Ex Parte Suetrong et alDownload PDFPatent Trial and Appeal BoardJan 17, 201813815811 (P.T.A.B. Jan. 17, 2018) 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. 13/815,811 03/16/2013 Nicholas Aruhn Aylor Suetrong AYLOR-US6 3156 7590 01/17/2018 Robert B. Aylor 9502 Bluewing Terrace Cincinnati, OH 45241 EXAMINER HARMON, CHRISTOPHER R ART UNIT PAPER NUMBER 3649 MAIL DATE DELIVERY MODE 01/17/2018 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 NICHOLAS ARUHN AYLOR SUETRONG and ROBERT BENSON AYLOR ____________ Appeal 2018-000605 Application 13/815,811 Technology Center 3600 ____________ Before LINDA E. HORNER, JEFFREY A. STEPHENS, and NATHAN A. ENGELS, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Nicholas Aruhn Aylor Suetrong and Robert Benson Aylor (Appellants) seek our review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claims 1, 10‒18, 21, and 22. Final Office Action (December 8, 2015) [hereinafter “Final Act.”]. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2018-000605 Application 13/815,811 2 CLAIMED SUBJECT MATTER Appellants’ claimed subject matter relates to “converting air movement into rotary mechanical action.” Specification 1 (filed March 16, 2013) [hereinafter “Spec.”]. Claim 1 is the sole independent claim and is reproduced below. 1. A structure for use in converting wind energy into rotational mechanical energy comprising a sail formed from flexible material which is a cup-like sail structure attached to at least one radial spoke mounted on a vertical rotatable axis, said cup-like sail structure having a central spar attached to said radial spoke at or near its outer end and going out from said radial spoke to the interior of the cup-like sail at its greatest depth where it is attached to said sail and said cup-like sail structure having one or more additional spars attached to said radial spoke in a plane approximately perpendicular to both a line drawn outward perpendicularly from the said radial spoke to the greatest depth of the said cup-like sail and to the direction of the wind when it is directed against the opening of said cup-like sail, and said sail being attached to said additional spars, either alone or also to the said radial spoke to help define the opening of said sail. Appeal Br. 19 (Claims Appendix). EVIDENCE The Examiner’s decision relies upon the following evidence: Willmouth US 4,329,593 May 11, 1982 Tornquist US 4,364,709 Dec. 21, 1982 Liu US 4,818,180 Apr. 4, 1989 Farrar US 5,553,996 Sept. 10, 1996 Miller US 5,997,252 Dec. 7, 1999 Sutz US 2013/0315732 A1 Nov. 28, 2013 Appeal 2018-000605 Application 13/815,811 3 REJECTIONS The Final Office Action includes the following rejections: 1. Claims 1, 10‒18, 21, and 22 stand rejected under 35 U.S.C. § 112(b) as indefinite. 2. Claims 1 and 10 stand rejected under 35 U.S.C. § 102(a)(1) as anticipated by Tornquist. 3. Claim 1 stands rejected under 35 U.S.C. § 102(a)(1) as anticipated by Miller. 4. Claims 10‒13 stand rejected under 35 U.S.C. § 103 as unpatentable over Tornquist and Liu. 5. Claims 10‒13, 21, and 22 stand rejected under 35 U.S.C. § 103 as unpatentable over Miller and Liu. 6. Claims 14 and 15 stand rejected under 35 U.S.C. § 103 as unpatentable over either Tornquist or Miller, Liu, and Farrar. 7. Claims 17 and 18 stand rejected under 35 U.S.C. § 103 as unpatentable over either Tornquist or Miller, Liu, and Sutz. 8. Claim 16 stands rejected under 35 U.S.C. § 103 as unpatentable over Willmouth and either Tornquist or Miller. ANALYSIS First Ground of Rejection: Indefiniteness Claim 1 Claim 1 recites the orientation of additional spars in relation to a line and the direction of the wind as follows: said cup-like sail structure having one or more additional spars attached to said radial spoke in a plane approximately perpendicular to both a line drawn outward perpendicularly Appeal 2018-000605 Application 13/815,811 4 from the said radial spoke to the greatest depth of the said cup- like sail and to the direction of the wind when it is directed against the opening of said cup-like sail. Appeal Br. 19 (Claims Appendix). The Examiner determined this claim limitation is indefinite because “a wind direction is not a constant direction for relative positioning purposes.” Final Act. 2. Appellants argue that the claimed direction of the wind is the direction at a specific point in time, and thus is constant at that time with respect to the sail. Appeal Br. 5. The claim recites the direction of the wind “when it is directed against the opening of the cup-like sail.” The wind direction can be directed against the opening of the cup-like sail at multiple points in time during movement of the sail. For instance, as sail 16 travels about its circular path, the angle at which the wind impinges against the opening of the sail changes. Contrary to Appellants’ assertion (Appeal Br. 5), the direction of the wind when it is directed against the opening of the cup-like sail is not defined clearly in the claim as corresponding to a line drawn outward perpendicularly from the radial spoke to the greatest depth of the cup-like sail. In other words, the wind can be “directed against the opening of the cup-like sail” at various angles. It is unclear how the claimed plane can be approximately perpendicular to the direction of wind throughout a wide range of angles while also being approximately perpendicular to a line drawn outward perpendicularly from the radial spoke.1 As such, we agree with the Examiner’s determination that this claim limitation is indefinite. 1 In the Reply Brief, Appellants contend that “the wind, flowing parallel to the ground, will clearly be perpendicular to the plane of the opening of the cup sail which is a vertical plane.” Reply Br. 2. Even if it were true that wind flows only parallel to the ground, this would not make the wind Appeal 2018-000605 Application 13/815,811 5 The Examiner also determined that this claim limitation is indefinite because multiple spars as depicted in the figures do not define a plane. Final Act. 2. Appellants argue that “[t]he spars referred to in the claims are not all the same” and that the “additional spars” in the claim correspond to spars 21 and 22, which are in the same plane. Appeal Br. 5. We agree with Appellants that this aspect of the claim is clear. Claim 1 defines a central spar, which lies between the radial spoke and the interior of the cup-like sail at its greatest depth, and one or more additional spars attached to the radial spoke and lying in a plane perpendicular to the central spar. One having ordinary skill in the art, reading the Specification, would understand that two types of spars are defined by the claims. Central spar 19 is shown in Figures 2 and 3 as being perpendicular to the plane defined by additional spars 21 and 22. For these reasons, we do not adopt the Examiner’s reasoning that this aspect of the claim limitation recited above is indefinite. Nonetheless, because we agree that the wind direction aspect of the claim limitation recited above is indefinite, we sustain the rejection of claim 1 under 35 U.S.C. § 112(b). Claims 10‒18, 21, and 22 As noted by the Examiner, claims 10‒18, 21, and 22 depend from canceled claim 9. Appellants attempted to correct this defect in an direction perpendicular to all planes that are vertically oriented with respect to ground. We understand a direction perpendicular to a plane to mean the direction of a line normal to the plane (i.e., the direction is perpendicular to all lines on the plane, not merely one line on the plane). Consistent with this understanding, there are only two directions perpendicular to a plane, and they extend in opposite directions from the plane. Appeal 2018-000605 Application 13/815,811 6 amendment filed after the date of the Final Office Action. The Examiner refused to enter this amendment. The Examiner’s refusal to enter this amendment is not an appealable matter. Accordingly, we sustain the indefiniteness rejection of claims 10‒18, 21, and 22 as depending from a canceled claim. The Examiner also determined that the preambles of claims 10‒13, 16‒18, 21, and 22, which refer to “[t]he cup-like sail structure,” and of claims 14 and 15, which refer to “[t]he electricity generation structure,” render these claims unclear. Appellants appear to intend claims 10‒13, 16‒ 18, 21, and 22 to further limit the structure of claim 1. See Appeal Br. 6 (“the only reasonable interpretation of Claim 10 is that it limits Claim 1.”). To the extent that the claims that recite “[t]he cup-like sail structure” in their preambles are intended to depend from and further limit the “structure” of independent claim 1, we agree with the Examiner that the scope of these claims, i.e., claims 10‒13, 16‒18, 21, and 22, is unclear because claim 1 is directed to “[a] structure for use in converting wind energy into rotational mechanical energy.” As such, we agree with the Examiner’s reasoning as to the indefiniteness of these claims. As to “electricity generation structure” of claims 14 and 15, Appellants argue that claim 13 provides a proper antecedent basis for the additional limitations found in these claims. Appeal Br. 6. Due to the inaccuracies in the dependencies of the claims, and the indefiniteness of claim 13, from which claims 14 and 15 depend, it is not clear whether claims 14 and 15 are meant to further limit the structure of claim 1, or to recite a separate electricity generation structure that incorporates only the electricity Appeal 2018-000605 Application 13/815,811 7 generator and rotatable axis of claim 13. As such, we agree with the Examiner’s reasoning as to the indefiniteness of these claims. Claim 15 The Examiner provides further reasoning for the indefiniteness of claim 15. Final Act. 3. Claim 15 refers to “said structure.” The claims from which claim 15 depend2 contain three separate structures, i.e., the “structure for use in converting wind energy into rotational mechanical energy” (claim 1), the “cup-like sail structure” (claims 10, 12, and 13), and “the electricity generation structure” (claim 14). We agree with the Examiner that the reference in claim 15 to “said structure” does not adequately make clear which “structure” of the preceding claims is being referred to, and thus renders claim 15 indefinite. Claim 21 The Examiner provides further reasoning for the indefiniteness of claim 21. Final Act. 3. Claim 21 depends from claim 10 and recites, in pertinent part, “wherein there are one or more added spars or ropes, optionally in a sleeve in the sail to minimize sideways movement.” Appeal Br. 20 (Claims Appendix). The Examiner states that it is unclear what the word “optionally” modifies. Final Act. 3. We disagree with the Examiner’s determination. Based on the placement of the commas in the claim, we understand “optionally” to refer to the option to dispose the spars or ropes “in a sleeve in the sail.” 2 Claim 15 depends from claim 14, which depends from claim 13, which depends from claim 12, which depends from claim 10. Appeal Br. 19‒20 (Claims Appendix). Appeal 2018-000605 Application 13/815,811 8 The Examiner also determines that it is unclear whether “one or more added spars or ropes” is referring to the additional spars of claim 1. Final Act. 3. We disagree with this reasoning provided by the Examiner. As noted by Appellants, the language of claim 21 clearly specifies the placement of the added spars or ropes and further states the specific purpose of the added spars or ropes so as to make clear that these recited “added spars or ropes” are in addition to the “additional spars” of claim 1. Appeal Br. 6. Nonetheless, claim 21 is indefinite by virtue of its dependency from claim 10, which we determined to be indefinite for the reasons discussed above. Claim 22 Claim 22 depends from claim 10 and recites in pertinent part, “wherein two of said cup-like sail structures are placed on opposite sides of said vertical rotatable axis to form a set.” Appeal Br. 20 (Claims Appendix). The Examiner determined the reference to “two of said cup-like sail structures” is unclear because claim 1 positively recites “a cup-like structure” and, thus, one cannot discern if claim 22 is referring to the cup- like structure of claim 1 or some additional structures. Final Act. 3. We agree with the Examiner that the claim is unclear in this regard. The claim language fails to explain the relationship between the “two of said cup-like sail structures” of claim 22 with the “cup-like sail structure” of claim 1 (assuming that claim 22 is intended to depend ultimately from claim 1). Furthermore, claim 22 is indefinite by virtue of its dependency from claim 10, which we determined to be indefinite for the reasons discussed above. Appeal 2018-000605 Application 13/815,811 9 For the reasons discussed supra, we sustain the rejection of claims 1, 10‒18, 21, and 22 under 35 U.S.C. § 112(b) as indefinite. Second Ground of Rejection: Anticipation of claims 1 and 10 by Tornquist3 The Examiner finds that Tornquist anticipates claim 1 because it discloses a vertical axis wind power converter comprising cup-like sail structures 22, a central spar 16, and additional spars 28 attached to radial spoke at the point marked 26 in Figures 1 and 2. Final Act. 3 (finding additional spars 28 are “positioned roughly perpendicular as claimed”). Appellants argue that Tornquist does not anticipate claim 1 because Tornquist does not have “one or more additional spars” attached to the radial spoke as called for in the claim to “help define the opening of said sail.” Appeal Br. 10. Appellants contend that Tornquist has a rigid structure due to Tornquist’s spars and there is no need for the claimed spars to help define the opening. Id. Claim 1 recites that the additional spars are “attached to said radial spoke in a plane approximately perpendicular to . . . a line drawn outward perpendicularly from the said radial spoke to the greatest depth of the said cup-like sail.” Appeal Br. 19 (Claims Appendix). As we understand this claim language, a line drawn outward perpendicularly from a rigid spoke 18 to the greatest depth of a flexible vane 22 of Tornquist, coincides with the longitudinal axis of the span of circular rigid member 16 that serves as the central spar for each vane 22. As such, to anticipate the claim, Tornquist’ 3 For purposes of the rejections under 35 U.S.C. §§ 102 and 103, we treat claims 10‒18, 21, and 22 as being dependent upon claim 1. Appeal 2018-000605 Application 13/815,811 10 additional spars (i.e., stay rods 28) must be attached to the radial spoke in a plane approximately perpendicular to this longitudinal axis. Tornquist’s cone-shaped flexible vanes 22 are maintained in a conical configuration by means of a plurality of stay rods 28, which are disposed equidistant about the circumference of the cone. Tornquist, col. 2, ll. 47‒53. The rods 28 extend beyond the cone at the small open end of the cone and are received by tubular holders 34, which are secured about the support 16 at predetermined locations. Id. at col. 2, ll. 64‒68. Adjacent rods 28 define a plane that intersects support 16, but due to the conical configuration of the vanes 22, the plane does not intersect support 16 at a right angle. Thus, we disagree with the Examiner’s finding that Tornquist’s stay rods 28 are attached to the radial spoke in a plane approximately perpendicular to a line drawn outward perpendicularly from the radial spoke to the greatest depth of the cup-like sail, as recited in claim 1. For this reason, we do not sustain the rejection of claims 1 and 10 as anticipated by Tornquist. Third Ground of Rejection: Anticipation of claim 1 by Miller Claim 1 recites “said cup-like sail structure having a central spar attached to said radial spoke at or near its outer end and going out from said radial spoke to the interior of the cup-like sail at its greatest depth where it is attached to said sail.” Appeal Br. 19 (Claims Appendix). Appellants contend that Miller does not anticipate claim 1 because “[t]here is no . . . central spar running from said radial spoke to the center of the cup disclosed in Miller.” Appeal Br. 12. The Examiner finds that Miller discloses a vertical axis wind power converter 10 comprising cup-like sail structures 20 formed of flexible material and having a central spar 46 mounted to radial spokes 22 and Appeal 2018-000605 Application 13/815,811 11 additional spars 40 in a perpendicular plane as claimed. Final Act. 4. Miller describes an armature 22, which includes a central hub 26 having a number of central support members 38 extending outwardly therefrom. Miller, col. 2, ll. 50‒52. We understand the Examiner to have found that the central support members 38 of armature 22 correspond to the claimed radial spokes. Miller describes that the central support members 38 are secured to a hub wall 26 and outer wall 28 of wings 20. Id. at col. 2, ll. 52‒54. Miller depicts ribs 46 as defined over the back side of wings 20 and comprising a central rib portion that extends from the hub wall 26 to the outer wall 28 of each wing 20, and lateral rib portions that extend perpendicularly to the central rib portion. The central rib portion of rib 46 appears to be attached to central support member 38 at the hub wall 26 of wing 20. This point of attachment is not near the outer end of the radial spoke, as claimed. Further, the Examiner has not shown how the central rib portion of rib 46 goes out from the central support member 38 to the interior of the wing 20 at its greatest depth where it is attached to the wing 20, as claimed. For these reasons, we do not sustain the rejection of claim 1 as anticipated by Miller. Fourth through Eighth Grounds of Rejection: Obviousness of claims 10‒18, 21, and 22 The remaining grounds of rejection under 35 U.S.C. § 103 depend on the same deficient findings as to the disclosures in Tornquist and Miller, that formed the basis of the anticipations rejections discussed above. Final Act. 4‒6. For the same reasons discussed above in the second and third grounds of rejection, we likewise do not sustain the fourth through eighth grounds of rejection of claims 10‒18, 21, and 22 under 35 U.S.C. § 103. Appeal 2018-000605 Application 13/815,811 12 DECISION The decision of the Examiner rejecting claims 1, 10‒18, 21, and 22 under 35 U.S.C. § 112(b) is affirmed. The decision of the Examiner rejecting claims 1, 10‒18, 21, and 22 under 35 U.S.C. §§ 102(a)(1) and 103 is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation