Ex Parte Ackley

Patent Trial and Appeal BoardAug 19, 2013

11605328 (P.T.A.B. Aug. 19, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte E. MICHAEL ACKLEY, JR. ____________ Appeal 2011-009467 Application 11/605,328 Technology Center 3600 ____________ Before STEFAN STAICOVICI, MICHAEL C. ASTORINO, and GEORGE R. HOSKINS, Administrative Patent Judges. HOSKINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE E. Michael Ackley, Jr. (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-11, 13-23, 33, and 34. Claims 12, 25, and 29-32 have been cancelled, and claims 24 and 26-28 have been withdrawn. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal 2011-009467 Application 11/605,328 2 CLAIMED SUBJECT MATTER Appellant’s claimed invention relates to an apparatus for “transporting a plurality of articles past at least one processing station.” Spec. ¶ 0002. Claim 1 is the sole independent claim on appeal, and it recites: 1. An apparatus for transporting and processing a plurality of articles, the apparatus comprising: an endless conveyer structured to convey a plurality of articles along a conveyer path; and at least first and second processing stations provided on the conveyer along the conveyer path to perform at least first and second processing operations, respectively, wherein the conveyer path includes at least one loop or festoon within the conveyer between the first and second processing stations. REJECTIONS Appellant requests our review of the following rejections: I. claims 1-11, 33, and 34 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement1; II. claims 1-6, 11, 13, 16-20, 22, 23, 33, and 34 are rejected under 35 U.S.C. § 102(b) as anticipated by Schregenberger (US 3,958,683, issued May 25, 1976); III. claims 14 and 15 are rejected under 35 U.S.C. § 103(a) as unpatentable over Schregenberger; 1 Claims 24 and 26-28 have been withdrawn and therefore are not included in this ground of rejection. Appeal 2011-009467 Application 11/605,328 3 IV. claims 7-9 and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Schregenberger and Nickey (US 6,581,751 B1, issued June 24, 2003); and V. claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable over Schregenberger and Martin (US 4,947,979, issued Aug. 14, 1990). ANALYSIS Rejection I: Claims as Failing to Comply with the Written Description Requirement Claim 1 and dependent claims 2-11, 33, and 34 have been rejected as failing to comply with the written description requirement. The Examiner in this case concluded the limitation of claim 1 reciting “at least first and second processing stations provided on the conveyor” is “not taught in the specification”, and therefore issued the written description rejection. See Ans. 4 and 7-8. In response, Appellant asserts the Specification supports the claim limitation at issue, in three exemplary ways. See Reply Br. 4. First, Appellant cites paragraph 0031 of the Specification, which states “first and second processing stations 120, 130 [are] provided along the conveyer path 112.” See id. Second, Appellant cites paragraph 0033 of the Specification, which states “[t]he conveyer 110 is supported upon a frame that is also structured to support the first and second processing stations 120, 130 . . . .” See id. Third, Appellant cites Figure 3 of the Specification. See id. We find as a matter of fact that none of those cited portions of the Specification describes or illustrates a processing station being “provided on” the conveyor as required by claim 1. Paragraph 0031 describes the processing stations as “provided along the conveyor path,” which is a Appeal 2011-009467 Application 11/605,328 4 requirement recited in claim 1 separate from the “provided on” requirement. Paragraph 0033 describes the processing stations as provided on a common frame along with the conveyor, not as provided on the conveyor. The frame is a different part of the apparatus than the conveyor in that description. And, as illustrated in Figure 3, a gap exists between each of the processing stations 120 and 130 and the conveyor 110. Therefore, we sustain the rejection of independent claim 1 and dependent claims 2-11, 33, and 34 as failing to satisfy the written description requirement. Rejection II: Claims as Anticipated by Schregenberger Claim 1 and dependent claims 2-6, 11, 13, 16-20, 22, 23, 33, and 34 have been rejected by the Examiner as anticipated by Schregenberger. As pertinent to our present decision, the Examiner found Schregenberger discloses the limitation in claim 1 which states: “the conveyer path includes at least one loop or festoon within the conveyer between the first and second processing stations.” However, that factual finding is incorrect. Infra. Therefore, we cannot sustain the Examiner’s rejection. According to the Examiner’s analysis, the claimed “first processing station” corresponds to the transfer region 6 of Schregenberger, where the articles 5 are transferred from one belt-like conveyor 11 to another belt-like conveyor 7. See Ans. 4 and 8; Schregenberger, col. 2, l. 58 to col. 3, l. 7 and col. 3, ll. 42-49. The Examiner further found the claimed “second processing station” corresponds to the pick-up area 54, where a transfer conveyor 8 picks up the articles 5 from the belt-like conveyor 7 and moves them to yet another belt-like conveyor 10. See Ans. 4 and 8; Schregenberger, col. 3, l. 65 to col. 4, l. 3; col. 4, ll. 31-35; and col. 5, ll. 37- Appeal 2011-009467 Application 11/605,328 5 42. We will assume for present purposes that moving the articles 5 from one conveyor to another is, as the Examiner found, a “processing” of those articles under claim 1. The Examiner went on to find, however, that Schregenberger further discloses at least one loop or festoon “between” the transfer region 6 and the pick-up area 54 as required by claim 1. See Ans. 4. As argued by the Appellant, that finding is in error. See App. Br. 7 and 8; and Reply Br. 2. The Examiner cites column 1, lines 6-26 of Schregenberger in support of this finding. That portion of Schregenberger, however, describes only that conventional “pin-chain” conveyors may include “many festoons” within a drying chamber. At most, that disclosure indicates the conventional pin conveyor 16 in the Schregenberger apparatus may include a loop or festoon. That pin conveyor 16, however, is disposed “upstream” of both the transfer region 6 and the pick-up area 54, not “between” them. Schregenberger fails to disclose that a loop or festoon may be disposed “between” the transfer region 6 and the pick-up area 54 in the Schregenberger apparatus. For the foregoing reasons, the rejection of claim 1 and dependent claims 2-6, 11, 13, 16-20, 22, 23, 33, and 34 as anticipated by Schregenberger is not sustained. Rejections III-V: Claims as Unpatentable Over Schregenberger Either Alone or in Combination with Nickey or Martin The remaining rejections based on Schregenberger alone or in combination with Nickey or Martin rely on the same erroneous finding regarding the disclosure of Schregenberger of at least one loop or festoon “between” the transfer region 6 and the pick-up area 54. As such, we do not Appeal 2011-009467 Application 11/605,328 6 sustain the rejections of claims 7-10, 14, 15, and 21 as unpatentable over the prior art. DECISION We AFFIRM the rejection of claims 1-11, 33, and 34 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. We REVERSE the rejection of claims 1-6, 11, 13, 16-20, 22, 23, 33, and 34 under 35 U.S.C. § 102(b) as anticipated by Schregenberger. We REVERSE the rejection of claims 14 and 15 under 35 U.S.C. § 103(a) as unpatentable over Schregenberger. We REVERSE the rejection of claims 7-9 and 21 under 35 U.S.C. § 103(a) as unpatentable over Schregenberger and Nickey. We REVERSE the rejection of claim 10 under 35 U.S.C. § 103(a) as unpatentable over Schregenberger and Martin. 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-IN-PART mls