 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over the teachings of Abe in view of Barnes.
Rather than repeat the arguments of appellant or the examiner, we make reference to
the briefs and the answer for the respective details thereof.
OPINION
We have carefully considered the subject matter on appeal, the rejections advanced
by the examiner and the evidence of anticipation and obviousness relied upon by the
examiner as support for the rejections. We have, likewise, reviewed and taken into
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consideration, in reaching our decision, the appellant’s arguments set forth in the briefs
along with the examiner’s rationale in support of the rejections and arguments in
rebuttal set forth in the examiner’s answer.

It is our view, after consideration of the record before us, that the evidence relied
upon supports the examiner’s rejection of claims 18, 19, 26-28, 39, 41, 43 and 71, but
does not support the rejection of claims 9, 10, 15-17, 24, 25, 42, 44, 45, 50-57, 72 and
74. Accordingly, we affirm-in-part.
We consider first the rejection of claims 9, 10, 15, 17-19, 24, 26 and 71 as being
anticipated by the disclosure of Abe. Anticipation is established only when a single prior
art reference discloses, expressly or under the principles of inherency, each and every
element of a claimed invention as well as disclosing structure which is capable of
performing the recited functional limitations. RCA Corp. v. Applied Digital Data
Systems, Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir.); cert. dismissed,
468 U.S. 1228 (1984); W.L. Gore and Associates, Inc. v. Garlock, Inc., 721 F.2d 1540,
1554, 220 USPQ 303, 313 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984).
The examiner has indicated how the invention of these claims is deemed to be fully
met by the disclosure of Abe [answer, page 4].
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Claims 9, 15 and 17
Appellant argues that the examiner identifies the mount 12 and the supporting
member 6 of Abe as the claimed carriage, but these elements can not comprise the
claimed carriage because they are separate from each other. With this interpretation,
appellant argues that Abe does not disclose a carriage including a pivot ring configured
to accept a wind powered generator. Appellant also argues that the carriage in Abe is
not configured to be accepted within the bearing 17. Appellant argues that Abe does
not disclose a pivot ring and a pivot ring does not necessarily flow from the teachings of
Abe [brief, pages 11-14].
The examiner responds that claim 9 does not require that the carriage comprise non-
separable elements or that the shaft not be part of the carriage. The examiner also
responds that Abe discloses a single thrust bearing 17, and that the artisan would
recognize that this bearing is comprised of circular racers encompassing the bearing
balls or rollers. The examiner, therefore, finds that bearing 17 meets the claimed pivot
ring [answer, pages 12-13].

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Appellant responds that the thrust bearing 17 of Abe is not configured to accept
anything therein because it is locked between the supporting member 6 and the base 9
and, therefore, does not accept the wind powered generator therein. Appellant also
responds that Abe only discloses two spaced apart bearings 17 that do not form a pivot
ring as claimed nor does a pivot ring necessarily flow from the teachings of Abe [reply
brief, pages 3-
5].
We will not sustain the examiner’s rejection of claims 9, 15 and 17 as anticipated by
Abe. Claim 9 recites an elevator that includes a track and a carriage configured to
move along the track. The carriage of an elevator is understood to mean the element
that moves along the track. The examiner has read the carriage of claim 9 on the
liftable mount 12 of Abe, which does in fact move along the track 1a, and on the
supporting member 6, which does not move along the elevator track 1a. We find that
the supporting member 6 of Abe can not form part of the carriage

because it does not move along the track of the elevator. Since supporting element 6 is
not part of the carriage, the carriage of Abe also does not include a pivot ring as
claimed. We also agree with appellant that there is no evidence on this record, other
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than the examiner’s bare assertion, that the thrust bearing 17 of Abe is a pivot ring as
claimed.
Claim 10
Since claim 10 depends from claim 9, we also do not sustain the examiner’s rejection
of claim 10 as anticipated by Abe.
Claims 18, 26 and 71
Appellant argues that Abe does not disclose a wind powered generator that can be
removably placed within a carriage and that can be removed from within a carriage.
Appellant asserts that mount 12 in Abe does not have an area for accepting anything,
much less the nacelle 2, the rotor head 4 or the rotor blade 5. Appellant argues that
since the examiner has identified mount 12 and supporting member 6 as the carriage,
the carriage would have to be destroyed in order to remove the wind powered generator
[brief, pages 14-15].

The examiner responds that claim 18 does not require that the wind powered
generator be removable without disassembling the carriage structure. The examiner
notes that Abe teaches that the nacelle may be replaced after being lowered to the
tower bottom, which inherently involves replacing the generator [answer, pages 13-14].
We will sustain the examiner’s rejection of claims 18, 26 and 71 as anticipated by
Abe. Although we agree with appellant’s argument that the examiner’s reading of the
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claimed carriage on supporting member 6 and liftable mount 12 is incorrect, we
nevertheless find that Abe discloses all the elements of these claims. Specifically, Abe
discloses a vertical tower including a vertical elevator having a track 1a and a carriage
12 for movement along the track. Abe also discloses a wind powered generator
including airfoils 5 and an electric generator within the nacelle 2. Finally, Abe discloses
that the wind powered generator can be removably placed within the mount 12 (placed
on seat 15 to slide along rails 16) after the tower has been erected

and wherein the wind generator can be removed from the mount 12 after the carriage
has been lowered. Therefore, we agree with the examiner that the invention of these
claims is fully met by the disclosure of Abe.
Claim 19
Appellant argues that Abe does not disclose a carriage having grooves [brief, page
16]. The examiner’s rejection had indicated that the carriage 12 of Abe has protrusions
which inherently include grooves in order to accept the strips 1a when the term grooves
is given its broadest reasonable interpretation [answer, page 13]. Appellant responds
that the term groove as used in the claim is not a tubular passage in view of appellant’s
specification and as interpreted by one skilled in the art [reply brief, page 5].
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We will sustain the examiner’s rejection of claim 19 as anticipated by Abe. We agree
with the examiner that the unnumbered protrusions shown in figure 3 of Abe, that grasp
the

rails 1a, are part of the carriage and are grooves configured to accept the vertical strips
1a when the term “grooves” is given its broadest reasonable interpretation.
Claim 24
In addition to arguments considered above, appellant argues that Abe does not
disclose a carriage including a pivot ring configured to accept a wind powered generator
therein [brief, page 16-17].
We will not sustain the examiner’s rejection of claim 24 as anticipated by Abe. The
carriage of Abe (mount 12) does not include a pivot ring. The carriage as identified by
the examiner (mount 12 plus support member 6) is not properly identified as an elevator
carriage for reasons discussed above with respect to claim 9.
We now consider the rejection of claims 18 and 19 as being anticipated by the
disclosure of Willis. The examiner has indicated how the invention of these claims is
deemed to be fully met by the disclosure of Willis [answer, pages 4-5]. With respect to
claim 18, appellant argues that although Willis shows

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that the wind turbine 16 can be removed from carriage 32, it does not disclose that the
wind turbine 16 can be removably placed within carriage 32. With respect to claim 19,
appellant argues that Abe does not disclose that mount 12 has any grooves or grooves
accepting vertical strips [brief, pages 18-20]. The examiner responds that since
generator 16 in Willis is removed from carriage 32, it clearly is removably placed within
the carriage. The examiner also responds that Willis shows carriage 32 having grooves
44 and 46 sliding on vertical strips 28 and 30, respectively [answer, page 15]. Appellant
responds that figure 7 of Willis does not necessarily show that the turbine 16 is
removably placed within the carriage 32 [reply brief, pages 6-7].
We will sustain the examiner’s rejection of claims 18 and 19 as anticipated by Willis.
Appellant’s argument that Willis teaches that the wind turbine 16 can be removed from
carriage 32, but does not teach that the wind turbine can be removably placed

within the carriage makes no sense. If the wind turbine 16 is on
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the carriage 32 and is removable, then it has to have been removably placed on the
carriage. That is, it is removable from
the carriage. With respect to the grooves of claim 19, appellant’s arguments are
directed to Abe rather than Willis. We agree with the examiner that Willis teaches
grooves as claimed.
We now consider the various rejections of the claims under 35 U.S.C. § 103. In
rejecting claims under 35 U.S.C. § 103, it is incumbent upon the examiner to establish a
factual basis to support the legal conclusion of obviousness. See In re Fine, 837 F.2d
1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the examiner is
expected to make the factual determinations set forth in Graham v. John Deere Co.,
383 U.S. 1, 17, 148 USPQ 459, 467 (1966), and to provide a reason why one having
ordinary skill in the pertinent art would have been led to modify the prior art or to
combine prior art references to arrive at the claimed invention. Such reason must stem
from some teaching, suggestion or implication in the prior art as a whole or knowledge
generally available to one having ordinary skill in

the art. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1051, 5 USPQ2d 1434,
1438 (Fed. Cir.), cert. denied, 488 U.S. 825 (1988); Ashland Oil, Inc. v. Delta Resins &
Refractories, Inc., 776 F.2d 281, 293, 227 USPQ 657, 664 (Fed. Cir. 1985), cert.
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denied, 475 U.S. 1017 (1986); ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d
1572, 1577, 221 USPQ 929, 933 (Fed. Cir. 1984). These showings by the examiner are
an essential part of complying with the burden of presenting a prima facie case of
obviousness. Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992). If that burden is met, the burden then shifts to the applicant to overcome the
prima facie case with argument and/or evidence. Obviousness is then determined on
the basis of the evidence as a whole and the relative persuasiveness of the arguments.
See Id.; In re Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986); In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In re
Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976). Only those
arguments actually made by appellant have been considered in this decision.

Arguments which appellant could have made but chose not to make in the brief have
not been considered and are deemed to be waived [see 37 CFR §
41.37(c)(1)(vii)(2004)].
We consider first the rejection of claims 16 and 25 based on Abe and Douthit. Since
claim 16 depends from claim 9, and since Douthit does not overcome the deficiencies of
Abe with respect to claim 9 that were discussed above, we do not sustain the
examiner’s rejection of claim 16. With respect to claim 25, appellant argues that there is
no motivation for substituting the turntable 16 of Douthit for the mount 12 of Abe
because it would not allow the necelle 2, rotor head 4 or rotor blades 5 of Abe to be
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raised or lowered. Appellant also argues that such a modification is more than a mere
“design choice” [brief, pages 22-23]. The examiner responds that raising and lowering
the nacelle of Abe furnished with a rotary connector would involve only routine skill in
designing the wiring [answer, pages 15-17]. Appellant responds that the examiner
admits that the proposed combination would require a further modification to make the
system work [reply brief, page 7].

We will not sustain the examiner’s rejection of claim 25. As we noted above, the
carriage of Abe only reads on the mount 12. The electric generator in Abe is disclosed
as being within the nacelle 2 [column 2, lines 54-59]. Claim 25 recites that the carriage
includes a plurality of contacts to contact a rotating portion of the wind powered
generator. We can find no motivation for the artisan to include a plurality of contacts on
the mount 12 of Abe since the generator is located within the nacelle 2 and since all the
wiring is easily enclosed within nacelle 2.
We now consider the rejection of claims 27 and 28 based on Abe and Barnes.
Appellant’s arguments with respect to these claims consist of nothing more than reciting
what the claims cover and noting that these claims depend from claim 18. Since we
have sustained the rejection of claim 18, and since appellant has made no persuasive
arguments in rebuttal, we also sustain the examiner’s rejection of claims 27 and 28.

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We now consider the rejection of claims 39, 41-45, 50, 52 and 54-56 based on Salter
in view of Abe. The examiner has indicated how the invention of these claims is
deemed to be rendered obvious by the collective teachings of Salter and Abe [answer,
page 7].
Claims 39 and 43
Appellant argues that there is no motivation to modify the references in the manner
proposed by the examiner because placing a generator upwind of the rotor in Salter
would not work as well as the downstream generator of Salter. Appellant also argues
that the examiner’s motivation of improving the generator cooling is not a proper
motivation [brief, pages 25-27]. The examiner responds that appellant’s argument that
an upwind generator would be less efficient is not supported by any evidence. The
examiner also asserts that the location of the generator upstream or downstream of the
airfoils would have no effect on the performance of the generator and that the
modification is an obvious rearranging of parts citing In re Japikse [answer, pages 17-
19]. Appellant responds that the examiner has failed to

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establish a prima facie case of obviousness. Appellant reiterates that the modification
proposed by the examiner would render the wind powered generator of Salter useless.
Appellant also asserts that the examiner has failed to demonstrate that the facts in this
case are similar to the facts in Jakipse. Finally, appellant argues that Salter does not
disclose anything that rotates within the lever arm 33 or the support arm 36 so that any
combination of Salter and Abe would not include this feature [reply brief, pages 8-10].
We will sustain the examiner’s rejection of claims 39 and 43 as unpatentable over
Salter and Abe. The (electric) generator of Salter is the drum 15 and its associated
elements which produce electric power when the drum is sufficiently rotated. As can be
seen in figure 1 of Salter, the drum 15 simply has to be in contact with each of the rims
13. We agree with the examiner that the electric power producing elements associated
with the drum can be located upwind or downwind of the rotating spars and such
location would have no effect on the functioning of the

airfoils 19. In other words, the entire assembly of figure 1 is not turned around, but only
the generator 15 would be moved to the other side of the rotating rotors 12. Thus,
appellant’s argument that the airfoils would become useless is not agreed with.
Although we agree with appellant that the examiner’s reason for moving the generator
in Salter is not supported within the references, we agree, nevertheless, that the artisan
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would have recognized that the location of the generator 15 upwind or downwind of the
spars would have no effect on the performance of the wind generator of Salter.
Claim 41
Appellant argues that the prior art of record does not teach or suggest a wind
powered generator including a rod configured to be within a housing, at least six spars
connected to the rod, and an electrical generator connected to the housing [brief, page
27]. The examiner responds that Salter shows the generator 16 connected to the
housing 33, 36 [answer, page 19]. Appellant responds that Salter and Abe do not
disclose a rod configured to rotate within a housing [reply brief, page 10].

We will sustain the examiner’s rejection of claim 41 as unpatentable over Salter and
Abe. The rotors 12 of Salter clearly rotate about a rod connected to hub 18, and the
electric power generator (drum 15 and associated components) is connected to the
housing of the rotor as claimed.
Claim 42
Appellant argues that the prior art of record does not teach or suggest a vertical leg
connected to a housing, wherein the housing is connected to an end of the vertical leg
at a position off center from an axis of a vertical leg [brief, page 27]. The examiner
responds that Salter shows the generator 16 connected to the housing 33, 36 by a
vertical leg 41 [answer, page 19]. Appellant responds that Salter does not show the
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connection being at a position off center from the axis of the vertical leg [reply brief,
page 11].
We will not sustain the examiner’s rejection of claim 42 as unpatentable over Salter
and Abe. We can find nothing in this record by the examiner which addresses the
claimed feature of the

housing being connected to an end of the vertical leg at a position off center from an
axis of the vertical leg. Therefore, the examiner has failed to establish a prima facie
case of the obviousness of claim 42.
Claim 44
Appellant argues that the proposed combination does not include any tower including
an elevator or a carriage as such is not disclosed in Salter nor added to the teaching of
Salter [brief, page 28]. Appellant also argues that there is no motivation for the
proposed combination [reply brief, page 11]. The examiner relies on the arguments
made with respect to claim 39 [answer, page 19].
We will not sustain the examiner’s rejection of claim 44 as unpatentable over Salter
and Abe. We can find nothing in this record that shows that the examiner has ever
addressed the specific elements of claim 44. The examiner’s rejection of the group of
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claims rejected on Salter and Abe appears to only address the features of claim 39.
Therefore, the examiner has failed to establish a prima case of obviousness of claim 44.

Claims 45, 50, 52 and 54-56
Since these claims depend from claim 44, we do not sustain the examiner’s rejection
of these claims for the same reasons discussed above with respect to claim 44.
We now consider the rejection of claim 51 based on Salter, Abe and Douthit. Since
claim 51 depends from claim 44, and since the examiner never established a prima
facie case of the obviousness of claim 44, we do not sustain the examiner’s rejection of
claim 51.
We now consider the rejection of claim 53 based on Salter, Abe and Barnes. Since
claim 53 depends from claim 44, and since the examiner never established a prima
facie case of the obviousness of claim 44, we do not sustain the examiner’s rejection of
claim 53.
We now consider the rejection of claim 57 based on Abe and Ferguson. The
examiner has indicated how the claimed invention is rendered obvious by the collective
teachings of Abe and Ferguson [answer, page 10]. Appellant argues that the rejection

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apparently uses teachings from Douthit without explaining which features are taught,
and that the examiner provided no motivation for combining Ferguson with Abe.
Appellant asserts that the combination would not be made because the nacelle 2 of Abe
would not be able to be raised and lowered along the guides 1a of the tower 1. Finally,
appellant argues that the proposed combination would not include an upper tower
section and a lower tower section that is removably connected [brief, pages 34-35]. The
examiner responds that the motivation for combining Abe with Ferguson is for the
purpose of providing a self containing system that is easy to transport and install at site
without the need of providing an additional crane or other hauling means [answer, page
20].
We will not sustain the examiner’s rejection of claim 57 as unpatentable over Abe and
Ferguson. Ferguson teaches a wind machine tower in which an upper section is
telescopically located within a lower section. Thus, although the upper section can be
extended to increase the height of the tower, there is no

teaching that the upper section can be removed from the lower section. Appellant
argues that the tower of Ferguson does not meet the claimed removably connected
feature, and the examiner has never addressed this argument. Since the tower
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sections of Ferguson are telescopically connected, appellant has argued that an
elevator can not move from the lower section to the upper section because the rails
would not be aligned. The examiner has failed to address this argument as well.
Therefore, on this record, we conclude that the examiner has failed to provide a
persuasive case of unpatentability.
We now consider the rejection of claims 72 and 74 based on Abe and Barnes. The
examiner has indicated how the claimed invention is rendered obvious by the collective
teachings of Abe and Barnes [answer, pages 11-12]. Appellant argues that the applied
prior art does not teach or suggest the claimed biasing member of claim 72 or the force
lessening feature of claim 74 [brief, pages 36-37]. The examiner responds that the
features

upon which appellant relies are not recited in the claim [answer, page 21]. Appellant
responds that the blade tip of Barnes is not biased as claimed, and that claim 74 does
recite the feature argued in the brief [reply brief, page 15].
We will not sustain the examiner’s rejection of claims 72 and 74 as unpatentable over
Abe and Barnes. Based on our review of the record before us, the examiner has never
addressed the claimed features relating to the biasing of the airfoils other than to assert
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that the references teach the claimed invention. The examiner has not identified any
elements of the applied references that correspond to the claimed biasing member and
cam member and how the sliding direction of the airfoils is taught by the applied prior
art.
In summary, the examiner’s anticipation rejections are sustained with respect to
claims 18, 19, 26 and 71, but are not sustained with respect to claims 9, 10, 15, 17 and
24. The examiner’s obviousness rejections are sustained with respect to claims 27, 28,
39, 41 and 43, but are not sustained with respect to claims 16, 25, 42, 44, 45, 50-57, 72
and 74. Therefore, the decision of the examiner rejecting claims 9, 10, 15-19, 24-28,
39, 41-45, 50-57, 71, 72 and 74 is affirmed-in-part.

No time period for taking any subsequent action in connection with this appeal may
be extended under 37 CFR § 1.136(a)(1)(iv).
AFFIRMED-IN-PART

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JERRY SMITH )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MAHSHID D. SAADAT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ALLEN R. MACDONALD )
Administrative Patent Judge )

JS/ce
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