Ex Parte Bickel et al

Patent Trial and Appeal BoardMay 8, 2013

11343978 (P.T.A.B. May. 8, 2013)

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. 11/343,978 01/30/2006 William J. Bickel JR. 752P 4889 7590 05/09/2013 Thomas M. Freiburger P.O. Box 1026 Tiburon, CA 94920 EXAMINER SINGH, KAVEL ART UNIT PAPER NUMBER 3651 MAIL DATE DELIVERY MODE 05/09/2013 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 WILLIAM J. BICKEL, JR. and JEFFREY EARL DELAIR ________________ Appeal 2011-000875 Application 11/343,978 Technology Center 3600 ________________ Before MURRIEL E. CRAWFORD, BIBHU R. MOHANTY, and JAMES A. TARTAL, Administrative Patent Judges. TARTAL, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000875 Application 11/343,978 2 STATEMENT OF THE CASE1 William J. Bickel, Jr., et al. (Appellants) seek our review under 35 U.S.C § 134 of the Examiner’s final decision rejecting claims 1-11 and 17. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). Appellants’ claimed invention relates to modular plastic conveyor belts. Spec. 1. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. In a modular plastic conveyor belt assembled from a multiplicity of plastic modules in module rows each made up of one or more modules, the belt adapted to travel in a direction generally perpendicular to the module rows, each module having a series of first link ends or knuckles and a series of second link ends or knuckles, the first and second link ends extending in opposite directions from one another and generally perpendicular to the width of the module rows, the link ends each having an aperture, with the apertures of a series of link ends aligned to receive a connecting rod extending through apertures of first link ends of one module row and second link ends of an adjacent module row when the link ends of the two module rows are interdigited in overlapping relationship, and the apertures of the second link ends being elongated slots to allow radius belt travel, a construction which allows a tighter turning radius in one direction of curvature than in an opposite direction of curvature, comprising: link ends near an inner edge of the module row relative to said one direction of curvature being thinner in plastic material in said direction generally perpendicular to the width of the module rows, with less thickness of plastic material beyond the aperture, between the aperture and a link end tip, in one or more link ends near said inner edge as compared to the link ends at 1 Our decision will make reference to Appellants’ Appeal Brief (“App. Br.,” filed Mar. 5, 2010) and Reply Brief (“Reply Br.,” filed Jul. 26, 2010), and the Examiner’s Answer (“Ans.,” mailed Jun. 8, 2010). Appeal 2011-000875 Application 11/343,978 3 the outer edge of the module row, such that the module rows at said inner edge can collapse and nest together more closely than at the outer edge, while the link ends in the module rows are configured also to allow straight belt travel without angularity between adjacent module rows. The Examiner relies upon the following evidence: Damkjær US 6,073,756 Jun. 13, 2000 Palmaer US 2001/0042677 A1 Nov. 22, 2001 Claims 1-9, 11, and 17 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Palmaer. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Palmaer and Damkjær. FINDINGS OF FACT We find that the findings of fact which appear in the Analysis below are supported by at least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). ANALYSIS Anticipation based on Palmaer Claims 1-9, 11, and 17 We agree with Appellants that the Examiner has not established a prima facie showing of anticipation because the Examiner has not shown where each and every element as set forth in independent claim 1 is either expressly or inherently described in Palmaer. Claim 1 requires link ends “being thinner in plastic material in said direction generally perpendicular to Appeal 2011-000875 Application 11/343,978 4 the width of the module rows, with less thickness of plastic material beyond the aperture, between the aperture and a link end tip.” The Examiner correctly maintains that a “direction generally perpendicular to the width of the module rows” includes the direction of travel of the belt. Ans. 7. The Examiner, however, has not shown that Palmaer discloses “link ends being thinner in plastic material” in the direction of travel of the belt as claimed. The Examiner relies on Figure 2 of Palmaer as depicting the required structure, but the Examiner identifies the link end tips as decreasing in width in a direction from the outside of the belt to the inside of the belt, not in the direction of travel of the belt and not “generally perpendicular to the width of the module rows.” See Ans. 7. Accordingly, we cannot sustain the Examiner’s anticipation rejection of claims 1-9, 11, and 17. Obviousness based on Palmaer and Damkjær Claim 10 The Examiner relies upon Palmaer’s disclosure of the elements of claim 1 in support of the obviousness rejection of dependent claim 10. Accordingly, we cannot sustain the Examiner’s rejection of claim 10 as unpatentable over Palmaer and Damkjær for the same reasons discussed above with respect to the anticipation rejection of claim 1. CONCLUSIONS OF LAW We conclude that Appellants have overcome the Examiner’s rejection of claims 1-9, 11, and 17 under 35 U.S.C. § 102(b) as being anticipated by Palmaer. Appeal 2011-000875 Application 11/343,978 5 We further conclude that Appellants have overcome the Examiner’s rejection of claim 10 under 35 U.S.C. § 103(a) as being unpatentable over Palmaer and Damkjær. DECISION We REVERSE the decision of the Examiner to reject claims 1-11 and 17. REVERSED mls