RB Distribution, Inc.

Patent Trials and Appeals Board

Dec 20, 2021

2021002475 (P.T.A.B. Dec. 20, 2021)

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.
15/179,322 06/10/2016 Tam Van NGUYEN RBI-PT060 7297
3624 7590 12/20/2021
VOLPE KOENIG
30 SOUTH 17TH STREET, 18TH FLOOR
PHILADELPHIA, PA 19103
EXAMINER
BARRERA, RAMON M
ART UNIT PAPER NUMBER
2837
NOTIFICATION DATE DELIVERY MODE
12/20/2021 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):
eoffice@volpe-koenig.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte TAM VAN NGUYEN and DAVID CIMBOLO
____________
Appeal 2021-002475
Application 15/179,322
Technology Center 2800
____________
Before BRIAN D. RANGE, DEBRA L. DENNETT, and
JANE E. INGLESE, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1 and 3–8 of Application 15/179,322,
which constitute all the claims pending in this application. We have
jurisdiction under 35 U.S.C. § 6(b).

1 In our Decision, we refer to the Specification (“Spec.”) of Application No.
15/179,322 filed June 10, 2016; the Final Office Action dated Apr. 8, 2020
(“Final Act.”); the Appeal Brief filed Sept. 3, 2020 (“Appeal Br.”); and the
Examiner’s Answer dated Dec. 11, 2020 (“Ans.”). Appellant did not file a
Reply Brief.
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 12.42.
Appellant identifies RB Distribution, Inc. as the real party in interest.
Appeal Br. 3.
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Application 15/179,322

2
For the reasons set forth below, we AFFIRM.
The subject matter of the invention relates to a magnetic actuator
having what is stated to be an improved construction believed to be more
robust than prior magnetic actuators. Spec., ¶ 2.
Claim 1, reproduced below from the Claims Appendix of the Appeal
Brief, represents the claimed subject matter:
1. A linear actuator, comprising:
a housing that has an upper surface, a circumferential
wall, and a cover plate that define an interior space, the housing
upper surface and the cover plate have apertures on a common
centerline, and a tubular base that closes the aperture in the
cover;
the tubular base has a floor, a first wall of a
predetermined height and a second wall that has a
predetermined height that is less than the predetermined height
of the first wall and is interior to and spaced from the first wall
so there is a first open space between the first and second walls
and a second open space that is above the second wall and a
third open space within the second wall;
an electrical coil that is positioned between the first wall
of the tubular base and the circumferential wall of the housing;
a plunger having a dependent portion that is received
within the space defined by the first and second walls of the
tubular base and surrounds the second wall of the tubular base,
and a central opening that receives a plunger rod;
a bearing having a first portion that is positioned on top
of the second wall and a second portion that extends into the
third open space;
the plunger rod that is connected to the plunger passes
through the bearing and has a height sufficient to extend from
the floor of the tubular base to the aperture in the upper surface
of the housing; and,
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Application 15/179,322

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wherein there is a fourth open space between the plunger
and the first wall and an aperture in the second wall extends
between the first open space and the third open space and the
third open space communicates with the space between the
plunger and the first wall.
REFERENCE
The Examiner relies on US 8,350,652 B2 to Hoppe et al., issued Jan.
8, 2013 (“Hoppe”) as prior art.
REJECTION
The Examiner rejects claims 1 and 3–8 under 35 U.S.C. § 102(a) as
being anticipated by Hoppe. Final Act. 2.
DISCUSSION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011))
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the [E]xaminer’s rejections.”). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
not persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner’s rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Appellant argues the pending claims as a group. Appeal Br. 9–14.
We select claim 1 as representative of the group. 37 C.F.R.
§ 41.37(c)(1)(iv). Claims 3–8 stand or fall with claim 1.
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Application 15/179,322

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The Examiner finds that each element of claim 1 is disclosed by
Hoppe in Figures 2–10. See Ans. 3–4. The Examiner finds that “the outer
and inner walls of the base contain relief apertures unnumbered but visible
in all the figures,” and the inherent purpose of the apertures is for equalizing
air pressure created by movement of the plunger rod within the inner wall of
the base. Final Act. 2–3. The Examiner finds that Hoppe discloses “an
aperture in the second wall . . . extends between the first open space and the
third open space and the third open space communicates with the space
between the plunger and the first wall,” referencing an annotated version of
Hoppe Figure 9. Ans. 3–4 (emphasis omitted).
A copy of Hoppe Figure 9, as annotated by the Examiner, and an
enlargement of the pertinent area are reproduced below:

Hoppe Figure 9 shows an electromagnetic actuating unit for a
hydraulic directional control valve for variably adjusting the control times of
an internal combustion engine. Hoppe col. 4, l. 41–col. 5, l. 13. The
enlarged portion shows the arrow added by the Examiner pointing to the
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structure that the Examiner identifies as an aperture in the second, or inner,
wall. See Ans. 3–4, 6.
Appellant argues that “the Examiner failed to identify the individual
structural elements recited in the claims and the Examiner admitted that the
asserted text did not describe the structural elements and alleged elements
are unnumbered in the drawings.” Appeal Br. 9. According to Appellant,
nothing in the specification or drawings of Hoppe teaches or suggests the
Examiner’s reading of apertures, and “Figure 9 actually shows that the
Examiner’s conclusion is not a possible result with the plunder [sic] in either
postion [sic].” Id. at 14. Appellant contends that a “lack of any meaningful
textual disclosure [in Hoppe] in combination with the Examiner’s admission
that the allegedly inherent structure is unnumbered in the drawings must lead
to the conclusion that any inherency is based on the Applicant’s disclosure
and not the reference.” Id. at 11 (emphasis omitted).
Appellant’s arguments are unpersuasive of reversible error in the
rejection.
First, we agree with the Examiner’s position stated in the Answer that
the single issue on appeal is whether Hoppe discloses the claimed “aperture
in the second wall.” See Appeal Br. 10–14; Ans. 6. Apparently in response
to Appellant’s contention that the Examiner failed to identify the structural
elements, the Examiner provides additional findings in the Answer.
Appellant does not respond to or otherwise refute the Examiner’s findings in
the Answer.
Second, contrary to Appellant’s position (“the allegedly inherent
structure is unnumbered in the drawings”), we note that the Examiner does
not find that the aperture is inherent in Hoppe. Rather, the Examiner
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explains that the aperture has an inherent purpose (see Final Act. 3) but
sufficiently identifies the structure in Hoppe Figure 9. Compare Appeal Br.
11, with Ans. 6.
Third, the Examiner need not point to text in prior art in order to
establish a claimed structure is disclosed. In re Mraz, 455 F.2d 1069, 1072
(CCPA 1972) (“Description for the purposes of anticipation can be by
drawings alone as well as by words.” (quoting In re Bager, 47 F.2d 951, 953
(CCPA 1931))). A drawing teaches all that it reasonably discloses and
suggests to a person of ordinary skill in the art. See In re Aslanian, 590 F.2d
911, 914 (CCPA 1979) (“[A] drawing in a utility patent can be cited against
the claims of a utility patent application even though the feature shown in
the drawing was unintended or unexplained in the specification of the
reference patent.”); see also Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555,
1565 (Fed. Cir. 1991) (“Under proper circumstances, drawings along may
provide a ‘written description’ of an invention as required by § 112.”).
Anticipation is a question of fact. In re Suitco Surface, Inc., 603 F.3d
1255, 1259 (Fed. Cir. 2010). It is established when “one skilled in the art
would reasonably understand or infer from the prior art reference’s teaching
that every claim [limitation] was disclosed in that single reference.” Akamai
Techs., Inc. v. Cable & Wireless Internet Servs., Inc., 344 F.3d 1186, 1192–
93 (Fed. Cir. 2003) (quoting Dayco Prods., Inc. v. Total Containment, Inc.,
329 F.3d 1358, 1368 (Fed. Cir. 2003)). Our review of Hoppe’s figures
indicates that the claimed aperture is disclosed in the reference. Therefore,
we sustain the Examiner’s rejection of claim 1 as anticipated by Hoppe. We
sustain the rejection of claims 3–8 for the same reasons as claim 1.

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Application 15/179,322

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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3–8 102 Hoppe 1, 3–8
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED