2021002266 (P.T.A.B. Sep. 1, 2021)

Randal Stewart

Patent Trials and Appeals BoardSep 1, 2021

2021002266 (P.T.A.B. Sep. 1, 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. 15/877,450 01/23/2018 Randal S. Stewart MSH-1172 6582 8131 7590 09/01/2021 MCKELLAR IP LAW, PLLC 784 SOUTH POSEYVILLE ROAD MIDLAND, MI 48640 EXAMINER REITZ, MICHAEL K. ART UNIT PAPER NUMBER 3745 MAIL DATE DELIVERY MODE 09/01/2021 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RANDAL S. STEWART Appeal 2021-002266 Application 15/877,450 Technology Center 3700 ____________ Before MICHAEL C. ASTORINO, JAMES P. CALVE, and TARA L. HUTCHINGS, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 2, 3, and 5, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as the inventor, Randal S. Stewart. Appeal Br. 2. As used herein, “Appeal Br.” refers to pages 3–8 of the Appeal Brief filed on October 1, 2020, and corrected page 2, which was filed on October 14, 2020. The Appeal Brief does not have a page 1. Appeal 2021-002266 Application 15/877,450 2 STATEMENT OF THE CASE Subject Matter on Appeal The Appellant’s “invention deals with wind energy assemblies which contain arrays of wind diodes, which arrays are assembled into a wind energy collector assembly.” Spec. 1:8–10, 4:2–4. “The devices of this field of use include among others, energy extraction devices, windmills, wind turbines, oscillating windmills, and the like.” Spec. 1:11–13. Claim 5 is representative of the subject matter on appeal and is reproduced below. 5. A wind diode, said wind diode comprising in combination: a. a predetermined weighted air foil having a predetermined width and length, said air foil having a first end, a second end, a back surface, a front surface, a center point of mass unequal to a geometric center of said air foil, located between said first end and said second end, and two outside edges; b. air containment ridges located on each said outside edges on said front surface, said containment ridges extending from said first end to said second end; c. a rod support area located on each said outside edge on said back surface near said mass center point; d. a rod contained in said rod support area which rod extends outwardly from said rod support area; e. at least two stop pins located in each of said rod support areas at a predetermined location. Appeal Br., Claims App. Appeal 2021-002266 Application 15/877,450 3 References The prior art relied upon by the Examiner is: Name Reference Date Zukeran US 4,365,935 Dec. 28, 1982 Pratt US 5,570,997 Nov. 5, 1996 Noble US 6,682,302 B2 Jan. 27, 2004 Su US 9,011,096 B2 Apr. 21, 2015 Rejections Claim 5 is rejected under 35 U.S.C. § 103 as unpatentable over Zukeran and Pratt. Claims 2 and 3 are rejected under 35 U.S.C. § 103 as unpatentable over Zukeran, Pratt, Su, and Noble. ANALYSIS The Appellant argues that the Examiner’s finding that Zukeran teaches “at least two stop pins located in each of said rod support areas at a predetermined location,” as recited in claim 5, is inadequately supported. See Appeal Br. 4. In this regard, the Examiner finds that Zukeran’s plurality of bone members 21, as shown in Figure 2, corresponds to the claimed “at least two stop pins.” Final Act. 5; see also Zukeran col. 2, ll. 50–53. The Appellant specifically argues that “there are no ‘pins’ shown or discussed in Zukeran.” Appeal Br. 4. In response, the Examiner determines, “under a broadest reasonable interpretation, . . . bone members (21) of Zukeran are rods/pins that act to stop . . . wind receiving plate (18), making them stop pins.” Ans. 3. The Appellant’s argument is persuasive. In this case, the Examiner fails to explain –– using evidence and/or technical reasoning –– how one of ordinary skill in the art, upon reading the Appeal 2021-002266 Application 15/877,450 4 Specification, would understand that the structure of Zukeran’s bone members 21, which is part of a lattice that forms wind receiving plate support body 19, corresponds to the claimed “at least two stop pins.” See Zukeran col. 2, ll. 50–53, Figs. 1–2. Additionally, we fail to understand how the structure of Zukeran’s bone member 21 corresponds to the structure of a pin. We note that the Examiner compares the functionality of Zukeran’s bone members 21 with the functionality of the claimed “at least two stop pins” as implied by the term itself or as described in the Specification. See Final Act. 3 (finding “bone members (21) of Zukeran in Figure 2 perform the exact same function of the stop pins”); Ans. 3–4. However, this comparison with respect to functionality does not address how the structure of Zukeran’s bone members 21 corresponds to the “at least two stop pins” as claimed. Further, the Examiner fails to rely on Pratt in any manner that would remedy the deficient finding discussed above. Thus, we do not sustain the Examiner’s rejection of claim 5. Claim 2 depends from claim 5, and claim 3 depends from claim 2. See Appeal Br., Claims App. The Examiner’s rejection of claims 2 and 3 relies on the same deficient finding as discussed above. Also, the Examiner fails to rely on Su or Noble in any manner that would remedy the deficiency in the Examiner’s rejection as discussed above. Thus, we do not sustain the Examiner’s rejection of claims 2 and 3. Appeal 2021-002266 Application 15/877,450 5 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § References/Basis Affirmed Reversed 5 103 Zukeran, Pratt 5 2, 3 103 Zukeran, Pratt, Su, Noble 2, 3 Overall Outcome 2, 3, 5 REVERSED