Ex Parte Kirkman

Patent Trial and Appeal BoardApr 30, 2013

11998241 (P.T.A.B. Apr. 30, 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. 11/998,241 11/29/2007 Thomas R. Kirkman 18979 USA 5929 27081 7590 04/30/2013 OWENS-ILLINOIS, INC. ONE MICHAEL OWENS WAY, THREE O-I PLAZA PERRYSBURG, OH 43551-2999 EXAMINER SZEWCZYK, CYNTHIA ART UNIT PAPER NUMBER 1741 MAIL DATE DELIVERY MODE 04/30/2013 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 THOMAS R. KIRKMAN ____________ Appeal 2011-012493 Application 11/998,241 Technology Center 1700 ____________ Before PETER F. KRATZ, LINDA M. GAUDETTE, and JAMES C. HOUSEL, Administrative Patent Judges. KRATZ, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134 from the Examiner’s final rejection of claims 1-13. We have jurisdiction pursuant to 35 U.S.C. § 6. Appeal 2011-012493 Application 11/998,241 2 Appellant’s claimed invention is directed to a bottom plate lift mechanism for a glassware forming machine. The lift mechanism includes a bottom plate assembly, a housing on which the bottom plate assembly is mounted, a lift mechanism operatively coupled to the housing for selectively raising and lowering the housing and bottom plate assembly, and a plurality of interchangeable cooling air control cartridges. The housing includes a cooling air chamber and an opening to said chamber for receiving a cooling air control cartridge to control passage of wind through the chamber to the bottom plate assembly. The bottom plate assembly includes a passage for feeding cooling air thereto. According to Appellant (Spec. p. 2, ll. 10-22): A plurality of control cartridges are interchangeably insertable through the opening into the chamber for selectively controlling passage of cooling air to the bottom plate assembly in different cooling modes of operation associated with the cartridges. The cooling air chamber preferably includes a passage through the housing, and the opening in the housing opens into the passage for selective placement of the cartridge into the passage. The cooling air cartridge may comprise a damper cartridge with a damper for adjustably blocking the air passage to regulate the flow of cooling wind to the bottom plate assembly, such as by manual adjustment or adjustment by means of a pneumatic valve. The cartridge alternatively may be a compressed air cooling cartridge with a damper sleeve for blocking the air passage through the housing and a fitting for connection to a source of compressed air to supply compressed cooling air to the bottom plate assembly instead of cooling wind received through the cooling air chamber in the housing. Appeal 2011-012493 Application 11/998,241 3 Claim 1 is illustrative and reproduced below: 1. A bottom plate lift mechanism for a glassware forming machine, which includes: a bottom plate assembly having at least one bottom plate on a base with a passage for feeding cooling air to said bottom plate, a housing on which said bottom plate assembly is mounted, said housing having a cooling air chamber and means for directing cooling wind into said chamber, a lift mechanism operatively coupled to said housing for selectively raising and lowering said housing and said bottom plate assembly, said housing having an opening to said cooling air chamber for receiving a cooling air control cartridge to control passage of cooling wind through said chamber to said bottom plate assembly, and a plurality of cooling cartridges for interchangeable insertion through said opening into said chamber for selectively controlling passage of cooling air to said bottom plate assembly in different cooling modes of operation associated with said cartridges. The Examiner relies on the following prior art references as evidence in rejecting the appealed claims: Tijerina-Ramos 2005/0235697 A1 Oct. 27, 2005 Kammonen 6,123,096 Sep. 26, 2000 Jones 4,579,576 Apr. 1, 1986 Claims 1-4 and 8-13 stand rejected under 35 U.S.C. § 103 as being unpatentable over Tijerina-Ramos in view of Kammonen. Claims 5-7 stand rejected under 35 U.S.C. § 103 as being unpatentable over Tijerina-Ramos in view of Kammonen and Jones. We reverse the stated rejections. Our reasoning follows. Appeal 2011-012493 Application 11/998,241 4 The Examiner refers to Figure 10C of Tijerina-Ramos and maintains that (Ans. 4): Tijerina-Ramos (herein referred to as TR) teaches a bottom mold plate mechanism comprising a bottom plate assembly (figure 10C) having three bottom plate with passages for cooling air (380a, 380b, 380c), a housing (374) having a cooling air chamber (371), a lift mechanism (366), an opening in the housing (372a, 372b) which would be capable of holding cooling cartridges. TR is silent to the use of cooling cartridges. The Examiner found that “KAMMONEN teaches a pneumatic cartridge control valve” and further teaches that “the cartridges control a supply of air at a controlled pressure for the purposes of cooling” (column 1, ll. 10-15). Based on the combined teachings of TR and Kammonen, the Examiner proposes that “[i]t would have been obvious to one of ordinary skill in the art to use the pneumatic cartridge valve of KAMMONEN in the apparatus of TR because TR is silent to the control mechanism of the air source and KAMMONEN discloses that it is well known for use in IS machines (col. 1 lines 7-9)” (Ans. 4). In alleged support, the Examiner asserts “the cooling air supplies 372a, 372b [of TR] as the logical location for [the placement of the] cooling air control cartridges” of Kammonen (Ans. 6). However, the Examiner’s obviousness position respecting the asserted logical valve location is not well served by the teachings of TR. This is because TR discloses locating slide valves (SV) for cooling fluid for the blow molding apparatus at a different location than the Examiner’s asserted logical location, such as a location at or near the machine support frame and/or apparatus support frame, as basically argued by Appellants (App. Br. 10 -13; Reply Br. 2; TR, paras. 138-140, 150-152, 242-244, 252, and 253, Appeal 2011-012493 Application 11/998,241 5 Figs. 1A, 1B, 3J, 3K, 3L, 9A-F, 10C). The Examiner has not pointed to any teachings in Kammonen specifying a location for the pneumatic cartridge valve thereof that corresponds to the Examiner’s asserted logical location at 372a and 372b, as shown in Figure 10C of TR. In this regard, the Examiner further undercuts the obviousness theory that the Examiner’s proposed cartridge valve location in TR is the logical location by simultaneously maintaining that “it is impossible to determine from the figures” whether the passages 372a and 372b are not long enough, as argued by Appellant, “because both TR and KAMMONEN do not disclose the scale of the figures nor do they disclose the lengths of the components” (Ans. 7; see Reply Br. 3). Moreover and as further argued by Appellants, the Examiner has not adequately articulated the Examiner’s proposed obviousness position as to the required plurality of cooling cartridges for interchangeable insertion into the housing chamber for selective control of the cooling air passage to the bottom plate assembly in different cooling modes of operation associated with the cartridges, as required by the claim 1 (App. Br. 11 and 13; see Specification, p. 1, ll. 10-22, p. 6, l. 20-p. 7, l. 15, and Application Drawing Figs. 9-11). On this record, we agree with Appellant that the Examiner’s proposed modification of TR in the first stated rejection appears to be premised on an impermissible use of hindsight after review of Appellant’s disclosure rather than on an apparent reason to modify TR based on the combined teachings of the applied references. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (The fact finder must be aware “of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning;” citing Graham v. John Deere Co., 383 U.S. 1, 36 (1966) (warning against a Appeal 2011-012493 Application 11/998,241 6 “temptation to read into the prior art the teachings of the invention in issue”)). Rejections based on § 103(a) must rest on a factual basis with these facts being interpreted without hindsight reconstruction of the invention from the prior art. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). It follows that we reverse the Examiner’s obviousness rejection of claims 1-4 and 8-13 over TR and Kammonen. As regards the separate obviousness rejection of dependent claims 5-7 over TR, Kammonen, and Jones, we note that the Examiner relies on Jones for features found in the separately rejected claims and does not articulate how Jones might obviate all of the deficiencies of the base combination of TR and Kammonen, as discussed above. It follows that we shall likewise reverse the Examiner’s separate obviousness rejection of claims 5-7 on this appeal record. ORDER The Examiner’s decision to reject the appealed claims is reversed. REVERSED tc