Ex Parte Vanderhye et al

Board of Patent Appeals and Interferences

Feb 26, 2007

10443961 (B.P.A.I. Feb. 26, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT A. VANDERHYE, NICOLAS C.S. APPLEGATE, DOUGLAS
M. DUKES, NICOLAS J. LEONE, JOSEPH SEDLAK, JASON C. SIGNOR,
MARK W. STEINER, and TIMOTHY A. VANDERPOEL
____________

Appeal 2006-3102
Application 10/443,961
Technology Center 3700
____________

Decided: February 26, 2007
____________

Before ANITA PELLMAN GROSS, STUART S. LEVY and
LINDA E. HORNER, Administrative Patent Judges.
HORNER, Administrative Patent Judge.

DECISION ON APPEAL

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Application 10/443,961

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STATEMENT OF THE CASE
The Appellants seek our review under 35 U.S.C. § 134 (2002) of the
Examiner’s final rejection of claims 1 and 4.1 We have jurisdiction under 35
U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
The Appellants invented a vertically collapsible vertical axis wind turbine.
Claim 1, reproduced below, is representative of the subject matter on appeal.
1. A vertically collapsible vertical axis wind turbine
comprising: a substantially vertical shaft; at least two
vane supports mounted by the shaft; and at least two
vertically collapsible material vanes supported by the
vane supports, so that the vanes are movable from a first
operative position in which the vane material is
substantially taut, to a second inoperative position in
which the vane material collapses and is not taut.

1 Claims 1-14, 16, 17, 19, and 21-24 are pending. Claims 15, 18, and 20 have been
canceled. Claims 7-9, 11, 12, 14, 16, 17, 19, and 21-24 are allowed. Claims 2, 3,
5, 6, 10, and 13 are objected to but allowable if rewritten in independent form.
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THE REJECTIONS
The Examiner relies upon the following as evidence of unpatentability:
DeBerg US 4,191,507 Mar. 04, 1980
Feldman US 5,171,127 Dec. 15, 1992
The following rejections are before us for review.
1. Claim 1 stands rejected under 35 U.S.C. § 102(b) as being anticipated by
DeBerg.
2. Claims 1 and 4 stand rejected under 35 U.S.C. § 102(b) as being anticipated
by Feldman.

FIRST ISSUE
The Appellants contend that the Examiner erred in rejecting claim 1,
because the sails of DeBerg, when in the operative position, are not taut unless the
wind blows (Br. 4-5). The Examiner contends that DeBerg anticipates claim 1
because the blades of DeBerg are taut when the wind blows on them, as shown in
Figure 3, and are slack and in a vertically collapsed position when the wind does
not blow on them, as shown in Figure 4 (Answer 5-6). The Examiner further
contends that DeBerg also discloses that the sails are in a vertically collapsed
position in the fully collapsible windmill embodiment of Figure 5 (Answer 4). The
issue before us is whether the Appellants have shown that the Examiner erred in
rejecting claim 1 as anticipated by DeBerg.

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FINDINGS OF FACT
A preponderance of the evidence establishes the following facts:
The wind turbine of claim 1 has vanes that are movable from a first
operative position in which the vane material is substantially taut, to a second
inoperative position in which the vane material collapses and is not taut.
Claim 1 does not require that the vane material is substantially taut even
when the wind does not blow.
DeBerg discloses a windmill having a vertical central axle 12 and windmill
vane arrays 11A-11C (DeBerg, col. 2, ll. 6, 16-17).
Each vane array 11A-11C is comprised of sails 22A, 24A, and 26A made of
a flexible fabric (DeBerg, col. 2, ll. 25-27).
The sails are mounted to a flexible frame by sail arms 28A, 30A, and 32A
extending horizontally from a support column 20A (DeBerg, col. 2, ll. 37-38).
Each sail is fastened at one edge to the sail arm and at its other end to a
plurality of cords 40, which connect its opposite edge to a cord arm (e.g., 34A)
(DeBerg, col. 2, ll. 42-45 and Figure 1).
When the wind direction flows directly from the cord arms of the vane
toward the sail arms, the sails receive the full force from the wind and billow
outwardly such that they are taut (DeBerg, col. 2, ll. 60-64, Figures 1 and 3).
The sails in this billowed condition extend vertically along the central axle
12 (DeBerg, Figures 1 and 3).
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When the wind is blowing from the opposite direction so that it travels from
the sail arms toward the cord arms of the vane, the sails are lifted flat to provide
little resistance to the wind (DeBerg, col. 2, ll. 66-68, Figures 1 and 4).
In this flat condition, the sails collapse vertically, such that each sail resides
in a single horizontal plane, and the sails are slack and not taut (DeBerg, Figure 4).
DeBerg further discloses a fully collapsible windmill embodiment in which
the sail arms are held by cables 50A-50C, and the entire windmill can be collapsed
by detaching cables from upper and lower collars 60 and 62 (DeBerg, Figure 5 and
col. 4, ll. 19-22 and col. 5, ll. 19-23).

PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in the
claim is found, either expressly or inherently described, in a single prior art
reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631, 2
USPQ2d 1051, 1053 (Fed. Cir. 1987).

ANALYSIS
Contrary to Appellants’ arguments on page 4 of the Brief, claim 1 does not
require that all of the vane material of the turbine remain taut at the same time or
that the vane material remain taut even when the wind is not blowing. Claim 1
requires only that the vanes are movable from a first operative position in which
the vane material is substantially taut, to a second inoperative position in which the
vane material collapses and is not taut.
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In the windmill of DeBerg, the vane material is in a first operative position
when the wind is blowing directly into the sail as shown in Figure 3. In this
position, the Appellants concede that the sail is substantially taut (Br. 4). The vane
material of DeBerg is in a second inoperative position when the wind is not
blowing into the sail, as shown in Figure 4. The vane material collapses vertically
as it moves from the first position, in which the sail billows and extends vertically
along the central axle, to a second position, in which the sail lies horizontally in a
single plane. This second position is inoperative because the wind is not exerting
force upon the windmill. In this second position, the Appellants concede that the
vane material is not taut (Reply Br. 1).
Further, DeBerg discloses in the collapsible windmill embodiment of Figure
5 that the vanes can be vertically collapsed from the first operative position to a
second inoperative position by detaching the cables that hold the sail arms. When
the cables are detached, the vane material collapses vertically as it moves from the
first position, in which the sail billows and extends vertically along the central
axle, to a second position, in which the sail arms are disconnected and the material
is no longer taut. The Appellants concede that when the windmill is disassembled,
the sails are vertically collapsed (Reply Br. 2).
As such, we find that DeBerg anticipates claim 1 because it discloses vane
material that moves from a first operative position to a second inoperative position
as claimed.

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CONCLUSIONS OF LAW
We conclude that the Examiner did not err in rejecting claim 1 as anticipated
by DeBerg. As such, we sustain the Examiner’s rejection of claim 1 under 35
U.S.C. § 102(b).

SECOND ISSUE
The Appellants contend that the Examiner erred in rejecting claims 1 and 4
because Feldman does not disclose moving its blades 200 to a second inoperative
position where the blades are not taut. Rather, the Appellants contend that when
the blades 200 of Feldman are in the furled, or inoperative position 200F, the blade
material is still taut (Br. 6). The Examiner contends that Feldman shows the
vertically collapsible blades of claim 1, which are connected to sliding control hub
324 and slide along spindle shaft 320S (Answer 6-7). The issue before us is
whether the Appellants have shown that the Examiner erred in rejecting claims 1
and 4 as anticipated by Feldman.

FINDINGS OF FACT
A preponderance of the evidence establishes the following facts:
The wind turbine of claim 1 has vanes that are movable to a second
inoperative position in which the vane material collapses and is not taut.
Feldman discloses a wind turbine having blade panels that are attached to a
sliding control hub 324 (Feldman, col. 8, ll. 7-9).
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Feldman shows that when the sliding control hub 324 is in its uppermost
position, such that the blade panels are in their inoperative position 330F, the blade
panels 330 are taut (Feldman, Figure 8 and col. 10, ll. 49-52).
As such, Feldman does not disclose vanes that are movable from a first
operative position in which the vane material is substantially taut, to a second
inoperative position in which the vane material collapses and is not taut.

ANALYSIS
The Examiner failed to show how the blade panels in Figure 8 are not taut,
as required by claim 1, when in the furled position 330F. Figure 8 of Feldman
shows that the blade panels are not vertically collapsed, and are instead taut, when
furled. As such, we find that Feldman does not anticipate claim 1 or its dependent
claim 4, because it fails to disclose vanes that are movable from a first operative
position, in which the vane material is substantially taut, to a second inoperative
position, in which the vane material is not taut.

CONCLUSIONS OF LAW
We conclude that Examiner erred in rejecting claims 1 and 4 as anticipated
by Feldman. As such, we do not sustain the Examiner’s rejection of claims 1 and 4
under 35 U.S.C. § 102(b).

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DECISION
The decision of the Examiner to reject claim 1 under 35 U.S.C. § 102(b) as
anticipated by DeBerg is sustained, and the decision of the Examiner to reject
claims 1 and 4 under 35 U.S.C. § 102(b) as anticipated by Feldman is not
sustained.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED-IN-PART

)
ANITA PELLMAN GROSS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
STUART S. LEVY ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
LINDA E. HORNER )
Administrative Patent Judge )
Appeal 2006-3102
Application 10/443,961

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ROBERT A. VANDERHYE
801 RIDGE DRIVE
McLEAN, VA 22101-1625

LEH/ki