Ex Parte Al-Hasan et al

Patent Trial and Appeal Board

Dec 20, 2018

14131203 (P.T.A.B. Dec. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/131,203 01/07/2014 Nabil Salim Al-Hasan
96897 7590 12/20/2018
PA TENT LAW OFFICES OF DR. NORMAN B. THOT
POSTFACH 10 17 56
RATINGEN, 40837
GERMANY
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
TS/PIEP 1311 US-PAT 2833
EXAMINER
BERTHEAUD,PETERJOHN
ART UNIT PAPER NUMBER
3746
MAIL DATE DELIVERY MODE
12/20/2018 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 NABIL SALIM AL-HASAN,
SEBASTIAN CRAMER, and DANIEL MUELLER
Appeal2017-011599
Application 14/131,203
Technology Center 3700
Before JOSIAH C. COCKS, MICHELLE R. OSINSKI, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134(a) from the
Examiner's Final Office Action ("Final Act.") rejecting claims 6 and 8-10,
which are all the claims pending in the application. We have jurisdiction
under 35 U.S.C. § 6(b ).
For the reasons explained below, we do not find error in the
rejections. Accordingly, we AFFIRM.
1 Pierburg Pump Technology GmbH is identified as the real party in interest.
Appeal Br. 2.
Appeal2017-011599
Application 14/131,203
Claimed Subject Matter
The claimed subject matter relates generally to a vacuum pump for
use in an automobile. Spec. ,r,r 2-3. 2 Claim 6, the sole independent claim, is
reproduced below and illustrates the claimed subject matter.
6. A vacuum pump for use in the automotive sector, the
vacuum pump compnsmg:
a rotor element fixed on a rotor shaft and arranged in a
rotor housing, the rotor element comprising at least one vane
element, the rotor housing being configured to comprise at least
one inlet and at least one outlet;
an electric drive arranged in a motor housing which
comprises a cover element, the electric drive being configured to
directly or indirectly drive the rotor shaft;
a housing wall comprising at least one passage opening,
the housing wall being configured to interconnect the rotor
housing and the motor housing so as to form a housing assembly,
the at least one passage opening being configured to fluidically
connect the rotor housing and the motor housing;
a first bearing device configured to support the rotor shaft
in the cover element; and
a second bearing device configured to support the rotor
shaft in the housing wall,
wherein, the at least one passage opening is only arranged
in an area of the second bearing device directly between the
second bearing device and the housing wall.
Rejections
I. Claims 6, 8, and 10 stand rejected under pre-AIA 35 U.S.C.
§ I02(b) as anticipated by Pham (US 2008/0273990 Al, published Nov. 6,
2008). Final Act. 2-3.
2 Citations to the Specification are to the Substitute Specification filed
January 7, 2014.
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Application 14/131,203
II. Claim 9 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Pham. Final Act. 4.
DISCUSSION
RejectionI-35 U.S.C. § 102(b)
Claims 6, 8, 10
Appellants argue that Pham does not disclose several limitations of
claim 6. Appeal Br. 6-10. We address each argument in tum.
Appellants contend that Pham does not disclose "the rotor element
comprising at least one vane element" because "Pham describes a
hydrodynamic pump which pumps a fluid." Id. at 8. Appellants argue one
of skill in the art would recognize that "pumps having vanes are used to
pump a gas, such as air, to create a vacuum," and note the preamble of claim
6 recites a "vacuum pump for use in the automotive sector." Id. Appellants
dismiss the Examiner's finding that the blades of Pham's rotor element 68
can be considered vanes, arguing that Pham's reference numeral 68 refers to
the "second impeller," and asserting that "an impeller is not a vane." Id.
The Examiner's finding that Pham's second impeller has vanes is
supported by a preponderance of evidence. As an initial matter, the term
"fluid" refers to both liquid and gas, and use of this term in Pham is not
dispositive. 3 Even if Pham' s pump is primarily directed to pumping liquids,
the Examiner finds "it is well recognized in the pump art that impeller blades
are regularly referred to as 'vanes."' Ans. 6. One definition of vane in this
context is "a thin flat or curved object that is rotated about an axis by a flow
3 See Merriam-Webster.com Dictionary, "fluid," https://www.merriam-
webster.com/dictionary/fluid (last visited Dec. 13, 2018).
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Application 14/131,203
of fluid or that rotates to cause a fluid to flow or that redirects a flow of
fluid." Merriam-Webster. com Dictionary, "vane" definition 2,
https://www.merriam-webster.com/dictionary/vane (last visited Dec. 13,
2018). The blades seen on Pham' s second impeller 68 in Figure 2 meet this
definition of vane. The Examiner also finds Pham's impeller 68 creates a
vacuum within the pump chamber defined by end cap 14, Ans. 6, and
Appellants do not identify error with this finding.
Appellants also argue that Pham does not disclose "a first bearing
device configured to support the rotor shaft in the cover element," as recited
in claim 6. Appeal Br. 8. Appellants contend that Pham's "reference
numeral 46 is first stationary journal bearing 46 which is clearly not a cover
element, but a stationary journal bearing." Id. Having reviewed Pham's
disclosure, however, including Figure 1, it is apparent that Pham' s "first
stationary journal bearing 46" includes walls extending from the bearings to
the outer walls of the housing, thus providing a cover for the opening in the
housing. The existence of end cap 16 on top of this cover does not preclude
the identified portions of Pham's first stationary journal bearing from also
covering the housing opening to the extent the term "cover element" is
interpreted to perform such function.
Appellants similarly contend Pham does not disclose "a second
bearing device configured to support the rotor shaft in the housing wall," as
recited in claim 6, because Pham's "[r]eference numeral 48 is the second
stationary journal bearing 48 which is clearly a bearing and not a wall."
Appeal Br. 9. As with Pham's first stationary journal bearing 46, second
stationary journal bearing 48 also includes wall portions extending out from
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Application 14/131,203
the bearing portions. See Pham Fig. 1. Thus, Appellants' argument does not
identify error in the rejection of claim 6 on this basis.
Appellants next contend Pham fails to disclose that "the at least one
passage opening is only arranged in an area of the second bearing device
directly between the second bearing device and the housing wall," as recited
in claim 1. Appeal Br. 9. Appellants argue that Pham's "passageways 90
are provided in each of the first stationary journal bearing 46 and in the
second stationary journal bearing 48." Id. at 10. Because there is a
passageway in both journal bearing assemblies, Appellants contend the
recited at least one passage is not "only" arranged in an area of the "second
bearing device." See id.
The Examiner notes that "[t]he 'at least one passage opening' is
claimed to be comprised in the 'housing wall,"' which is Pham's element 48,
and explains that the passage openings in this element are only in the area of
second bearing device 44 directly between second bearing device 44 and
housing wall 48. Ans. 7. For the reasons given by the Examiner, we agree
that "[t]his claim limitation does not preclude other walls or bearing
assemblies from having other openings." Id.
In the Reply Brief, Appellants do not expressly maintain the argument
that both of Pham'sjournal bearings have passageways through them.
Instead, Appellants present a new argument that could have been, but was
not, presented in the Appeal Brief. Appellants argue Pham's passageways
90 in second stationary journal bearing 48 are not only arranged in an area
directly between the second bearing device and the housing wall because
"[p ]assageways 90 are clearly also arranged between the housing wall
(second stationary journal bearing 48) and thrust bearing 58." Reply Br. 5.
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Application 14/131,203
In other words, as can be seen in Figure 5A, Pham's passageways 90 extend
out from the rotor shaft towards the outer edges of the journal bearing
assembly, and fluid is able to flow in this passageway as shown in Figure 1.
As an initial matter, Appellants waived this argument presented in the
Reply Brief by not presenting it in the Appeal Brief. The Examiner's
Answer explains the error in the argument presented in the Appeal Brief, but
does not constitute a change in position justifying a new argument from
Appellants in reply. We find Appellants' argument is, therefore, not
"responsive to an argument raised in the examiner's answer," 37 C.F.R.
§ 41.41 (b )(2), and there is not good cause for considering Appellants'
belated argument in this case.
Even if we were to consider Appellants' argument, we find it does not
identify error in the Examiner's rejection. According to claim 6, the claimed
"at least one passage opening" is an opening through the housing wall that is
"configured to fluidically connect the rotor housing and the motor housing."
Pham's passageway 90 has two different sections, one of which extends
through the housing wall (wall portions of bearing 48) next to the bearing,
and the other of which extends out in a radial direction from the shaft. See
Fig. 5A; Pham para. 59 ( describing, with respect to first journal bearing 46, a
first leg or radial passageway or conduit 90b in surface 46b, and a generally
axial passageway or conduit 90c in surface 46d). The only portion of the
passageway that extends through the housing wall is the axial passageway
next to the bearing. Pham meets claim 6' s limitation on the location of "the
at least one passageway" because the portion of passageway 90 that
continues to extend out radially from the opening through the housing wall
is not an opening through the wall.
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Accordingly, for the reasons discussed above and by the Examiner,
we are not informed of error in the Examiner's rejection of claim 6 under
35 U.S.C. § 102(b) as anticipated by Pham. For the same reasons, we
sustain the rejection of claims 8 and 10, which are rejected on the same
ground and not argued separately.
Rejection II - 35 U.S. C. § 103 (a)
Claim 9
Appellants argue the rejection of claim 9 is in error "because Pham
fails to describe teach or suggest the above-recited features of independent
claim 6 of the present invention." Appeal Br. 10-11. In light of our
decision as to independent claim 6, Appellants do not identify error in the
rejection of claim 9, and we sustain the Examiner's rejection of claim 9
under 35 U.S.C. § 103(a) as unpatentable over Pham.
DECISION
We affirm the Examiner's decision to reject claims 6 and 8-10.
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)(l )(iv).
AFFIRMED
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