Ex Parte SaundersDownload PDFPatent Trial and Appeal BoardFeb 28, 201712872286 (P.T.A.B. Feb. 28, 2017) Copy Citation 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. 12/872,286 08/31/2010 Timothy Saunders 349872 3295 42419 7590 03/01/2017 PATTT FY F.RTPKSON fr KOTTTS EXAMINER 2800 WEST HIGGINS ROAD BARSS, KEVIN R SUITE 365 HOFFMAN ESTATES, IL 60169 ART UNIT PAPER NUMBER 3753 MAIL DATE DELIVERY MODE 03/01/2017 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 TIMOTHY SAUNDERS Appeal 2015-005698 Application 12/872,286 Technology Center 3700 Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. REIMERS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Timothy Saunders (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject under 35 U.S.C. § 103(a): (1) claims 1—3, 5—11, 15, 19, 21, 26—28, and 32—36 as unpatentable over Sage (US 4,159,886; iss. July 3, 1979) and McCoy (US 5,492,216; iss. Feb. 20, 1996); and (2) claims 4, 18, 20, 23—25, 30, and 31 as unpatentable over Sage, McCoy, and Aldred (WO 2009/009189 A2; pub. Jan. 15, 2009). Claims 12—14, 16, 17, 22, and 29 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal 2015-005698 Application 12/872,286 CLAIMED SUBJECT MATTER The claimed subject matter relates to “pressure vessels, such as pumps for moving materials from a low pressure environment to a high pressure environment.” Spec. 12, Figs. 1, 2. Claims 1,7, 10, 15, and 21 are independent. Claim 1 is illustrative of the claimed subject matter and recites: 1. A pressure vessel comprising: a pump including a passage extending between an inlet and an outlet; and a duct at the pump outlet, the duct including a duct passage defining a length, a uniform width along the length and a uniform depth along the length, at least one of which is adjustable. ANALYSIS Obviousness over Sage and McCoy Claims 1—3, 5—11, 15, 19, 21, and 26—28 Appellant argues independent claims 1,7, 10, 15, and 21 as a group and does not offer separate arguments regarding dependent claims 2, 3, 5, 6, 8, 9, 11, 19, and 26—28. Br. 3—5. We select claim 1 as the representative claim, and claims 2, 3, 5—11, 15, 19, 21, and 26—28 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). Appellant offers separate arguments regarding dependent claims 32—36 (see Br. 5), and we will address those claims separately as set forth below. The Examiner finds that Sage discloses a pressure vessel in which particulate matter can be pumped through the system from a low pressure zone to a higher pressure zone. Final Act. 4—5 (citing Sage, col. 1:37-42, Fig. 1). According to the Examiner: 2 Appeal 2015-005698 Application 12/872,286 The system moves the coal by two opposed belts 20 and 20a through a “generally” constant cross-section from low pressure inlet 13 to high pressure outlet 15. These belts are considered to be the pump and are seen to define a generally constant cross section. (The above is considered to meet the limitation of opposing belts in any if [sic] the above claims) Final Act. 5. The Examiner further refers to column 3, line 62 through column 4, line 1 of Sage (emphasis omitted), which states, in relevant part: “Pulverized coal is first introduced into the conveyor 10 before pressurization is attempted in order to generate the second coal pressure seal 54 capable of withstanding the resulting pressure differential accruing across the belt tube 32” and concludes that the passage “meet[s] the ‘dynamic seal’ limitation in terms of the pump.” Id. For teaching of the claimed duct, the Examiner finds that McCoy discloses transport conduit/duct (figure 1) that has a definable length, a definable width, shown as dimension “d”, and having a definable depth (Figure 2). McCoy further discloses an adjusting mechanism 50 that can adjust the width dimension “d”. It also seen that until the duct is adjusted it can be seen as having fixed walls and constant cross-section. Id. at 6. The Examiner concludes that it would have been obvious to add a duct as taught by McCoy to the outlet of the Sage device to allow for adjustment of duct cross section. The ability of being able to adjust the cross section, where the pump may be pumping different sized particulates, will allow for the ability of a dynamic seal being able to be developed that will allow for the pump to have something to push against. Id. 3 Appeal 2015-005698 Application 12/872,286 Appellant contends that the conveyor of Sage is a gravity-fed vertically oriented conveyor and that one would not combine the horizontal bottle conveyor of McCoy with Sage. Br. 4. In particular, Appellant contends that “the proposed combination would change the function of McCoy’s transport after the combination, i.e., it would no longer function horizontally to maintain bottles in a vertical orientation.” Id. At the outset, the Examiner is proposing to modify Sage with McCoy not McCoy with Sage, as suggested by Appellant. See Final Act. 4—6; see also Br. 4. Further, to the extent that Appellant is arguing the references must be capable of bodily incorporation in order to combine their teachings, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of a primary reference. In re Keller, 642 F.2d 413, 425 (CCPA 1981). “Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” Id.', see also Ans. 10. In this case, the Examiner correctly points out that “McCoy is simply being used to show the limitation of a duct being adjustable while in an operating state without having to be rebuild the duct from a static condition.” Final Act. 2—3. The Examiner concludes that it would have been obvious “to add a duct as taught by McCoy to the outlet of the Sage device to allow for adjustment of duct cross section.” Final Act. 6. The Examiner reasons that “the ability of being able to adjust the cross section, where the pump may be pumping different sized particulates, will allow for the ability of a dynamic seal being able to be developed that will allow for the pump to have something to push against.” Id. The Examiner’s reasoning is based on rational underpinnings. Appellant does not apprise 4 Appeal 2015-005698 Application 12/872,286 us of Examiner error. See Br. 4; see also id. at 5. Appellant contends that the given reasoning, “allows for transport of a material to a desired location or a processing station,” bears no connection to the use of a duct that has an adjustable cross-section. The reasoning simply states the simple function of what any plain duct allegedly might be used [to] do and thus, even if desired, does not suggest a combination with McCoy. Br. 5. Appellant further contends that “the dynamic seal for allegedly allowing the pump something to push against,” as asserted by the Examiner, “would not prompt one of ordinary skill in the art to combine McCoy with Sage” and “one or ordinary skill in the art would therefore not be prompted to combine McCoy with Sage to achieve such functions.” Id. We acknowledge Appellant’s contention that “the given reasoning, ‘allows for transport of a material to a desired location or a processing station,’ bears no connection to the use of a duct that has an adjustable cross-section.” Id. However, Appellant fails to provide sufficient evidence or argument apprising us of error in the Examiner’s primary rationale for combining the adjustable cross-section duct of McCoy with Sage’s device. See Final Act. 6; see also Ans. 12 (“The statement is a secondary reasoning from the basic motivation of [the] cited rejection and is not seen to disqualify [the cited] base reasoning.”). In this case, according to the Examiner, although Sage creates the dynamic seal, the adjustable cross- section of the duct afforded by McCoy impacts the dynamic seal in such a way that the pump of Sage will have something to push against. See Final Act. 6. In other words, adding the selectively adjustable duct of McCoy to Sage would ensure the integrity of the dynamic seal created by Sage and would provide a mass of particulates against which the pump of Sage 5 Appeal 2015-005698 Application 12/872,286 would experience yieldable resistance in pushing the seal through the duct. Appellant further contends that one of ordinary skill in the art would not have a reasonable expectation of using McCoy to achieve dynamic sealing as the rejection asserts, at least because McCoy’s transport is open sided to permit inspection and the particulate material of Sage would escape and ruin Sage for its intended purpose of transporting pulverized coal into a higher pressure zone. See Br. 4—5. At the outset, as discussed above, the Examiner relies on McCoy merely “to show the limitation of a duct being adjustable while in an operating state without having to be rebuild the duct from a static condition.” Final Act. 2—3. Sage states: The belt tube 32 engages pipe 14 to form the first pressure seal 52 and thereafter receives the coal which is subsequently compacted by guide tube 34 to form the second coal pressure seal 54 as the belt tube 32 continues in its downward motion. As belt tube 32 separates about lower belt drives 24, the coal collects in the receiving space 19 at the lower end of the pressure vessel 12 before being discharged through the outlet 46. Sage 4:8—16 (emphasis omitted). Sage thus indicates the coal that collects in receiving space 19 is compacted into a seal form. Appellant has not explained sufficiently how modifying the outlet of Sage’s device with the adjustable cross-section duct of McCoy, as proposed by the Examiner, would “ruin Sage for its intended purpose.” See Br. 5; see also Final Act. 4—6. Further, the Examiner’s proposed modification to Sage does not appear to be uniquely challenging, and Appellant has not explained with any specificity why a person of ordinary skill in the art would not have had an expectation of success in making the proposed modification. See In re O’Farrell, 853 F.2d 894, 903 (Fed. Cir. 1988) (noting that all that is required is a reasonable expectation 6 Appeal 2015-005698 Application 12/872,286 of success, not absolute predictability of success). Appellant contends that “the proposed modification of Sage is not a combination of prior art elements in a known manner to yield predictable results (MPEP 2141).” Br. 3. In particular, Appellant states: “More specifically, regarding combination in a ‘known manner, ’ neither of the cited references teaches the use of McCoy’s transport at an outlet of a pump, such as in Sage, as proposed.” Id. at 3^4. At several instances, McCoy discloses deploying his transport conveyors in conjunction with a supply of objects to be conveyed by the transport. See, e.g., McCoy, 2:35—36 (“[t[he apparatus of the invention is capable of transporting a succession of objects”), 2:54—55 (“providing a supply of objects having a vertical axis and a width measured transversely to the vertical axis”), and 4:36—37 (emphasis omitted) (“[i]n operation, a supply of bottles 10 is provided and appropriately oriented such that their vertical axes are vertical”). In order to enter the McCoy transport conveyors, the supply of bottles must be loaded by some unillustrated means, otherwise, the bottles would not engage the transport conveyors. Moreover, the Examiner notes “[wjhere McCoy discloses a belt system that cause[s] the bottles to be pumped through the adjustable duct/conveyor is seen [as] a pumping system (in fact being at least similar to [Appellant’s] ‘respective belts’ of independent claim 7).” Ans. 11; see also Final Act. 6. The Examiner thus provides technical reasoning for why McCoy’s belt system functions as a pumping system for the McCoy adjustable duct/conveyor. Appellant does not apprise us of Examiner error. Moreover, as discussed above, the Examiner provides a reason with rational underpinnings to combine Sage and McCoy. See Final Act. 4—6 7 Appeal 2015-005698 Application 12/872,286 Relatedly, Appellant argues that neither of the cited references teaches the use of McCoy’s transport at an outlet of a pump, such as in Sage, and that this feature is only present in Appellant’s disclosure, i.e., that the proposed modification has been gleaned from Appellant’s disclosure in an exercise of impermissible hindsight. Br. 4. As noted above, the bottles or other objects conveyed by the McCoy transport device must be fed by unillustrated means that feed or pump the objects into the opposed conveyors. And, as pointed out by the Examiner, the belt system of McCoy functions as a pumping system for the adjustable duct/conveyor. See Ans. 11. Further, the Examiner cites specific teachings in the references themselves, not Appellants’ disclosure, in support of the Examiner’s articulated reasoning for combining the references as proposed in the rejection. See Final Act. 4—6. Accordingly, for the foregoing reasons, we sustain the Examiner’s rejection of claim 1 as unpatentable over Sage and McCoy. We further sustain the rejection of claims 2, 3, 5—11, 15, 19, 21, and 26—28, which fall with claim 1. Claims 32—36 Claims 32—36 variously require the pump passage, by itself or in combination with the duct, to have a rectangular cross-section. Although forming a duct, the passage of the McCoy device does not have a rectangular cross-section as it does not have four sides. See McCoy, 3:18—19, Figs. 1, 2; see also Br. 5 (“McCoy has an open side it is not rectangular.”); id. at 4. Furthermore, the particulate passage of Sage has a circular cross-section. See Br. 5; see also Final Act. 7; Sage, Fig. 1. As such, Sage and McCoy, alone or in combination, fail to teach a pump passage or duct having a 8 Appeal 2015-005698 Application 12/872,286 rectangular cross-section. Accordingly, we do not sustain the Examiner’s rejection of claims 32— 36 as unpatentable over Sage and McCoy. Obviousness over Sage, McCoy, and Aldred Claims 4, 18, 24, 30, and 31 Claims 4, 18, 24, 30, and 31 variously require at least one duct wall to be movable (claim 4) or at least one dimension of the duct to be adjustable (claims 18, 24, 30, and 31) to influence pressure that the duct or duct passage exerts on the plug or dynamic seal of particulate material responsive to a detected gas pressure in the pump. See Br. 6; see also id. Claims App. The Examiner finds that paragraphs 122 and 123 of Aldred discloses the limitations recited in claims 4, 18, 24, 30, and 31. See Final Act. 7—9. In this regard, Aldred states, in relevant part One or more sensors may be located within the system 100, to detect and/or monitor pressure levels at various locations within the system. Pressure readings from such sensors or monitors may be provided to visual indicators (gauges or other suitable displays) and/or to an electronic processing system. The pressure readings may be used by an operator to determine valve control parameters. Alternatively or in addition, pressure readings may be used by the electronic processing system to determine valve control parameters. Aldred 1123 (emphasis added). It is clear from the foregoing passage that the Aldred system employs pressure sensor readings to determine valve control parameters and not to influence pressure that the duct or duct passage exerts on the plug or dynamic seal of particulate material responsive to a detected gas pressure in the pump. 9 Appeal 2015-005698 Application 12/872,286 Accordingly, we do not sustain the Examiner’s rejection of claims 4, 18, 24, 30, and 31 as unpatentable over Sage, McCoy, and Aldred. Claims 20, 23, and 25 Appellant has grouped claims 20, 23, and 25 with claims 4, 18, 24, 30, and 31. See Br. 6. However, claims 20, 23, and 25 do not contain the limitations discussed above in reference to claims 4, 18, 24, 30, and 31. Additionally, Appellant does not separately argue the patentability of these claims. See Br. 6. As such, Appellant has waived any argument of error, and we summarily sustain the rejection. See 37 C.F.R. § 41.31(c); see also Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to contest a ground of rejection to the Board,... the Board may treat any argument with respect to that ground of rejection as waived”). Accordingly, we sustain the Examiner’s rejection of claims 20, 23, and 25 as unpatentable over Sage, McCoy, and Aldred. DECISION We AFFIRM the decision of the Examiner to reject claims 1—3, 5—11, 15, 19-21,23, and 25-28. We REVERSE the decision of the Examiner to reject claims 4, 18, 24, and 30-36 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 10 Copy with citationCopy as parenthetical citation