Ex parte Secor et al.

Board of Patent Appeals and Interferences

Mar 27, 2001

08683600 (B.P.A.I. Mar. 27, 2001)

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publication and is not binding precedent of the Board.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. 21
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte HOWARD C. SECOR,
RONALD M. RENDLEMAN,
and
PAUL D. COPENHAVER
_____________
Appeal No. 1998-1052
Application No. 08/683,600
______________
ON BRIEF
_______________
Before STAAB, McQUADE, and GONZALES, Administrative Patent
Judges.
STAAB, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s final
rejection of claims 1, 5, 6, 18 and 20-31, all the claims
currently pending in the application.
Appellants’ invention pertains to a dryer which utilizes
radiant heat and forced air flow for drying freshly printed
Appeal No. 1998-1052
Application No. 08/683,600
The final rejection of claims 5, 6, 20 and 31 under 351
U.S.C. § 112, first paragraph, has been overcome by the
amendment submitted April 6, 2000 (see Paper No. 18). The
final rejection of claims 1, 5, 6, 18 and 20-31 under the
judicially created doctrine of obviousness-type double
patenting has been overcome by the terminal disclaimer
submitted April 6, 2000 (see Paper No. 20).
Although the statement of this rejection was not repeated2
in the examiner’s answer, it is clear from the record as a
whole (answer, paragraph spanning pages 6-7; brief, pages 5-7
(issue 2 and discussion thereof)) that both the examiner and
appellants consider this ground of rejection to be maintained
on appeal. Accordingly, the failure of the examiner to
provide a statement of this rejection in the answer is
considered to be a harmless oversight.
2
sheets before they are stacked or run back through a printing
press for a second time. The claims on appeal are reproduced
in the appendix of appellants’ brief.
The references applied by the examiner in the final
rejection are:
Bubley et al. (Bubley) 4,434,562 Mar. 6,
1984
Wimberger et al. (Wimberger) 5,092,059 Mar. 3,
1992
Anderson 5,099,586 Mar.
31, 1992
The following rejections are before us for review:1
(a) claims 1, 5, 6 and 21-28, rejected under 35 U.S.C.
§ 112, second paragraph, as being indefinite;2
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Application No. 08/683,600
3
(b) claims 1 and 21-24, rejected under 35 U.S.C. § 103,
as being unpatentable over Anderson;
(c) claims 5, 6, 18, 20, 25-29 and 31, rejected under 35
U.S.C. § 103, as being unpatentable over Anderson in view of
Bubley; and
(d) claim 30, rejected under 35 U.S.C. § 103, as being
unpatentable over Anderson in view of Bubley and Wimberger.
Reference is made to the final rejection and examiner’s
answer (Paper Nos. 4 and 7) for a statement of the examiner’s
position, and to the brief and reply brief (Paper Nos. 6 and
9) for a statement of appellants’ arguments thereagainst.
Preliminary Matters
Appellants have questioned whether it was appropriate for
the examiner to make final the office action mailed November
19, 1996. This matter is not directly connected with the
merits of issues involving a rejection of claims and therefore
is reviewable by petition to the Director rather than by
appeal to this Board. Compare In re Hengehold, 440 F.2d 1395,
1403-04, 169 USPQ 473, 479 (CCPA 1971). Accordingly, we shall
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Application No. 08/683,600
4
not review or further discuss the examiner’s action in this
regard.
Rejection (a)
Looking first at the rejection of claims 1, 5 and 6 as
being indefinite, the examiner contends that these claims do
not pass muster under the second paragraph of 35 U.S.C. § 112
because the
“multiple air flow apertures” recited in the last paragraph of
claim 1 “are inferential[ly] recited” (final rejection, page
3). We agree with appellants, however, that the recitation in
claim 1 of a “reflector plate being intersected by multiple
air flow apertures” is a proper recitation of the structure
being claimed that would be readily understood by an artisan.
Hence, the rejection of claims 1, 5 and 6 under 35 U.S.C. §
112, second paragraph, shall not be sustained.
Concerning the 35 U.S.C. § 112, second paragraph,
rejection of claims 21-28, appellants make the following
statement:
Applicants agree with the Examiner’s rejection
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5
of Claim 21 in line 14 where the phrase “air flow
apertures” should be --multiple discharge ports--.
Applicants will make this change if the claims are
allowed under 35 U.S.C. § 103. Applicants respectfully
disagree with the Examiner’s rejection of Claims 23
and 24 as the “air flow apertures” are properly
recited in Claim 23, line 4 as being part of the
reflector plate. [Brief, page 7.]
In that appellants have acquiesced in the examiner’s
rejection of independent claim 21 under 35 U.S.C. § 112,
second paragraph, we shall summarily sustain this rejection.
Further, since appellants have not argued the merits of this
rejection as it applies to claims 22 and 25-28, which depends
either directly
or indirectly from claim 21, we also shall summarily sustain
the § 112, second paragraph, rejection of claims 22 and 25-28.
Concerning dependent claims 23 and 24, while we appreciate
that claim 23, and claim 24 through its dependence on claim
23, properly recites the “air flow apertures” as being part of
the reflector plate, these claims depend, either directly or
indirectly, from claim 21 and therefore include all of the
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6
subject matter of that base claim. Accordingly, the
circumstance that claim 23 properly recites the “air flow
apertures” as being part of the reflector plate does not cure
the deficiency of base claim 21 which improperly recites
pressurized air jets flowing through “the air flow apertures”
in the air distribution manifold. For this reason, we
likewise shall sustain the 35 U.S.C. § 112, second paragraph,
rejection of claims 23 and 24.
In treating the standing 35 U.S.C. § 103 rejections of
claims 21-28 on the merits, infra, we interpret the term “the
air flow apertures” found in the third paragraph of claim 21
as “the multiple discharge ports.”
Rejection (b)
Claim 1 is directed to a dryer comprising a dryer head
defining an air distribution manifold having an inlet port for
receiving pressurized air and discharge port means facing the
substrate travel path, a radiant heat lamp assembly comprising
multiple heat lamps disposed within the dryer head between the
substrate travel path and the air distribution manifold, and
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7
a reflector plate disposed intermediate the air
distribution manifold and the heat lamp assembly,
the reflector plate being intersected by multiple
air flow apertures disposed in air flow
communication with the discharge port means of the
air distribution manifold, and the air flow
apertures being oriented for directing jets of
pressurized air through the heat lamp assembly onto
the processed side of a substrate moving along the
travel path. [Emphasis added.]
With reference of Figure 6 of Anderson, it appears that
the examiner considers the portion of Anderson’s dryer between
fan 6 and the tops of reflectors 15’ as corresponding to the
air distribution manifold, the lamps 12’ as corresponding to
the radiant heat lamp assembly, and the holes 35’ in the
channel bottoms 33’, 34’ of the reflector plate 15’ as
corresponding to the air flow apertures of the reflector
plate. Our first difficulty with this reading of the claim
language on Anderson is that it requires the channel bottoms
33’, 34’ of Anderson’s reflector plate 15’ to be considered
part of the reflector plate. However, if this is so, then
Anderson’s reflector plate cannot be fairly regarded as being
intermediate the air distribution manifold and the heat lamp
assembly, as called for in claim 1, because a significant
portion of Anderson’s reflector plate would
Appeal No. 1998-1052
Application No. 08/683,600
It is the examiner’s position that Anderson does not3
disclose a heat lamp assembly including multiple heat lamps,
but that it would have been obvious to one of ordinary skill
in the art to so modify Anderson.
8
lie below the level of the heat lamp assembly. More
importantly, the holes 35’ of Anderson’s reflector clearly are
not oriented for directing jets of pressurized air through the
heat lamp assembly 12’ because Anderson’s holes 35’ are
located below the heat lamps. Therefore, even if we were to
agree with the examiner that it would have been obvious to
modify Anderson in the manner proposed, the subject matter of3
claim 1 would not result. It follows that the standing
rejection of claim 1 as being unpatentable over Anderson is
not sustainable.
We reach an opposite conclusion with respect to the
standing § 103 rejection of claim 21. At the outset, we
observe that claim 21 is broader than claim 1 in the sense
that it is silent as to the presence or absence of a reflector
plate. Thus, claim 21 does not require any reflector plate
whatsoever, much less a reflector plate that (1) is disposed
intermediate the air distribution manifold and the heat lamp
assembly, or (2) includes air flow apertures for directing
jets of pressurized air through the heat lamp assembly.
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10
With reference once again to Figure 6 of Anderson, we
find,
as did the examiner, that the portion of Anderson’s dryer
between fan 6 and the tops of reflectors 15’ constitutes an
“air distribution manifold,” said manifold having an “inlet
port” directly below the fan and “multiple discharge ports” in
the form of entrance ways 76’ defined by flanges 72’, 73’ that
are oriented for directing pressurized jets of air
(denominated “Gas Flow” in Figure 6) toward the travel path of
the web. Thus, Anderson teaches an air distribution manifold
as claimed. Moreover, the pressurized air flowing from the
air discharge ports 76’ of Anderson’s air distribution
manifold is directed to air flow apertures 35’ where it exits
to form an “air blanket,” as broadly claimed. As to the
claimed radiant heat lamp assembly, we note that appellants
have not specifically challenged the examiner’s position that
it would have been obvious to provide a plurality of
Anderson’s lamps 12’ in an assembly to thereby arrive at a
radiant heat assembly “including multiple [radiant] heat
lamps” as claimed. In any event, we note that the ends of
Anderson’s lamps 12’ are mounted in lamp holders 11 (see
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11
Figure 1 and column 3, lines 32-36). In our view, this
construction responds to the claim language calling for a
radiant heat assembly “including multiple [radiant] heat
lamps” supported
intermediate the travel path and the air distribution
manifold,
as called for in claim 21. Thus, Anderson appears to be
sufficient to establish obviousness within the meaning of 35
U.S.C. § 103 of the claimed subject matter.
Appellants argue that claim 21 “recites a radiant heat
lamp assembly supported intermediate the travel path and the
air distribution manifold. In Anderson, the lamps 12’ are
spaced further apart from the web than from the holes 35’”
(brief, page 8). This argument appears to misapprehend the
examiner’s reading of the claim language on Anderson.
Although appellants seem to be of the view that the examiner
considers holes 35’ of Anderson as corresponding to the
multiple discharge ports of the air distribution manifold, it
is clear that the examiner reads this claim limitation on the
Appeal No. 1998-1052
Application No. 08/683,600
See, for example, the sentence spanning pages 4-5 of the4
answer, wherein the examiner states:
The inlet port for the air distribution manifold is
located at the top of the manifold as seen in Fig. 6
where the air enters the manifold from the fan 6 and
a discharge port means 76 [sic, 76’] located at the
bottom of the manifold where the air passes from the
manifold [to] the heat lamp assembly. [Emphasis
added.]
12
entrance ways 76’ defined by Anderson’s flanges 72’, 73’,4
such that Anderson’s air distribution manifold
does not extend all the way down to the holes 35’, but instead
ends at entrance ways 76’. When considered in this manner, it
is clear that Anderson’s lamp assembly is supported
intermediate the travel path and the air distribution
manifold. Appellants also argue (reply brief, page 2) that
the pressurized air in Anderson does not define an air
blanket, however, it is not clear why the air flow impinging
on Anderson’s web cannot be considered an “air blanket” as
broadly claimed.
For the reasons discussed above, we conclude that
appellants’ arguments are not persuasive that the examiner has
Appeal No. 1998-1052
Application No. 08/683,600
13
failed to adduce evidence sufficient to establish obviousness
of the subject matter of claim 21. We shall therefore sustain
the standing § 103 rejection of claim 21.
Claim 22 depends from claim 21 and adds that each
discharge port of the air distribution manifold is centered
with respect to a pair of adjacent heat lamps, whereby each
pressurized air jet is directed through the longitudinal
spacing between a pair of heat lamps. Clearly, this is not
the case in Anderson, where discharge ports 76’ are aligned
directly over the respective heat lamps 12’ (see Figure 6).
Since the examiner has not explained how Anderson teaches or
suggests this claim feature, and since
it is not otherwise apparent to us how the Anderson reference
renders obvious the subject matter of claim 22, the standing
§ 103 rejection thereof shall not be sustained.
The standing § 103 rejection of dependent claims 23 and
24 shall not be sustained. These claims call for a reflector
plate disposed between the air distribution manifold and the
heat lamp assembly, with the reflector plate having multiple
air flow apertures for directing pressurized jets of air
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14
through the heat lamps and onto a substrate travel path. For
the reasons explained above in our discussion of claim 1,
Anderson fails to teach or suggest this arrangement.
Accordingly, the standing
§ 103 rejection of claims 23 and 24 is not sustainable.
Rejections (c) and (d)
Claim 5 depends from claim 1 and adds to claim 1 that the
dryer thereof includes an extractor head positioned below the
travel path of the substrate for collecting and extracting
moisture laden air. The examiner cites Bubley for its
teaching of a curing apparatus having a vacuum chamber 80
located below the articles to be cured and takes the position
that it would have been obvious to one of ordinary skill in
the art to provide a vacuum chamber below the travel path of
Anderson’s web. However, Bubley does nothing to cure the
deficiencies of Anderson
regarding the lack of any teaching or suggestion of providing
a
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15
reflector plate intermediate the air distribution manifold and
the heat lamp assembly having air flow apertures oriented for
directing jets of pressurized air through the heat lamp
assembly, as required by the last paragraph of base claim 1.
Accordingly, even if we were to agree with the examiner’s
position regarding the proposed modification of Anderson in
view of Bubley, the subject matter of claim 5 would not
result. It follows that the standing § 103 rejection of claim
5, and claim 6 that depends therefrom, is not sustainable.
Independent claim 18 is directed to a dryer comprising a
dryer head defining an air distribution manifold having an
inlet port and discharge port means, a radiant heat lamp
assembly comprising multiple heat lamps, and a support plate
facing the radiant heat lamps for guiding a freshly processed
substrate as it travels beneath the heat lamp assembly. In
rejecting this claim as being unpatentable over Anderson in
view of Bubley, the examiner observes (answer, page 5) that
“the top surface 82 of the extractor head of Bubley et al.
acts as a support for the substrate” and that “the vacuum
chamber [of Bubley] holds [articles] on the belt.” The
examiner then concludes (answer, page 5) that it would have
Appeal No. 1998-1052
Application No. 08/683,600
We note, for example, that the word “plate” may mean “[a]5
flat, smooth, relatively thin, rigid body of uniform
thickness” or “[a] flat piece of metal forming a machine
part.” Webster’s II New Riverside University Dictionary,
copyright © 1984 Houghton Mifflin Company.
16
been obvious “to supply the dryer of
Anderson with a support plate on the back side of the
substrate to support the substrate as taught by Bubley et al.”
While we appreciate that the extractor head 80 and conveyor
belt 30 of Bubley act to support articles being cured, we do
not agree with the examiner’s conclusion that these teachings
would have suggested the provision of a support plate in
Anderson. First, the top surface 82 of Bubley’s extractor
head comprises a porous surface like, for example, Bubley’s
baffle means 64 (column 4, lines 6-16). This construction, in
our view, cannot reasonably be considered a support “plate”
based on any appropriate definition of the word “plate” of
which we are aware. Similarly, Bubley’s endless porous5
conveyor belt 30 cannot reasonably be considered a support
“plate” as that word is used by appellants. Accordingly,
appellants’ argument (brief, page 9) to the effect that
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17
neither of the applied references teach or suggest a support
“plate” is well taken. Therefore, the standing rejection of
claims 18, as well as claim 20 that depends therefrom, is not
sustainable.
Claim 25 depends from claim 21 and adds to claim 21 that
the dryer thereof includes an extractor head positioned below
the
travel path of the substrate for collecting and extracting
moisture laden air. As noted above, Bubley pertains to a
curing apparatus having a vacuum chamber 80 located below the
articles to be cured. More specifically, Bubley discloses a
curing device that is similar to Anderson’s in that both
include a radiant heat lamp assembly to cure articles
(infrared or ultraviolet lamps 12’ of Anderson, ultraviolet
lamp 28 of Bubley) and both include a source of pressurized
air that forces air past a lamp assembly to cool the lamps
(fans 6 of Anderson, fans 28 of Bubley). In addition, Bubley
provides a vacuum extractor 80, 82 “[whereby] ozone that is
normally generated within the system is automatically
withdrawn and prevented from exiting into the surrounding
atmosphere” (column 4, lines 4-6).
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18
Taking into account that Anderson may utilize ultraviolet
lamps for drying and/or curing the coated substrate, it is our
view that it would have been obvious to provide a vacuum
extractor head of the type disclosed by Bubley in Anderson in
order to achieve Bubley’s stated purpose of preventing any
harmful ozone from escaping into the atmosphere. In this
regard, we note that one of the inherent problems associated
with the use
of ultraviolet light to cure articles is that the curing
apparatus outputs ozone (Bubley, column 3, lines 37-42).
Appellants argue (brief, page 9) that there is no
incentive to combine Anderson and Bubley because Anderson does
not disclose any concern regarding ozone. Appellants also
note (brief, page
9) that in their dryer the extraction head is used to extract
moisture laden air from the exposure zone, and imply that this
circumstance is significant because it is not expressly taught
by the references. Appellants further argue (reply brief,
page 2) that Anderson uses reflectors on both sides of the web
and that this construction teaches directly away from the use
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19
of an extractor as taught by Bubley. None of the above
arguments are persuasive.
As to the first argument, it is not a requirement for
obviousness that the motivation to combine references be found
exclusively in the primary reference. Instead, the requisite
motivation to combine may stem from teachings, suggestions or
inferences in the prior art as a whole or from the knowledge
generally available to one of ordinary skill in the art. See,
for example, Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d
1044, 1052, 5 USPQ2d 1434, 1439 (Fed. Cir.), cert. denied, 488
U.S. 825 (1988). In the present case, the motivation to
combine comes
from Bubley’s recognition of a problem associated with the use
of ultraviolet light to cure articles and with Bubley’s
solution to
that problem. Concerning the second argument, so long as some
motivation or suggestion to combine the references is provided
by the prior art taken as a whole, the law does not require
that the references be combined for the reasons contemplated
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Application No. 08/683,600
20
by the inventor. In re Beattie, 974 F.2d 1309, 1312, 24
USPQ2d 1040, 1042 (Fed. Cir. 1992); In re Dillon, 919 F.2d
688, 692-93, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990)(en banc),
cert. denied, 500 U.S. 904 (1991). Here, when Anderson
utilizes ultraviolet lamps to cure the substrate, the
incentive to provide an extraction head to prevent the escape
of ozone into the atmosphere is found in Bubley. Moreover, it
reasonably appears that the extractor head of the modified
Anderson would also collect and extract any moisture laden
air, as called for in claim 25. With regard to appellants’
third argument, Anderson teaches (column 1, last three lines)
that the radiating structure may be used on either one side or
both sides. In light of the foregoing, we shall sustain the
standing § 103 rejection of claim 25.
Claim 26 requires that the dryer includes a face plate
facing the radiant heat lamps. For the reasons given above in
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Application No. 08/683,600
21
our discussion of claim 18, the applied references do not
disclose or suggest a support plate for the substrate.
Accordingly, the standing § 103 rejection of claim 26, as well
as
claim 27 that depends therefrom, is not sustainable.
Claim 28 calls for the dryer of claim 25 to include a
first
extractor manifold along one side of the travel path and a
second extractor manifold along the laterally opposite side of
the travel path. The examiner has not explained, and it is
not apparent to us, where the applied references teach or
suggest this feature. Accordingly, the standing § 103
rejection of claim 28 is not sustainable.
Claim 29 is directed to a dryer comprising a dryer head
positioned in facing relationship to the processed side of a
substrate, a heat lamp assembly “disposed within the dryer
head,” and a reflector plate “disposed intermediate the dryer
head and the heat lamp assembly.” In that the heat lamp
assembly is required to be “disposed within” the dryer head,
it is not understood how the reflector plate can be “disposed
intermediate” the heat lamp assembly and the component (i.e.,
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22
the dryer head} within which the heat lamp assembly is
positioned. While we might speculate as to what is meant by
this claim language, our uncertainty provides us with no
proper basis for making the
comparison between that which is claimed and the prior art, as
we are obligated to do. Rejections based on 35 U.S.C. § 103
should not be based upon “considerable speculation as to the
meaning of the terms employed and assumptions as to the scope
of the claims.” In re Steele, 305 F.2d 859, 862, 134 USPQ
292, 295 (CCPA 1962). When no reasonably definite meaning can
be ascribed to certain terms in a claim, the subject matter
does not become obvious, but rather the claim becomes
indefinite. In re Wilson, 424 F.2d 1382, 1385, 165 USPQ 494,
496 (CCPA 1970). Accordingly, we are constrained to reverse
the examiner’s rejection of claim 29, as well as claim 30 that
depends therefrom, under 35 U.S.C.
§ 103. We hasten to add that this reversal is not based upon
any evaluation of the merits of the standing § 103 rejection
of these claims as being unpatentable over the applied
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Application No. 08/683,600
23
references and does not preclude the examiner’s advancement of
a rejection predicated upon that art against a definite claim.
Claim 31 is similar to claim 25, but adds further details
about the extractor head. Specifically, the extractor head is
stated to include a housing having inlet port means coupled in
flow communication with the exposure zone and a discharge port
for exhausting air from the printing press. Clearly, Bubley’s
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extractor head includes inlet port means 82 and a discharge
port
adjacent vacuum source 84, as called for in the claims.
Accordingly, for the reasons given in our discussion of claim
25
above, we also shall sustain the standing § 103 rejection of
claim 31.
New ground of rejection
Pursuant to our authority under 37 CFR § 1.196(b), we
reject claims 29 and 30 under 35 U.S.C. § 112, second
paragraph, as being vague and indefinite. As explained above
in our discussion of claims 29 and 30, it is not understood
how the reflector plate can be disposed intermediate the heat
lamp assembly and the component (i.e., the dryer head) within
which the heat lamp assembly is positioned.
Summary
The rejection of claims 1, 5, 6 and 21-28 under 35 U.S.C.
§ 112, second paragraph, is reversed as to claims 1, 5 and 6,
but is affirmed as to claims 21-28.
The rejection of claims 1 and 21-24 as being unpatentable
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Application No. 08/683,600
25
over Anderson is reversed as to claims 1 and 22-24, but is
affirmed as to claim 21.
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The rejection of claims 5, 6, 18, 20, 25-29 and 31 as
being unpatentable over Anderson in view of Bubley is reversed
as to claims 5, 6, 18, 20 and 26-29, but is affirmed as to
claims 25 and 31.
The rejection of claim 30 as being unpatentable over
Anderson in view of Bubley and Wimberger is reversed.
With respect to claims 29 and 30, we reiterate that our
reversal of the § 103 rejections thereof is a procedural
reversal rather than one based on the merits of these
rejections.
Pursuant to 37 CFR § 1.196(b), a new ground of rejection
of claims 29 and 30 has been made.
This decision contains a new ground of rejection pursuant
to 37 CFR § 1.196(b)(amended effective Dec. 1, 1997, by final
rule notice, 62 Fed. Reg. 53,131, 53,197 (Oct. 10, 1997), 1203
Off. Gaz. Pat. & Trademark Office 63, 122 (Oct. 21, 1997)).
37 CFR
§ 1.196(b) provides that “[a] new ground of rejection shall
not be considered final for purposes of judicial review.”
37 CFR § 1.196(b) also provides that appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of
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the following two options with respect to the new ground of
rejection to avoid termination of proceedings (37 CFR §
1.197(c)) as to the rejected claims:
(1) Submit an appropriate amendment of
the claims so rejected or a showing of facts
relating to the claims so rejected, or both,
and have the matter reconsidered by the
examiner, in which event the application will
be remanded to the examiner . . . .
(2) Request that the application be
reheard under § 1.197(b) by the Board of
Patent Appeals and Interferences upon the
same record . . . .
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART; 37 CFR § 1.196(b)
LAWRENCE J. STAAB )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JOHN P. McQUADE )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JOHN F. GONZALES )
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Administrative Patent Judge )
LJS:hh
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