Ex Parte Pollock et alDownload PDFPatent Trial and Appeal BoardAug 29, 201814248015 (P.T.A.B. Aug. 29, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/248,015 04/08/2014 53609 7590 08/31/2018 REINHART BOERNER VAN DEUREN P.C. 2215 PERRYGREEN WAY ROCKFORD, IL 61107 FIRST NAMED INVENTOR Shawn Justin Pollock 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 510054 4177 EXAMINER FOX,JOHNC ART UNIT PAPER NUMBER 3753 NOTIFICATION DATE DELIVERY MODE 08/31/2018 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): RockMail@reinhartlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte SHAWN JUSTIN POLLOCK and STEVEN CHARLES STUMBO Appeal2017-006337 Application 14/248,015 1 Technology Center 3700 Before EDWARD A. BROWN, WILLIAM A. CAPP, and FREDERICK C. LANEY, Administrative Patent Judges. LANEY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Shawn Justin Pollock and Steven Charles Stumbo (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner's decision (dated Apr. 13, 2016, hereinafter "Final Act.") rejecting claims 2-13. 2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 According to Appellants, the real party in interest is Woodward Incorporated. Appeal Br. 2 (filed Sept. 13, 2016). 2 Claim 1 has been canceled and claims 14--20 have been withdrawn. Appeal Br. 2. Appeal2017-006337 Application 14/248,015 INVENTION Appellants' invention relates to an "apparatus and methods for modulating bleed air from the compressor stages of a turbine engine." Spec. ,r 1. Claims 2 and 9 are independent. Claim 9 is illustrative of the claimed subject matter and reads as follows: 9. An air valve for modulating bleed air from the compressor section of a turbine engine, the air valve comprising: a housing defining an inlet and first and second outlets, wherein a flow path extends through the housing and between the inlet and first and second outlets, the first outlet having a first diameter, the second outlet having a second diameter greater than the first diameter; a metering element disposed within the housing and within the flow path, the metering element including a first flow port, and a second flow port, the metering element having a side wall the first and second flow ports extending through the side wall; wherein the first port has a first height; and wherein the second port has a second height greater than the first height. Appeal Br. (Claims App. 1). REJECTIONS The following rejections are before us for review: I. The Examiner rejected claims 9 and 13 under 35 U.S.C. § I02(a) as anticipated by Hollis (US 2009/0223657 Al, pub. Sept. 10, 2009). II. The Examiner rejected claims 2-8 and 10-12 under 35 U.S.C. § I03(a) as unpatentable over Hollis and Snyder (US 2,503,639, iss. Apr. 11, 1950). 2 Appeal2017-006337 Application 14/248,015 ANALYSIS Rejection I The Examiner finds Hollis discloses each limitation claims 9 and 13 recite. Final Act. 2-3. In an Advisory Action, dated June 21, 2016, at page 2, the Examiner finds "Hollis shows the claimed device in Figures 20-25 and the features of those Figures not specifically described can be understood by references to the descriptions in other embodiments[]" and "anyone viewing Figure 25 would conclude that Hollis fairly teaches ports of different arc lengths and the drawing Figure provides a sufficient basis for the rejection." Appellants allege the Examiner erred by relying on Figures 20-25 in Hollis alone to show a second outlet diameter that is greater than the diameter of the first outlet diameter and also erred by combining the teachings of several embodiments that Hollis discloses. Appeal Br. 5. For the following reasons, Appellants' allegations are not persuasive. Figure 25 from Hollis is reproduced below: /"/ Q) I Q) 3 Appeal2017-006337 Application 14/248,015 Above Figure 25 "is an isometric view of the [digital rotary] valve of FIG. 20 illustrating the opposite side of the diverter from the view shown in FIG. 24." Hollis ,r 33. Appellants argue, In this case, the Hollis specification in no way makes clear that its patent drawings show precise proportions of the outlet elements. Despite this, the Examiner continues to rely on FIG. 25 as showing outlets having different diameters. However, such reliance on what is shown in FIG. 25 is improper because the Hollis specification is silent on whether its drawings show precise proportions of these elements. Appeal Br. 7 ( citing as supportive Hockerson-Halberstadt, Inc. v. Avia Group Int'!, 222 F.3d 951,956 (Fed. Cir. 2000)). Appellants, however, notably do not argue the drawings in Hollis do not clearly illustrate a second outlet diameter that is greater than the diameter of the first outlet diameter. Additionally, Appellants do not identify any ambiguities with the Figures in this regard. Appellants simply argue that using the drawings for this purpose is legal error because Hollis does not provide any written description whatsoever to confirm what is clearly illustrated. Id. at 7-8. An examiner is not required to presume a skilled artisan's understanding of a figure or illustration is limited to only what is written about it. Evidence that something is old and within the knowledge of the skilled artisan can be established by what is clearly shown in patent drawings, even as to features unexplained by the specification. In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972). A drawing is evaluated on the basis of what it reasonably discloses and suggests to a person of ordinary skill in the art. In re Aslanian, 590 F.2d 911, 914 (CCPA 1979). Of course, there is the exception that patent drawings cannot be relied upon to disclose the precise 4 Appeal2017-006337 Application 14/248,015 proportions of elements if they are not designated in some way as being drawn to scale. Hockerson-Halberstadt, 222 F.3d at 956. In this case, claims 9 and 13 do not recite precise proportions of any elements. Instead, the claims include relative limitations: such as, a second outlet diameter that is greater than a first outlet diameter, a second port height that is greater than a first port height, and a second port arc length that is greater than a first port arc length. See Appeal Br. 2-3 (Claims App.). These limitations do not require any determination about the specific dimensions of the elements, but only evidence regarding their comparative sizes. In other words, the claims in this case only require an understanding of how a skilled artisan would view the figures of Hollis and whether the figures clearly illustrate a relative difference in the size of the recited elements (i.e., diameter, height, or length). As such, the Examiner's findings regarding what Hollis Figures 20-25 disclose did not require an improper slip into a determination about the precise proportions of elements. Hollis' s figures have the specificity and clarity necessary to support, by a preponderance of the evidence, the Examiner's findings regarding the relative sizes of the outlets and ports that are illustrated. And importantly, in this case, Appellants have not raised any questions about whether Hollis' s figures show clearly the claimed relative differences between the recited outlets and ports that the Examiner finds them to disclose. Instead, Appellants only challenge whether the figures could be relied upon for this purpose. On this record, we determine that the Examiner's reliance of the figures in Hollis for this purpose was not error. 5 Appeal2017-006337 Application 14/248,015 Regarding Appellants' argument that combining the teachings of different embodiments was error (Appeal Br. 8-10), the Examiner counters that there are several commonalities between the structures of the different embodiments in Hollis and reference to the other embodiments allows for "a complete understanding of the valve of Figure 20-25." Ans. 7. As a result, we understand the Examiner's finding of anticipation to be based on the arrangement of elements shown in Figure 20-25. The citations to the other embodiments were used to support the Examiner's finding that these figures disclose all of the elements recited in claims 9 and 13, rather than an attempt to create and rely on some undisclosed embodiment by mixing and matching various elements from the different embodiments. Appellants do not argue, or demonstrate, why Hollis' s description of the various claim elements depicted in one embodiment would not be equally applicable as a description of the same claim elements that are likewise depicted in the other embodiments. As a result, we are not persuaded the Examiner erred by referring to the other embodiments Hollis discloses to better understand what is disclosed in Figure 20-25. For the foregoing reasons, Appellants' arguments do not persuasively demonstrate the Examiner's rejection of claims 9 and 13 was in error. Therefore, we sustain the rejection of claims 1 and 13 as being anticipated by Hollis. Rejection II The Examiner determines that claims 2-8 and 10-12 would have been obvious in view of the teachings of Hollis and Snyder. In particular, the Examiner finds Hollis discloses the devices that these claims recite, except 6 Appeal2017-006337 Application 14/248,015 for the recited "shoe" limitations. Final Act. 3. The Examiner relies on Snyder to disclose the elements of these "shoe" limitations, however, and determines a skilled artisan would have been led to combine the teachings of Hollis and Snyder in the manner claimed to "provide a fluid seal" against the diverter of Hollis. Id. Appellants allege the Examiner's reasoning is deficient. Appeal Br. 10-16. We agree. Appellants argue correctly that Hollis discloses that Figures 20-25 utilize a fluid bearing between the diverter body and the valve body, which "permit[ s] the diverter to rotate freely with respect to the valve body" and "minimiz[ es] contaminants clogging the valve." Appeal Br. 14 ( quoting Hollis ,r,r 77-78). In addition, Appellants note that Hollis teaches the fluid bearing as having grooves "to minimize the contact surface between the diverter and the valve body so as to reduce the torque need[ ed] to rotate the diverter." Id. ( citing Hollis ,r 80). In view of these teachings, we are persuaded the Examiner's reasoning lacks a rational underpinning because the shoe devices of Snyder would thwart these stated objectives. As Appellants state, "the shoe [ of Snyder] would increase the contact surface and thus the torque required to rotate the diverter by being biased into contacting the diverter body." Id. Therefore, we do not sustain the Examiner's rejection of claims 2-8 and 10-12 as being unpatentable in view of Hollis and Snyder. DECISION We reverse the rejections of claims 2-8 and 10-12, but we affirm the rejection of claims 9 and 13. 7 Appeal2017-006337 Application 14/248,015 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED-IN-PART 8 Copy with citationCopy as parenthetical citation