Ex Parte Weskamp et al

Board of Patent Appeals and Interferences

Dec 31, 2003

09320149 (B.P.A.I. Dec. 31, 2003)

1
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not written for publication and is not binding precedent of the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. 24
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte ROBERT J. WESKAMP and JAMES A. MORBECK
__________
Appeal No. 2004-0221
Application 09/320,149
___________
ON BRIEF
___________
Before PAK, WARREN and OWENS, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal is from the final rejection of claims 21-34,
which are all of the claims pending in the application.
Appeal No. 2004-0221
Application 09/320,149

2
THE INVENTION
The appellants claim a conveyor system having a specified
lubricator. Claim 21 is illustrative:
21. A conveyor system comprising:
a guide track having a guide surface and an aperture;
a conveyor chain supported by the guide track for movement
relative to the guide track, the conveyor chain including a
plurality of interconnected links, a lower surface of at least
one link contacting the guide surface of the guide track when the
conveyor chain is moved by a drive means; and
a lubricator including a chamber for storing a lubricant and
means for forcing lubricant from the chamber through an outlet in
the chamber, the outlet of the chamber being in fluid
communication with the aperture in the guide track, the means for
forcing lubricant from the chamber continuously forcing lubricant
from the chamber and through the aperture in the guide track when
the means for forcing lubricant from the chamber is connected to
a source of electric current contained within the lubricator,
the outlet of the lubricator and the aperture in the guide
track being connected in fluid communication by a conduit and an
adapter block, the conduit being connected to the outlet of the
lubricator and a port in the adapter block, said port being
oblong and presenting a single stream of outwardly flowing
lubricant, and said port having a longitudinal axis transverse to
the direction of said movement of said chain, the adapter block
being connected to the aperture in the guide track, the adapter
block having a projection dimensioned to fit into the aperture in
the guide track and having a passageway extending from the port
to an opening in the projection whereby lubricant is forced from
the chamber through the conduit and out of the opening in the
projection in the adapter block,
Appeal No. 2004-0221
Application 09/320,149

1 A rejection of claims 21-25 and 28-31 under 35 U.S.C.
§ 102(b) over Egger is withdrawn in the examiner’s answer
(page 3).
3
whereby a lubricating film is continuously formed between
the guide surface of the guide track and the lower surface of
each link that contacts the guide surface of the guide track when
the means for forcing lubricant from the chamber is connected to
the source of electric current.
THE REFERENCES
Orlitzky et al. (Orlitzky) 4,023,648 May 17, 1977
Egger 4,926,971 May 22, 1990
Gerhardt 5,626,470 May 6, 1997
THE REJECTIONS
The claims stand rejected under 35 U.S.C. § 103 as follows:
claims 21-25 and 28-31 over Egger in view of Gerhardt, and
claims 26, 27 and 32-34 over Egger in view of Gerhardt and
Orlitzky.1
OPINION
We reverse the aforementioned rejections.
Each of the appellants’ independent claims requires a port
which is oblong and presents a single stream of outwardly flowing
lubricant.
Egger discloses a drag chain conveyor system having
carriers (5) provided with holders (6), each holder being joined
to a link (7) of an endless conveyor chain and partly surrounding
Appeal No. 2004-0221
Application 09/320,149

4
two guide rails (4) (col. 2, lines 31-34; figure 1). Lubricant
passes through a plurality of bores (10) of a channel (8) in each
guide rail (col. 2, lines 54-56; figure 2). Some of the bores
are along a side of the channel and point toward the carriers,
and other bores are at an end of the channel and point, either in
the longitudinal direction of the channel or at an oblique angle
thereto (figure 1), toward the holder.
Gerhard discloses a thrust bearing having a thrust bearing
plate (34) with radially-oriented oval-shaped openings (46) which
supply lubricant directly onto the surfaces of bearing pads (38)
on the thrust bearing plate (col. 3, lines 21-30; col. 4,
lines 55-58; col. 5, lines 8-23; figure 2).
For a prima facie case of obviousness to be established, the
teachings from the prior art itself must appear to have suggested
the claimed subject matter to one of ordinary skill in the art.
See In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 147 (CCPA
1976). The mere fact that the prior art could be modified as
proposed by the examiner is not sufficient to establish a prima
facie case of obviousness. See In re Fritch, 972 F.2d 1260,
1266, 23 USPQ2d 1780, 1783 (Fed. Cir. 1992). The examiner has
not carried the burden of explaining why the applied references
themselves would have fairly suggested, to one of ordinary skill
Appeal No. 2004-0221
Application 09/320,149

5
in the art, substituting Gerhardt’s oval-shaped aperture for
lubricating a thrust bearing plate for Egger’s structure for
lubricating carriers and holders attached to chain links.
The examiner argues that one of ordinary skill in the art
would have been motivated to substitute one of Gerhard’s oval-
shaped openings for Egger’s plurality of bores to maintain the
required lubricating film thickness between the moving and
stationary surfaces and to increase the efficiency of the chain
(answer, page 7). The examiner, however, provides no evidence
that there is a desirability for replacing Egger’s multiport
structure with another structure to maintain the required
lubricating film thickness or that the use of Gerhardt’s oval-
shaped aperture instead of Egger’s multiport structure would
increase the efficiency of the chain. The examiner has provided
mere speculation, and such speculation is not a sufficient basis
for a prima facie case of obviousness. See In re Warner, 379
F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389
U.S. 1057 (1968); In re Sporck, 301 F.2d 686, 690, 133 USPQ 360,
364 (CCPA 1962).
The examiner argues that the use of one port instead of
several ports is an obvious design choice based upon the
particular lubricant and mating surfaces to be lubricated
Appeal No. 2004-0221
Application 09/320,149

6
(answer, pages 9 and 12). The examiner has provided no evidence,
however, that one of ordinary skill in the art would have
considered Gerhardt’s oval-shaped port for lubricating a thrust
bearing plate to be desirable for any combination of Egger’s
lubricant and carrier/holder surfaces.
The examiner argues that the width-wise coverage of
Gerhardt’s oval-shaped aperture would be the same as that of
Egger’s multiport structure (answer, page 10). Egger’s multiport
structure provides lubricant both in the direction of the carrier
and in the direction of the holder (figure 1). The examiner has
not established that the same or substantially the same coverage
would be provided by Gerhardt’s oval-shaped aperture.
The examiner argues that it would be a matter of common
sense that lubricant would move over surfaces around a port
regardless of whether the port is part of a rotating ring or a
stationary straight surface. This argument is not well taken
because “‘[c]ommon knowledge and common sense,’ even if assumed
to derive from the agency’s expertise, do not substitute for
authority when the law requires authority.” In re Lee, 277 F.3d
1338, 1345, 61 USPQ2d 1430, 1435 (Fed. Cir. 2002). Moreover,
even if lubricant flows around any port, the examiner has not
established that the flows around the oval-shaped aperture of
Appeal No. 2004-0221
Application 09/320,149

7
Gerhardt and the multiport structure of Egger, wherein lubricant
flows toward the carrier and in a different direction toward the
holder, are such that one of ordinary skill in the art would have
been led to substitute Gerhardt’s oval-shaped aperture for
Egger’s multiport structure.
The examiner does not rely upon Orlitzky for any disclosure
that remedies the above-discussed deficiency in Egger and
Gerhardt.
For the above reasons we conclude that the examiner has not
carried the burden of establishing a prima facie case of
obviousness of the appellants’ claimed invention.
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Application 09/320,149

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DECISION
The rejections under 35 U.S.C. § 103 of claims 21-25 and 28-
31 over Egger in view of Gerhardt, and claims 26, 27 and 32-34
over Egger in view of Gerhardt and Orlitzky, are reversed.
REVERSED
)
CHUNG K. PAK )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES F. WARREN )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
TERRY J. OWENS )
Administrative Patent Judge )
TJO/ki
Appeal No. 2004-0221
Application 09/320,149

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David I. Roche
Baker & McKenzie
130 E. Randolph Drive
Chicago, IL 60601