Ex Parte Stemmle

Board of Patent Appeals and Interferences

Jan 4, 2010

10896824 (B.P.A.I. Jan. 4, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DENIS J. STEMMLE
____________

Appeal 2009-001453
Application 10/896,824
Technology Center 3600
____________

Decided: January 4, 2010
____________

Before LINDA E. HORNER, JOHN C. KERINS, and
STEFAN STAICOVICI, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-001453
Application 10/896,824

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STATEMENT OF THE CASE
Denis J. Stemmle (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 1, 2, 4-13, and 15. Claims 3, 14, and
16-24 have been cancelled. We have jurisdiction over this appeal under 35
U.S.C. § 6 (2002).

THE INVENTION
Appellant’s invention relates to a mail stacker 10 including stacker
frame 78 having a support frame 280 mounted thereon, a pair of rotating
slotted discs 50 for receiving incoming mail, stack supports 90 for holding a
stack of mail 100, tongue (platform) 240 connected to stack supports 90, lift
mechanism 200 for lifting and tilting stack supports 90 to unload mail stack
100, and linkage bars 210, 220. Spec. 6-7, paras. [0035]-[0037] and figs. 2
and 3. The linkage bars 210 connect the stack supports 90 to the support
frame 280 at pivot points 212, 214. The linkage bars 220 connect the lift
mechanism 200 to the support frame 280 at pivot points 222, 224. Spec. 6,
para. [0036] and fig. 3. In operation, during stacking, the tongue (platform)
240 is located below the moving path 124 of the mail piece to be stacked.
Spec. 7, para. [0038] and fig. 4a. When unloading occurs, the operator
pushes lifting mechanism 200 upward which causes the tongue (platform)
240 to move upward along with the support stacks 90 so that the tongue
(platform) 240 reaches the bottom of the stack 100 and lifts it upward. Spec.
7-8, para. [0038] and fig. 4c.
Claim 1, the sole independent claim, is representative of the claimed
invention and reads as follows:
1. A stack unloading device for use in a stacker to unload stacked
items, the stacker comprising means for moving the stacked
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items along a stacking path, said device comprising:

means for supporting the stacked items, said supporting means
movable between a stacking position and an unloading position;

a platform connected to the supporting means so as to be
positioned beneath the stack below the stacking path when the
supporting means is in the stacking position; and

a linkage structure associated with the supporting means to
move the platform upward beyond the stacking path in order to
engage with the stack, to lift the stack, and to move the
supporting means from the stacking position to the unloading
position, thereby tipping the stack into a container for
unloading.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Hart US 2002/0189205 A1 Dec. 19, 2002

The following rejections are before us for review:
The Examiner rejected claims 2 and 13 under 35 U.S.C. § 112, second
paragraph, as being indefinite.
The Examiner rejected claims 1, 2, 4-13, and 15 under 35 U.S.C. §
102(b) as being anticipated by Hart.1

THE ISSUES
1. Has Appellant shown that the Examiner erred in determining that the
limitations of “a first pivot point” and “a second pivot point”, as

1 In the Examiner’s Answer, the heading of this rejection mistakenly
lists claim 3 as rejected; however, the Status of Claims section correctly
notes that claim 3 is cancelled. Ans. 2, 3.
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recited in claims 2 and 13, are indefinite under 35 U.S.C. § 112,
second paragraph?
2. Has Appellant shown that the Examiner erred in finding that Hart
teaches a linkage structure that “move[s] the platform upward beyond
the stacking path in order to engage with the stack,” as called for by
sole independent claim 1?

SUMMARY OF DECISION
We REVERSE.
FINDINGS OF FACT
The following enumerated findings of facts (FF) are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Hart teaches a stacking device 10 including a conveyor 12, an
upper support 18 having pairs of pins 118, a lower support 22
having fingers 154, and a transfer mechanism 24 having a
plurality of trays 172, each tray having a bottom wall 174, a slot
176, and side walls 178. Hart, p. 5, para. [0082]; p. 6, para.
[0087]; and figs. 2, 6, 7.
2. In operation, the patties 16 of Hart move along conveyor 12 and
fall onto fingers 118 of the upper support 18 to form a stack 20.
As the size of the stack 20 increases, the upper support 18
moves downward so that the top of stack 20 remains
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approximately at the same distance from the edge of conveyor
12. Hart, p. 7, para. [0092] and fig. 10.
3. As the upper support 18 descends, the pair of pins 118 pass to
either side of fingers 154 of lower support 22 so that the stack
20 is deposited on the lower support 22. Upper support 18 is
moved away so that additional patties 16 fall from conveyor 12
onto the stack 20 on lower support 22. Hart, p. 7, para. [0093]
and fig. 11.
4. When the stack 20 has grown to its finished size, the lower
support 22 descends and fingers 154 pass through slot 176 in
the bottom wall 174 of the trays 172 of the transfer mechanism
24 so as to leave the stack 20 supported on the transfer
mechanism 24. Hart, p. 7, para. [0094] and fig. 12.
5. The transfer mechanism 24 includes a linkage system that
rotates and translates trays 172 holding stack 20 toward
discharge location 228. Hart, p. 7, para. [0095] and fig. 13.

OPINION
Issue (1)
The Examiner takes the position that because claims 2 and 13
positively recite two instances of “a first pivot point” and two instances of
“a second pivot point,” it is unclear whether the claimed device includes two
linkages having separate and unique pivot points or two linkages that share
two pivot points. Ans. 12. Hence, according to the Examiner, “claims 2
and 13 are indefinite under 35 U.S.C. 112, second paragraph.” Id.
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Although we appreciate the Examiner’s position that each of claims 2
and 13 calls for two instances of “a first pivot point” and two instances of “a
second pivot point,” we note that the claim language specifically requires “a
first linkage” connected at a first pivot point and at a second pivot point, and
“a second linkage” connected at a first pivot point and a second pivot point.
Hence, each of the claimed first and second linkages connects specifically to
a first and a second pivot point.
It is well established that the test for definiteness under 35 U.S.C. §
112, second paragraph, is whether "those skilled in the art would understand
what is claimed when the claim is read in light of the specification."
Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed.
Cir. 1986) (citations omitted). In this case, Appellant’s Specification
describes linkage bars 210 (second linkage) and 220 (first linkage). Linkage
bar 210 connects at a first pivot point 214 and at a second pivot point 212.
Similarly, linkage bar 220 connects at a first pivot point 224 and at a second
pivot point 222. Spec. 6, para. [0036] and fig. 3. Further, the Specification
describes that the distance between upper pivots 222, 224 (pivot points of
the first linkage) is smaller than the distance between lower pivot points 212,
214 (pivot points of the second linkage). Spec. 7, para. [0037] and fig. 3.
Hence, when read in light of the Appellant’s Specification, we agree with
Appellant that the claim language clearly describes that each of linkages 210
and 220 has a first and a second pivot point. Br. 10. Accordingly, we
conclude that claims 2 and 13 are not indefinite under 35 U.S.C. § 112,
second paragraph, for failing to particularly point out and distinctly claim
the subject matter which the Appellant regards as the invention. Therefore,
this rejection of claims 2 and 13 cannot be sustained.
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Issue (2)
Independent claim 1 requires a linkage structure that moves the
platform upward in order to engage with the stack and lift the stack so as to
move the supporting means from the stacking position to an unloading
position.
The Examiner finds that Hart teaches a stack unloading device 24
including a linkage structure (160, 184, 193, 194, 198, 202), supporting
means 172, and a platform 174. According to the Examiner, the stack
unloading device lifts and pivots a stack 20 in a counterclockwise direction
from a stacking position presented in Figure 12 to an unloading position,
presented in Figure 13, that requires “the upward movement of stack
unloading device 24 to meet a stack.” Ans. 5, 6.
Although we agree with the Examiner that the transfer mechanism 24
of Hart constitutes a stack unloading device, we disagree that the linkage
structure of Hart moves the platform 174 upward in order to engage with the
stack and lift the stack, as called for by independent claim 1. As noted
above, the stacking device 10 of Hart includes a transfer mechanism 24
(stack unloading device) having a plurality of trays 172, each tray having a
bottom wall 174, a slot 176, and side walls 178, and a linkage mechanism
that rotates and translates trays 172 holding stack 20 toward discharge
location 228. FF 1, 5. In operation, the stack 20 begins to form on a pair of
fingers 118 of upper support 18. FF 2. As the size of the stack 20 increases,
the upper support 18 moves downward, until the pair of pins 118 of the
upper support 18, holding the stack 20, pass to either side of fingers 154 of
lower support 22 so that the stack 20 is deposited on the lower support 22
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and continues to grow. FF 2, 3. Finally, when the stack 20 has grown to its
finished size on the lower support 22, the lower support moves downward so
that fingers 154 pass through slot 176 in the bottom wall 174 of one of the
trays 172 of the transfer mechanism 24 and deposits the stack 20 onto the
bottom wall 174 (platform). FF 4. Hence, the linkage system of Hart does
not move the platform 174 (bottom wall of tray 172) upward in order to
engage with the stack, as called for by independent claim 1. Rather, the
linkage system of Hart moves the stack 20 downward to be deposited on the
platform 174 (bottom wall of tray 172). Accordingly, Hart does not teach all
the elements of independent claim 1. "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. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987).
Since Hart does not teach all the elements of independent claim 1, the
rejection of claims 1, 2, 4-13, and 15 under 35 U.S.C. § 102(b) as anticipated
by Hart cannot be sustained.

CONCLUSIONS
1. Appellant has shown that the Examiner erred in determining that the
limitations of “a first pivot point” and “a second pivot point”, as
recited in claims 2 and 13, are indefinite under 35 U.S.C. § 112,
second paragraph.
2. Appellant has shown that the Examiner erred in finding that Hart
teaches a linkage structure that “move[s] the platform upward beyond
the stacking path in order to engage with the stack,” as called for by
sole independent claim 1.
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Application 10/896,824

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DECISION
The Examiner’s decision to reject claims 1, 2, 4-13, and 15 is
reversed.

REVERSED

mls

PITNEY BOWES INC.
35 WATERVIEW DRIVE
MSC 26-22
SHELTON, CT 06484-3000