Ex Parte Duperon et alDownload PDFPatent Trial and Appeal BoardDec 20, 201612807260 (P.T.A.B. Dec. 20, 2016) 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. MSH-615 6231 EXAMINER ANDERSON, DENISE R ART UNIT PAPER NUMBER 1779 MAIL DATE DELIVERY MODE 12/807,260 09/01/2010 8131 7590 12/21/2016 MCKELLAR IP LAW, PLLC 784 SOUTH POSEYVTT.TE ROAD MIDLAND, MI 48640 Terry L. Duperon 12/21/2016 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 TERRY L. DUPERON and MICHAEL A. WOODLEY Appeal 2015-003232 Application 12/807,2601 2 3 Technology Center 1700 Before, JEFFREY T. SMITH, CHRISTOPHER C. KENNEDY, and JEFFREY R. SNAY, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1—21, 23, 25—27, and 29-36.2,3 We have jurisdiction under 35 U.S.C. § 6. 1 According to Appellants, the real party in interest are the named inventors. Br. 1. 2 Claims 22, 24, and 28 have been cancelled. (Br. 7). 3 Due to errors and omissions in the claims that appear in the appendix to the Brief we will refer to the claims as presented in the amendment filed April 4, 2013. Appeal 2015-003232 Application 12/807,260 The ’260 Application describes an apparatus for removing solid debris from water containing debris. The apparatus comprises a support frame consisting of two, parallel, spaced-apart vertical supports which are rigidly affixed to each other by rigid cross members. Spec. 3. Independent claim 1 is representative of the subject matter on appeal is attached as an appendix to this decision. REJECTIONS On appeal, the Examiner maintains the following rejections from the February 26, 2014 Non-Final action: I. Claims 11 and 21 are rejected under 35 U.S.C. §112, second paragraph, as indefinite for failing to particularly point out and distinctly claim the subject matter which the applicants regards as their invention. II. Claims 23 and 29 are rejected under 35 U.S.C. § 102(b) as being anticipated by Duperon (US 5,425,875, June 20, 1995). III. Claims 1^4 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton (US 4,186,091, Jan. 29, 1980), in view of Condit (US 4,302,331, Nov. 24, 1981 ), in view of Duperon, in view of Hagihara (US 4,472,273, Sept. 18, 1984), in further view of Meyer et al. (US 2007/0181710, Aug. 9, 2007), in further view of Blake (US 5,407,563, Apr. 18, 1995). IV. Claims 25, 31, 32, and 34 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton and Condit. V. Claim 26 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, and Duperon. 2 Appeal 2015-003232 Application 12/807,260 VI. Claim 27 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, and Hagihara. VII. Claim 30 is rejected under 35 U.S.C. § 103(a) as unpatentable over Meyer et al. VIII. Claims 33 and 35 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, and Blake. IX. Claim 36 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton and Condit in view of Moffett (US 3,587,975, June 28, 1971). X. Claims 12—17 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, and Blake in further view of Wallquist (US 2,751,087, June 19, 1956). XI. Claims 13—17 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, and Blake in further view of Hollifield et al. (US 4,443,421, Apr. 17, 1984). XII. Claims 15—17 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, and Blake in further view of Walters (US 3,731,814, May 8, 1973). XIII. Claims 5—8 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, and Blake in view of Crocket (US 4,389,315, June 21, 1983). 3 Appeal 2015-003232 Application 12/807,260 XIV. Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, Blake, and Crocket, in view of Wallquist or Hollifield or Walters. XV. Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, and Blake in view of Crocket. XVI. Claim 19 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, Blake, and Crocket, in view of Wallquist or Hollifield or Walters. XVII. Claim 10 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, and Blake. XVIII. Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, Blake, and Crocket, in view of Wallquist or Hollifield or Walters. XIX. Claim 11 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, and Blake in view of Crocket. XX. Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, Blake, and Crocket, in view of Wallquist or Hollifield or Walters. 4 Appeal 2015-003232 Application 12/807,260 OPINION Rejection I We affirm the Examiner’s rejection of claims 11 and 21 under 35 U.S.C. § 112, second paragraph, as indefinite because Appellants do not contest this rejection. Br. 8—9; 37 C.F.R. § 41.37(c)(l)(iv) (requiring that “arguments shall explain why the examiner erred as to each ground of rejection . . . [and that] any arguments or authorities not included in the appeal brief will be refused consideration by the Board”). Anticipation rejection Rejection II We affirm the Examiner’s anticipation rejection of claim 23 and reverse the rejection of claim 29. Regarding claim 23, Appellants argue Duperon discloses scraper bars not skimmer bars. (Br. 12; Duperon col. 3,1. 56 and col. 4,11. 22—23). Appellants argue the skimmer bars of the claimed invention are soft and resilient which allow for the movement of larger debris outside the surface of the perforated plate without breaking any of the equipment. (Br. 12). Appellants argue the scraper blade 64 which is described as flexible and/or bendable is not soft and resilient. (Br. 12). Appellants’ arguments are not persuasive of reversible error. Duperon describes bars 62 that have a flat distal edge which have mounted there on portion 64 which is described as flexible and/or bendable. Appellants have not explained a patentable distinction between the materials described by Duperon an the claimed invention. 5 Appeal 2015-003232 Application 12/807,260 Appellants argue the leading edge of the bars described by claim 29 is corrugated and differs significantly from that of Duperon which discloses bars having notched leading edge (like teeth). (Br. 12). We agree with Appellants. The Examiner has not explained where Duperon describes a corrugated distal edge having a soft, resilient skimming material as required by the subject matter of claim 29. The Examiner has not identified where Duperon discloses the flexible and/or bendable portion is located on the notched leading edge. Obviousness rejections The Examiner found the combination of Sutton, Condit, Duperon and Hagihara discloses a thin plate apparatus with a perforated plate, a moveable solid effector plate, a wiper blade, and skimmer bars. (Non-Final Act. 28— 30). The Examiner found Sutton discloses a filtering screen with a backwash sprayer mounted on a boom, specifically the moveable nozzle plate of floating carriage 80 is a solid effector plate. {Id. at 17, and 28—30). The nozzle plate of the backwash sprayer is the recited movable solid effector plate. The Examiner found the combination of Sutton and Condit discloses the filtering screen is in the form of a perforated plate supporting wire mesh. {Id.). The Examiner found Duperon discloses a trash rack with the skimmer bars. The skimmer bars lift trash out of the water into a collector. The skimmer bars may also be used to scrape the filtering screen clean. The Examiner found Hagihara discloses the recited wiper blade on a hinge which is used to scrape clean the recited skimmer bars of a trash rack. {Id.). 6 Appeal 2015-003232 Application 12/807,260 Rejection III Appellants present arguments for independent claim 1 and relies on the same arguments in addressing claims 2—\. (Br. 9—12). Accordingly, we select claim 1 as representative of the subject matter before us for review on appeal. The Examiner found the combination of Sutton, Condit, Duperon and Hagihara discloses a thin plate apparatus with a perforated plate, a moveable solid effector plate, a wiper blade, and skimmer bars as required by independent claim 1. (Non-Final Act. 28—30). Appellants have not explained a patentable distinction between the combination of Sutton, Condit, Duperon and Hagihara and the claimed invention. Appellants argue Sutton, the primary reference, fails at a high level and the additional references — Condit, Duperon and Hagihara — do not make up for the lack of disclosure therein. (Br. 9). Appellants have not provided a technical description explaining why the elements of Sutton, Condit, Duperon and Hagihara, cited by the Examiner, would not have rendered the claimed subject matter obvious. Rejection IV We sustain the rejection of claim 25. Appellants argue neither Sutton nor Condit discloses a movable solid effector plate as required by claim 25. (Br. 13). The Examiner found Sutton discloses the moveable nozzle plate of floating carriage 80 is a solid effector plate as required by claim 25. (Non- Final Act. 17). Appellants have not provided a technical explanation explaining error in the Examiner’s rejection. 7 Appeal 2015-003232 Application 12/807,260 We reverse the rejection of claims 31, 32 and 34. Regarding claim 31, we agree with Appellants that Sutton describes a water nozzle front plate that is not the same as the water supply mechanism of the instant invention that is arranged against the back surface of a corrugated perforated plate and is coordinated to move with the effector plate. (Br. 13). Regarding claims 32 and 34 the Examiner found Sutton describes the combination of a thin plate apparatus equipped with a water supply mechanism including just nozzles 24 that is contained within endless belt strainer 72 with trays 76 (each tray 76 representing one corrugation) meets the requirements of claims 32 and 34. (Non-Final Act. 17). We agree with Appellants that Sutton’s endless belt strainer 72 with trays 76 is not a corrugated perforated plate as required by claim 32 or a flat perforated plate as required by claim 34. (Br. 14). Rejection V We reverse the rejection of claim 26. We agree with Appellants that Sutton describes a water nozzle front plate that is not the same as the water supply mechanism of the instant invention that is arranged against the back surface of a corrugated perforated plate and is coordinated to move with the effector plate. (Br. 13). Rejection VI We sustain the rejection of claim 27. As stated above, we do not find Appellants’ arguments regarding independent claim 1 persuasive of 8 Appeal 2015-003232 Application 12/807,260 reversible error. Consequently, we sustain the rejections of claim 27 for the reasons presented by the Examiner and stated above. Rejection VII We reverse the rejection of claim 30. The Examiner found Meyer describes a movable solid effector plate comprising spray nozzles (Non-Final Act. 23). Appellants argue that Meyer does not deal with effector plates. The Examiner has not adequately explained where Meyer describes a thin plate apparatus equipped with a water supply mechanism that is arranged against the back surface of a corrugated perforated plate and which is coordinated such that said water supply mechanism moves in a vertical direction with the movement of a moveable solid effector plate as required by claim 30. Rejection VIII We reverse the rejection of claims 33 and 35. Appellants argue that none of the cited references deals with a corrugated perforated plate in combination with skimmer bars that fit such corrugated perforated plates. The Examiner relies on Sutton for describing the corrugated perforated plate (Sutton Figures 2 and 3, endless belt strainer 72 with screen trays 76, each screen tray 76 being one corrugation). (Non-Final Act. 24). As stated above, Sutton’s endless belt strainer 72 with trays 76 is not a corrugated perforated plate. 9 Appeal 2015-003232 Application 12/807,260 Rejections IX, XI-XII, and XV-XX We sustain the rejection of claims 9-11, 13—17, 19-21 and 36. Appellants assert these claims are patentable for the reasons presented regarding independent claim 1. (Br. 15—16). As stated above, we do not find Appellants’ arguments regarding independent claim 1 persuasive of reversible error. Consequently, we sustain the rejections of claims 9-11, 13—17, 19-21 and 36 for the reasons presented by the Examiner and stated above. Rejection X The Examiner presented this rejection of claims 12—17 under 35 U.S.C. § 103(a) as unpatentable over the combination of Sutton, Condit, Duperon, Hagihara, Meyer, and Blake in further view of Wallquist, on pages 38—39 of the Nonfmal Office Action. Appellants have failed to contest this rejection in the Brief. (See Brief generally). Consequently, we summarily affirm the Examiner’s rejection of claims 12—17. Rejections XIII and XIV We reverse the rejections of claims 5—8 and 18. We limit our discussion to independent claim 5. Independent claim 5 requires corrugated perforated plates. As set forth above, the Examiner relies on Sutton for describing the corrugated perforated plate (Sutton Figures 2 and 3, endless belt strainer 72 with screen trays 76, each screen tray 76 being one corrugation). (Non-Final Act. 24). As stated above, Sutton’s endless belt strainer 72 with trays 76 is not a corrugated perforated plate. 10 Appeal 2015-003232 Application 12/807,260 ORDER The Examiner’s § 112 rejection is affirmed, and the prior art rejections are affirmed-in-part, as set forth above. TIME PERIOD No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED-IN-PART 11 Appeal 2015-003232 Application 12/807,260 APPENDIX TO THE DECISION Appealed claim 1 A thin plate apparatus for: removing solid debris from water containing such debris, said apparatus comprising: a support frame consisting of two, parallel, spaced-apart vertical supports, said vertical supports being rigidly affixed to each other by rigid cross members; said vertical supports each having a near end and a distal end, the distal end of each vertical support having a lateral support arm attached thereto; each said lateral support arm having a downwardly depending set of posts, said post being parallel to each other, said posts having attached thereto, a mounting plate, said mounting plate having an inside surface; each mounting plate having a centered opening-therein, said center openings having one end of a common rotating shaft inserted therein; there is mounted near the inside surface of each mounting plate, a square- tracked pulley and mounted on each such pulley, a drive chain comprised of rigid link bars being joined to each other such that each link bar pivotally interacts with adjacent link bars to form two adjacent drive chains that are attached to each other in a spaced-apart configuration by a plurality of rigid skimming bars, each said rigid skimming bar having a flat distal edge and mounted on each flat distal edge, a soft, resilient skimming material; there being mounted near the distal end and between the vertical supports, a flat perforated plate, said flat perforated plate having a back and a plurality of such perforations therein in which the size of the perforations is calculated based on the formula: thickness of the plate = 0.5 or less hole size wherein the thickness of the perforated plate does not exceed 1/4 of an inch; 12 Appeal 2015-003232 Application 12/807,260 a moveable solid effector plate mounted near the back of the flat perforated plate, said moveable solid effector plate having a back surface, a top end, and a front surface, the front surface of the moveable solid effector plate not touching the perforated plate, said moveable solid effector plate being movable up and down in essentially a vertical motion in predetermined coordination with the skimmer bars; the movement of the moveable solid effector plate being provided by a lift and release mechanism, said lift and release mechanism comprising a lower pivotable support a:cm having nea.r. end and a distal end, the near end being pivotably mounted to the support frame, the distal end being pivotally mounted to a dampener means, said dampener means having a. distal end, the dampener means being pivotally attached to the back surface of the moveable solid effector plate; the top end of the moveable solid effector plate being pivotally coupled to a wiper blade, the wiper blade having a distal end, the distal end of the wiper blade long enough to contact the top surface of a skimmer bar, a near arm of the wiper blade being coupled to an actuator cam, wherein the actuator cam can cause the wiper blade to scrape the top surface of the skimmer bar and cause the wiper blade to fall off the skimmer bar and allow the effector plate to drop by weight of gravity to its initial position at the base of the apparatus; the wiper blade having a linkage that is attached to an active component of the dampener means; a drive means driveably connected to the common rotating shaft. 13 Copy with citationCopy as parenthetical citation