Ex Parte Berdichevsky

Patent Trial and Appeal BoardAug 27, 2013

11351973 (P.T.A.B. Aug. 27, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ALEXANDER BERDICHEVSKY ____________ Appeal 2011-007672 Application 11/351,973 Technology Center 3600 ____________ Before JOHN C. KERINS, NEIL T. POWELL and BEVERLY M. BUNTING, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-007672 Application 11/351,973 2 STATEMENT OF THE CASE Alexander Berdichevsky (Appellant) seeks our review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1, 4, 5, 7, 8, 11, 12, 15-19, 21-23, 25-28 and 30-35. Claims 2, 3, 6, 9, 10, 13, 14, 20, 24 and 29 are canceled. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellant’s invention is directed to a dynamic seal. Independent claim 1, reproduced below, is representative of the claimed subject matter: 1. A dynamic seal comprising: a lubricant side; a non-lubricant side; an elastomeric sealing portion operable to engage with and seal against a shaft, said elastomeric sealing portion including an active surface communicating with said non-lubricant side and a seal lip at an end thereof, said seal lip facing said lubricant side, said seal lip defining an opening in which a shaft can be disposed, and said active surface operable to engage with and seal against a shaft disposed in said opening; and a plurality of non-intersecting grooves each extending along said active surface and stopping short of said seal lip, said grooves each having a beginning point and a termination point adjacent said seal lip and operable to capture lubricant that leaks past said seal lip and pump said lubricant toward the associated termination point and back into said lubricant side due to relative rotation between said active surface and a shaft, Appeal 2011-007672 Application 11/351,973 3 wherein each of said grooves has an induction zone characterized as having a constant cross- sectional area as said groove extends along said active surface and operable to increase a fluid pressure of a lubricant therein as a function of distance toward said lubricant side at a first rate, each of said grooves has a booster zone characterized as having a reducing cross-sectional area as said groove extends along said active surface and operable to increase a fluid pressure of a lubricant therein as a function of distance toward said lubricant side at a second rate greater than the first rate, said cross-sectional area of said grooves in said booster zone diminishes as said grooves extend toward said termination point and away from said induction zone, and said booster zone is located between said seal lip and said induction zone; and a dam disposed between said seal lip and said termination points of said grooves, said dam sealing against a shaft disposed in said opening, and a portion of said dam is dislodged from the shaft when lubricant is pumped into said lubricant side by said grooves. THE REJECTIONS Appellant appeals from the following rejections: (i) claims 1, 4, 5, 7, 8, 11, 12, 15-19, 21-23, 25-28 and 30-35 under 35 U.S.C. § 103(a) as being unpatentable over Mellet (US 2003/0098549 A1, published May 29, 2003) in view of Jagger (US 3,347,554, issued Oct. 17, 1967) and Obata (US 5,860,656, issued Jan. 19, 1999); Appeal 2011-007672 Application 11/351,973 4 (ii) claims 12, 15-19, 21-23, 25, 28, 30, 31 and 33-35 under 35 U.S.C. § 103(a) as being unpatentable over Johnston (US 6,428,013 B1, issued Aug. 6, 2002) in view of Mellet and Obata; (iii) claims 1, 4, 5, 7, 8, 11, 26, 27 and 32 under 35 U.S.C. § 103(a) as being unpatentable over Johnston in view of Jagger, Mellet, and Obata; (iv) claims 12, 15-19, 21-23, 25, 28, 30, 31 and 33-35 under 35 U.S.C. § 103(a) as being unpatentable over Obata in view of Mellet; and (v) claims 1, 4, 5, 7, 8, 11, 12, 15-19, 21-23, 25-28 and 30-35 under 35 U.S.C. § 103(a) as being unpatentable over Obata in view of Jagger and Mellet. ANALYSIS Claims 1, 4, 5, 7, 8, 11, 12, 15-19, 21-23, 25-28 and 30-35--§ 103(a)-- Mellet/Jagger/Obata The Examiner takes the position that Mellet discloses all limitations set forth in these claims with the exception of a plurality of non-intersecting grooves, and possibly a dam, and relies on Jagger and Obata, respectively, as teaching those elements. Ans. 3-4. Appellant does not take issue with the proposed modification of Mellet in view of Jagger and Obata, but does take issue with the Examiner’s finding that Mellet teaches a seal having an induction zone with grooves of a constant cross-sectional area, and a booster zone located between a seal lip and the induction zone, in which the cross- sectional area of the grooves diminishes as the grooves extend toward a termination point of the seal and away from the induction zone. Appeal Br. 9. In particular, Appellant argues that the Mellet seal has a zone corresponding to the position of the claimed induction zone in which the grooves have a smaller cross-sectional area than the larger cross-section Appeal 2011-007672 Application 11/351,973 5 grooves in the position corresponding to the claimed booster zone, which is the opposite of that claimed. Id., citing Mellet, p. 2, para. [0028], see also Mellet, Figs. 3, 8. The Examiner, in response, points to a disclosure in paragraph [0026] of Mellet that the cross-sectional area of the groove can increase toward the air side of the seal, or, in terms of the claim language, increasing in cross- section from a zone in a position corresponding to the booster zone (nearest the termination point and the oil side) to a zone corresponding to the induction zone. Ans. 4, 9. Appellant counters that the embodiment discussed in paragraph [0026] of Mellet does not have any zone with grooves of constant cross-section, and that the embodiment that is described as having a zone with grooves of constant cross-section has the larger cross- sectional grooves nearer the termination end or oil side. Appeal Br. 10-11; Reply Br. 4-8. Appellant further maintains that the Examiner has incorrectly interpreted what is disclosed in paragraph [0026] in Mellet, in light of the remaining teachings of the Mellet disclosure, which require the grooves nearest the termination point and the oil side of the seal to have the larger cross-sectional areas. Id. The preponderance of the evidence supports Appellant’s position. Paragraph [0026], in the portion relied on by the Examiner, describes cutting the grooves in the seal such that the channel sections will be of progressively increasing volume. Mellet, p. 2, para. [0026]. The Examiner interprets this to mean of a progressively increasing volume in a direction away from the termination point of the seal, i.e., from the termination point through a booster zone and to an induction zone. Ans. 9. Appellant argues that such an interpretation ignores that the paragraph is directed to “mak[ing] the Appeal 2011-007672 Application 11/351,973 6 spiral channel of progressively diminishing volume along it [sic, its] length toward the air side 24, and thus of progressively increasing volume toward the oil side 22.” Appeal Br. 10; Mellet, p. 2, para. [0026]. In order to accomplish this, Mellet describes one approach to cutting that results in channel sections of progressively diminishing volume, and one (relied on by the Examiner) that results in channel sections of progressively increasing volume. Mellet, p. 2, para. [0026]. Notwithstanding, as pointed out repeatedly by Appellant, not only is this paragraph by its own language directed to obtaining a spiral channel of progressively diminishing volume toward the air side, or away from the termination point of the seal, the entire remainder of the Mellet disclosure, including the drawing figures, is directed to the seal having the larger cross- sectional groove portions nearest the termination point or oil side of the seal.1 Appellant offers up the most plausible explanation as to Mellet’s alternative method of cutting the groove to obtain a progressively increasing volume--the cut is made starting at the end of the seal opposite the termination point, or from top to bottom in Figures 6 and 7 of Mellet, with the progressively increasing volume being in the direction of the termination point, or oil side, of the seal, and the progressively diminishing volume being in the direction of the air side of the seal, away from the termination point. Accordingly, the Examiner’s finding that Mellet discloses a seal having a groove with smaller cross-sectional areas near the termination point 1 Mellet discloses, for example, that “[t]he larger volume regions near the oil side [i.e., near the termination point] accommodate a greater volume of oil and thus provide an enhanced dynamic pumping effect during rotation of the shaft.” Mellet, p. 1, para. [0004]; see also, paras. [0005]-[0006]. Appeal 2011-007672 Application 11/351,973 7 and oil side and larger cross-sectional areas nearest the air side is not supported by a preponderance of the evidence. The rejection of claims 1, 4, 5, 7, 8, 11, 12, 15-19, 21-23, 25-28 and 30-35 that relies on this finding is thus not sustained. Claims 12, 15-19, 21-23, 25, 28, 30, 31 and 33-35--§ 103(a)-- Johnston/Mellet/Obata The Examiner finds that the Johnston patent discloses all limitations of these claims with the exceptions that the groove on the seal of Johnston “does not appear to stay constant for more than one turn,” and that it is unclear whether Johnston discloses a dam as claimed. Ans. 4-5.2 The Examiner relies on Obata as disclosing a dam, and Appellant does not contest the proposed modification of Johnston to include a dam. Ans. 5; Appeal Br. 11-13. The Examiner cites to Mellet as disclosing “a similar seal having [a] groove with a varying cross-section” and that “Mellet teaches that the groove area can remain constant for more than one turn.” Ans. 5. The Examiner concludes that it would have therefore been obvious to keep the cross-section in Johnston constant as this is regarded as being a known technique applied to improve a similar device in a similar way that would yield predicable results. Id. Appellant argues that Mellet does not teach or suggest a groove having a constant cross-section near the air side of the seal, but only toward 2 The Examiner points to Figures 20-22 of Johnston as disclosing a seal with a lubricant (oil) side and non-lubricant (air) side, and notes further that Figure 6 of Johnston “shows [that] the groove can decrease toward the lubricant side.” Ans. 4-5. While not specifically at issue, it appears, from comparing the seal assembly of Figures 20-22 to the groove configurations in Figures 6 and 7, that Figure 7 more likely illustrates a groove that decreases in cross-sectional area toward the lubricant (oil) side. Appeal 2011-007672 Application 11/351,973 8 the oil side of the seal. Appeal Br. 12; Reply Br. 5. The Examiner counters that Mellet discloses that seal grooves of either small or large volume/cross- section can be maintained for one or more turns that will “effectively return the fluid.” Ans. 10. The Examiner apparently regards the disclosure in Mellet that “[t]he channel in the next turn away from the oil side is shown as being of a relatively small volume” which “may be only one turn, or it may be more than one turn or less than one turn” as a disclosure that smaller volume seal grooves may be of constant volume or cross-section. See, Mellet, p. 2-3, para. [0028]. We do not view Mellet as clearly disclosing that the smaller cross- section grooves can be of constant cross-section. More importantly, Mellet discloses providing its larger cross-section grooves, which are nearest the oil side, as being of constant cross-section in a particular embodiment, which grooves are designed to “accommodate a greater volume of the oil to increase the pumping action toward the oil side.” Mellet, p. 3, para. [0028]. The Examiner has not adequately established why it would have been obvious in view of this teaching in Mellet to make the larger cross-section grooves of Johnston, which are away from the oil side and are toward the air side, of a constant cross-section, and has not adequately explained in what way such a modification would improve the Johnston device, given the different position of the larger cross-section grooves. The rejection of claims 12, 15-19, 21-23, 25, 28, 30, 31 and 33-35 as being unpatentable over Johnston in view of Mellet and Obata is not sustained. Appeal 2011-007672 Application 11/351,973 9 Claims 1, 4, 5, 7, 8, 11, 26, 27 and 32--§ 103(a)-- Johnston/Jagger/Mellet/Obata This rejection is essentially the same as that discussed in the immediately preceding section, with the Jagger patent included in the combination for its teaching of the use of a plurality of non-intersecting grooves. For the reasons discussed in the section above, this rejection is not sustained. Claims 12, 15-19, 21-23, 25, 28, 30, 31 and 33-35--§ 103(a)--Obata/Mellet The Examiner finds that Obata, like Johnston above, discloses a seal having grooves forming an induction zone closer to the non-lubricant/air side with greater cross-sectional area than grooves forming a booster zone that are smaller in cross-sectional area. Ans. 7. The Examiner notes that it is unclear whether the grooves in the induction zone have a constant cross- sectional area, but that Mellet discloses a similar seal in which the groove can be formed to have a constant cross-section for more than one turn. Id. The Examiner concludes that it would have been obvious to form the Obata seal with the larger cross-section groove in the induction zone of a constant cross-section for one or more turns, “as this is a known method used to improve a similar device and would yield expected results.” Id. As noted previously, Mellet provides its larger grooves that are nearest the oil side of the seal with a constant volume or cross-sectional area, for the purpose of improving pumping of the lubricant toward the oil side. Mellet, p. 3, para. [0028]. As is the case with the Johnston reference above, the Examiner has not adequately shown what improvement, with what expected results, would be achieved by modifying the Obata seal to provide the large cross-section grooves that are distant from the oil side with a constant cross-section, in view of the teachings of Mellet. The rejection of Appeal 2011-007672 Application 11/351,973 10 claims 12, 15-19, 21-23, 25, 28, 30, 31 and 33-35 as being unpatentable over Obata and Mellet is not sustained. Claims 1, 4, 5, 7, 8, 11, 12, 15-19, 21-23, 25-28 and 30-35--§ 103(a)-- Obata/Jagger/Mellet This rejection is essentially the same as that discussed in the immediately preceding section, with the Jagger patent included in the combination for its teaching of the use of a plurality of non-intersecting grooves. For the reasons discussed in the section above, this rejection is not sustained. DECISION The rejections of claims 1, 4, 5, 7, 8, 11, 12, 15-19, 21-23, 25-28 and 30-35 under 35 U.S.C. § 103(a) are reversed. REVERSED hh