Ex Parte Zhang

Patent Trials and Appeals Board

Jun 20, 2019

13434316 - (D) (P.T.A.B. Jun. 20, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/434,316 03/29/2012 Richard Zhang
2352 7590 06/24/2019
OSTROLENK FABER LLP
845 THIRD A VENUE
NEW YORK, NY 10022
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P/3426-279 (V22678) 3112
EXAMINER
ZHOU, QINGZHANG
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
06/24/2019 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):
pat@ostrolenk.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD ZHANG
Appeal2018-008008
Application 13/434,316
Technology Center 3700
Before MICHAEL L. HOELTER, MICHAEL J. FITZPATRICK, and
WILLIAM A. CAPP, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1-16 as unpatentable under 35 U.S.C. § 103(a) over
Sesser (US 6,244,521 Bl, iss. June 12, 2001) and Avery (US 3,557,574, iss.
Jan. 26, 1971).2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 K-Rain Manufacturing Corporation is the real party in interest. Appeal
Br. 3.
2 A rejection of claim 16 under 35 U.S.C. § 102(a) has been withdrawn by
the Examiner. Ans. 5---6.
Appeal2018-008008
Application 13/434,316
THE INVENTION
Appellant's invention relates to rotary sprinklers. Spec. 1. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A distributor of a rotary sprinkler comprising:
a housing member including a plurality of curved grooves
formed on a bottom surface thereof to impart torque on the
distributor as water flows through the grooves;
a shaft positioned along a central axis of the distributor and
extending through the distributor such that the distributor is
rotatable on the shaft;
a viscous chamber formed in the housing and including a
viscous material;
a stator, fixed to the shaft and positioned in the viscous
chamber; and
a bearing provided in a top surface of the housing member,
configured to rotatably connect the distributor to the shaft and
to form a top of the viscous chamber, such that the distributor
rotates on the shaft, the bearing further comprising at least one
rib formed on a bottom surface thereof and extending toward
the stator, the rib having a spiral shape and inclined inward
toward the shaft and configured to avoid contact with the stator.
Claim 1
OPINION
Unpatentability of Claims 1-16
over Sesser and Avery
The Examiner finds that Sesser discloses the invention substantially as
claimed except for ribs that exhibit a spiral shape, for which the Examiner
relies on Avery. Final Action 3--4. The Examiner concludes that it would
have been obvious to a person of ordinary skill in the art at the time of the
invention to modify Sesser' s device by employing spiral ribs as taught by
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Application 13/434,316
Avery. Id. According to the Examiner, a person of ordinary skill in the art
would have done this to provide efficient coupling. Id.
Appellant argues that the applied art fails to disclose ribs that are
spiral shaped and inclined as claimed. Appeal Br. 9. Appellant argues that
Sesser's teeth 62 are not inclined inward. Id. Appellant concedes that
A very teaches spiral shaped ribs, but argues that A very is not combinable
with Sesser. Id. at 9-10. Appellant further argues that Sesser's alleged ribs
are not configured to avoid contact with the stator as required by claim 1.
Id. at 10. According to Appellant, "Sesser explicitly describes that the
teeth 62 are designed to mate with and contact the 'annular mating teeth 64'
of the stator." Id.
In response, the Examiner reiterates that Sesser teaches ribs that are
inclined toward the shaft. Ans. 6 ( citing Sesser, Figs. 1, 2, elements 62
and 64). The Examiner further states that Avery teaches ribs with a spiral
shape. Id. ( citing Fig. 2, elements 15 and 16). The Examiner, therefore,
concludes that the proposed combination teaches ribs that have a spiral
shape and are inclined toward the shaft as claimed. Id.
Further and with respect to the "avoid contact" limitation, the
Examiner states:
Sesser further discloses, in an operative state (Fig. 1 and Col. 4
lines 40-51) when the rotor plate (22) is pulled upwardly and
returned to the position shown in figure 1 such that the mating
arrays of the ribs (62) and the stator (34 and 64) will become
disengaged so that rotation of the rotor plate (22) will not cause
commensurate rotation of the shaft (Col. 4 lines 40-51 ), as a
result, the ribs (62) of Sesser is capable of avoiding contact
( disengaged) with the stator (34) when the rotor plate (22) is
pulled upwardly and returned to the position shown in figure 1.
Id. at 6-7.
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Application 13/434,316
In reply, Appellant directs our attention to Sesser, Figure 2, where
teeth 62 are in contact with and interact with teeth 64. Reply Br. 3.
Appellant also argues that the Examiner fails to provide a reason why one of
skill in the art would modify Sesser to include the teeth of Avery. Id.
Sesser is directed to a rotating stream sprinkler. Sesser, Abstract.
Sesser acknowledges that viscously damped sprinkler rotor plates were
known prior to Sesser's date of invention. Id. col. 1, 7-16. Sesser features
chamber 32 filled with viscous fluid. Id. col. 3, 11. 13-20, Figs. 1, 2. An
annular array of teeth 64 is disposed on the upper side of fixed stator 34. Id.
col. 4, 11. 3---6. A corresponding annular array of teeth 62 is disposed on the
lower side of rotor plate cap 30. Id. Stator 34 is disposed, in fixed relation,
to shaft 26. Id. col. 3, 11. 15-16. Shaft 26 is configured so that it may move
in an axial direction with respect to plug 35 at the top of chamber 32. Id.
Figs. 1, 2. Axial movement of shaft 26 causes teeth 62, 64 to either engage
or disengage. Id. (See Fig. 1 depicting disengagement, Fig. 2 depicting
engagement).
Appellant's argument that Sesser's teeth are not "inclined inward" is
not persuasive. As is evident in Figure 1, teeth 62, 64 are not disposed in a
horizontal orientation; nor are they disposed perpendicular to shaft 26.
Sesser, Fig. 1. Instead, they exhibit a slope or inclination in the direction
from radially outward to radially inward, toward shaft 26. Id. Such an
orientation and disposition accords with the teaching of Appellant's
Specification. See Spec. ,r 23 ("the ribs ... are inclined or sloped toward the
shaft 4").
We next consider whether Sesser' s teeth 62, 64 are "configured to
avoid contact" as claimed. Claims App. As previously discussed, Sesser' s
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Appeal2018-008008
Application 13/434,316
shaft 26 is capable of axial movement such that teeth 62 and 64 may be
either engaged or disengaged. Sesser, Figs. 1, 2. Sesser explains:
This movement is apparent from FIG. 2 which shows the
mating teeth 60 and 62 in engagement by reason of a downward
pressing action on the rotor plate 22. With the rotor plate and
stator so engaged, it will be appreciated that by rotating the
rotor plate, the shaft 26 as well as the baffle 38 at the lower end
of the shaft will rotate relative to the fixed core component 40.
Id. col. 4, 11. 12-18 (emphasis added). Sesser further explains that rotating
baffle 38 causes radially extending lobes 68 to rotate relative to stop
elements 70, which rotation operates to open or close ports 46a - d. Id.
col. 4, 11. 19--40. Sesser describes this function as an "adjustment mode."
Id. col. 3, 1. 67 - col. 4, 1. 1. Rotating the baffle adjusts the flow rate of
water. Id. col. 4, 11. 25-29.
Sesser then explains that, "after the flow adjustment," rotor plate 22 is
pulled upwardly and "returned to" the position shown in Figure 1 such that
arrays of teeth 62, 64 disengage so that rotation of rotor plate 22 will not
cause rotation of shaft 26. Id. col. 4, 11. 41--46. Thus, when water flows
through the sprinkler, water streams radially outward in a desired sprinkling
pattern. Id. col. 4, 11. 40-51.
[ A ]fter the flow adjustment described above, the rotor plate 22
is pulled upwardly and returned to the position shown in FIG. 1
such that the mating arrays of teeth 62 and 64 will become
disengaged so that rotation of the rotor plate 22 will not cause
commensurate rotation of the shaft 26. Thus, when water flows
through the nozzle 48 and impinges on the grooves 24, the rotor
plate 22 will rotate about the shaft 26 to distribute the water
stream radially outwardly in the desired sprinkling pattern, with
a reduced ( or increased) radius of throw and reduced ( or
increased) flow rate, depending on the adjustment.
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Application 13/434,316
Id. col. 4, 11. 40-51. With the foregoing in mind, Appellant's argument that
Sesser' s teeth are only disengaged "when the sprinkler is not in operation" is
not supported by the record. Appeal Br. 10. In our opinion, the Examiner's
finding that Sesser's teeth are "configured to avoid contact" is supported by
a preponderance of the evidence.
Avery is directed to a spiral toothed coupling. Avery, Abstract. The
coupling comprises juxtaposed face gears 10 and 11 secured to input and
output shafts. Id. col. 1, 11. 54--57. Avery discloses an axially engaging
clutch embodiment in which the face gears are slidably mounted. Id. col. 2,
11. 62---65. "Suitable means (not shown) could be employed for moving one
or both of the face gears axially for selective clutch engagement or
disengagement purposes." Id. col. 2, 11. 67---69.
This brings us to the question of whether it would have been obvious
to give Sesser' s teeth 62, 64 a spiral shape as taught by Avery. According to
the Examiner, a person of ordinary skill in the art would have modified
Sesser' s teeth to have a spiral shape - "for the purpose of providing efficient
coupling." Final Action 4. In the Reply Brief, Appellant argues that:
The Examiner has failed to identify an apparent reason why one
of skill in the art would modify Sesser to include the alleged
teeth of Avery. There is no discussion in Sesser of any
problems associated with the structure therein, nor is there any
indication in any of the cited art that there is any particular
advantage to including the alleged teeth of Avery. The
Examiner offers no response to this argument in the Examiner's
Answer, presumably since no response is possible.
Reply Br. 3 (emphasis added). We are unable to locate Appellant's alleged
"this argument" in the Appeal Brief. See generally Appeal Br. Instead, in
the Appeal Brief, Appellant makes a conclusory argument that it would not
have been obvious to modify Sesser to include the spiral teeth of Avery.
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Application 13/434,316
Appeal Br. 10. This is followed by an incomplete, truncated sentence: "As
is well established, the mere." Id. We are left to speculate what Appellant
would have actually said had the sentence/paragraph been completed. We
decide this case on the record before us. In fairness to the Examiner,
Appellant offers no coherent argument about the combinability of Sesser and
A very in the Appeal Brief, such that there is no real argument for the
Examiner to rebut in the Answer. We can hardly fault the Examiner for not
responding to an argument that Appellant never actually made in the Appeal
Brief.
Appellant's argument (Reply Br. 3) that Sesser does not admit of
problems associated with non-spiral teeth is not persuasive. The fact that the
prior art may already perform adequately does not preclude a skilled artisan
from seeking to improve upon it. See DyStar Textilfarben GmBH & Co, v.
C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) ("the desire to
enhance commercial opportunities by improving a product or process is
universal-and even common-sensical").
Sesser' s "flow adjustment" technique described above is reasonably
analogous to Avery's "axially engaging clutch" technique described above.
A very describes spiraling the gear teeth as making the coupling "efficient"
compared to conventional face couplings. Avery, col. 1, 11. 18--40.
On the record before us, we cannot say that the Examiner's reason to
combine (provide efficient coupling) is insufficient to support the rejection.
Although Sesser's teeth do not couple when sprinkling water, they do couple
when engaging in the "flow adjustment" technique. The record supports a
finding that spiraling the teeth improves coupling. It is well settled that, if a
technique has been used to improve one device, and a person of ordinary
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Application 13/434,316
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond his or her skill. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,417
(2007). Here, there is no evidence that spiraling Sesser's teeth requires more
than ordinary skill. The fact that Appellant's invention does not provide a
similar flow adjustment technique does not negate the fact that a practitioner
might seek to improve Sesser' s flow adjustment by spiraling the teeth as
taught by Avery. See In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006)
( explaining that a skilled artisan need not be motivated to combine the prior
art for the same reason as an inventor).
In the absence of evidence or persuasive technical reasoning to the
contrary from Appellant, making a coupling more efficient is an adequate
reason for modifying Sesser. See DyStar, 464 F.3d at 1368 (explaining that
an implicit motivation to combine exists when the improvement is
technology-independent and the combination of references results in a
product that is more efficient).
Id.
Because the desire to enhance commercial opportunities by
improving a product or process is universal-and even
common-sensical-we have held that there exists in these
situations a motivation to combine prior art references even
absent any hint of suggestion in the references themselves.
In view of the foregoing discussion, we determine the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner's unpatentability rejection of claim 1.
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Appeal2018-008008
Application 13/434,316
Claims 2-15
These claims are not separately argued apart from arguments that we
previously considered and found unpersuasive with respect to claim 1.
Consequently, we sustain the Examiner's rejection of claims 2-15. See 37
C.F.R. § 4I.37(c)(l)(iv) (failure to separately argue claims).
Claim 16
Claim 16 is an independent claim that is substantially similar in scope
to claim 1 except that it recites that the rib is "shaped to direct the viscous
fluid inward toward the shaft" instead of having a "spiral shape" - "inclined
inward" toward the shaft. Claims App. As with claim 1, claim 16 recites
that the rib does not contact other elements of the viscous chamber. Id.
Appellant argues that Sesser' s teeth are configured to contact each
other. Appeal Br. 11. We fully considered this argument and found it
unpersuasive with respect to claim 1, and we find it equally unpersuasive
here.
We sustain the Examiners unpatentability rejection of claim 16.
DECISION
The decision of the Examiner to reject claims 1-16 is affirmed.
AFFIRMED
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