Boby, Dylan T. et al.Download PDFPatent Trials and Appeals BoardApr 2, 202014985770 - (D) (P.T.A.B. Apr. 2, 2020) Copy Citation 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. 14/985,770 12/31/2015 Dylan T. Boby OPB-2015-004 3659 26353 7590 04/02/2020 Westinghouse Electric Company LLC K&L Gates LLP 210 Sixth Avenue K&L Gates Center Pittsburgh, PA 15222-2613 EXAMINER QUANDT, MICHAEL M ART UNIT PAPER NUMBER 3745 NOTIFICATION DATE DELIVERY MODE 04/02/2020 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): USPatentMail@klgates.com spadacjc@westinghouse.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DYLAN T. BOBY and DAVID J. BUBECK Appeal 2019-001740 Application 14/985,770 Technology Center 3700 ____________ Before JOHN C. KERINS, JILL D. HILL and BRANDON J. WARNER, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s decision to reject claims 1–4.1 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 The term “Appellant” is used herein to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Westinghouse Electric Company LLC. Appeal Br. 1. Appeal 2019-001740 Application 14/985,770 2 THE CLAIMED SUBJECT MATTER Appellant’s invention relates to a hydraulic apparatus that is usable to control the supply of hydraulic fluid to a device. Spec. 1. Claim 1 is illustrative, and is reproduced below: 1. A hydraulic apparatus structured to manage supplying of hydraulic fluid to a device, the hydraulic apparatus comprising: a first control leg structured to be connected in fluid communication with the device; a second control leg structured to be connected in fluid communication with the device; a check valve that is connected in fluid communication between the first control leg and the second control leg, the check valve resisting hydraulic fluid flow in a direction from the first control leg toward the second control leg and permitting hydraulic fluid flow in a direction from the second control leg toward the first control leg; a bypass apparatus that is connected in fluid communication between the first control leg and the second control leg and that is connected in parallel with the check valve, the bypass apparatus being operable between a first state and a second state, the bypass apparatus in the first state resisting hydraulic fluid flow between the first and second control legs, the bypass apparatus in the second state permitting hydraulic fluid flow between the first and second control legs; a number of first valves connected in fluid communication with the first control leg, the number of first valves further being connected in fluid communication with a supply of hydraulic fluid that is at a first pressure and with a drain that is at a second pressure, the first pressure being greater than the second pressure, the number of first valves being operable between a first state and a second state; Appeal 2019-001740 Application 14/985,770 3 in the first state of the number of first valves and the first state of the bypass apparatus: the first control leg being in fluid communication with the supply; in the second state of the number of first valves and the first state of the bypass apparatus: the first control leg being in fluid communication with the drain, and the second control leg via the check valve being in fluid communication with the drain; in the first state of the number of first valves and the second state of the bypass apparatus: the first control leg being in fluid communication with the supply and being in fluid communication with the second control leg via the bypass apparatus; in the second state of the number of first valves and the second state of the bypass apparatus: the first control leg being in fluid communication with the drain, and the second control leg via the check valve and the bypass apparatus being in fluid communication with the drain; a number of second valves connected in fluid communication with the second control leg, the supply, and the drain, the number of second valves being operable between a first state and a second state; in the first state of the number of second valves and the first state of the bypass apparatus: Appeal 2019-001740 Application 14/985,770 4 the second control leg being in fluid communication with the supply; in the second state of the number of second valves and the first state of the bypass apparatus: the second control leg being in fluid communication with the drain; in the first state of the number of second valves and the second state of the bypass apparatus: the second control leg being in fluid communication with the supply and being in fluid communication with the first control leg via the bypass apparatus; in the second state of the number of second valves when the bypass apparatus is in the second state: the second control leg being in fluid communication with the drain, and the first control leg being in fluid communication via the bypass apparatus with the drain. THE REJECTIONS The Examiner rejects: (i) claims 1–4 under 35 U.S.C. § 112(b) as being indefinite; (ii) claims 1, 2, and 4 under 35 U.S.C. § 103 as being unpatentable over Brinkman (US 7,634,911 B2, issued Dec. 22, 2009); and (iii) claims 2 and 3 under 35 U.S.C. § 103 as being unpatentable over Brinkman in view of Pfaff (US 6,715,402 B2, issued Apr. 6, 2004). Appeal 2019-001740 Application 14/985,770 5 ANALYSIS Drawing Objections The Examiner makes numerous objections to the drawings, principally on the basis that Appellant uses many non-standard schematic symbols for the various components of the hydraulic apparatus of the invention. See Final Act. 2–8, 25–31; Ans. 2–13. We note that resolution of the dispute between the Examiner and Appellant on these matters is not within the jurisdiction of the Board, to the extent that the issues are not subsumed by any rejection over which we have jurisdiction. This is a petitionable matter. We note, however, that, for the purposes of deciding the issues over which we do have jurisdiction in this appeal, we had very little difficulty understanding Appellant’s drawings in light of the description of the invention in the Specification. As but one example, we understand that first and second manifolds 16, 30, are schematically represented essentially in a blank box having various lines connected thereto, and that each has three valves shown schematically in parallel with one another. It does not detract from understanding the operation of these devices that the specific lines illustrating the parallel configuration of the valves do not also connect, at the periphery of the blank boxes, to lines shown either entering or exiting the boxes. Claims 1–4--35 U.S.C. § 112(b)--Indefiniteness The Final Action includes a considerable number of findings directed to claim language regarded as being indefinite. Final Act. 32–35. In the “Response to Arguments” section of the Final Action, the Examiner Appeal 2019-001740 Application 14/985,770 6 acknowledges that some of the specific rejections have been overcome, but that several remain. Id. at 8. Appellant replies to each of the remaining rejections, asserting, for various reasons, that the claim language in question is not indefinite. Appeal Br. 12–15. The Examiner responds at pages 15–19 of the Answer. Most of the detailed issues identified apply equally to independent claims 1 and 4, and we will discuss them principally herein as they pertain to claim 1, with the understanding that the same outcome applies to claim 4. The Examiner finds that the recitation of “a device” in claim 1 is indefinite. The Examiner takes the position that the “device” is positively recited in the claim, but that the claim in its entirety leaves the Examiner with many questions as to how the device itself functions, and how it interacts with other claimed components, such as the first and second control legs. Ans. 15–16. Appellant argues that the “device” is not positively recited, and the appearance of the term in claim 1 is “merely for the purpose of describing an intended use of the claimed invention,” and that the device can be of any type that is capable of being connected in fluid communication with the claimed first and second control legs. Appeal Br. 12–13. The Examiner maintains that the “device” is not, contrary to Appellant’s view, merely something to which the claimed hydraulic apparatus is structured to supply hydraulic fluid, because Appellant’s Figures 2–4 show the device supplying fluid in either one or two directions to the remainder of the apparatus. Appellant has the better position here. The “device” is not positively recited, and therefore, any specifics as to how it operates are of no moment. Appeal 2019-001740 Application 14/985,770 7 The Examiner appears to mistake the arrow legends in Figures 2–4 pointing away from device 6 as indicating supply of fluid. Instead, the arrows are understood to represent flow direction of fluid out of the lines connected to the device under certain lower pressure conditions. The rejection is not sustained as to this issue. The Examiner finds that the recitation in claim 1 of the first and second control legs being “structured to be connected in fluid communication with the device” to also be indefinite. Ans. 16. The Examiner questions whether the language is to be treated literally, or whether the proper interpretation is that the legs are actually connected to the device. Id. The Examiner also finds “structured to be connected” and “in fluid communication” to be redundant in some manner. Id. This issue appears to be intertwined to an extent with the Examiner’s incorrect position that claim 1 positively recites a device. As noted above, it does not, and therefore the literal meaning of the claim language “structured to be connected” is proper and definite. We further do not see any redundancy in also reciting “in fluid connection,” in that this simply further describes the nature of the connection that “structured to be connected” must have. The rejection on this basis is not sustained. The Examiner takes the position that “[t]he metes and bounds of what is to be considered a ‘bypass apparatus’” are indefinite, because the term is unclear. Ans. 16. The rejection appears to be more in the nature of the breadth of the term, rather than any lack of clarity. Claim 1 requires the bypass apparatus to be connected in fluid communication between the first and second control legs and connected in Appeal 2019-001740 Application 14/985,770 8 parallel with the check valve. Appeal Br. 24 (Claims Appendix). The Specification describes that the bypass arrangement is provided to bypass the check valve under certain conditions, but even if the claim were not regarded as being so limited, given that the bypass arrangement is recited as being part of a hydraulic apparatus, other structure that might exist in the prior art that provides a bypass of some line or component, and otherwise meets the above-noted connection limitations would fall within the scope of this limitation. As above, this appears to be an issue of breadth, and not indefiniteness. The rejection on this basis is not sustained. The Examiner finds that the recitations of “a number of first valves,” “a number of second valves,” “a number of poppet logic valves,” and “a number of solenoid valves,” renders claim 1 indefinite. Final Act. 10; Ans. 17. The Examiner initially takes the position that the Specification does not provide written descriptive support for only a single valve, that these recitations employ the term “valves,” indicating plural valves, and that the recitations “are not definite in defining the number of valves that are needed for successful operation of the claimed invention. Final Act. 10. Along these same lines, the Examiner notes that the Specification describes having equal numbers of poppet logic valves and solenoid valves, but that the claims are not limited in that manner. Id. The Examiner takes essentially the same position in the Answer, but there affirmatively asserts that “a single valve as disclosed by Appellant, like 18a, cannot perform the claim language,” apparently because the first number of valves, for example, must connect at least three different fluid parts together. Ans. 17–18. Appeal 2019-001740 Application 14/985,770 9 We disagree. The Examiner’s reasons for considering these terms to be indefinite appear to be more germane to a rejection under 35 U.S.C. § 112(a) for lack of enablement, not that the metes and bounds of the claims cannot be determined. Appellant specifically defines “a number of” in the Specification as referring broadly to any non-zero quantity, including a quantity of one. Spec. ¶ 11. Similarly, that the Specification describes in detail only an embodiment in which the number of poppet logic valves is equal to the number of solenoid valves, the claim is not so limited, and the metes and bounds are not made less clear by the absence of such a limitation. The rejection on this basis is not sustained. The Examiner finds indefinite the recitation of “a supply” in conjunction with the first number of valves, and, later in claim 1, a recitation of “the supply” in conjunction with the second number of valves, and questions whether the claim is intended to convey that the first and second number of valves use the same supply. Final Act. 10–11. We understand this to be a matter of whether “the supply” is one and the same with the earlier-recited “a supply,” such that “the supply” has adequate antecedent basis in the claim. The Examiner interprets claim 1 as claiming that the first and second numbers of valves “use the same supply.” Final Act. 11. Appellant takes issue with the Examiner’s characterization, made in the context of certain drawing objections, that the drawings do not show the claimed common supply. Other than the term “common” not appearing in claim 1, we are uncertain why Appellant appears to disavow that claim 1 is, for all intents and purposes, claiming a single supply, i.e., one that is ultimately common to both the first and second numbers of valves. Appeal 2019-001740 Application 14/985,770 10 Appellant’s Specification, in addition to providing literal support for the claim language, discusses that “it is understood that the first and second supplies 22 and 36 are likely obtained from a single source of pressurized hydraulic fluid that is fed by a single reservoir. . . .” Spec. ¶ 22. As such, we agree with the Examiner’s interpretation of claim 1 that requires both the first number of valves and the second number of valves be in fluid communication with the same supply of hydraulic fluid. The claim is not indefinite in this respect. The rejection on this basis is not sustained. Claim 4 is additionally rejected as being indefinite, in that the first appearance of the “bypass apparatus” and the “check valve” in the claim follow the article “the” instead of the more appropriate “a” as connoting the first appearance of an element in the claim. Final Act. 35. Appellant has offered to amend claim 4 to address this issue. Appeal Br. 15. In some, if not many, instances, the lack of proper antecedent basis may render a claim indefinite; however, we do not find that to be the case here. A person of ordinary skill in the art would recognize that all instances of the terms “bypass apparatus” and “check valve” are referring to only a single one of each. The minor error in designation would desirably be fixed in any subsequent prosecution, but the rejection made on this basis is not sustained. In view of the foregoing, the rejection of claims 1–4 under 35 U.S.C. § 112(b) is not sustained. Appeal 2019-001740 Application 14/985,770 11 Claims 1, 2, and 4--35 U.S.C. § 103--Brinkman The Examiner finds that Brinkman discloses many of the elements recited in claims 1 and 4, including a number of first valves in the form of actuator control valve 72 operable between a first state and a second state, the first state being when the valve is operated at position 78, and the second state being when the valve is operated at position 74. Final Act. 36–37. The Examiner finds that Brinkman does not teach, in conjunction with its embodiment employing actuator control valve 72, a number of second valves having first and second states of operation. Id. at 37–38. The Examiner posits that: Brinkman’s valve 72 accomplishes moving fluid to both first and second control legs as claimed, but does so without “a number of second valves”. However, in another embodiment, Brinkman teaches the actuator control valve 72 “may alternatively embody multiple valve elements configured to perform the same functions, if desired.” (Col. 5, lines 13–15). Final Act. 38. The Examiner concludes that it would have thus been obvious to modify the number of first valves and the number of second valves of Brinkman to be separate valve elements as taught by Brinkman’s other embodiment in order to provide an equally suitable valve assembly that would perform equally as well. Id. Appellant argues that the passage quoted from Brinkman referring to multiple valve elements performing the same functions as are performed by actuator control valve 72 at most discloses or suggests providing multiple valve elements connected in parallel to perform the functions detailed with respect to actuator control valve 72, which would be “much like each of the valve manifolds 16 and 30,” but, inferentially, not like having both manifolds. Appeal Br. 17. Appellant asserts that Brinkman teaches only a Appeal 2019-001740 Application 14/985,770 12 singular actuator control element, regardless of whether the singular element is one valve of the type depicted as valve 72, or includes multiple valve elements configured to perform the same function. Id., fn. 1. We understand and appreciate Appellant’s position in this regard, in that, on the one hand, the Examiner concedes, as noted above, that the main embodiment in Brinkman does not have a number of second valves, yet, in the reasoning culminating in the conclusion of obviousness quoted above, the Examiner asserts that it would have been obvious to modify “the number of first valves and the number of second valves of Brinkman,” in view of the alternate embodiment.2 Final Act. 38. The proposed modification in this line of reasoning thus lacks rational underpinnings, in that the Examiner proposes to modify structure admitted to not be present in the unmodified structure. The Examiner subsequently provides a more detailed explanation as to how the single actuator control valve 72 of Brinkman might be replaced by multiple valve elements such that those valve elements perform the same function as does the single valve. Ans. 20–39. As noted previously, Brinkman includes a general statement that its actuator control valve might be embodied in multiple valve elements used to perform the same functions as does valve 72. Brinkman 5:13–15. 2 The Examiner additionally presents several iterations of Figure 2 of Brinkman, applying annotations and providing discussion purportedly to show how the hydraulic system of Brinkman has various states for its valve 72 that result in the Brinkman system having the same attributes as the claimed system in various valve states. Final Act. 14–21. The Examiner erroneously, or at least confusingly, has arrows pointing to the single actuator valve 72 as being both a number of first valves and a number of second valves. Appeal 2019-001740 Application 14/985,770 13 The Examiner provides a series of drawings that illustrate four (4) valves (V1–V4) that are asserted to collectively be capable of providing the necessary connections from lines 46 and 48 to lines 52 and 54 such that the functions of valve 72 in both positions 74 and 78 illustrated in Figure 2 of Brinkman could be carried out. Ans. 24–39. The Examiner begins with two sets of valves, one including valves V1 and V2 connecting line 54 to lines 48 and 46, and the other including valves V3 and V4 connecting line 52 to lines 48 and 46. Id. at 24. The Examiner then provides a sketch combining the two sets, such that lines 46, 48, 52, and 54 are each illustrated as single lines with each connected to the two valves from the preceding figure. Id. at 25. The Examiner proceeds to explain what purportedly happens in the overall system of Brinkman when each of these valves is opened. Id. at 27–39. We reproduce below an image of actuator control valve 72 as depicted in Figure 2 of Brinkman, alongside the Examiner’s diagram showing the four valves V1–V4 connecting to the same four lines as does valve 72. Depicted above, on the left, is an excerpt of Figure 2 of Brinkman, which is a schematic and diagrammatic illustration of actuator control valve 72, a component of a hydraulic system (numerals 48, 52, 54 added for clarity). Depicted above, on the right, is a diagrammatical sketch prepared by the Appeal 2019-001740 Application 14/985,770 14 Examiner showing valves V1–V4 interconnecting lines 46, 48, 52, and 54 in particular manners, with the lines corresponding to the lines in the portion of Figure 2 of Brinkman appearing on the left. Appellant argues that the meaning of the Examiner’s drawings is unclear overall, but that the two drawings appearing at page 24 of the Answer “depict alternative conditions of the actuator valve (72).” Reply Br. 5–6. Appellant asserts that the combination of the sketches from page 24 into a single comprehensive set of valve connections, i.e., the sketch on page 25 of the Answer and reproduced above, is intended by the Examiner to read on the claimed “number of first valves.” Id. at 6. Appellant maintains that the same set of valves is also cited to read on the “number of second valves” as well. Id. We appreciate the effort undertaken by the Examiner, and generally understand how the Examiner arrives at which lines are in fluid communication with the supply and drain, and in what direction fluid may flow based on each of the valves V1–V4 being opened. However, there are several parts of this analysis that leave us wanting. Claims 1 and 4 require both a “number of first valves” and a “number of second valves,” and for each of these first and second numbers of valves to have a respective first and a second state. The Examiner begins applying the language of claim 1 to various scenarios involving valves V1–V4 and positions 74 and 78 in Brinkman actuator control valve 72 by stating that “in the first state of the number of first valves (first valves of schematic position 78),” valve V1 is open, resulting in line 46 from a supply of pressurized hydraulic fluid being in fluid communication with a first control leg in Brinkman. Ans. 27. In the next scenario presented, the Examiner states that Appeal 2019-001740 Application 14/985,770 15 “in the second state of the number of first valves (first valves of schematic position 74),” valve V2 is open, resulting in line 54 from the first control leg to be in fluid communication with a drain leading from line 48. Id. at 28. Later in the discussion, the Examiner refers to the first state of the number of second valve as valve V3 being open, and to the second state of the number of second valves as valve V4 being open. Id. at 31–32. Considering the above, it appears on the one hand that the Examiner considers that valves V1 and V2 correspond to the claimed “number of first valves” and that valves V3 and V4 correspond to the claimed “number of second valves.” However, in the parenthetical language referring to the “first valves of schematic position 78” and “first valves of schematic position 74,” the Examiner does not appear to take into account that, in the diagram of valves V1–V4, the two valves that are operable in position 78, in accordance with the operation of actuator control valve 72 that valves V1– V4 are asserted to emulate, are valves V1 and V4. The two valves that are operable in position 74 are valves V2 and V3. Accordingly, the grouping of valves V1 and V2 as corresponding to a “number of first valves” and valves V3 and V4 as corresponding to a “number of second valves” appears to be, at best, an arbitrary grouping generated for the purpose of mapping such an arrangement to the language of claims 1 and 4. This is further borne out in considering that claims 1 and 4 require the number of first valves to have first and second states, with the same being true of the number of second valves. However, in replicating the connections provided by the single actuator control valve 72 for position 78 in Figure 2 of Brinkman, valve V1 would be open, and valve V2 would be closed; and valve V3 would be closed, with valve V4 being open. For Appeal 2019-001740 Application 14/985,770 16 position 74 in Figure 2 of Brinkman, the open/closed states of the individual valves would be exactly the opposite. The Examiner fails to explain how those opposite states within the number of first valves V1/V2 could reasonably be interpreted as meeting the requirement that “the number of first valves being operable” collectively “between a first state and a second state.” Appeal Br. 24 (Claims Appendix). The same applies as to the number of second valves V3 and V4. Further, the fluid communication limitations in claims 1 and 4, brought about by the various states of the number of first and second valves, also recite at different points that the bypass apparatus is to be in either a first (blocking) state or a second (nonblocking) state. In progressing through the scenarios presented by claim 1, the Examiner specifies that the bypass assembly in Brinkman will be in the corresponding first and second state set forth in the claim limitations. See Ans. 27–39. However, the Examiner has not adequately substantiated that, in the actual operation of the Brinkman system, the bypass apparatus is intended to be in such first or second state when the valves V1–V4 are operating as if in position 74 or position 78 of actuator control valve. As such, we do not sustain the rejection of claims 1 and 4, and that of claim 2 which depends from claim 4, as being unpatentable over Brinkman. Claims 2 and 3--35 U.S.C. § 103--Brinkman/Pfaff The Examiner does not rely on Pfaff in any manner that would cure the deficiencies noted above with respect to the teachings of Brinkman. The rejection of claims 2 and 3 as being unpatentable over Brinkman and Pfaff is therefore not sustained. Appeal 2019-001740 Application 14/985,770 17 DECISION The rejection of claims 1–4 under 35 U.S.C. § 112(b) as being indefinite is reversed. The rejection of claims 1, 2 and 4 under 35 U.S.C. § 103 as being unpatentable over Brinkman is reversed. The rejection of claims 2 and 3 under 35 U.S.C. § 103 as being unpatentable over Brinkman and Pfaff is reversed. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basi s Affirmed Reversed 1–4 112(b) Indefiniteness 1–4 1, 2, 4 103 Brinkman 1, 2, 4 2, 3 103 Brinkman, Pfaff 2, 3 Overall Outcome 1–4 REVERSED Copy with citationCopy as parenthetical citation