Ex Parte Vanderhye

Patent Trial and Appeal Board

Aug 31, 2017

13318537 (P.T.A.B. Aug. 31, 2017)

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.
RAV-4367-13 2392
EXAMINER
MCCAFFREY, KAYLA M
ART UNIT PAPER NUMBER
3745
MAIL DATE DELIVERY MODE
13/318,537 11/02/2011
61364 7590 09/01/2017
ROBERT A. VANDERHYE
801 RIDGE DR.
MCLEAN, VA 22101-1625
Robert A. Vanderhye
09/01/2017 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 ROBERT A. VANDERHYE
Appeal 2015-005356
Application 13/318,537
Technology Center 3700
Before EDWARD A. BROWN, WILLIAM A. CAPP, and
BRANDON J. WARNER, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert A. Vanderhye (Appellant)1 appeals under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 18—33, 35, 36, 38, and 39.
Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 The Appeal Brief identifies Robert A. Vanderhye as the real party in
interest. Appeal Br. 1.
Appeal 2015-005356
Application 13/318,537
CLAIMED SUBJECT MATTER
Claims 18, 19, and 38 are independent. Claim 18 illustrates the
claimed subject matter, and reads:
18. A mounting unit for a vertical axis wind turbine, the
mounting unit comprising: a central component with bearings
and a driven shaft; at least three supporting legs; and an
attachment plate connected to each leg and a separate central
component attachment plate associated with each leg; wherein
each leg attachment plate is detachable from its cooperating
central component attachment plate and attachable thereto by a
plurality of fasteners; said supporting legs providing the sole
support for said central component.
Appeal Br. 17 (Claims App.).
REJECTIONS
Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Whitworth (US 7,008,171 Bl, issued Mar. 7, 2006) and Plotkin (US
2,252,523, issued Aug. 12, 1941).2
Claim 36 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Whitworth, Plotkin, and Payne (US 4,508,973, issued Apr. 2, 1985).
Claims 19, 21—31, 33, 35, and 38 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Whitworth, Plotkin, Vanderhye (US 7,241,105
Bl, issued July 10, 2007), Setala (US 5,002,252, issued Mar. 26, 1991), and
Chow (US 4,000,624, issued Jan. 4, 1977).3
2 The heading of the rejection also lists claim 37. Final Act. 6. However, as
Appellant notes, claim 37 has been cancelled. Appeal Br. 3, n.2.
Accordingly, we treat the listing of claim 37 in the heading as a
typographical error.
3 The heading of the rejection also lists claim 34 as included in this
rejection. Final Act. 9. However, as Appellant notes, claim 34 has been
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Application 13/318,537
Claims 20, 32, and 39 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Whitworth, Plotkin, Vanderhye, Setala, Chow, and Payne.
ANALYSIS
Claim 18 as unpatentable over Whitworth and Plotkin
Claim 18 requires “an attachment plate connected to each leg and a
separate central component attachment plate associated with each leg,”
“wherein each leg attachment plate is detachable from its cooperating
central component attachment plate.” Appeal Br. 17 (Claims App.
(emphases added).
Appellant contends that “Plotkin clearly does not show the two sets of
separate attachment plates associated with each support leg as recited in
claim 18” and “Whitworth too clearly does not show a separate central
component attachment plate associated with each leg.” Appeal Br. 6
(emphases added). The Examiner responds that “claim 18 does not require a
separate central component attachment plate for each leg. Rather, the claim
only requires ‘an attachment plate connected to each leg[.’] Therefore, the
Examiner submits the claim requires only a single central component
attachment plate to which each leg is respectfully [sic] attached.” Ans. 5.
As Appellant and the Examiner disagree about the proper construction
of the above-quoted limitations in claim 18, we construe this language.
“During examination, ‘claims ... are to be given their broadest reasonable
cancelled. Appeal Br. 3, n.3. Accordingly, we treat the listing of claim 34
as a typographical error. As also noted by Appellant, the rejection heading
does not list claims 35 and 38, although they are addressed in the body of the
rejection. Appeal Br. 3 n.4; see Final Act. 13—14. Accordingly, we treat the
omission of claims 35 and 38 in the heading as a typographical error.
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Application 13/318,537
interpretation consistent with the specification, and . . . claim language
should be read in light of the specification as it would be interpreted by one
of ordinary skill in the art.’” In re Am. Acad, of Sci. Tech Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004). We construe claim 18 to require a leg
attachment plate and a central component attachment plate associated with
each leg. That is, each leg has a pair of attachment plates associated with it,
such that the at least three supporting legs have a total of at least three pairs
of attachment plates associated with them. Our construction is consistent
with the recitations of “a separate central component attachment plate
associated with each leg” and “each leg attachment plate is detachable from
its cooperating central component attachment plate” in claim 18.
Our construction is also consistent with Appellant’s Specification.
Figure 6 shows a mounting unit 67 including support legs 69 extending from
a central component 68. See Spec. 16, Fig. 6. Figure 7 shows a support leg
69 and a fastening plate 91 cooperating with an attachment plate 89
connected to support leg 69. Id. at 19, Fig. 7. Figure 7 shows only one
support leg 69; however, the Specification describes that “[i]n FIG. 7,
desirably substantially flat or slightly curved attachment plates 89 . . . are . . .
securely attached to the central component 68,” and “[t]he legs 69 have
cooperating . . . fastening plates 91 integral therewith . . . [such that]
[fastening plates 91 cooperate with the attachment plates 89.” Id.
(emphases added).
Thus, the Examiner’s construction of claim 18 to require only a single
central component attachment plate is inconsistent with the claim language
and Specification. This erroneous construction led to additional errors. That
is, the Examiner explains that the rejection relies on the combination of
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Application 13/318,537
Whitworth and Plotkin to meet “the claim 18 limitation concerning the two
attachment plates (i.e. the central attachment plate and leg attachment
plates).” Ans. 5 (emphasis added). The Examiner finds that Whitworth
teaches a central component attachment plate (i.e., the circular plate upon
which central component 425 is positioned) and that Plotkin teaches the
claimed leg attachment plates. Final Act. 6—7 (citing Whitworth, Fig. 4;
Plotkin, Figs. 1, 4); Ans. 5—6. Accordingly, the Examiner does not establish
that either Whitworth or Plotkin teaches a leg attachment plate and a central
component attachment plate associated with each leg, as required by the
plain language of claim 18. Consequently, the Examiner does not establish
by a preponderance of the evidence that the proposed combination of
Whitworth and Plotkin includes all the limitations of claim 18.
Additionally, the Examiner does not propose to modify the
combination of Whitworth and Plotkin (i.e., based on the erroneous claim
construction) in a way that would result in the mounting unit recited in claim
18, much less articulate an adequate reason with a rational underpinning to
support the modification. Thus, we do not sustain the rejection of claim 18
as unpatentable over Whitworth and Plotkin.
Rejection of claim 36 as unpatentable over Whitworth, Plotkin, and Payne
Claim 36 depends from claim 18 and recites limitations relating to a
“cross support.” Appeal Br. 18 (Claims App.). The Examiner finds that
Payne discloses cross struts 38. Final Act. 8.
The Examiner’s reliance on Payne to reject claim 36 does not cure the
deficiencies of the rejection of claim 18 discussed above.4 Thus, we do not
4 The Examiner also discusses “Vanderhye” (US 2007/0212225 Al,
published Sept. 13, 2007) (“Vanderhye ’225”). Final Act. 8—9. However,
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sustain the rejection of claim 36 as unpatentable over Whitworth, Plotkin,
and Payne for the same reasons as those for claim 18.
Rejection of claims 19, 21—31, 33, 35, and 38 as unpatentable over
Whitworth, Plotkin, Vanderhye, Setala, and Chow
Claims 19, 21—31, 33, and 35
Claim 19 recites, inter alia, “at least three support legs, at least one of
which is telescopic, rigidly connected to and extending [sic] an angle from
said central component.'” Appeal Br. 17 (Claims App. (emphases added)).
The Examiner finds that Whitworth, as modified by Plotkin, teaches a
vertical axis wind turbine rotor 405, 410, 415 having a shaft 450 and a
mounting system, as claimed, but does not explicitly teach “telescoping legs
with movable feet.” Final Act. 9. The Examiner finds that Setala teaches a
mounting structure comprising three telescoping legs. Id. (citing Setala, Fig.
1). The Examiner concludes that it would have been obvious to modify the
mounting structure of Whitworth by replacing the non-adjustable legs with
telescoping legs, as taught by Setala, to change the elevation of the wind
turbine. Id. at 9—10 (citing Setala, col. 1,11. 63—66).
Claim 19 also calls for “a foot movably mounted adjacent the free end
of at least one of said support legs for pivotal movement about a horizontal
axis.” Appeal Br. 17 (Claims App.). The Examiner finds that Chow
discloses a wind turbine mounting structure comprising a moveable foot 27
connected to leg 24 by a hinge 28. Final Act. 10. The Examiner concludes
that it would have been obvious to modify the mounting structure of
the heading of the rejection of claim 36 lists only Whitworth, Plotkin, and
Payne as applied references. Id. at 8. Further, the Examiner’s discussion of
Vanderhye ’225 does not cure the deficiencies of the rejection of claim 18.
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Application 13/318,537
Whitworth by substituting the rigid foot of Setala with the movable foot
taught by Chow. Id.
Appellant contends that telescoping legs 20 of Setala are not rigidly
connected to a central component containing a bearing for a drive shaft, as
claimed, but instead are pivotally connected to an adjustable collar 12
operatively attached to the post 14. Appeal Br. 10. Appellant also contends
that Chow’s legs 24, 25, 26 are required to be pivotally mounted to a central
column at 57 to work as designed. Id. at 11. Appellant asserts that a
“pivotal connection” is not a “rigid connection,” as claimed. Id. In support,
Appellant provides multiple definitions of the term “rigid.” Id. at 11—12.
The Examiner responds that “claim 19 requires only a rigid
connection where the legs attach to the central component and a foot
movably mounted. Therefore, the Examiner submits that both locations
(where the legs attach to the central component and where the legs attach to
the feet) may have pivoting connections.” Ans. 10—11.
The Examiner’s claim construction is unclear. The Examiner states
that claim 19 requires a rigid connection where the legs attach to the central
component, but then indicates that the legs may attach to the central
component by pivotal connections. Id. It is unclear from the Examiner’s
statement whether the Examiner is construing claim 19 to encompass a
structure comprising legs that are both rigidly connected to the central
component and pivotally connected to the central component.
The Examiner also states:
a pivoting connection can be considered a rigid connection
because once the leg is pivoted into a position to restrain the
structure to which it is attached; it is intended to be fixed in place,
i.e. rigid. In other words, once the leg is in position to restrain
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Application 13/318,537
the structure to which it is attached, the leg will not continue
pivoting as that would not provide a stable support structure.
Once the leg of modified WHITWORTH is fastened to the
ground, e.g. by a stake, the pivoting connection will be fixed
because the leg will not be able to move from its fastened
position to the ground. Therefore, the pivoting connection may
be considered rigid.
Ans. 11 (emphases added).
Based on this statement, we understand the Examiner’s reasoning to
be that a pivoting connection can be considered a rigid connection when the
pivotable leg is constrained to not be able to pivot about the pivoting
connection. We, however, construe claim 19 to require at least three support
legs, each rigidly connected to the central component. That is, there must be
a rigid connection between each of the legs and the central component. The
Examiner appears to acknowledge that the proposed modified structure of
Whitworth has a pivotal connection between the legs and a “central
component.” In the modified structure, fastening the “free end” of a leg to
the ground, where the leg is pivotally connected to a “central component,”
would not convert that pivotal connection to a rigid connection. Rather,
once the free end of the leg were unfastened from the ground, the leg would
again be able to be pivoted with respect to the central component about the
existing pivotal connection.
The Examiner’s erroneous construction led to additional errors. That
is, the Examiner fails to find that either Setala or Chow teaches at least three
support legs, each of which is rigidly connected to the central component, as
required by claim 19. Consequently, the Examiner does not establish by a
preponderance of the evidence that the proposed combination of Whitworth,
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Application 13/318,537
Plotkin, Vanderhye, Setala, and Chow includes all the limitations of
claim 19.
Additionally, the Examiner does not propose to modify the applied
combination of references (i.e., based on the erroneous claim construction)
in a way that would result in the structure recited in claim 19, much less
articulate an adequate reason with a rational underpinning to support the
modification. Thus, we do not sustain the rejection of claim 19, or claims
21—31, 33, and 35 depending therefrom, as unpatentable over Whitworth,
Plotkin, Vanderhye, Setala, and Chow.
Claim 3 8
Claim 3 8 recites “a substantially triangular in cross section hollow
central component having three substantially flat exterior faces.” Appeal
Br. 19 (Claims App.). The Examiner finds that Whitworth discloses a
substantially hollow central component 425. Final Act. 14. The Examiner
references Haller with regard to the limitation that the central component has
a triangular cross section. Id. (citing Haller || 12, 44).5
Appellant contests the Examiner’s finding that the power converting
device 425 of Whitworth is a “central component” as this term is used in the
claim. Appeal Br. 15.
Whitworth describes “a power converting device 425 such as an
electrical generator, an air compressor, pump, etc.” Whitworth 3:55—59,
Fig. 4. Even assuming Whitworth’s power converting device 425 can be
5 “Haller” appears to correspond to US 2006/0213145 Al, published Sept.
28, 2006. See Final Act. 8. The heading of the rejection does not list Haller
as an applied reference {id. at 9), and the Examiner explains that Haller is
not relied on to reject the claims (Ans. 13).
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Application 13/318,537
considered a “central component” in Whitworth’s wind turbine structure, we
are persuaded by Appellant’s contention that the Examiner still has not
established that power converting device 425 is a “central component,” as
recited in claim 38. Appeal Br. 15. Claim 38 requires three support legs,
each including an attachment plate rigidly connected to one of the
substantially flat exterior faces of the substantially triangular central
component. In Whitworth, tower 430, which supports power converting
device 425, includes support legs. See Whitworth, Fig. 4. Support legs are
not connected to any exterior face of power converting device 425, but
instead to a separate component. Consequently, the Examiner does not
establish by a preponderance of the evidence that the proposed combination
of Whitworth, Plotkin, Vanderhye, Setala, and Chow includes all the
limitations of claim 38.
Furthermore, the Examiner does not provide an adequate reason with
a rational underpinning to modify Whitworth such that its support legs are
connected to exterior faces of power converting device 425. See Final Act.
14. Thus, we do not sustain the rejection of claim 38 as unpatentable over
Whitworth, Plotkin, Vanderhye, Setala, and Chow.
Rejection of claims 20, 32, and 39 as unpatentable over Whitworth, Plotkin,
Vanderhye, Setala, Chow, and Payne
Claims 20 and 32, which depend, directly or indirectly, from claim 19,
and claim 39, which depends from claim 38, recite limitations relating to a
“cross support.” Appeal Br. 17—18, 39 (Claims App.). The Examiner relies
on Payne to teach cross struts 38. Final Act. 15.
The Examiner’s application of Payne fails to cure the deficiencies of
the rejection of claim 19 or 38. Accordingly, we do not sustain the rejection
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of claims 20, 32, and 39 as unpatentable over Whitworth, Plotkin,
Vanderhye, Setala, Chow, and Payne.
DECISION
The Examiner’s decision to reject claims 18—33, 35, 36, 38, and 39 is
reversed.
REVERSED
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