Horizon Systems, Inc.

Patent Trials and Appeals Board

Apr 2, 2020

14936446 - (D) (P.T.A.B. Apr. 2, 2020)

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.
14/936,446 11/09/2015 TODD E. BAKER 179511-2.2 8776
97242 7590 04/02/2020
Kutak Rock LLP
2300 Main Street, Suite 800
Kansas City, MO 64108
EXAMINER
DILLON JR, JOSEPH A
ART UNIT PAPER NUMBER
3651
NOTIFICATION DATE DELIVERY MODE
04/02/2020 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):
patents@kutakrock.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TODD E. BAKER
____________

Appeal 2019-005637
Application 14/936,446
Technology Center 3600
____________

Before STEFAN STAICOVICI, BENJAMIN D. M. WOOD, and
ANNETTE R. REIMERS, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2019-005637
Application 14/936,446

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STATEMENT OF THE CASE1

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject under 35 U.S.C. § 103(a) claims 2–17 as unpatentable over
Goebels and Evans (US 3,836,288, issued Sept. 17, 1974). Claim 1 has been
withdrawn from consideration. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

CLAIMED SUBJECT MATTER
The claimed subject matter “relates generally to a continuous dense
phase pneumatic conveying system used to transport particulate material.
Particularly, the inventive concept relates to [a] mechanically-controlled,
vacuum inlet throttling . . . method[].” Spec. ¶ 2, Figs. 3–6.
Claim 2, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
2. A method of mechanically controlling air mass flow rate
in a particulate material continuous dense phase pneumatic

1 The Examiner indicates that the following grounds of rejection have been
withdrawn. (1) The rejection of claims 2–17 under 35 U.S.C. § 101 for
patent ineligible subject matter; (2) The rejection of claims 2–17 under 35
U.S.C. § 112, second paragraph, for indefiniteness; and (3) The rejection of
claims 2–17 under 35 U.S.C. § 103(a) as unpatentable over Goebels (US
2,192,287, issued Mar. 5, 1940) and Wellink (US 4,884,923, issued Dec. 5,
1989). Examiner’s Answer (“Ans.”) 3, dated May 15, 2019; see also Final
Office Action (“Final Act.”) 2–5, dated Feb. 26, 2018; Appeal Brief
(“Appeal Br.”) 5, filed Jan. 28, 2019.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Horizon
Systems, Inc. Appeal Br. 2.

Appeal 2019-005637
Application 14/936,446

3
conveyance system having a conveyance line with a vacuum side
and a pressure side, said method comprising:
utilizing air pressure on the pressure side of the
conveyance line to mechanically move an obstruction element
relative to an opening collar on the vacuum side of the
conveyance line, the obstruction element being moveable
between a first position displaced from the opening collar and a
second position adjacent to the opening collar.

ANALYSIS

Independent claim 2 is directed to a method of mechanically
controlling air mass flow rate in a particulate material continuous dense
phase pneumatic conveyance system including an obstruction element
mechanically moveable between a first position displaced from an opening
collar and a second position adjacent to the opening collar. Appeal Br. 9
(Claims App.). The Examiner finds that Goebels discloses the method of
claim 2 but “lacks an obstruction element biased closed.” See Final Act. 4.
The Examiner finds that Evans “shows a pressure & vacuum side straddling
the prime mover” and “teach[es] an obstruction element biased closed,
controlling flow to the prime mover, in a pneumatic conveyor conveying
particulate material.” Id. The Examiner concludes that it would have been
obvious to a skilled artisan to modify Goebels “to provide closed biasing in
order to either increase efficiency or accommodate practical considerations
as taught by . . . Evans.” Id. at 5.
Based on our understanding, the Examiner is proposing to provide the
closed biasing obstruction element of Evans for the obstruction element 10
of Goebels. See Ans. 5; see also Final Act. 4–5. Additionally, the Examiner
takes the position that “routine use of an apparatus is obvious in view of
prior art disclosing all the recited structure of said apparatus” and that if
Appeal 2019-005637
Application 14/936,446

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Goebels “had for example, a spring biased obstruction element, a feature(s)
commonly employed in industry, Goebels would entirely anticipate the
apparatus in use in Appellant’s claimed invention; rendering the method
obvious.” Ans. 5.
Appellant contends that the Examiner “fails to provide motivation for
making such [a proposed modification] . . . , making it impossible for such
[an] alleged [modification] to render the associated method obvious.” See
Reply Br. 43; see also Appeal Br. 5. In particular, Appellant contends that
the Examiner “fails to explain how modifying Goebels to provide closed
biasing could possibly increase efficiency or accommodate practical
considerations.” Reply Br. 3. According to Appellant, the efficiencies and
practical considerations disclosed in Evans “are associated with reducing or
eliminating a ‘delay [that] is inherently required for transition between the
vacuum and pressure modes of operation, since the blower must be stopped
and then started to rotate in the opposite direction each time a change of
mode occurs.’” Id. at 3–4 (citing Evans, 1:33–37). Thus, Appellant
concludes that the Examiner “fails [to] explain what delays or other
inefficiencies allegedly plague [] Goebels[’] system” and “[t]o the extent
that [] Goebels[’] system includes any delays or other inefficiencies, [the]
Examiner fails to explain how closed biasing could possibly address such
inefficiencies.” Id. at 4.
We agree with Appellant that what is lacking is an articulated reason
supported by rational underpinnings as to why a skilled artisan would have
been prompted to provide the closed biasing obstruction element of Evans

3 Reply Brief (“Reply Br.”), filed July 15, 2019.
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Application 14/936,446

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for the obstruction element of Goebels to arrive at the claimed subject
matter. In this case, the Examiner fails to explain how or why providing the
closed biasing obstruction element of Evans for the obstruction element of
Goebels would “increase [the] efficiency [of] or accommodate practical
considerations [in]” the apparatus of Goebels. See Final Act. 4–5; see also
Ans. 4–7; Reply Br. 3–4. Stated differently, the Examiner fails to provide
sufficient evidence or technical reasoning to establish that the obstruction
element of Goebels is inadequate to “accurately control the flow of material
in the discharge conduit,” such that a different obstruction element is
necessary or more efficient. See Final Act. 4–5; see also Ans. 4–7; Reply
Br. 3–4; Goebels 2, col. 1:47–49, Fig. 1. Consequently, we agree with
Appellant that the Examiner fails to provide an articulated reason supported
by rational underpinnings for proposing such a modification. See Reply Br.
3–4; see also Appeal Br. 5.
Accordingly, we do not sustain the Examiner’s rejection of claims 2–
17 as unpatentable over Goebels and Evans.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
2–17 103(a) Goebels, Evans 2–17

REVERSED