KOCHER-PLASTIK MASCHINENBAU GMBHDownload PDFPatent Trials and Appeals BoardFeb 25, 20222020005987 (P.T.A.B. Feb. 25, 2022) 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. 15/125,208 09/12/2016 Heino PRINZ 2016-0847A 1035 513 7590 02/25/2022 WENDEROTH, LIND & PONACK, L.L.P. 1025 Connecticut Avenue, NW Suite 500 Washington, DC 20036 EXAMINER SECHSER, JILL D ART UNIT PAPER NUMBER 2483 NOTIFICATION DATE DELIVERY MODE 02/25/2022 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): eoa@wenderoth.com kmiller@wenderoth.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HEINO PRINZ Appeal 2020-005987 Application 15/125,208 Technology Center 2400 Before MINN CHUNG, ADAM J. PYONIN, and MICHAEL J. ENGLE, Administrative Patent Judges. CHUNG, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 11-17, 19-28, and 30-32. See Final 1 In this Decision, we refer to Appellant’s Appeal Brief filed April 24, 2020 (“Appeal Br.”) and Reply Brief filed August 19, 2020 (“Reply Br.”); and the Examiner’s Final Office Action mailed November 18, 2019 (“Final Act.”) and Answer mailed August 7, 2020 (“Ans.”). We also refer the Specification filed September 12, 2016 (“Spec.”). Rather than repeat the Examiner’s findings and Appellant’s contentions in their entirety, we refer to these documents. 2 “Appellant” herein refers to “applicant” as defined in 37 C.F.R. § 1.42 (2012). Appellant identifies the real party in interest as Kocher-Plastik Maschinenbau GmbH. Appeal Br. 1. Appeal 2020-005987 Application 15/125,208 2 Act. 2. Claims 1-10, 18, and 29 have been cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER The subject matter of the present application pertains to a test apparatus for checking container products filled with fluid to detect particulate contamination. Spec. 1. Claims 11 and 23 are independent. Claim 11, reproduced below with the disputed limitations emphasized, is illustrative of the claimed subject matter: 11. A test apparatus that checks a sealed plastic container product filled with a fluid for particulate contamination in the fluid, the test apparatus comprising: first and second stations; first and second sensors in said first and second stations, respectively, arranged to detect changes in positions of contamination particles as a result of movement of the contamination particles, each said sensor having a radiation emitter and a radiation detector; first and second vibration devices in said first and second stations, respectively, receiving and oscillating the container products at a pre-specifiable excitation frequency causing the contamination particles to move and change positions and allowing said sensor to detect the particle contamination in the fluid; and a handling device holding the container product to be tested in a horizontal position in said first station in which said radiation detector of said first sensor is disposed below said container product and said radiation emitter of said first sensor is disposed above the container product, and taking the container product to be tested to said second station in which said radiation detector of said second sensor is disposed above the container Appeal 2020-005987 Application 15/125,208 3 product and the radiation emitter of said second sensor is disposed below the container product; whereby the test apparatus is capable of detecting and differentiating air bubbles from other particles in the sealed plastic container product. Appeal Br. i (Claims App.) (emphases added). REJECTIONS The Examiner relies on the following references: Name3 Reference Date Manique US 5,523,560 June 4, 1996 Voigt US 2008/0001104 Al Jan. 3, 2008 Engelhardt US 2012/0134230 Al May 31, 2012 Milne US 2014/0177932 Al June 26, 2014 Claims 11-17, 20-28, 31, and 32 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Engelhardt, Voigt, and Milne. Final Act. 3-10. Claims 19 and 30 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Engelhardt, Voigt, Milne, and Manique. Final Act. 10-11. ISSUE4 The issue presented by Appellant’s contentions is whether the Examiner erred in finding that the combination of Engelhardt, Voigt, Milne teaches or suggests a “first station in which said radiation detector of said first sensor is disposed below said container product and said radiation 3 All citations herein to the prior art are by reference to the first named inventor only. 4 Appellant’s arguments raise additional issues. Because the identified issue is dispositive of the appeal, we do not reach the additional issues. Appeal 2020-005987 Application 15/125,208 4 emitter of said first sensor is disposed above the container product,” and a “second station in which said radiation detector of said second sensor is disposed above the container product and the radiation emitter of said second sensor is disposed below the container product,” as recited in independent claim 11 and similarly recited in independent claim 23. ANALYSIS In rejecting claim 11 over the combination of Engelhardt, Voigt, and Milne, the Examiner finds that Engelhardt teaches most of the recitations of claim 11, including “[a] test apparatus that checks a sealed plastic container product filled with a fluid for particulate contamination in the fluid,” “first sensors arranged to detect changes in positions of contamination particles as a result of movement of the contamination particles, each said sensor having a radiation emitter and a radiation detector,” “a handling device holding the container product to be tested in a horizontal position,” “said radiation detector of said first sensor is disposed below said container product and said radiation emitter of said first sensor is disposed above the container product,” and “said radiation detector [of said second sensor] is disposed above the container product and the radiation emitter is disposed below the container product.” Final Act. 3-4 (citing Engelhardt ¶¶ 15, 27, 47, 49, 53, Figs. 1, 2). The Examiner additionally relies on Voigt to find that Voigt teaches “second sensors; first and second stations; . . . ; wherein the handling device takes the container product to be tested from the first station to the second station.” Id. at 5 (citing Voigt ¶¶ 4-7, 31, 56, 61, 87, 96). Appellant argues that the Examiner’s proffered combination does not teach or suggest two stations, i.e., the recited “first and second stations,” Appeal 2020-005987 Application 15/125,208 5 where the “above and below” locations of the radiation emitter and the radiation detector in relation to the horizontal container product are “opposite” between the first station and the second station. Appeal Br. 4-8. In the Reply, Appellant further argues Each [of claims 11 and 23] recite first and second stations, with the first station having its sensor below the horizontal container product and its radiation emitter above the horizontal container product and with the second station having its sensor above the horizontal container product and its radiation emitter below the horizontal container product. These different arrangements of the sensors and radiation emitters relative to the container product in the two stations are clearly recited in the claims and avoid wrongly identifying bubbles as particulate contamination . . . . The opposite arrangements of the claims are not only of the sensor and emitter being on opposite sides of the container product, but have the “above” and “below” dispositions relative to the container product being different in the two stations. Reply Br. 2 (italic emphases added). Appellant asserts that “[n]either Engelhardt nor Voigt disclose the ‘above’ or ‘below’ dispositions relative to a horizontal container product or different dispositions relative to the container product in different stations” and that each of these two references “only show side-by-side dispositions, without any change of disposition from one station to another.” Id. at 2-3 (emphasis added). We agree with Appellant. The portions of Engelhardt cited by the Examiner describe a single test station where a camera and illumination devices are placed on the same horizontal plane. See Engelhardt Fig. 1, ¶¶ 47-52. Voigt describes the use of two cameras each with the same lateral light source arrangement. See Voigt Figs. 1a, 2. Voigt also describes that “[p]roviding a second camera to the inspection machine enables a procedure where a double check of the inspection is possible” and that “[t]he two cameras may be adapted for performing the same type of inspection of the Appeal 2020-005987 Application 15/125,208 6 containers.” Voigt ¶¶ 55-56 (emphases added). Thus, we agree with Appellant that there is no teaching or suggestion in Engelhardt and Voigt, either alone or in combination, of the recited feature of (1) in the first station, placing the radiation emitter and radiation detector “above” and “below” the container product, respectively and (2) in the second station, changing the placement to an opposite arrangement, i.e., placing the radiation emitter and radiation detector “below” and “above” the container product, respectively. According to the Examiner, the lateral placement of the camera and the light source in Engelhardt and Voigt teaches or suggests this feature because “the terms ‘above’ and ‘below’ do not depend of the container itself but to an outside reference and are relative and make the placement unclear.” Ans. 4. We disagree with the Examiner’s claim interpretation. “Under a broadest reasonable interpretation, words of the claim must be given their plain meaning, unless such meaning is inconsistent with the specification and prosecution history.” TriVascular, Inc. v. Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016) (citing Straight Path IP Grp., Inc. v. Sipnet EU S.R.O., 806 F.3d 1356, 1362 (Fed. Cir. 2015)). Claim 11 on its face plainly recites that the “radiation detector” or the “radiation emitter” is “disposed” “below” or “above” the “container product.” Consistent with the plain language of the claim, the Specification describes In particularly advantageous exemplary embodiments, a handling device is provided, which takes the respective container to be tested to a horizontal position in a station in which the detector is disposed below and the emitter is disposed above the container, and which also takes it to a second station, in which the detector is disposed above and the emitter is disposed below the container. In this arrangement, the detector, in particular in Appeal 2020-005987 Application 15/125,208 7 the form of a camera, can be focused on the lower side wall of the container from below, while in the second station the camera is focused on the fluid surface from above. In this way, air bubbles, which could be wrongly identified as particulate contamination, can be reliably detected because they are situated on the upper side wall in the horizontal position and can be differentiated from other actual dirt particles which are mobile. Also, moved particles and particles, which tend to adhere to side walls, such as plastic particles, can be differentiated from particles which float freely in the fluid. Spec. 4 (emphases added). Thus, the plain language of claim 11 indicates that the terms “above” and “below” describe the placement or disposition of the recited “radiation detector” or “radiation emitter” relative to the “container product.” And this plain meaning interpretation is consistent with the disclosure in the Specification quoted above. This plain meaning interpretation of the terms “above” and “below” is also consistent with the description in the Specification (Spec. 4) that the claimed opposite “above” and “below” arrangements between the first and second stations facilitate differentiating air bubbles from solid particles in the fluid container. See In re Smith Int’l, Inc., 871 F.3d 1375, 1382-83 (Fed. Cir. 2017) (“The correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is . . . an interpretation that corresponds with what and how the inventor describes [the] invention in the specification, i.e., an interpretation that is ‘consistent with the specification.’”). Thus, we determine the Examiner’s reasoning-i.e., the lateral placement of the camera and the light source in Engelhardt and Voigt teaches or suggests the disputed limitations because “the terms ‘above’ and ‘below’ do not depend of the container itself but to an outside reference and Appeal 2020-005987 Application 15/125,208 8 are relative and make the placement unclear”-to be unreasonable and unsupported by evidence of record. Accordingly, we are persuaded the Examiner erred in finding that Engelhardt or Voigt, alone or in combination, teaches or suggests a “first station in which said radiation detector of said first sensor is disposed below said container product and said radiation emitter of said first sensor is disposed above the container product,” and a “second station in which said radiation detector of said second sensor is disposed above the container product and the radiation emitter of said second sensor is disposed below the container product,” as recited in independent claim 11 and similarly recited in independent claim 23. As the Examiner does not rely on the other cited references for these limitations, we are persuaded that the Examiner’s rejection of claims 11 and 23 is in error. In sum, we agree the Examiner erred, and, therefore, do not sustain the Examiner’s rejection of claims 11 and 23 or the rejection of dependent claims 12-17, 19-22, 24-28, and 30-32. CONCLUSION The decision of the Examiner to reject claims 11-17, 19-28, and 30- 32 is reversed. Appeal 2020-005987 Application 15/125,208 9 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 11-17, 20- 28, 31, 32 103 Engelhardt, Voigt, Milne 11-17, 20-28, 31, 32 19, 30 103 Engelhardt, Voigt, Milne, Manique 19, 30 Overall Outcome 11-17, 19-28, 30-32 REVERSED Copy with citationCopy as parenthetical citation