FILLON TECHNOLOGIESDownload PDFPatent Trials and Appeals BoardMar 16, 20212020004532 (P.T.A.B. Mar. 16, 2021) 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. 14/357,609 05/12/2014 Aurelien Brule 1400-039 1044 135621 7590 03/16/2021 IPSILON USA 215 Lexington Avenue Suite 1301 New York, NY 10016 EXAMINER HAKOMAKI, JAMES R ART UNIT PAPER NUMBER 3753 NOTIFICATION DATE DELIVERY MODE 03/16/2021 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): dockets@ipsilon-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte AURELIEN BRULE, ANTOINE CHASSAING, and ANTHONY VALOT ____________ Appeal 2020-004532 Application 14/357,609 Technology Center 3700 ____________ Before STEFAN STAICOVICI, WILLIAM A. CAPP, and JILL D. HILL, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final rejection of claims 1 and 3–10. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Fillon Technologies as the Applicant and real party in interest. Appeal Br. 2. Appeal 2020-004532 Application 14/357,609 2 THE INVENTION Appellant’s invention is a device for dispensing paint tints. Spec. 1. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A storage device for storing, selecting, and dispensing a plurality of base tints for automotive paint, each of which is packaged in a container provided with an expulsion orifice, wherein said storage device comprises: at least one products-carrier wheel that is centrally hollow has a horizontal axis, said products carrier wheel having a plurality of product-receiving locations disposed in at least one circumferential row, each product-receiving location being selectively positionable by turning the products-carrier wheel about said horizontal axis; said products-carrier wheel having an outer circumferential set of teeth or notches; and a base having a drive for rotating the products-carrier wheel, wherein said product carrier wheel rests directly on the drive of said base, wherein said drive of said base rotates the products-carrier wheel to position a defined product receiving location among said plurality of product receiving locations above a collector receptacle wherein said drive is constructed of at least two rotary circular members selected from the group consisting of wheels, rollers, and cogs, at least one of the rotary circular members being a driven member, said at least two rotary circular members of said drive on which said product carrier wheel rests, are arranged tangentially in contact with an outer rim of the products carrier wheel, one each on either side of the products-carrier wheel, said at least two rotary members having axes of rotation parallel to the horizontal axis of rotation of the products-carrier wheel, wherein the rotary circular members of said base have at least one set of teeth or notches that mesh with at least a portion of said outer circumferential set of teeth or notches of the products-carrier wheel. Appeal 2020-004532 Application 14/357,609 3 THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: NAME REFERENCE DATE Glidden US 2,006,451 July 2, 1935 Eisenberg US 2,937,670 May 24, 1960 Chassaing US 2011/0101028 A1 May 5, 2011 Chassaing ’577 US 2011/0108577 A1 May 12, 2011 The following rejections are before us for review: 1. Claims 1, 3, 7, 9, and 10 are rejected under 35 U.S.C. § 103 as being unpatentable over Eisenberg and Glidden. 2. Claim 4 is rejected under 35 U.S.C. § 103 as being unpatentable over Eisenberg, Glidden, and Chassaing ’577. 3. Claims 5, 6, and 8 are rejected under 35 U.S.C. § 103 as being unpatentable over Eisenberg, Glidden, Chassaing ’577, and Chassaing. OPINION Unpatentability of Claims 1, 3, 7, 9, and 10 over Eisenberg and Glidden Appellant argues claims 1, 3, 7, 9, and 10 as a group. Appeal Br. 10. Claim 1 is representative. See 37 C.F.R. § 41.37(c)(1)(iv). The Examiner finds that Eisenberg discloses the invention substantially as claimed except for the drive wheel being tangential to the product carrier wheel, for which the Examiner relies on Glidden. Final Act. 2–4. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time of the invention to modify Eisenberg to relocate its drive wheel to a point tangential to the product Appeal 2020-004532 Application 14/357,609 4 carrier wheel. Id. at 4. According to the Examiner, a person of ordinary skill in the art would have done this to simplify construction, reduce cost, and provide access for service and repair. Id. Appellant first argues that the cited prior art references do not teach toothed/notched drive wheels as claimed. Appeal Br. 12. In response, the Examiner points out that Eisenberg’s sprocket 33 has teeth or notches that mesh with a product carrier wheel. Ans. 9. Eisenberg is directed to a machine for filling containers with objects of various shapes and sizes. Eisenberg col. 1, ll. 13–15. Eisenberg features drum 12 comprised of ring shaped members 23, 24. Id. at col. 3, ll. 34–42. Drum 12 is rotated by means of motor assembly 32 mounted on plate 21. Id. at col. 3, ll. 54–55. Assembly 32 includes sprocket wheel 33 that engages studs 34 which extend from member 24. Id. at col. 3, ll. 54–59; Fig. 3. In view of the foregoing facts, we agree with the Examiner that Eisenberg discloses a base with a toothed or notched rotary member. Appellant next argues that Eisenberg’s product wheel does not “rest” on sprocket wheel 33. Appeal Br. 13. Instead, According to Appellant, Eisenberg’s product wheel rests on rollers 27 that are not “driven” as claimed. In response, the Examiner agrees that Eisenberg’s product wheel 26 rests on rollers 27. Ans. 10. The Examiner finds that rollers 27 satisfy the claim language in claim 1 directed to members that are selected from the group consisting of wheels, rollers, or cogs. Id. The Examiner further points out that the claim language only requires that “at least one” rotary member is a “driven” member. Id. The Examiner finds, correctly, that Eisenberg’s sprocket wheel 33 qualifies as “one” rotary member that is “driven” within the meaning of claim 1. Id. Appeal 2020-004532 Application 14/357,609 5 Next, Appellant argues that Eisenberg’s sprocket wheel 33 is not disposed “tangential” to the outer rim of the product wheel and that Eisenberg’s rollers 27, which are tangential to the rim of the product wheel, are not “driven” as claimed. Appeal Br. 13–15. In response, the Examiner agrees that Eisenberg’s sprocket 33 is not tangential to the outer rim of wheel 26. Ans. 10. The Examiner relies, instead, on Glidden for disclosing the tangential disposition limitation. Id. In the rejection, the rollers (27) of Eisenberg were not relied upon for drive means. Instead, Eisenberg was relied upon because it discloses the notched or toothed drive means (33). Whereas, Glidden was relied upon to teach that it is known to have the carrier wheel (10) resting directly on the drive means (54). Id. at 11. Glidden is directed to a device that agitates objects, such as paint, by rotating a container. Glidden 1, ll. 16–25. Glidden features two circular rings 12 that are rotationally, frictionally driven by grooved collars 54, 56. Id. at 2, ll. 6–11, Fig 1. The point of engagement between rings 12 and grooved collars 54, 56 is tangential to each of the rings and collars. Id. The Examiner’s findings in this regard are supported by a preponderance of the evidence. Finally, Appellant argues that Eisenberg does not lend itself to being modified by the teachings of Glidden. Appeal Br. 16 (“Eisenberg cannot be modified”). Appellant argues that modifying Eisenberg would move its drive away from the center of the product carrier and would require a “complete redesign” of its bucket operation. Id. Modifications that the Examiner suggests would require reconfiguring the drive mechanism of Eisenberg, would require Appeal 2020-004532 Application 14/357,609 6 two separate driver functions, and is suggested nowhere in the references themselves. Id. at 16–17. In response, the Examiner notes that Eisenberg’s drive is already positioned “away from” the center of its product carrier wheel. Ans. 12. The Examiner finds that a person of ordinary skill in the art would have been able to disconnect and move Eisenberg’s motor assembly 32 to a position where it is able to power wheel 27. Id. (citing US 3,217,760 to Eisenberg). Eisenberg’s motor driven sprocket 33 engages two separate structures. Eisenberg Fig. 7. On the right side of sprocket 33, as depicted in Figure 7, sprocket 33 engages studs 34 in order to rotate drum 12. Id. at col. 3, ll. 54–59. On its left side, sprocket 33 engages roller 109 which, in turn, operates on a linkage mechanism including at least lever 108, link 107, guide member 115, and link 106. Id. at Fig. 7. Elements 106, 107, 108, and 115, among other structural members, are related to guiding material into container C. Id. at col. 6, ll. 26–44, Figs. 7, 19, and 20. As we understand Appellant’s argument, relocating motor driven sprocket 33 to one of the positions of rollers 27 would require a significant redesign of Eisenberg’s mechanical links and connections related to guide member 115 and its operation in guiding material into container C. Final Act. 16. Appellant expresses this position in a single sentence appearing on page 16 of the Appeal Brief with the entire sentence being emphasized in bold type, underlined, and italicized. Id. The problem with Appellant’s stated position is that it amounts to a mere naked assertion that is not substantiated by any evidence or persuasive technical reasoning. Id. Adding emphasis to naked assertions through the use of underlying, bold type, and italics is no substitute for evidence or persuasive technical reasoning. Appeal 2020-004532 Application 14/357,609 7 We perform an obviousness analysis from the standpoint of a person of ordinary skill in the art. Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962 (Fed. Cir. 1986). The person of ordinary skill is presumed to know something about the art apart from what the references disclose. In re Jacoby, 309 F.2d 513, 516 (CCPA 1962). The person of ordinary skill is not an automaton but, instead, is possessed with ordinary creativity. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). The person of ordinary skill in the art can frequently implement a predictable variation of the prior art. Id. at 417. Such person is also capable of arranging old elements with each performing the same function that it had been known to perform to yield an expected outcome. Id. Thus, in performing an obviousness analysis, we may take account of the inferences and creative steps that a person of ordinary skill in the art would employ. Id. at 418. The facts of the Supreme Court’s landmark decision in KSR are instructive here. KSR dealt with automobile accelerator pedals. Id. at 407. In particular, KSR was concerned with whether more than ordinary skill would have been required to modify a mechanically adjustable accelerator pedal with an electronic sensor. Id. at 420. In finding the invention under review obvious, the KSR Court observed that, in many fields of endeavor, the interaction of multiple components means that changing one component often requires that other components need to be modified as well. Id. at 424. Such prospect, without more, is not sufficient to render a modification non- obvious. Id. Appellant’s point that moving Eisenberg’s sprocket 33 to the location of roller 27 would necessitate modification to the linkage mechanism Appeal 2020-004532 Application 14/357,609 8 between sprocket 33 and container C is well taken. However, aside from unsubstantiated attorney argument, Appellant provides neither evidence nor persuasive technical reasoning as to why such modification would have taken more than ordinary skill. Attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); similarly In re Cole, 326 F.2d 769, 773 (CCPA 1964) (explaining that statements by counsel in the brief cannot take the place of evidence). We have reviewed Figure 7 of Eisenberg and determine that the Examiner does not err in finding that no more than ordinary skill would have been required to modify Eisenberg in the manner proposed. Final Act. 2–4, Ans. 12–13. The linkage mechanism extending between sprocket 33 and container C comprises a series of simple mechanical connections between components that transmit motion and force by well-known physical principles such as leverage. Eisenberg, Fig. 7. Rearranging these components to accommodate a relocation of motor assembly 32 and sprocket 33 would have required no more than ordinary skill. The Examiner’s findings of fact are supported by a preponderance of the evidence and the Examiner’s legal conclusion of unpatentability is well- founded. In view thereof, we sustain the Examiner’s unpatentability rejection of claims 1, 3, 7, 9, and 10. Unpatentability of Claims 4–6 and 8 over Combinations Based on Eisenberg and Glidden The claims depend, directly or indirectly, from claim 1 and are not separately argued. Appeal Br. 10. For essentially the same reasons Appeal 2020-004532 Application 14/357,609 9 expressed above with respect to claim 1, we sustain the rejections of claims 4–6 and 8. CONCLUSION Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 7, 9, 10 103 Eisenberg, Glidden 1, 3, 7, 9, 10 4 103 Eisenberg, Glidden, Chassaing ’577 4 5, 6, 8 103 Eisenberg, Glidden, Chassaing, Chassaing ’577 5, 6, 8 Overall Outcome 1, 3–10 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)(iv). AFFIRMED Copy with citationCopy as parenthetical citation