Ex Parte Vincze et al

Patent Trial and Appeal Board

Feb 23, 2017

11812598 (P.T.A.B. Feb. 23, 2017)

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.
11/812,598 06/20/2007 Albert M. Vincze MLP 7549.2 2463
321 7590 02/27/2017
SFNNTOFR POWFR N T T P EXAMINER
100 NORTH BROADWAY ESSEX, STEPHAN J
17TH FLOOR
ST LOUIS, MO 63102 ART UNIT PAPER NUMBER
1727
NOTIFICATION DATE DELIVERY MODE
02/27/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
uspatents @ senniger.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALBERT M. VINCZE, DOUGLAS G. CLARK,
VICTOR NASRI SALEH, MALCOM JOHN DEWAR, and
ROBERT W. FRITTS
Appeal 2016-003633
Application 11/812,598
Technology Center 1700
Before JEFFREY T. SMITH, CHRISTOPHER L. OGDEN, and
JANE E. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection2 of claims 1—15, 19-31, and 33.3 We have jurisdiction under 35
U.S.C. § 6(b).
1 Appellants identify the Real Party in Interest as MiTek Holdings, Inc.
Appeal Brief filed July 28, 2014 (“App. Br.”), 1.
2 Non-final Office Action entered February 24, 2014 (“Office Act.”).
3 Appellants canceled claims 16 and 17 in an amendment filed July 28, 2016
with the Appeal Brief. The Examiner consequently withdrew the rejections
of claims 16 and 17 under 35 U.S.C. § 112, second paragraph and 35 U.S.C.
§ 103(a) in the Answer entered December 18, 2015 (“Ans.”).
Appeal 2016-003633
Application 11/812,598
We AFFIRM.
STATEMENT OF THE CASE
The subject matter on appeal is generally directed to a method for
continuously producing battery paste. App. Br. 3. Details of the appealed
subject matter are recited in representative claim 1, which is reproduced
below from the Claims Appendix to the Appeal Brief:
1. A method for continuously producing battery paste for use
in a process for continuous production of pasted battery plates
comprising
feeding particulate lead oxide to an elongated reactor
mixer having a plurality of mixing paddles and conveying
paddles in series
wherein the mixing paddles are structurally distinct from
the conveying paddles,
continuously injecting water and sulphuric acid
sequentially to the lead oxide in the reactor mixer,
rapidly mixing and reacting the sulphuric acid with the
wetted particulate lead oxide to form a mixture for passage
through the elongated reactor mixer for a controlled retention
time in the reactor mixer under predetermined mixing and
conveying conditions
whereby the mixture is subjected to a ratio of mixing
paddles to conveying paddles in the reactor mixer of about 65:35
to 80:20, and
controlling the temperature of the mixture of lead oxide,
water and sulphuric acid as it passes through the elongated
reactor along the length of the reactor mixer for a maximum exit
temperature of a discharge product in the range of above 60°C to
about 80°C
whereby the rate of reaction of the sulphuric acid with the
lead oxide for the production of lead sulphate and the particle
size, homogeneity, consistency, density, plasticity and porosity
of the reaction product are controlled.
App. Br. 15, Claims Appendix (spacing added).
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Application 11/812,598
Appellants (App. Br. 4) request review of the following:
Rejection of claims 1—15, 19-31, and 33 under 35 U.S.C. § 103(a) as
obvious over Kwok et al. (US 6,454,977 Bl, issued September 24, 2002),
Brennan, Jr. et al. (US 3,618,902, issued November 9, 1971), Boden (US
2006/0216599 Al, published September 28, 2006), Matthew et al. (US
5,096,611, issued March 17, 1992), Mayer (US 2006/0093912 Al, published
May 4, 2006), and Chen et al. (US 2002/0124388 Al, published September
12, 2002).4 The rejections as provided by the Examiner appear in the Non-
final Office Action. (Office Act. 4—14).
Appellants argue all of the pending claims, with the exception of
claim 4, as a group based on claim 1. App. Br. 4—13. Therefore, for the
purposes of this appeal, we select claim 1 as representative of the rejected
claims and will also separately address claim 4.
DISCUSSION
Upon consideration of the evidence on this appeal record and each of
Appellants’ contentions, we affirm the Examiner’s rejections under 35
U.S.C. § 103(a) for the reasons set forth in the Office Action. We add the
discussion below primarily for emphasis.
Claim 1
The conventional process for producing battery paste involves batch
mixing procedures in which dry particulate lead oxide, water, sulphuric acid,
4 Appellants include claim 11 in the statement of the grounds of rejection to
be reviewed. It is noted that the Examiner fails to include a rejection of
claim 11 in the Non-Final Action. We will address the issues presented for
appeal as provided by Appellants.
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Application 11/812,598
and other ingredients are mixed together to produce a paste. Spec. 1,11. 16—
20. However, because battery paste produced by batch mixing techniques
lacks uniform ingredient composition and viscosity, attempts have been
made to produce battery paste in a continuous process to overcome these
shortcomings. Spec. 2,11. 11—18.
The Examiner finds that Kwok discloses a method for continuous
production of paste for lead acid batteries. Office Act. 3; Kwok col. 2,11.
42-43. The Examiner finds that Kwok discloses that the method includes
mixing water with lead oxide, reacting sulfuric acid with the lead oxide in
the mixture to yield lead sulfate compounds, and forming a paste comprising
lead sulfate crystals produced from the lead sulfate compounds. Office Act.
3; Kwok col. 2,11. 42-48. The Examiner finds that Kwok discloses that the
continuous production process is carried out using a continuous extrusion
apparatus in which a screw is positioned in an elongated barrel to form a
helical channel between the screw and the barrel, and the components of the
battery paste are introduced into the channel, which is rotated to mix the
components and convey them through the length of the channel. Office Act.
4; Kwok col. 2,11. 50-60; col. 7,11. 17—30. Kwok discloses that the
residence time (retention time) of the raw materials and resulting end
product in the screw extruder varies depending on the rates of reaction and
crystallization. Kwok col. 10,11. 5—9.
The Examiner acknowledges that Kwok does not disclose that the
screw extruder contains structurally distinct mixing and conveying paddles,
and the Examiner relies on Brennan’s disclosure of a continuous mixer
having structurally distinct mixing and conveying paddles that provides
highly efficient mixing of a wide variety of materials. Office Act. 5;
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Application 11/812,598
Brennan Abstract; col. 3,11. 50—63. Specifically, the Examiner finds that
Brennan discloses a continuous mixer that includes an elongated barrel or
casing housing shafts provided with interengaging or mating paddles. Office
Act. 5; Brennan col. 2,11. 17—19; col. 3,11. 38, 50-55. The Examiner finds
that Brennan discloses that certain of the mating paddles are twisted on a
helix to impart a forward conveying movement to material through the
barrel, while other mating paddles are straight and function primarily to mix
material in the barrel. Office Act. 5; Brennan col. 3,11. 55—63. The
Examiner finds that Brennan discloses that all straight paddles are utilized
when a very high retention time is required, and all helical paddles are used
when a very low retention time is required. Ans. 19; Brennan col. 5,11. 49—
52. The Examiner finds that Brennan discloses that the relative number of
straight and helical paddles and their arrangement can be varied to suit
different requirements for mixing, blending, shearing, and retention time,
thus establishing that the ratio of mixing to conveying paddles is a result-
effective variable. Office Act. 6; Brennan col. 5,11. 52—55.
The Examiner concludes that it would have been obvious to one of
ordinary skill in the art at the time of Appellants’ invention to utilize the
distinct paddle structure of Brennan’s continuous mixer in the continuous
extrusion apparatus disclosed in Kwok to provide highly efficient mixing as
disclosed in Brennan, thus arriving at the method of claim 1. Office Act. 5—
6.
Appellants argue that Kwok discloses that the helical screw extruder
imparts improved mixing action, and Appellants contend that one of
ordinary skill in the art therefore would not have had a reason to utilize
Brennan’s continuous paddle mixer in order to provide efficient mixing as
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Application 11/812,598
asserted by the Examiner, because Kwok’s extruder already achieves this
result. App. Br. 4—8.
However, as discussed above, Kwok discloses continuously producing
battery paste using a screw extruder that mixes and conveys raw materials
through an elongated barrel. Kwok col. 2,11. 42-43, 50-60; col. 7,11. 17—30.
Similarly, Brennan discloses a continuous mixer that efficiently mixes a
wide variety of materials, inclusive of materials such as battery paste, using
paddles that mix and convey the materials through a barrel. Brennan col. 2,
11. 17—19; col. 3,11. 38, 50—63; col. 5,11. 49—52. One of ordinary skill in the
art reasonably would have recognized—due to their similarities in purpose,
function, and effect—that the paddle mixer disclosed in Brennan was a
known alternative to the screw extruder disclosed in Kwok. Accordingly,
Appellants’ arguments do not persuade us of reversible error in the
Examiner’s determination that the combined disclosures of Kwok and
Brennan reasonably would have led one skilled in the art, through no more
than ordinary skill and creativity, to utilize the paddle mixer arrangement
such as described in Brennan in the continuous extrusion apparatus disclosed
in Kwok, with a reasonable expectation of successfully continuously
producing battery paste. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416
(2007)(“[W]hen a patent claims a structure already known in the prior art
that is altered by the mere substitution of one element for another known in
the field, the combination must do more than yield a predictable result.”); In
re Font, 675 F.2d 297, 301 (CCPA 1982)(“Express suggestion to substitute
one equivalent for another need not be present to render such substitution
obvious.”)
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Appellants further argue that Brennan’s disclosure of varying the
relative number of paddles from all straight paddles to all helical paddles is
so broad that it encompasses an excessive number of possible combinations
of straight and helical paddles, and fails to teach any particular ratio of
paddles, much less the ratio of mixing to conveying paddles recited in claim
I. App. Br. 8—9; Rep. Br. 4—5.
However, as discussed above, Kwok discloses that the residence time
(retention time) of raw materials and end product in the screw extruder
varies depending on the rates of reaction and crystallization. Kwok col. 10,
II. 5—9. As also discussed above, Brennan discloses that the relative number
of straight and helical paddles can be varied to suit a particular required
retention time. Brennan col. 5,11. 52—55. In view of these disclosures, we
agree with the Examiner that one of ordinary skill in the art reasonably
would have been led to determine the relative number of straight and helical
paddles to use in the continuous mixing apparatus of Kwok modified to
include the paddle mixer arrangement disclosed in Brennan (as discussed
above), to achieve the appropriate retention time based on rates of reaction
and crystallization, such as the ratio recited in claim 1, and would have had
sufficient skill to do so.5 In re Applied Materials, Inc., 692 F.3d 1289, 1297
(Fed. Cir. 2012) (“A recognition in the prior art that a property [or a result]
is affected by the variable is sufficient to find the variable result-effective.”);
5 Although the Examiner provides a series of calculations in the Answer to
further support the Examiner’s position (Ans. 15—16), the Examiner does not
adequately explain how the numbers used in the calculations were derived.
We accordingly do not base our Decision on this portion of the Answer, and
rely on the Examiner’s rationale supporting the conclusion of obviousness
set forth in the Office Action appealed from. Office Act. 6.
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In re Boesch, 617 F.2d 272, 276 (CCPA 1980) (“[DJiscovery of an optimum
value of a result effective variable in a known process is ordinarily within
the skill of the art.”). Appellants’ arguments are therefore unpersuasive of
reversible error.
Appellants further argue that the specific configuration of paddles
recited in claim 1 “is critical and resulted in unexpectedly good
characteristics in the battery paste.” App. Br. 9-10. In support of these
arguments, Appellants rely on the Declaration of Malcolm Dewar, an
inventor of the instant application, submitted to the Patent Office on April
30, 2012 (“Dewar Declaration”). Appellants further contend that numerous
disclosures in their Specification also demonstrate that the recited paddle
configuration unexpectedly produces substantially improved battery paste.
App. Br. 10-11.
When evidence of secondary considerations is submitted, we begin
anew and evaluate the rebuttal evidence along with the evidence upon which
the conclusion of obviousness was based. In re Rinehart, 531 F.2d 1048,
1052 (CCPA 1976).
Appellants do not meet their burden of demonstrating that the claimed
invention imparts results that would have been unexpected by one of
ordinary skill in the art at the time of the invention relative to the closest
prior art. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (“the burden of
showing unexpected results rests on he who asserts them”); In re Baxter
TravenolLabs., 952 F.2d 388, 392 (Fed. Cir. 1991) (“[W]hen unexpected
results are used as evidence of nonobviousness, the results must be shown to
be unexpected compared with the closest prior art.”).
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The statements in the Declaration compare the characteristics of
battery paste produced in a continuous mixer to battery paste produced by a
conventional batch process, as do the portions of the Specification identified
by Appellants in support of their assertion of unexpected results. Dewar
Declaration || 3—10; App. Br. 10-11 citing H 7, 9, 10, 32, 33, 45, 46, 54,
58; Table 1; and Figs. 7 and 8 of the application as published. Accordingly,
Appellants and the Declarant do not identify any showing directed to a
comparison between the claimed subject matter and the closest prior art—
Kwok. See generally Dewar Declaration and App. Br. Appellants’
arguments and the Declaration are therefore insufficient to rebut the
Examiner’s prima facie showing of obviousness. In re Woodruff, 919 F.2d
1575, 1578 (Fed. Cir. 1990) (“The law is replete with cases in which the
difference between the claimed invention and the prior art is some range or
other variable within the claims. These cases have consistently held that in
such a situation, the applicant must show that the particular range is critical,
generally by showing that the claimed range achieves unexpected results
relative to the prior art range.”).
Appellants further argue that the Dewar Declaration demonstrates a
long-felt need in the industry for continuous battery paste manufacture, and
contend that Kwok evidences failed efforts by others to manufacture battery
paste by a continuous process. App. Br. 9—10. Appellants and the Declarant
assert that the particular paddle configuration utilized in the continuous
process of the present invention satisfied this long-felt, unmet need. App.
Br. 9-10; Dewar Declaration || 4, 11.
However, Appellants do not supply sufficient evidence to demonstrate
that there was a long-felt, unsolved problem that was met by their invention.
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App. Br. 6-12; In re Mixon, 470 F.2d 1374, 1377 (CCPA 1973). Appellants
do not show that the solution to the problems associated with continuous
battery paste manufacture would not have been apparent to one of ordinary
skill in the art from the teachings of the cited references, including Kwok
and Brennan. App. Br. 9—10; In re Gershon, 372 F.2d 535, 539 (CCPA
1967) (Establishing long-felt need requires objective evidence showing
existence of a persistent problem recognized by those of ordinary skill in the
art for which a solution was not known.) As discussed above, Kwok
discloses that a method for continuously producing battery paste was known
in the art at the time of Appellants’ invention. Appellants and the Declarant
do not provide any evidence substantiating their position that Kwok’s
process was a “failed effort” that resulted in unusable battery paste. App.
Br. 9-10; Dewar Declaration || 4, 11. Thus, the Dewar Declaration lacks
adequate factual corroboration of the opinion that producing battery paste by
a continuous process was a long-unsolved problem in the art. Dewar Dec.
114,11.
Claim 4
Claim 4 indirectly depends from claim 1 and recites that the
controlled retention time in the reactor mixer is in the range of 30 to 45
seconds.
The Examiner acknowledges that Kwok does not explicitly teach the
retention time in the continuous extruder, but finds that Brennan discloses
that all straight paddles are employed when a very high retention time is
required, and all helical paddles are employed when a very low retention
time is required. Office Act. 6; Brennan col. 5,11. 49—56. The Examiner
concludes that “any optimization of the relative numbers of flat and helical
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Application 11/812,598
paddles necessarily involves an optimization of the retention time of the
mixer.” Office Act. 6
Appellants argue that Kwok does not disclose or suggest the retention
time recited in claim 4 in combination with the ratio of mixing to conveying
paddles recited in claim 1, and Appellants contend that Brennan does not
disclose a particular retention time. App. Br. 12. Appellants argue that
because of these lack of disclosures in Kwok and Brennan, the Examiner’s
statement that optimization of the relative numbers of flat and helical
paddles necessarily involves an optimization of the retention time “amounts
to an inherency rejection.” Id. Appellants contend that retention time
depends on many factors, including the length of the mixer, the number and
configuration of the paddles, and the rotation speed, and argue that retention
time in Kwok’s continuous extruder will therefore not necessarily be 30 to
45 seconds as recited in claim 4. Id.
However, as the Examiner points out, the rejection of claim 4 is not
based on inherency, but is based on Brennan’s suggestion of optimizing the
relative numbers of flat and helical paddles to achieve a desired retention
time. Ans. 19. As discussed above, Brennan discloses that the relative
number of straight and helical paddles affects the retention time in the
continuous mixer, and Kwok discloses that residence time (retention time)
varies depending on rates of reaction and crystallization in the continuous
extruder. Kwok col. 10,11. 5—9; Brennan col. 5,11. 49-56. One of ordinary
skill in the art seeking to achieve a desired retention time that would achieve
a particular level of reaction and crystallization reasonably would have been
led by Brennan’s disclosures to determine the relative number of straight and
helical paddles that would produce the desired retention time in the
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continuous mixer of Kwok modified to include the paddle mixer
arrangement disclosed in Brennan, such as a retention time recited in claim
4. Boesch, 617 F.2d at 276. Appellants’ arguments are therefore
unpersuasive of reversible error, and we accordingly sustain the Examiner’s
rejection of claim 4 under 35 U.S.C. § 103(a).
DECISION
In view of the reasons set forth above and in the Office Action, we
affirm the Examiner’s decision rejecting claims 1—15, 19—31, and 33 under
§ 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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