R.F.G Trading LTD.

Patent Trials and Appeals Board

Jun 5, 2020

2019006916 (P.T.A.B. Jun. 5, 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.
14/928,984 10/30/2015 Benyamin Aharoni RFGT 200002US01 1029
27885 7590 06/05/2020
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115
EXAMINER
DURDEN, RICHARD KYLE
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
06/05/2020 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):
uspto@faysharpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte BENYAMIN AHARONI
____________________

Appeal 2019-0069161
Application 14/928,984
Technology Center 3700
____________________

Before PHILLIP J. KAUFFMAN, TARA L. HUTCHINGS, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

FINAMORE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–5, 7, and 10–20. We have
jurisdiction under § 6(b).
We AFFIRM.

1 The citations herein refer to the Specification filed October 30, 2015
(“Spec.”), Final Office Action mailed December 31, 2018 (“Final Act.”),
Appeal Brief filed May 29, 2019 (“Appeal Br.”), Examiner’s Answer mailed
July 26, 2019 (“Ans.”), and Reply Brief filed September 25, 2019 (“Reply
Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies R.F.G. Trading Ltd. as the real party in interest. Appeal Br. 1.
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Application 14/928,984

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SUBJECT MATTER ON APPEAL
The invention “relates to a pilot valve system useful for operating
control valves.” Spec. ¶ 2. Claims 1 and 15 are independent. Appeal Br.,
Claims App. Independent claim 1 is illustrative of the claimed subject
matter and reproduced below with italics to emphasize the limitations at
issue.
1. A pilot valve system, comprising:
a lower chamber formed from:
a pilot body having a fluid passageway defined
along a central longitudinal axis thereof, the fluid passageway
connecting an inlet to a first outlet and a second outlet and having
an upper portion, a lower portion, and a middle portion, wherein
the upper portion of the fluid passageway is substantially the
same width as the lower portion of the fluid passageway and the
middle portion has a width that is constant along the central
longitudinal axis of the pilot body and fluid passageway, wherein
the constant width of the middle portion is less than the width of
the upper and lower portions of the fluid passageway; and
a stem in the fluid passageway, the stem including:
an upper section, a middle section, a lower
section, and first and second intermediate sections;
wherein the upper, middle, and lower
sections are all of substantially the same width;
wherein the first intermediate section
separates the upper section from the middle section and
the second intermediate section separates the lower section
from the middle section; and
wherein the first and second intermediate
sections are of substantially the same width, the width of
the first and second intermediate sections being greater
than the width of the upper, middle, and lower sections;
and
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Application 14/928,984

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wherein the first and second intermediate
section pass through the middle portion of the fluid
passageway; and
a first stationary seal and a second stationary seal
located on internal sides of the middle portion of the fluid
passageway and adapted to form a substantially fluid-tight
closure with the stem; and
an upper chamber separated from the lower
chamber by a diaphragm, the upper chamber including:
a compression spring; and
an adjusting screw for controlling the amount
of force provided by the compression spring against the
diaphragm;
wherein the pilot valve system is adapted to deliver
fluid from the inlet to one outlet while ensuring that fluid does
not flow to the other outlet at the same time.
Id. (emphasis added, claim status identifier omitted).

REJECTIONS
Claims
Rejected 35 U.S.C. § References/Basis
1–5, 7, 10–20 112(b) Indefiniteness
1–5, 7, 10–20 112(a) Written Description
1–5, 7, 10–20 103 King3, Loveless4, Seeloff5

ANALYSIS
Indefiniteness
Independent Claims 1 and 15
Independent claim 1 recites a fluid passageway having a middle
portion, wherein “the middle portion has a width that is constant along the

3 King, U.S. 1,575,771, issued Mar. 9, 1926.
4 Loveless, U.S. 3,661,182, issued May 9, 1972.
5 Seeloff, U.S. 2,524,142, issued Oct. 3, 1950.
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Application 14/928,984

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central longitudinal axis of the pilot body and fluid passageway.” Appeal
Br., Claims App. The claim also recites “a first stationary seal and a second
stationary seal located on internal sides of the middle portion of the fluid
passageway.” Id. Independent claim 15 includes similar limitations. Id.
According to the Examiner, independent claims 1 and 15 recite a
middle portion having a constant width and first and second stationary seals
on the interior sides thereof, whereas the drawings of the Specification show
that the seals result in the middle portion having a variable width. Final
Act. 5. In view of this discrepancy between the claims and the
Specification, the Examiner determines the claims are indefinite. Id.
Appellant argues a middle portion having a constant width is clearly
described in paragraph 44 and Figure 5 of the Specification. Appeal Br. 5.
Paragraph 44 describes Figure 5, which is reproduced below along with
Figure 4.

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Application 14/928,984

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Figures 4 and 5 are enlarged cross-sectional views of a section of the pilot
valve system. Spec. ¶¶ 23–24. Figure 4 shows stem 120 within the fluid
passageway, whereas Figure 5 shows the fluid passageway without the stem.
Id. With specific reference to Figure 4, seals 180, 182 are located on the
internal sides of fluid passageway 160 for engaging first and second
intermediate sections 123, 125, respectively of stem 120. Id. ¶ 43, Fig. 4.
As shown in Figure 5, fluid passageway 160 includes upper portion 162,
middle portion 164, and lower portion 166. Id. ¶ 44, Fig. 5. Figure 5 also
shows, but does not label, seals 180, 182 located in middle portion 164 of
fluid passageway 160. Id. at Fig. 5. According to Appellant, the interior
walls of pilot body 110 may have different widths, but the width of middle
portion 164, which is shown as the area between the vertical dashed lines
labeled “WFP” in Figure 5, is constant over the entire length of the middle
portion. Reply Br. 2–3.
Appellant’s argument is unenlightening as it does not address the
inconsistency between the Specification and the claims on which the
Examiner’s indefiniteness determination is based. The Specification,
particularly Figure 5, shows middle portion 164 having a constant width
when seals 180, 182 are not considered part of the interior thereof. On the
other hand, independent claims 1 and 15 recite a middle portion having a
constant width, and first and second stationary seals on the interior sides
thereof. In view of the inconsistency between the claims and the
Specification regarding whether the middle portion has a constant width
with the stationary seals, we agree with the Examiner that claims 1 and 15
are indefinite. See, e.g., In re Cohn, 438 F.2d 989, 993 (Fed. Cir. 1971)
(sustaining an indefiniteness rejection where the claims are inconsistent with
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Application 14/928,984

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the specification); see also MPEP § 2170.03 (9th ed. Rev. 08.2017,
Jan. 2018). We, therefore, sustain the rejection of independent claims 1 and
15 and claims 2–5, 7, 10–14, and 16–20 depending therefrom.

Claim 5
The Examiner determines claim 5 is indefinite because it is unclear
whether the limitation “a longitudinal axis of the fluid passageway” refers to
the “‘central longitudinal axis” recited in independent claim 1 or to a
separate, distinct axis. Final Act. 6. Appellant does not refute the
Examiner’s rejection of claim 5.
In view of the similar, but slightly different, terminology, we agree
with the Examiner that it is unclear whether “a longitudinal axis of the fluid
passageway” recited in claim 5 refers to the “central longitudinal axis”
recited in independent claim 1 from which claim 5 depends. We, therefore,
sustain the rejection of claim 5.

Remaining Rejections
In view of the determination that claims 1–5, 7, 10–20 are indefinite,
we cannot reach the merits of the remaining rejections without engaging in
speculative assumptions as to the meaning of the claims. We, therefore, do
not sustain, pro forma, the remaining rejections of claims 1–5, 7, and 10–20.
See, e.g., In re Steele, 305 F.2d 859, 862 (CCPA 1962) (A prior art rejection
cannot be sustained if the hypothetical person of ordinary skill in the art
would have to make speculative assumptions concerning the meaning of
claim language.).

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Application 14/928,984

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CONCLUSION
We sustain the rejection of claims 1–5, 7, and 10–20 under 35 U.S.C.
§ 112(b) for failure to particularly point out and distinctly claim the subject
matter Appellant regards as the invention. We do not sustain, pro forma, the
remaining rejections.

DECISION SUMMARY
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–5, 7,
10–20 112(b) Indefiniteness
1–5, 7,
10–20
1–5, 7,
10–20 112(a)
Written
Description
1–5, 7,
10–20
1–5, 7,
10–20 103
King, Loveless,
Seeloff
1–5, 7,
10–20
Overall
Outcome
1–5, 7,
10–12

TIME PERIOD FOR RESPONSE
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