Ex Parte Trenberth

Patent Trial and Appeal BoardFeb 28, 2019

14092378 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/092,378 11/27/2013 5179 7590 03/04/2019 PEACOCK LAW P.C. 201 THIRD STREET, N.W. SUITE 1340 ALBUQUERQUE, NM 87102 FIRST NAMED INVENTOR Micheal Charles Trenberth 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. 33557-UT 8965 EXAMINER LAMBERT, WAYNE A ART UNIT PAPER NUMBER 3745 NOTIFICATION DATE DELIVERY MODE 03/04/2019 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): info@peacocklaw.com awehrle@peacocklaw.com docketing@peacocklaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHEAL CHARLES TRENBERTH Appeal 2018-005310 1 Application 14/092,378 Technology Center 3700 Before KEVIN F. TURNER, MICHAEL J. FITZPATRICK, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. Â§ 134 from the Examiner's decision to reject claims 1, 3-10, and 13-22.2 We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 The Appeal Brief indicates that the Appellant, Oztren Industries Pty. Ltd., is the real party in interest. Br. 3. 2 Claims 2, 11, and 12 have been cancelled. Br. 25-26 (Claims App.). Appeal 2018-005310 Application 14/092,378 CLAIMED SUBJECT MATTER The claims are directed to a wind turbine that controls blade pitch during windy conditions. Spec. ,r 3. Claim 1, reproduced below with emphasis added, is illustrative of the claimed subject matter: 1. A wind turbine comprising: a rotatable shaft having opposed ends; a load connected to and driven by said rotatable shaft; at least one support arm connected to said rotatable shaft; at least two support shafts rotationally connected to said support arm; at least two blades, each of said blades attached to said support arm via one of said support shafts; a set of gears comprising: a first gear disposed about said rotatable shaft; a second gear coupled to a first of said blades; and a third gear coupled to a second of said blades, said first gear meshing with said second and said third gears and keeping said blades in synchronism; and at least one weight fastened to and projecting away from at least one of said blades, such that when said blade is in a closed position, said weight projects from said blades in a direction away from said rotatable shaft, said weight positioned to maintain an equalized state for said at least one blade during rotation and wherein said blades are adjusted based at least in part on inertial kinetic energy stored in said weight. Br. 24 (Claims App.). REFERENCES RELIED ON BY THE EXAMINER Curry us 1,341,045 May 25, 1920 Hohlt us 1,656,485 Jan. 17, 1928 Gunn us 1,954,811 Apr. 17, 1934 Bartsch us 4,725,194 Feb. 16, 1988 Lew us 5,098,264 Mar. 24, 1992 2 Appeal 2018-005310 Application 14/092,378 Fowler Zeuner Vanderhye us 6,069,409 US 2008/0231057 Al US 7,766,600 Bl REJECTIONS May 30, 2000 Sept. 25, 2008 Aug. 3, 2010 I. Claims 1, 3-5, 10, 13, 15, 18, and 22 are rejected under 35 U.S.C. Â§ 103 as unpatentable over Curry, Hohlt, and Gunn. II. Claim 6 is rejected under 35 U.S.C. Â§ 103 as unpatentable over Curry, Hohlt, Gunn, and Fowler. III. Claims 7-9 are rejected under 35 U.S.C. Â§ 103 as unpatentable over Curry, Hohlt, Gunn, and Vanderhye. IV. Claim 14 is rejected under 35 U.S.C. Â§ 103 as unpatentable over Curry, Hohlt, Gunn, and Lew. V. Claims 16, 20, and 21 are rejected under 35 U.S.C. Â§ 103 as unpatentable over Curry, Hohlt, Gunn, and Zeuner. VI. Claim 17 is rejected under 35 U.S.C. Â§ 103 as unpatentable over Curry, Hohlt, Gunn, Bartsch, and Hyatt. VII. Claim 19 is rejected under 35 U.S.C. Â§ 103 as unpatentable over Curry, Hohlt, Gunn, and Bartsch. OPINION Rejection I Appellant argues for the patentability of the claims subject to the first ground of rejection, i.e., claims 1, 3-5, 10, 13, 15, 18, and 22, as a group. Br. 10. We select claim 1 as representative of the group, and claims 3-5, 10, 13, 15, 18, and 22 stand or fall with claim 1. 37 C.F.R. Â§ 4I.37(c)(l)(iv). 3 Appeal 2018-005310 Application 14/092,378 The Examiner finds that Curry teaches many of the elements recited by claim 1, including a wind turbine with at least two blades (blades 22) and a weight (counterweight 30) attached to one of the blades. Final Act. 3--4; see also Curry Figs. 1, 3. However, the Examiner relies on Hohlt to teach a set of gears that keep the blades in synchronism, and on Gunn to teach placement of the weight at the particular location (and in the orientation) recited in claim 1. Final Act. 4--5. The Examiner reasons that modifying the wind turbine disclosed by Curry to include a set of gears as taught by Hohlt and to place the weight disclosed by Curry in the position/orientation taught by Gunn would have been an obvious use of a known technique to improve a similar device in the same way. Id. at 5 ( citing KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398,417 (2007), MPEP Â§ 2141 III (C)). Appellant argues that (i) Gunn teaches away from the claimed invention (Br. 11-12) and (ii) Hohlt's mechanism is entirely different from the claimed invention, and, thus, modifying the arrangement disclosed by Hohlt would change its principle of operation and render it unsuitable for its intended use (Br. 12-15). For the reasons discussed below, we find these arguments unavailing. (i) Teaching Away by Gunn Appellant asserts that Gunn teaches away from the claimed invention because Gunn discloses that the absence of interconnecting parts between vanes provides advantages. Br. 11 (citing Gunn 1: 100-110). Appellant contends that the claimed invention requires a set of gears and an interconnection between its blades, which, Appellant argues, is contrary to the express teachings of Gunn. Id. Additionally, based on the alleged fact 4 Appeal 2018-005310 Application 14/092,378 that Gunn teaches away from the claimed invention, Appellant also contends that the rejection of claim 1 would involve changing the principle of operation of the system disclosed by Gunn. Id. at 11-12. In response, the Examiner explains that the proposed modification to the wind turbine disclosed by Curry, based on Gunn, merely changes the position of the weights 30 already disclosed by Curry, and Gunn does not teach away from such a modification. Ans. 2-3. We do not agree with Appellant that Gunn teaches away from the arrangement recited in claim 1. A reference teaches away from a claimed invention when a person of ordinary skill, "upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Gunn describes two embodiments of an air motor. See Gunn 1:92-110. One of these embodiments has fewer interconnecting parts than the other. See id. The portion of Gunn cited by Appellant (see Br. 11-12) as evidence that Gunn teaches away from the claimed invention merely lists advantages and disadvantages of each of these embodiments. See Gunn 1: 100-110. Specifically, Gunn teaches that the embodiment depicted in Figures 5 and 6 is ( due to an absence of interconnecting parts) lighter than the embodiment depicted in Figures 1--4, but the embodiment of Figures 5 and 6 is not "quite so stable" and may become unbalanced. See id. In this context, the advantage Gunn attributes to having an "absence of interconnecting parts" would not discourage a person of ordinary skill in the art from using interconnecting parts such as the ones recited in claim 1. Indeed, Gunn's discussion of the benefits and disadvantages of the two embodiments does 5 Appeal 2018-005310 Application 14/092,378 not even appear to prefer the embodiment having fewer interconnecting parts over the other embodiment. (ii) Differences in Hohlt Appellant asserts that the mechanism disclosed by Hohlt is "entirely different" from the claimed invention, and "in order to modify or combine Hohlt in such a way as to obviate Applicant's claims, one would be forced to change the principle of operation of Hohlt because Hohlt does not rely on 'inertial kinetic energy stored in said weight'." Br. 12-13. Reiterating that Hohlt does not make use of a weight as claimed, Appellant contends, "the only way to so drastically change the fundamental principle of operation of Hohlt is to completely re-design its workings and functions, throw away its principle of operation and redesign it from the ground up." Id. at 13. Appellant also asserts that adding a weight, as claimed, to the mechanism of Holt would not provide a benefit and would, instead, render it "unsatisfactory." Id. at 13-14. In response, the Examiner finds that Hohlt and the claimed invention operate based on gear systems to control the rate of rotation of a turbine based on movement of a central gear, and, thus, have similar principles of operation. Ans. 3. The Examiner further notes that the rejection of claim 1 relies on Curry, not Hohlt, to teach adjustment of blades based at least in part on inertial kinetic energy stored in a weight. Id. at 3--4. Appellant's arguments regarding Hohlt do not apprise us of Examiner error. The rejection of claim 1 does not modify the teachings of Hohlt to change its principle of operation, require a substantial redesign, or render it unsatisfactory for its intended use. Rather, the Examiner proposes to modify the teachings of Curry to include set of gears as disclosed by Hohlt. See 6 Appeal 2018-005310 Application 14/092,378 Final Act. 4--5. In other words, the rejection of claim 1 relies on Curry for the majority of the required claim elements and incorporates some of the teachings of Hohlt, not Hohlt's entire apparatus. See Final Act. 3--4. "The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference ... Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art." In re Keller, 642 F.2d 413,425 (CCPA 1981). Thus, Appellant's contentions regarding a modification of the system disclosed by Hohlt do not address the rejection of claim 1. We have considered all of Appellant's arguments in support of the patentability of claim 1, but find them unavailing. Accordingly, we sustain the rejection of claim 1 as unpatentable over Curry, Hohlt, and Gunn. Claims 3-5, 10, 13, 15, 18, and 22 fall with claim 1. Rejections II-VII Appellant's discussion of Rejections II through VII merely asserts that the additional references relied upon in the rejections of dependent claims 6-9, 14, 16, 17, 19, 20, and 21 do not remedy the alleged deficiencies in Rejection I. See Br. 15-17. Consequently, we sustain Rejections II-VII for the same reasons discussed above regarding Rejection I. DECISION The Examiner's decision to reject claims 1, 3-10, and 13-22 is affirmed. 7 Appeal 2018-005310 Application 14/092,378 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 8