Ex parte Roman

Board of Patent Appeals and Interferences

Nov 22, 2000

08915355 (B.P.A.I. Nov. 22, 2000)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte WALTER C. ROMAN
____________
Appeal No. 2000-1479
Application No. 08/915,355
____________
ON BRIEF
____________
Before CALVERT, NASE, and GONZALES, Administrative Patent
Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 to 9, 14 to 19, 23 and 24. Claims 10 to
13 and 25 to 27 have been objected to as depending from a non-
allowed claim. Claims 20 to 22 have been canceled.
We REVERSE.
Appeal No. 2000-1479 Page 2
Application No. 08/915,355
In claim 5, it appears to us that the word "rearward"1
should be "forward" for consistency with the specification (p.
5, lines 27-30) and claims 15 and 18.
BACKGROUND
The appellant's invention relates to an assembly for
splitting open contents-filled garbage bags, an assembly for
splitting open cans and bottles-filled garbage bags, an
assembly for splitting open yard waste-filled garbage bags,
and a method for splitting open contents-filled garbage bags.
A copy of the claims under appeal is set forth in the appendix
to the appellant's brief. 1
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Davis 3,606,058 Sep. 20,
1971
Roman 5,267,823 Dec. 7,
1993
Claims 1 to 3, 5 to 9, 14 to 19 and 23 stand rejected
under 35 U.S.C. § 102(b) as being anticipated by Roman.
Appeal No. 2000-1479 Page 3
Application No. 08/915,355
Claims 4 and 24 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Roman in view of Davis.
Rather than reiterate the conflicting viewpoints advanced
by the examiner and the appellant regarding the above-noted
rejections, we make reference to the final rejection (Paper
No. 6, mailed July 20, 1999) and the answer (Paper No. 13,
mailed January 31, 2000) for the examiner's complete reasoning
in support of the rejections, and to the brief (Paper No. 12,
filed November 12, 1999) for the appellant's arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellant's specification and
claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the
examiner. As a consequence of our review, we make the
determinations which follow.
The anticipation rejection
Appeal No. 2000-1479 Page 4
Application No. 08/915,355
We will not sustain the rejection of claims 1 to 3, 5 to
9, 14 to 19 and 23 under 35 U.S.C. § 102(b).
A claim is anticipated only if each and every element as
set forth in the claim is found, either expressly or
inherently described, in a single prior art reference.
Verdegaal Bros. Inc. v. Union Oil Co., 814 F.2d 628, 631, 2
USPQ2d 1051, 1053 (Fed. Cir.), cert. denied, 484 U.S. 827
(1987). The inquiry as to whether a reference anticipates a
claim must focus on what subject matter is encompassed by the
claim and what subject matter is described by the reference.
As set forth by the court in Kalman v. Kimberly-Clark Corp.,
713 F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir. 1983), cert.
denied, 465 U.S. 1026 (1984), it is only necessary for the
claims to "'read on' something disclosed in the reference,
i.e., all limitations of the claim are found in the reference,
or 'fully met' by it."
Claims 1 to 3, 5 to 9, 14 to 19 and 23 each include the
limitation that the bag slitter assembly include horizontally-
disposed canard-like blades wherein the blades are disposed
Appeal No. 2000-1479 Page 5
Application No. 08/915,355
The United States Patent and Trademark Office (USPTO)2
applies to the verbiage of the claims before it the broadest
reasonable meaning of the words in their ordinary usage as
they would be understood by one of ordinary skill in the art,
taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the appellant's specification. In re
Morris, 127 F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed. Cir.
1997). See also In re Sneed, 710 F.2d 1544, 1548, 218 USPQ
385, 388 (Fed. Cir. 1983). In this case, it is our
determination that the term "horizontally-disposed" as used in
the claims under appeal would be understood by one of ordinary
skill in the art to mean that the canard-like blades which are
disposed substantially continuously laterally across the width
of the bag splitter assembly lie in a plane more horizontal
than vertical.
substantially continuously laterally across the width of the
bag splitter assembly.2
Roman's invention is directed to a bag splitter assembly
for tearing open conveyed bags containing municipal solid
waste and emptying the contents therefrom. As shown in
Figures 2 and 3, the bag splitter assembly comprises a series
of pivotally mounted splitter blades 36 and 36' which are
located above a bag transporting conveyor 30. Confronting
serrated edges 48 and 48' of the splitter blades tear open the
conveyed bags while the trailing edges of the blades contain
Appeal No. 2000-1479 Page 6
Application No. 08/915,355
grippers 50 which grip the torn bags allowing the conveyor to
separate the contents from the
retained bag. As shown in Figure 3, the blades 36 and 36'
with their serrated edges 48 and 48' and grippers 50 are
vertically-disposed.
The appellant argues (brief, pp. 11-12) that Roman does
not disclose the recited "horizontally-disposed canard-like
blades." We agree. As shown in Figure 3, the blades 36 and
36' with their serrated edges 48 and 48' and grippers 50 are
vertically-disposed, not "horizontally-disposed" as claimed.
The examiner's position (answer, p. 3) that the grippers 50 of
Roman are "horizontally-disposed canard-like blades" carried by
a plurality of blade holders (i.e., blades 36 and 36') is
unconvincing since while the grippers have a horizontal
component one skilled in the art would consider the grippers to
be vertically-disposed, not "horizontally-disposed."
Since all the limitations of claims 1 to 3, 5 to 9, 14 to
19 and 23 are not disclosed in Roman for the reasons set forth
Appeal No. 2000-1479 Page 7
Application No. 08/915,355
above, the decision of the examiner to reject claims 1 to 3, 5
to 9, 14 to 19 and 23 under 35 U.S.C. § 102(b) is reversed.
The obviousness rejection
We have also reviewed the Davis reference additionally
applied in the rejection of claims 4 and 24 (dependent on
claims 1 and 23) but find nothing therein which makes up for
the deficiencies of Roman discussed above regarding claims 1
and 23. Accordingly, the decision of the examiner to reject
claims 4 and 24 under 35 U.S.C. § 103 is reversed.
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Application No. 08/915,355
CONCLUSION
To summarize, the decision of the examiner to reject
claims 1 to 3, 5 to 9, 14 to 19 and 23 under 35 U.S.C. §
102(b) is reversed and the decision of the examiner to reject
claims 4 and 24 under 35 U.S.C. § 103 is reversed.
REVERSED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOHN F. GONZALES )
Administrative Patent Judge )
Appeal No. 2000-1479 Page 9
Application No. 08/915,355
MUELLER AND SMITH
7700 RIVERS EDGE DRIVE
COLUMBUS, OH 43235
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Application No. 08/915,355
JVN/dl