Ex Parte Tansosch

Board of Patent Appeals and Interferences

Oct 24, 2003

09400932 (B.P.A.I. Oct. 24, 2003)

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for publication and is not binding precedent of the Board.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. 31
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte STEPHEN F. TANSOSCH
____________
Appeal No. 2003-0144
Application No. 09/400,932
____________
ON BRIEF
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Before ABRAMS, STAAB, and NASE, Administrative Patent Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection of claims 13 and
16 to 20. Claims 1 to 11 have been withdrawn from consideration. Claims 12, 14 and
15 have been canceled.
We REVERSE.
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BACKGROUND
The appellant's invention relates to pumping hose adapters which are particularly
useful to control the velocity of concrete pumped from a truck via a boom (specification,
p. 1). A copy of the claims under appeal is set forth in the appendix to the appellant's
brief.
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Henderson 493,719 Mar. 21, 1893
Metzger 4,838,465 June 13, 1989
Claims 13 and 16 to 20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Metzger in view of Henderson.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejection, we make reference to the answer
(Paper No. 27, mailed May 22, 2002) for the examiner's complete reasoning in support
of the rejection, and to the brief (Paper No. 26, filed May 6, 2002) and reply brief (Paper
No. 28, filed July 22, 2002) for the appellant's arguments thereagainst.
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OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. Upon evaluation of
all the evidence before us, it is our conclusion that the evidence adduced by the
examiner is insufficient to establish a prima facie case of obviousness with respect to
the claims under appeal. Accordingly, we will not sustain the examiner's rejection of
claims 13 and 16 to 20 under 35 U.S.C. § 103. Our reasoning for this determination
follows.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established by presenting evidence that would have led one of ordinary skill in the art to
combine the relevant teachings of the references to arrive at the claimed invention.
See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988) and In re
Lintner, 458 F.2d 1013, 1016, 173 USPQ 560, 562 (CCPA 1972).
Claim 20, the only independent claim on appeal, reads as follows:
A method for low velocity discharging pumped concrete in a substantially
splatter-free manner comprising the steps of supporting the output end of a
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discharge hose by a pumping adapter having at least two collars each having an
inner surface for contacting at least a portion of the circumference of said
discharge hose and a linkage removably secured to said at least two collars for
enabling said hose to move through a range of angles, forming a bend in the
discharge hose by applying a force having at least a normal component to at
least one of said collars such that said bend aids in imparting a controlled
substantially splatter free delivery, wherein said force is applied by said linkage.
Metzger's invention relates to the building and construction trades and to hose
guide means for the delivery of a high density material, such as concrete, to a
predetermined location at a work site. Metzger teaches in the BACKGROUND OF THE
PRIOR ART section of the patent (column 1, lines 18-48) that:
In any commercial and large scale construction projects, concrete is
delivered for pouring at given locations by means of a hose through which the
concrete is conveyed either by a gravity force or pumping means for delivery to a
predetermined location, such as a building form. The hose is a generally flexible,
circular tube, usually of the order of about 4 inches in diameter formed from a
flexible material such as reinforced fiber which is capable of withstanding the
abrasive force of continuous concrete flow. Such a hose is generally manipulated
by several construction workers, i.e. a work gang, who guide the hose and its
delivery of concrete to the intended form such as a foundation, wall, pillar or
other feature of the building to be formed from poured concrete.
As a well know, concrete has a very high weight per unit volume. In the
delivery of concrete by means of a hose, it is extremely difficult for the gang of
workers to manipulate the concrete delivery hose because of the weight of the
concrete in the hose and also because of the momentum induced in the hose
caused by the motion of the concrete through the hose. Usually a gang of up to
four or more workers is required to control and to hold the delivery hose in place
typically using chains or ropes as guides for the hose. Work on such a gang is
physically demanding and fatiguing. As a matter of common sense, the difficulty
in holding a chain or rope for an extended period of time during a work day--even
if gloves are used--is plainly evident. Thus, such concrete hose "gangs" require
frequent rest and personnel replacement.
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It is an object of Metzger's invention to provide an improved means by which a
construction worker on a hose gang is able to hold, control and manipulate a concrete
delivery hose. In Figures 1 and 2, Metzger teaches a bar guide for a concrete delivery
hose which includes a flexible connecting means between a clamp which attaches
to the hose and the bar handle. Operation of the invention is shown in Figure 4 wherein
concrete from a hopper 100 is to be delivered through hose 101 to a building form 102
which is at a distance from the hopper. Workers 103 and 104 are shown on a working
surface 105. The bar hose guides, such as shown in Figures 1 and 2 are affixed to the
hose at the end of the hose distant from the concrete source and proximate the
construction site location at which the concrete is to be delivered. The concrete being
poured is shown flowing from the delivery end of the hose at 106. A gravity fed system
is shown although pumped or other systems which force concrete through the hose are
also known. The bar guides thus shown in Figure 4 include the clamp means 200 for
securing connection around the outer diameter of the hose, flexible interconnection
means 201 between the clamp and the stem 202 of the bar, and bar crossing means
203 which are held at each end by the two hands of the construction workers. The bar
guides are thus manipulated in coordination by the work gang to guide the delivery end
of the hose to the form which is to receive the concrete. In this manner it can be seen
that the guide of the invention allows the workers to be separated a predetermined
distance from each other and from the hose. The workers are comfortably spaced and
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the bar means allows further flexible manipulation of the hose to guide the delivery
concrete. Using the bar guide, the workers my assume a more physiologically
comfortable and secure stance than would be possible if ropes or chains were used.
Metzger states (column 4, lines 36-40) that;
the depiction of FIG. 4 is of course figurative rather than literal and it is evident
that horizontal and pumped delivery of concrete through the hose and different
numbers of workers may be used in a hose gang employing the guide of the
invention.
Henderson's invention relates to devices for sustaining speaking or sound
transmitting tubes and is especially well adapted for the speaking tubes used in
connection with the phonograph, graphophone and kindred machines. Henderson
teaches (page 1, lines 13-28) that:
Heretofore it has been the practice to hold the speaking tube with one hand
while dictating to the machine. This very often is very inconvenient, and allows
the operator the use of only one hand for handling papers or for other uses. It is
very desirable often that the operator may have the use of both hands, and it is
with the foregoing difficulties in mind that this invention has been devised to
remove them and to give to the operator the freedom of both hands while
dictating to the machine, and also to avoid the necessity of picking up the tube
when the dictation is to be made and to lay it down when the dictation is to be
suspended.
Figure 1 of Henderson is a perspective of a phonograph speaking tube 1 with his
invention applied thereto. Figure 2 is a similar view on a smaller scale, and in which is
also shown by dotted lines two of the many positions to which the tube can be adjusted.
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1 After the scope and content of the prior art are determined, the differences between the prior art
and the claims at issue are to be ascertained. Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ
459, 467 (1966).
The speaking tube 1 is of flexible form in common use and has the usual mouth piece 2
and coupling 3 by which it is attached to the diaphragm of the machine not shown. A
first clamp 4 is secured around the tube 2 near the mouth piece 2 and a second clamp
16 is secured around the tube 2 near the coupling 3. The first clamp 4 is connected to
the second clamp 16 by means of adjustable arms 10 and 11.
Lastly, Henderson, teaches (page 3, line 123, to page 4, line 6) that:
It will be understood that the invention is not intended to be confined to
phonograph speaking tubes where it can be used with good results in other
forms of sound transmitters but it is as hereinbefore stated particularly well
adapted to phonograph and kindred machines.
It will also be apparent that the invention is capable of very wide
application, the forms illustrated in Figs. 4 to 8 admitting of the ball being turned
in the socket or the socket turned on the ball to carry an arm extending therefrom
to various angles of adjustment up or down or horizontally.
The same features of construction can be used in a support constituting a
telephone holder or an incandescent electric light support, as well as in other
kinds of supports.
In the rejection before us in this appeal (answer, pp. 3-4), the examiner
(1) ascertained1 that Metzger differs from the claimed subject matter in the linkage
being secured to the at least two collars; and (2) concluded that it would have been
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obvious to one having ordinary skill in the art at the time the invention was made to
have incorporated Henderson's teaching of a linkage (i.e., Henderson's adjustable arms
10 and 11) to the device of Metzger to allow for hands free positioning of the discharge
hose.
The appellant argues throughout both briefs that the applied prior art does not
suggest the claimed subject matter. We agree.
All the claims under appeal require the steps of (1) supporting the output end of
a discharge hose by a pumping adapter having at least two collars and a linkage
removably secured to the at least two collars for enabling said hose to move through a
range of angles; and (2) forming a bend in the discharge hose by applying a force
having at least a normal component to at least one of the collars such that the bend
aids in imparting a controlled substantially splatter free delivery, wherein the force is
applied by the linkage. However, it is our opinion that these limitations are not
suggested by the combined teachings of Metzger and Henderson. In that regard, while
Henderson does teach an apparatus similar in structure to the appellant's pumping
adapter, Henderson does not teach or suggest using that apparatus in the method set
forth in claim 20. The mere fact that the prior art could be modified in the manner
suggested by the examiner does not make such a modification obvious unless the prior
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art suggested the desirability of the modification. See In re Gordon, 773 F.2d 900, 902,
221 USPQ 1125, 1127 (Fed. Cir. 1984). In our view, the only suggestion for modifying
Metzger in the manner proposed by the examiner to meet the above-noted method
limitations stems from hindsight knowledge derived from the appellant's own disclosure.
The use of such hindsight knowledge to support an obviousness rejection under
35 U.S.C. § 103 is, of course, impermissible. See, for example, W. L. Gore and
Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220 USPQ 303, 312-13 (Fed. Cir.
1983), cert. denied, 469 U.S. 851 (1984).
For the reasons set forth above, the decision of the examiner to reject claim 20,
and claims 13 and 16 to 19 dependent thereon, under 35 U.S.C. § 103 is reversed.
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CONCLUSION
To summarize, the decision of the examiner to reject claims 13 and 16 to 20
under 35 U.S.C. § 103 is reversed.
REVERSED
NEAL E. ABRAMS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LAWRENCE J. STAAB ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
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Application No. 09/400,932
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