Ex Parte ScartezinaDownload PDFBoard of Patent Appeals and InterferencesMar 22, 201010136948 (B.P.A.I. Mar. 22, 2010) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte EDWARD J. SCARTEZINA ____________ Appeal 2009-004310 Application 10/136,948 Technology Center 1700 ____________ Decided: March 22, 2010 ____________ Before BRADLEY R. GARRIS, CHUNG K. PAK, and CHARLES F. WARREN, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1, 4-11, 22-24, and 27-32. We have jurisdiction under 35 U.S.C. § 6. We AFFIRM for the reasons expressed in the Answer and below. Appeal 2009-004310 Application 10/136,948 Appellant claims a cementing apparatus 50 comprising a truck chassis 52 which carries a rotatable drum mixer 60, a holding tank 80, a pump 96, and an outflow conduit 108 wherein one embodiment of the apparatus further includes an intermediate conduit 90 having a valve 85 therein and a coupling of the pump 96 to a transmission of the truck powered by an engine of the truck (claim 1; Fig. 5) and wherein another embodiment of the apparatus requires the pump 96 to be capable of pressurizing cement slurry to a pressure greater than about 700 psi and further includes a ball valve 234 for controlling introduction of materials into a bore hole 210 (claim 27; Figs. 5, 7). Representative claims 1 and 27, the only independent claims on appeal, read as follows: 1. Cementing apparatus, comprising: a chassis of a truck; a rotatable drum mixer supported by said chassis; a holding tank supported by said chassis and positioned to receive a cement slurry from said rotatable mixer; an intermediate conduit in communication with said holding tank and configured to transport said cement slurry therefrom; a valve positioned at one end of or along a length of said intermediate conduit for controlling flow of said cement slurry from said holding tank to a pump in communication with said intermediate conduit, operably coupled to a transmission of said truck and powered by an engine of said truck, and configured to apply sufficient pressure to said cement slurry to force said cement slurry down a drill hole; and 2 Appeal 2009-004310 Application 10/136,948 an outflow conduit in communication with said pump, said outflow conduit configured to at least partially direct said cement slurry to a desired location. 27. Cementing apparatus, comprising: a single, readily transportable chassis; a rotatable mixer supported by said chassis; a holding tank supported by said chassis and positioned to receive a cement slurry from said rotatable mixer; an intermediate conduit in communication with said holding tank and configured to transport said cement slurry therefrom; a pump in communication with said intermediate conduit, said pump configured to pressurize said cement slurry to a pressure of greater than about 700 psi; and an outflow conduit in communication with said pump, said outflow conduit configured to at least partially direct said cement slurry to a ball valve configured for assembly with an aperture of a cover for a surface casing of a bore hole, said ball valve also being configured to control introduction of materials through said cover and into an aperture of said surface casing. The Examiner relies upon the references set forth below as evidence of obviousness: Levake 3,206,171 Sept. 17, 1965 Cribb 4,199,262 Apr. 22, 1980 Lucore 5,050,995 Sep. 24, 1991 Stephens ‘632 5,419,632 May 30, 1995 Flood 5,730,523 Mar. 24, 1998 Stephens ‘596 5,803,596 Sep. 08, 1998 Dawson 5,868,327 Feb. 09, 1999 Kohli 6,488,088 B1 Dec. 03, 2002 3 Appeal 2009-004310 Application 10/136,948 Benckert (as translated) DE 42 04330 A1 Aug. 19, 1993 Ultimately, all appealed claims are rejected by the Examiner under 35 U.S.C. §103(a) as being unpatentable over various combinations of the above-listed prior art. In contesting these rejections, Appellant presents no separate arguments concerning any of the dependent claims including the separately rejected dependent claims. Accordingly, in our assessment of this appeal, we will focus on the rejections of independent claims 1 and 27. Under 35 U.S.C. § 103(a), the Examiner rejects: (a) independent claim 1 (and dependent claims 4-7) over Cribb in view of Dawson and Flood; (b) independent claim 27 (and dependent claims 28-30) over Crib in view of Kohli and Lucore or Stephens ‘632; (c) independent claim 1 (and dependent claims 4, 10, and 22- 24) over Benckert in view of Kohli and Flood; (d) independent claim 27 (and dependent claims 28-30) over Benckert in view of Dawson and Kohli and Lucore or Stephens ‘632; and (e) the remaining dependent claims on appeal over the above- noted references in various combinations with the previously listed prior art. We will sustain each of the § 103 rejections advanced in this appeal based on the findings of fact, conclusions of law, and rebuttals to argument expressed by the Examiner in the Answer. We add the following comments for emphasis.1 1 We observe that a number of Appellant’s arguments are not relevant to the rejections proposed by the Examiner. For example, Appellant argues that 4 Appeal 2009-004310 Application 10/136,948 The rejection of independent claim 1 over Cribb, Dawson, and Flood In making this rejection, the Examiner concludes that it would have been obvious for an artisan (1) “to have provided the intermediate conduit of Cribb with a valve therein as taught by Dawson for the purpose of controlling discharge of liquid from the respective mixing chamber/holding tank to the intermediate conduit” (Ans. 5) and (2) “to have coupled the pump in Cribb to a truck transmission carried by the truck chassis and powered by the engine of the truck as taught by Flood for the purpose of powering the portable vehicle and driving the pump without the need for an additional pump driving means” (Ans. 6). Appellant argues that “there would have been no motivation for one of ordinary skill in the art to have used a valve [as taught by Dawson] from an apparatus for mixing low viscosity, lightweight materials in the apparatus of Cribb because the peristaltic pump of Cribb acts as a valve, particularly when used with the type of slurries disclosed in Cribb” (App. Br. 10). This argument is unpersuasive. As stated in the Examiner’s above-quoted obviousness conclusion, providing Cribb’s intermediate conduit with a valve would have been motivated by the desire to control discharge of liquid through the intermediate conduit. Furthermore, this motivation would not be negated by Appellant’s assertion that “the peristaltic pump of Cribb acts as a the rejection of claim 1 over Cribb, Dawson, and Flood is improper because “one of ordinary skill in the art wouldn’t have been motivated to use either [the Cribb or the Dawson] apparatus to pump a relatively viscous and heavy cement slurry, such as the concrete mixed by the portable plant of Flood” (App. Br. 10, first full para.). However, in making this rejection, the Examiner does not propose using the apparatus of Cribb (or of Dawson) to pump cement slurry. We will not separately address such irrelevant arguments in our disposition of this appeal. 5 Appeal 2009-004310 Application 10/136,948 valve” (id.). This is because, even if a peristaltic pump acts a valve, independently controlling discharge through Cribb’s intermediate conduit with a valve still would be desirable, for example, during pump replacement or repair. For the reasons set forth above and in the Answer, Appellant has revealed no error in the Examiner’s rejection of independent claim 1 over Cribb, Dawson, and Flood. The rejection of independent 27 over Cribb, Kohli, and Lucore or Stephens ‘632 According to the Examiner, it would have been obvious and mere common sense to one having ordinary skill in the art, at the time applicant’s invention was made, to have substituted the pump in Cribb with a triplex type pump as taught by Kohli for the purposes of allowing convenient control of slurry flow rates and pressures (Ans. 10). In contesting this rejection, Appellant challenges only the above- quoted obviousness conclusion based on Cribb and Kohli. Appellant’s argument concerning this rejection follows: Since the mixing drum of Cribb and the concrete pump of Kohli both occupy the majority of a truck chassis, one of ordinary skill in the art would have had no reason to expect that both of these apparatus could be carried by the same chassis. Nor, for the same reason, would one of ordinary skill in the art have been motivated to combine the mixing drum of Cribb and the concrete pumping system of Kohli onto a single, readily transportable chassis. (App. Br. 12, second para.). 6 Appeal 2009-004310 Application 10/136,948 This argument is unpersuasive because it is based on a legally erroneous test for obviousness. Contrary to Appellant’s belief, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the 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. For the reasons well stated by the Examiner in the Answer, the combined teachings of the applied references would have suggested replacing Cribb’s pump with a triplex type pump as taught by Kohli. The rejections of independent claims 1 and 27 over, inter alia, Benckert and Kohli (claim 1) and Dawson (claim 27) The Examiner concludes that it would have been obvious and mere common sense to one having ordinary skill in the art, at the time applicant’s invention was made, to have substituted the pump in Benckert with a triplex type pump as taught by Kohli for the purposes of allowing convenient control of slurry flow rates and pressures (Ans. 16, 18). Appellant argues that the Examiner’s proposed combination of Benckert and Kohli would not have been obvious since the apparatus components of these references could not be carried by the same truck chassis (App. Br. 13). This argument corresponds to the unsuccessful argument against the rejection of claim 27 based on the combination of Cribb and Kohli. It follows that the argument under consideration is unpersuasive for the reasons explained above. 7 Appeal 2009-004310 Application 10/136,948 Conclusion We sustain each of the Examiner’s § 103 rejections before us in this appeal. The decision of the Examiner 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) (2008). AFFIRMED ssl TRASKBRITT, P.C. P.O. BOX 2550 SALT LAKE CITY, UT 84110 8 Copy with citationCopy as parenthetical citation