Derrick Corporation

Patent Trials and Appeals Board

Jun 2, 2021

2021002771 (P.T.A.B. Jun. 2, 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.
16/028,013 07/05/2018 Keith F. Wojciechowski 13912.008US6 4879
39564 7590 06/02/2021
FisherBroyles, LLP - MAIN CN
945 East Paces Ferry Rd. NE
Suite 2000
Atlanta, GA 30326
EXAMINER
RODRIGUEZ, JOSEPH C
ART UNIT PAPER NUMBER
3655
NOTIFICATION DATE DELIVERY MODE
06/02/2021 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):
docketing@fisherbroyles.com
patent@fisherbroyles.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEITH F. WOJCIECHOWSKI
Appeal 2021-002771
Application 16/028,013
Technology Center 3600
Before JENNIFER D. BAHR, DANIEL S. SONG, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–30. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Derrick Corporation.
Appeal Br. 1.
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Application 16/028,013

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CLAIMED SUBJECT MATTER
Appellant’s invention is directed to screening members and screening
assemblies for vibrator screening machines. Spec. 1:10–17. Claim 1,
reproduced below, is illustrative of the claimed subject matter.
1. A screen assembly, comprising:
a thermoplastic screen element including a screen
element screening surface having a series of screening
openings; and
a subgrid including multiple elongated structural
members forming a grid framework having grid openings,
wherein the thermoplastic screen element spans at least
one of the grid openings and is attached to a top surface of the
sub grid,
wherein multiple independent subgrids are permanently
secured to each other to form the screen assembly,
wherein the screen assembly is an independent structure
configured to be removably secured to a vibratory screening
machine,
wherein the screen assembly has a continuous screen
assembly screening surface having multiple screen element
screening surfaces,
wherein the thermoplastic screen element includes
substantially parallel end portions and substantially parallel side
edge portions substantially perpendicular to the end portions,
wherein the thermoplastic screen element further
includes a first screen element support member and a second
screen element support member orthogonal to the first screen
element support member, the first screen element support
member extending between the end portions and being
approximately parallel to the side edge portions, the second
screen element support member extending between the side
edge portions and being approximately parallel to the end
portions,
wherein the thermoplastic screen element includes a first
series reinforcement members substantially parallel to the side
edge portions, a second series of reinforcement members
substantially parallel to the end portions,
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wherein the screen element screening surface includes
screen surface elements forming the screening openings,
wherein the end portions, side edge portions, first and
second support members, first and second series of
reinforcement members structurally stabilize screen surface
elements and screening openings,
wherein the thermoplastic screen element is a single
thermoplastic injection molded piece, and
wherein the screening openings are formed between
edges of the screen surface elements, and a distance between a
first edge of a first screen surface element and a second edge of
a second screen surface element adjacent the first screen surface
element has a magnitude in a range from approximately 70
microns to approximately 180 microns.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Witsiepe US 3,377,322 Apr. 9, 1968
Schulte, Jr. et al.
(“Schulte”)
US 7,063,214 B2 June 20, 2006
Trench et al.
(“Trench”)
US 8,127,932 B2 Mar. 6, 2012
REJECTION
Claims 1–30 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Trench, Witsiepe, and Schulte.
OPINION
We begin by addressing the Examiner’s findings regarding Trench on
pages 2 and 5 of the Final Action. The Examiner finds that Trench discloses
a screen assembly comprising “a thermoplastic screen element (52).” Final
Act. 2. The Examiner finds that Trench discloses “that any flexible polymer
including molded polyurethane, may be used in making monolithic
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screening elements.” Id. at 5. The Examiner then reasons that, because
“certain polyurethanes are thermoplastic[,] it is unclear how the applied prior
art can be structurally distinguished from the claimed invention.” Id. To the
extent that the Examiner’s position is that Trench’s disclosure that the screen
panels may be made of “any suitable polymer material . . . such as moulded
elastomeric materials [and] polyurethane elastomer materials” (Trench 3:17–
21) or “are preferably formed of polymeric material such as polyurethane”
(id. at 4:3–4) constitutes a disclosure of a thermoplastic screen element, we
agree with Appellant that the Examiner erred “by assuming . . . that the
polymers described in Trench are thermoplastic and not thermoset” (Reply
Br. 2). More specifically, as the Examiner states, certain polyurethanes are
thermoplastic, but other polyurethanes are thermosetting and not
thermoplastic. Thus, to the extent that the Examiner relies on Trench as
disclosing thermoplastic screen panels/elements, this is an unsupported
finding and an unsustainable position.
Without going into any detail on any particular elements of claims
12–30, the Examiner states that the features of these claims “are rendered
obvious by” the combination of Trench, Witsiepe, and Schulte. Final Act. 5.
The Examiner lists a number of claimed features of claims 1, 3–7, and 31
that the Examiner finds Trench does not expressly disclose. Id. at 5–6.
Next, the Examiner makes findings as to the teachings of Witsiepe
and Schulte. Final Act. 6–7. In particular, the Examiner finds that Witsiepe
teaches “it is well-known to use thermoplastics with injection molding
manufacturing techniques to obtain the desired elastomeric properties during
the rapid production of plastic items.” Id. The Examiner finds that Schulte
“teaches that it is well known to secure adjacent screen elements directly
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together with a variety of methods[, including clips as shown in Figure 15,]
to better stabilize and position the respective elements.” Final Act. 7.
The Examiner determines that the screening opening dimensions,
open screening area, materials, and methods of construction “can be
regarded as a mere design choice controlled by the design incentives and/or
economic considerations involved,” especially considering that the type of
material to be screened will control variations in the specific device
dimensions. Final Act. 7. The Examiner next enumerates several well-
established obviousness rationales found in legal precedent, including
routine optimization of result-effective variables, the use of prior art
elements according to their known functions yielding predictable results, and
simple substitution of one known element for another to obtain predictable
results, and concludes that it would have been obvious to modify Trench
with the teachings of Witsiepe and Schulte “to arrive at the claimed
invention.” Id. According to the Examiner,
[t]he rationale for this obviousness determination can be found
in the prior art itself, in legal precedent and from an analysis of
the prior art teachings that demonstrates that the modification to
arrive at the claimed invention would merely involve the
substitution/addition of well-known elements with no change in
their respective functions.
Id. The Examiner adds that the prior art applied in the rejection
demonstrates a level of sophistication that indicates “these modifications are
predictable variations that would be within this skill level,” and further
concludes that, “[t]herefore, it would have been obvious at the time the
invention was made to a person having ordinary skill in the art to modify the
invention of Trench for the reasons set forth above.” Id. at 7–8.
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In rejecting claims under 35 U.S.C. § 103(a), the examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). See also In re Piasecki, 745
F.2d 1468, 1472 (Fed. Cir. 1984). It is incumbent upon the examiner to
establish a factual basis to support the legal conclusion of obviousness. See
In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so doing, the examiner
is expected to make the factual determinations set forth in Graham v. John
Deere Co., 383 U.S. 1, 17 (1966), viz., (1) the scope and content of the prior
art; (2) the differences between the prior art and the claims at issue; and (3)
the level of ordinary skill in the art. In addition to these factual
determinations, the examiner must also provide “some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with
approval in KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Only
if this initial burden is met does the burden of coming forward with evidence
or argument shift to the appellant. See Oetiker, 977 F.2d at 1445. See also
Piasecki, 745 F.2d at 1472. Obviousness is then determined on the basis of
the evidence as a whole and the relative persuasiveness of the arguments.
See Oetiker, 977 F.2d at 1445; Piasecki, 745 F.2d at 1472.
Appellant argues, persuasively, that the Examiner “provides only
conclusory statements noting that it ‘would have been obvious . . . to modify
the invention of Trench’ with the cited references” with only cursory
reference to a series of various boilerplate obviousness rationales from legal
precedent. Appeal Br. 14. The Examiner fails to explain in the rejection
specifically how the structure of Trench would be modified, much less
provide articulated reasoning with some rational underpinning for each such
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modification to support the legal conclusion of obviousness. Rather, the
Examiner merely sets forth teachings believed to be relevant from each of
the references and offers a variety of boilerplate obviousness rationales,
without any explanation of how or which of these rationales applies
specifically to any of the particular teachings of the references. In essence,
the Examiner offers up a menu of identified differences between Trench and
the claims on appeal, findings regarding teachings of Witsiepe and Schulte
believed to be pertinent to the claims, and a variety of obviousness rationales
from legal precedent from which to choose to formulate a story to explain
why the claimed subject matter would have been obvious.
The Examiner does little in the Answer in attempting to remedy the
deficiency in the rejection, particularly with respect to the combination of
Trench and Schulte. See Ans. 4–5 (essentially repeating the findings and
menu options of legal precedent obviousness rationales set forth in the Final
Action). The Examiner emphasizes that Schulte teaches various techniques
of securing adjacent screen elements directly to one another “to better
stabilize and position the respective elements.” Id. at 5 (emphasis omitted).
However, to the extent that the Examiner proposes to combine any of
Schulte’s securement techniques to Trench’s screen modules in order to
better stabilize and position respective elements, the Examiner does not
specify how Trench would be modified (e.g., what elements of Trench
would be secured together)2 in order to better stabilize and position these

2 To the extent that the Examiner proposes to modify Trench by securing
screen panels 52 (i.e., the structure the Examiner reads on the claimed
“screen elements”), we note that this would not satisfy the recitation in
independent claims 1, 12, 21, and 27 that the subgrids be permanently
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respective elements, much less how such modification would accomplish
this.
Notably, Trench discloses securing a plurality of screen panels 52 to
each panel frame 51, using engagement formations 66 and 67 as shown in
Figures 16 and 17, to form each screen module 50, and then securing each
screen module 50 to support rails 53 of the vibratory machine, with tapered
end faces 54 of panel frame 51 engaging complementary tapers 55 on
support rails 53 and outer edges 56 of screen panels 52 engaging formations
58 on support rails 53. Trench 7:57–8:8; see also id., Fig. 14. Further,
alignment lugs 53A, shown in Figure 14, on support rails 53 engage indents
(shown but not labeled in Figure 19) in the bottoms of end faces 54 of panel
frame 51 to align panel frame 51 on support rails 53. Id. at 7:66–67. With
this arrangement, screen panels 52 and panel frames 51 appear to be well
stabilized and positioned on support rails 53. Further, this arrangement
“facilitates easy assembly of the module on the apparatus and economical
replacement of wearing parts.” Id. at 2:55–58; see also id. at 8:1–2
(disclosing pry slots 53B on support rails 53 for “facilitat[ing] removal of
the panel frames as required”). It is not apparent, and the Examiner does not
adequately explain, how the Examiner proposes to modify Trench in view of
Schulte to better stabilize and position these elements, much less in a manner
that similarly facilitates easy assembly of the modules on the apparatus and
economical replacement of wearing parts. To the extent that the Examiner
may intend to apply one of the other enumerated obviousness rationales to
such a modification, we decline to speculate as to the Examiner’s thinking.

secured to or directed connected to each other. See Appeal Br. 21, 24, 25,
27 (Claims App.).
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For the above reasons, the Examiner fails to articulate adequate
reasoning, with rational underpinnings, to support the conclusion of
obviousness of the subject matter of independent claims 1, 12, 21, and 27, or
their dependent claims 2–11, 13–20, 22–26, and 28–30. Accordingly, we do
not sustain the rejection of claims 1–30 as unpatentable over Trench,
Witsiepe, and Schulte.
CONCLUSION
The Examiner’s rejection of claims 1–30 is REVERSED.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–30 103(a) Trench, Witsiepe,
Schulte
1–30
REVERSED