Omega CM Delta LLC

Patent Trials and Appeals Board

Sep 29, 2021

2020006354 (P.T.A.B. Sep. 29, 2021)

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.
15/012,676 02/01/2016 Daniel Paige P10885US01 5312
133690 7590 09/29/2021
Goodhue, Coleman & Owens, P.C.
12951 University Ave
Suite 201
Clive, IA 50325
EXAMINER
SORKIN, DAVID L
ART UNIT PAPER NUMBER
1774
NOTIFICATION DATE DELIVERY MODE
09/29/2021 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):
USPTO@dockettrak.com
docketing@goodhue.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL PAIGE
Appeal 2020-006354
Application 15/012,676
Technology Center 1700

Before JEFFREY B. ROBERTSON, N. WHITNEY WILSON, and
LILAN REN, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 10, 13–20, 22, and 23.2 See Appeal
Br. 6. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 This Decision includes citations to the following documents:
Specification filed February 1, 2016 (“Spec.”); Final Office Action entered
December 16, 2019 (“Final Act.”); Appeal Brief filed June 15, 2020
(“Appeal Br.”); Examiner’s Answer entered July 10, 2020 (“Ans.”), and
Reply Brief filed September 10, 2020 (“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Omega CM Delta LLC as the real party in interest. Appeal Br. 4.
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CLAIMED SUBJECT MATTER
Appellant states the invention relates to concrete mixers that make
concrete on a volumetric basis. Spec. 1, ll. 10–11. Claim 10 is reproduced
below, and is illustrative of the claimed subject matter (Appeal Br., Claims
Appendix 30):
10. A method of dispensing concrete on a volumetric
basis comprising:
providing a volumetric concrete mixer that includes:
a support frame;
an aggregate bin supported by the support frame;
an aggregate conveyor below the aggregate bin for
transporting aggregate to a mixing area;
a cement bin;
a cement dispenser for dispensing cement from the
cement bin to the mixing area, the cement dispenser including a
dispensing element that moves at a controllable speed;
a water supply;
a water dispenser for dispensing water from the water
supply to the mixing area;
and
a control processor;
conveying the aggregate to the mixing area with the
aggregate conveyor;
counting rotations of the aggregate conveyor and
signaling a number of counted rotations to the control
processor;
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dispensing cement from the cement bin to the mixing
area by running the dispensing element of the cement dispenser
at an initial rate as instructed by the control processor;
dispensing water to the mixing area; and
using the control processor to calculate cement output per
count and adjust rate of the dispensing element of
the cement dispenser in order to maintain a constant
rate of cement dispensement per count to the
mixing area and thereby maintain desired ratio
between the cement and the aggregate, wherein the
count is determined using the number of counted
rotations of the aggregate conveyor.
Claims 17, 19, and 22 are also independent and recite similar methods
of dispensing concrete on a volumetric basis. Appeal Br., Claims Appendix
32–35.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Long, Jr.
(“Long”)
US 2009/0180348 A1 July 16, 2009
REJECTION
The Examiner rejected claims 10, 13–20, 22, and 23 under 35 U.S.C.
§ 103 as being unpatentable over Long. Final Act. 2–3.
OPINION
Although Appellant discusses each of the independent claims
separately, Appellant presents essentially the same arguments for each of the
independent claims subject to this rejection. See Appeal Br. 13–28. Further,
Appellant does not present separate arguments for the dependent claims. Id.
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Application 15/012,676

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We select claim 10 as representative for disposition of this rejection.
37 C.F.R. § 41.37(c)(1)(iv)(2019).

The Examiner’s Rejection
In rejecting claim 10, the Examiner found Long discloses a method of
dispensing concrete, which includes a control processor to adjust the
dispensing element of the cement dispenser. Final Act. 2, citing Long,
¶¶ 25, 27. The Examiner found Long discloses that the control processor
receives data from the conveyors, including speed of the dry ingredient
conveyors, which would have suggested counting rotations of the conveyor.
Id. at 2–3. In support of this position, the Examiner pointed to admissions
made in the Specification that it is common practice to count rotations of the
aggregate conveyor and base cement feed on such rotations. Id. at 3.

Appellant’s Arguments
Appellant argues Long discloses a fundamentally different principle
of operation, which is controlling a concrete mix ratio by measuring
ingredient weights. Appeal Br. 14–15. Appellant contends the aggregate is
not weighed in claim 10, but is dispensed each count such that there is a
constant rate per count of aggregate. Id. at 15. Appellant argues also that
the Examiner mischaracterizes the Specification as containing admissions
that it is common practice to count rotations of the aggregate conveyor and
base cement feed on such rotation. Id. at 17–18. Appellant contends the
referenced disclosure in the Specification amounts only to a teaching that
“the counting of rotations of the aggregate conveyor in the prior art
discussed is to establish a time period and the amount of aggregate or
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concrete is mixed and poured.” Id. at 18. Appellant contends Long does not
disclose input from the conveyors is received at the controller, and is not
used to control the mixing system. Id. at 19–20. Appellant further argues
Long does not disclose or render obvious the step in claim 10 where the
control processor calculates the cement output per count and adjusts the rate
of the cement dispenser. Id. at 20–21. In particular, Appellant contends
Long does not disclose adjusting the speed of the auger to set the cement
dispense speed. Id. at 21–22. Appellant argues the Examiner’s combination
would change the principle of operation in Long. Id. at 23–24.

Discussion
We are not persuaded by Appellant’s arguments. Initially, we agree
with the Examiner that claim 10 does not exclude weighing. Ans. 4. The
method recited in claim 10 contains the open language “comprising” and as
the Examiner explains, the Specification discloses that weighing is used in
conjunction with the claimed method. Id.; Spec. 3, ll. 17–31; 8, ll. 9–12.
We are not persuaded by Appellant’s contentions that the Examiner
improperly characterized the discussion of “count” in the Specification. The
Specification states: “[a] ‘count’ is the amount of aggregate dispensed each
time the aggregate dispensing belt completes one revolution.” Spec. 2,
ll. 9–10. The Specification discloses
To assure that the concrete being mixed maintains a uniform
composition, it is common practice to collect a “count” or a set
number of counts (typically 100 counts) of concrete at set
intervals during a mixing and pouring process to verify that the
amount of cement within each count remains at the desired range.
Id. at 2, ll. 6–9.
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Thus, the Specification discloses that it is known and common to use
the count of the aggregate dispensing belt to verify the amount of cement is
within a desired range. Such verification procedures would necessarily
include methods for determining the amount of cement dispensed into the
mixture during the time corresponding to the “count.” In direct contrast to
Appellant’s arguments, Long discloses that load cells, including load cell 32,
which is associated with cement bin 16, provide information to the
controller, and that the controller adjusts various speeds, including the speed
of auger 22 in the cement bin 16 to adjust the delivery of cement to maintain
a particular concrete mix ratio. Long ¶¶ 23–25, 27; Fig. 9.
Although Long uses weight loss measurements of the aggregate
material bin to obtain the amount of aggregate and adjust the concrete mix
ratio (e.g., Long ¶ 29), as a result of the above discussion, we are not
persuaded that Appellant has shown reversible error in the Examiner’s
determination that using a “count” of the aggregate dispensing belt instead
of weight loss would have been obvious. That is, Long discloses that the
controller may adjust the speed of the aggregate conveyors, such that
combined with the knowledge of one of ordinary skill in the art as
exemplified by Appellant’s admission in the Specification, using a “count”
of the aggregate dispensing belt instead of weight loss in the aggregate bin to
maintain desired ratio between the cement and aggregate would have been
obvious. As the Supreme Court in KSR stated “[a]s our precedents make
clear, however, the analysis [under 35 U.S.C. § 103] need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
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person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007).
Further, as discussed above, both Long and the instant Specification
disclose using load cells and changes in auger speed to adjust the cement
dispensement as a way to regulate and thus maintain the amount of cement
added to the concrete mixture. Long ¶¶ 24, 25, 27; Spec. 3, ll. 19–25, 8, ll.
9–12. As a result, we agree with the Examiner that the method recited in
claim 10 would have been obvious over Long. We do not view this
combination as a change in the principle of operation of the method in Long,
but rather a mere substitution of one known alternative of evaluating the
amount of aggregate for another. “The combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR, 550 U.S. at 416. As the Supreme
Court further explained, “[w]hen a work is available in one field of
endeavor, design incentives and other market forces can prompt variations of
it, either in the same field or a different one. If a person of ordinary skill can
implement a predictable variation, § 103 likely bars its patentability.” Id. at
417.
Accordingly, we affirm the Examiner’s rejection of claim 10, as well
as the rejection of the remaining claims.

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Application 15/012,676

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
10, 13–20,
22, 23
103 Long 10, 13–20,
22, 23

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED