Ex Parte Hope

Patent Trial and Appeal Board

Sep 20, 2012

10532275 (P.T.A.B. Sep. 20, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MARK CHRISTOPHER HOPE
__________

Appeal 2010-009674
Application 10/532,275
Technology Center 3700
___________

Before JAMESON LEE, SALLY GARDNER LANE, and
JONI Y. CHANG, Administrative Patent Judges.

LEE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the final rejection of
claims 6-14 and 16. Claim 15 has been allowed by the Examiner. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
STATEMENT OF THE CASE

The Applied Prior Art
Sakagami 5,961,291 Oct. 5, 1999

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The Rejection on Appeal

Claims 6 and 16 were finally rejected under 35 U.S.C. § 102(b) as
anticipated by Sakagami.
Claims 7-14 were finally rejected under 35 U.S.C. § 103(a) as obvious
over Sakagami.
The Invention
The invention is directed to a method for reducing the incidence of
restart failure in a dry pump. (Claim 6). Dry pumps typically comprise
non-contacting parts and use no oil or lubricant in the pumping mechanism.
(Spec. 1:4-5). The component parts of the dry pump are manufactured to
tight tolerances to provide fixed running clearances between components
and to reduce friction. (Spec. 1:5-7).
Dry pumps are frequently used in the semiconductor industry to
withdraw particulate or powderous waste from the manufacturing
environment. (Spec. 1:14-17). Dry pumps in that environment are
frequently in continuous use except when there is a need for a manufacturing
line change or for maintenance and repair. (Spec. 1:17-20). Operating
running temperatures of the dry pumps in semiconductor manufacturing
lines are typically around 120°C. (Spec. 1:25-26). When they are switched
off, they cool to room temperature around 19°C. (Spec 1:26-27).
During the cooling, components, such as rotors and stators, contract
and that reduces the clearance between parts. (Spec. 1:27-29).
Consequently, contaminants get impacted between the contracted parts and
cause problems in restarting the pump. (Spec. 1:29 to 2:4).
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Appellant’s invention seeks to maintain running clearances of dry
pumps and minimize the occurrence of restart failure due to compacted
particulate contaminants. (Spec. 2:5-7).
As disclosed, the invention performs a sequence of steps during a
pump shut-down sequence as the pump cools to ambient temperature, to
purge some contaminants and evacuate them from the pump. (Spec. 2:11-
-26). It involves initiating operation of the pump for a fixed time period
after at least one pre-selected temperature interval is reached during cooling
in the shut-down sequence. (Spec. 2:13-20).
Claim 6 is the only independent claim on appeal and is reproduced
below:
6. A method for reducing the incidence of restart
failure in a dry pump comprising the steps of:

a) detecting the cessation of operation of the pumping
mechanism

b) monitoring the temperature of the pumping
mechanism after cessation of operation

c) at at least one pre-selected temperature interval,
initiating operation of the pumping mechanism for a fixed time
period so as to purge a proportion of contaminant particulate
matter present until a predefined temperature is reached or a
predefined time limit has passed.

DISCUSSION
The Anticipation Rejection of Claims 6 and 16 over Sakagami

Claim 6 is independent and claim 16 depends on claim 6. We focus
on the disputed limitations.
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Sakagami discloses a turbo vacuum pump. (Abstract:1). Appellant
does not dispute that Sakagami’s vacuum pump is a dry pump. Sakagami
discloses that before starting the dry pump, a stator of the pump is heated to
decrease a binding force of the reaction products so that the pump can be
restarted even if the rotor has locked by the solidification of deposited
reaction products. (Abstract:9-14). In pertinent part, Sakagami states (col.
11:65 to 12:9):
When the operation of the turbo vacuum pump is
commenced, the rotor is floated at Step s91 by the magnetic
bearings, and the motor is driven at Step s92, as shown in FIG.
26. At Step s93, an abnormality is detected from the relation
between the RPM and the acceleration time. If the
acceleration is judged to be abnormal, the motor is stopped
at Step s95, and the stator is heated at Step s96. When the
stator temperature reaches a predetermined level, the
aluminum chloride has been sublimated, and the motor is
restarted at Step s92. The RPM and acceleration time are
again checked at Step s93. If normal, the heating of the stator is
stopped at Step s94. (Emphasis added.)

Sakagami further states (col. 11:17-34) in a paragraph specifically
relied on by the Examiner (Answer 7:4-8):
A flow chart of the operation of the fifth embodiment is
shown in FIG. 22. When the operation of the turbo vacuum
pump is initiated, a command to heat the stator is outputted
at Step s41 from the heating control means 7. On the basis of
the output of a temperature sensor attached to the stator, at
Step s42, the heating control means 7 controls the current which
flows to the heater attached to the stator. When the stator
temperature reaches the aforementioned predetermined level,
the power supply to the heater is stopped at Step s43.
Thereafter, the rotor is floated at Step s44 by the command
coming from the magnetic bearing control unit 21, and the
motor is started at Step s45 by the command of the motor
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control unit 22. By thus heating the stator before the start,
the solid aluminum chloride can be sublimated to reduce the
frictional resistance at the restart of the pump. Moreover, the
heating temperature is lower than that of the heat treatment of
the stator material so that no performance drop, as might
otherwise be caused by the thermal deformation or the like, will
occur. (Emphasis added.)

The Examiner bears the initial burden of presenting a prima facie case
of unpatentability. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Anticipation under 35 U.S.C. § 102 requires that each and every claim
element is found, either expressly or inherently described, in a single prior
art reference. In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999).
The Examiner may not support an anticipation rejection by finding separate
pieces in disparate parts of a prior art reference. Rather, each and every
element, arranged in a combination precisely as is recited in the claim, must
be found in a single prior art reference. Karsten Manufacturing Corp. v.
Cleveland Golf Co., 242 F.3d 1376, 1383 (Fed. Cir. 2001); see also Net
MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008).
Appellant argues that the temperature monitoring disclosure of
Sakagami indisputably applies during efforts to start or initiate the pump,
and thus is clearly not the same as and cannot meet that required by
Appellant’s claim 6 which recites in step (b): “monitoring the temperature
of the pumping mechanism after cessation of operation.” Appellant asserts
that its claimed invention monitors the temperature of the pump when it
cools down after cessation of operations (Brief 6:13-14), and that that is
significant because while the pump is cooling down after cessation of
operations it is still warm and thus the claimed invention requires no heater
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and heater control unit as is required in the case of Sakagami to purge the
pump of contaminants. (Brief 7:3-8).
Appellant’s argument is unpersuasive. Claim 6 does not preclude the
recited temperature monitoring from taking place during efforts to restart the
pump after cessation of pump operation a substantial period of time ago such
that the pump has already cooled to ambient temperature. During
examination, claim terms are properly given their broadest reasonable
interpretation consistent with the specification. In re Icon Health & Fitness,
Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In re Zletz, 893 F.2d 319, 321
(Fed. Cir. 1989); In re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984).
Also, claim elements must be construed as they would be understood by
those skilled in the art. Smithkline Diagnostics, Inc. v. Helena Laboratories,
Corp., 859 F.2d 878, 882 (Fed. Cir. 1988); see also Hoechst Celanese Corp.
v. B.P. Chems., Ltd., 78 F.3d 1575, 1578 (Fed. Cir. 1996). The viewing
glass through which the claims are construed is that of a person skilled in the
art. Metabolite Laboratories v. Laboratory Corp. of America, 370 F.3d
1354, 1361 (Fed. Cir. 2004).
Claim 6 simply recites “monitoring the temperature of the pumping
mechanism after cessation of operation.” The “after cessation of operation”
language merely marks a starting point and would have been understood by
one with ordinary skill in the art as extending forward indefinitely from that
point in time. Nothing in Appellant’s specification indicates that the term
“after” has been redefined by the inventors to also carry an end point on the
other side. If Appellant intended for the claim to cover only a period
between cessation of pump operations and the next attempt to start the
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pump, Appellant could have amended the claim to state so, such as by
adding “and prior to the next attempt to start the pump.”
Accordingly, contrary to Appellant’s argument, it is not the case that
the temperature monitoring step must occur while the pump is cooling down
from cessation of operations. That alleged distinction from Sakagami is not
supported by claim 6. In that regard, we note that in claim 1, which has been
withdrawn by Appellant, the temperature monitoring function is recited as
being a part of the pump’s automatic shutdown sequence.
However, each element of Appellant’s claimed invention must be
accounted for by the Examiner. Claim 6 requires that at one pre-selected
temperature interval, the pump is initiated “for a fixed period of time.” As is
disclosed in Sakagami, column 12, lines 1-10, a disclosure cited by the
Examiner (Ans. 7:15), when Sakagami’s motor is restarted after the stator
has reached a predetermined temperature, the RPM and acceleration time are
again checked to see if they are normal, and upon detection of normalcy the
heating of the stator is stopped. Nothing there indicates that the pump is
initiated just “for a fixed period of time.” The implication, if any, for when
abnormality is detected, is simply that the stator will continue to be heated,
not that the pump will be turned off. Even assuming that the pump will be
turned off in that circumstance, the Examiner has not shown that the pump
will have been initiated for only “a fixed period of time.”
The Examiner also cited (Ans. 7:15) to Sakagami, column 10,
lines 1-13. That portion of Sakagami indicates that if the motor RPM is less
than a predetermined value after expiration of a predetermined time interval,
the motor is stopped. There are three problems with the Examiner’s reliance
on that portion of Sakagami’s disclosure. First, that disclosure pertains to an
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embodiment which does not involve the application heat to the pump or a
heat controller as is the case with the disclosure in column 11, lines 17-34,
and column 12, lines 1-10 of Sakagami. The Examiner may not combine
disparate parts of different embodiments to support an anticipation rejection.
Secondly, Sakagami’s disclosure in column 10, lines 1-13, indicates that the
RPM is checked “after” expiration of a predetermined time interval, not
precisely at the expiration of a predetermined time interval. Therefore, that
disclosure covers an indefinite period of time and not a precise moment in
time. Even assuming that abnormality in RPM will be detected each and
every time and so the pump will be shut off in each instance, that disclosure
of Sakagami does not support initiating the pump “for a fixed period of
time.” Third, in our view, shutting down the pump when abnormality in
RPM is detected does not meet the requirement of initiating the pump “for a
fixed period of time” even if the RPM is checked at a predetermined time
after initiation of the pump. Nothing in Sakagami indicates that the pump
will have abnormal RPM each and every time. Sometimes shutting down
the pump and sometimes not does not meet initiating the pump “for a fixed
period of time.”
For the foregoing reasons, the anticipation rejection of claims 6 and
16 cannot be sustained.

The Obviousness Rejection of Claims 7-14 over Sakagami

Each of claims 7-14 depends directly or indirectly on claim 6. The
Examiner’s obviousness analysis addresses the claim features added by each
of the dependent claims and does not make up for the deficiency of
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Sakagami with respect to independent claim 6 as discussed above in the
context of the anticipation rejection of claim 6.
Accordingly, the obviousness rejection of claims 7-14 cannot be
sustained.
CONCLUSION
The rejection of claims 6 and 16 under 35 U.S.C. § 102 as anticipated
by Sakagami is reversed.
The rejection of claims 7-14 under 35 U.S.C. § 103 as unpatentable
over Sakagami is reversed.

REVERSED