PYROTEKDownload PDFPatent Trials and Appeals BoardMar 18, 20212020002779 (P.T.A.B. Mar. 18, 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. 13/654,277 10/17/2012 Jon Tipton MLCZ 200171US02 3543 27885 7590 03/18/2021 FAY SHARPE LLP 1228 Euclid Avenue, 5th Floor The Halle Building Cleveland, OH 44115 EXAMINER YUEN, JACKY ART UNIT PAPER NUMBER 1735 NOTIFICATION DATE DELIVERY MODE 03/18/2021 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): uspto@faysharpe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JON TIPTON and RICHARD S. HENDERSON Appeal 2020-002779 Application 13/654,277 Technology Center 1700 Before KAREN M. HASTINGS, JEFFREY B. ROBERTSON, and JANE E. INGLESE, Administrative Patent Judges. HASTINGS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–4, 7–15, 17–21, 23–25, and 30–32. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Pyrotek, Inc. Appeal Br. 1. Appeal 2020-002779 Application 13/654,277 2 CLAIMED SUBJECT MATTER The claims are directed to a pump assembly, as well as a system and method for controlled delivery of molten metal to molds. Spec. ¶¶ 7−10. Claim 1, reproduced below, is illustrative of the claimed subject matter (emphasis added to highlight the key disputed limitation): 1. A system to deliver molten metal to one or more molds, the system comprising: a holding furnace containing said molten metal, said molten metal having a bath level; and a pump assembly within the holding furnace to deliver the molten metal to at least one mold associated with the pump assembly, the pump assembly comprising: a shaft; an impeller coupled to the shaft and configured to direct the molten metal to the at least one mold; a first bearing ring opposing and rotatably supporting a first radial edge at a peripheral circumference of the impeller; a controller to control a rotational speed of the impeller according to a programmable fill profile of the at least one mold; and a throttle to enable manipulation of a flow rate or pressure of the molten metal relative to a rotational speed of the impeller, said throttle comprising a second bearing ring adjacent a second radial edge at a peripheral circumference of the impeller, wherein a radial space at a greatest extent between said second bearing ring and said second radial edge is greater than a radial space at a greatest extent between said first bearing ring and said radial edge to define a bypass gap and wherein said throttle is disposed below said bath level during operation of said pump assembly. Independent claim 18 is directed to a pump assembly and recites the same feature disputed as recited in claim 1 above. Appeal Br. Claims Appendix 18. Appeal 2020-002779 Application 13/654,277 3 Independent claim 12 is directed to a method of filling a mold with molten aluminum. Appeal Br. Claims Appendix 17. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Trabilcy US 3,371,186 Feb. 27, 1968 Stahl US 4,023,918 May 17, 1977 Kuhn US 5,215,141 June 1, 1993 Amra US 5,286,163 Feb. 15, 1994 Thut US 6,152,691 Nov. 28, 2000 Kinosz US 2002/0125620 A1 Sept. 12, 2002 Cooper US 2008/0314548 A1 Dec. 25, 2008 Palmer US 2,459,892 Jan. 25, 1949 Stewart US 2,528,210 Oct. 31, 1950 JP 2007-203311 A JP 2007-203311 A; see English translation of record from https://www4.j- platpat.inpit.go.jp/cgi- bin/tran_web_cgi_ejje Aug. 16, 2007 REJECTIONS The claims are rejected under 35 U.S.C. § 103(a) as follows: Claims 1–3, 10–11, 18–21, 23–25, 30, and 32 as unpatentable over Thut, Stahl, Palmer, JP 2007–203311 A, and Kuhn. Final Act. 2–3. Claim 4 as unpatentable over Thut as modified by Stahl, Palmer, JP 2007–203311 A, Kuhn, and Kinosz. Final Act. 11. Claim 7 as unpatentable over Thut as modified by Stahl, Palmer, JP 2007–203311 A, Kuhn and, Cooper. Final Act. 12. Appeal 2020-002779 Application 13/654,277 4 Claim 8 as unpatentable over Thut as modified by Stahl, Palmer, JP 2007–203311 A, Kuhn, and Amra. Final Act. 13. Claim 9 as unpatentable over Thut as modified by Stahl, Palmer, JP 2007–203311 A, Kuhn, and Trabilcy. Final Act. 13. Claims 12, 15, 17, and 31 as unpatentable over Stewart, Palmer, JP 2007–203311 A, and Kuhn. Final Act. 14. Claim 13 as unpatentable over Stewart, Palmer, JP 2007–203311 A, Kuhn, and Trabilcy. Final Act. 17. Claim 14 as unpatentable over Stewart, Palmer, JP 2007–203311 A, Kuhn, and Cooper. Final Act. 18. OPINION The Examiner bears the initial burden of presenting a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). “[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), quoted with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). After review of the respective positions provided by Appellant and the Examiner, we conclude that the preponderance of the evidence supports Appellant’s position that the Examiner has not established a prima facie case of obviousness with respect to claims 1 and 18 along with their dependent claims. Accordingly, we reverse the Examiner’s § 103 rejections of these claims on appeal. Appeal 2020-002779 Application 13/654,277 5 On the other hand, after considering the evidence presented in this Appeal and each of Appellant’s arguments, we are not persuaded that Appellant identifies reversible error in the rejection of independent claim 12, along with the rejections of its dependent claims. Thus, we affirm the Examiner’s rejections of claim 12 for the reasons expressed in the Final Office Action and the Answer. We add the following for emphasis. Claims 1 and 18 A preponderance of the evidence supports Appellant’s position that the proposed modification of Thut to modify one of its two bearing rings to have notches based on the teachings of Stahl would be based on undue speculation and an improper hindsight reconstruction for the reasons discussed by Appellant in the Briefs (Appeal Br. 5−8; Reply Br. 3–5). A preponderance of the evidence supports Appellant’s position that there is no apparent reason one of ordinary skill in the art would have used Stahl’s notched bearing ring 6 (which is located “facing a ring 9” (Stahl col. 2, ll. 31–36) as the basis for modification of one of Thut’s bearing rings that are located at first and second radial impeller edges so as to result in the claimed unequal radial spacing of the first and second bearing rings with the respective impeller edge. The fact finder must be aware “of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning.” KSR, 550 U.S. at 421 (citing Graham v. John Deere Co., 383 U.S. 1, 36 (1966) (warning against a “temptation to read into the prior art the teachings of the invention in issue”)). As pointed out by Appellant, Stahl and Thut both teach a narrow gap designed for allowing medium Appeal 2020-002779 Application 13/654,277 6 therethrough, such that absent impermissible hindsight, there is no reason why one would modify only one bearing ring of Thut so as to result in the recited unequal spacing (e.g., Appeal Br. 6; Reply Br. 5; Thut col. 6, ll. 10−15). The Examiner has not adequately explained why the skilled artisan’s knowledge or inferences and creativity would have supported the obviousness determination based on the teachings of the applied references without an improper hindsight motivated reconstruction of Thut’s pump assembly and system. Accordingly, we reverse the § 103 rejections of claims 1 and 18 along with their dependent claims as all rely upon an impermissible hindsight motivated reconstruction of the bearing rings in the pump assembly described in Thut based on Stahl. Claim 12 Claim 12 is directed to a method of filling a mold with molten aluminum. Claim 12 recites, in pertinent part: adjusting a rotational speed of the impeller according to a programmable fill profile while delivering the molten aluminum to the mold and wherein said programmable fill profile varies in relation to a geometry of the associated mold and wherein said programmable fill profile includes at least one rotational speed of the impeller wherein molten aluminum is held static at an opening of the mold. Appellant mainly argues that one would not have modified Palmer with the programmable ideal mold filling schedule controller of Kuhn (Appeal Br. 8), and also would not have modified Stewart’s molten aluminum process with Palmer since Palmer’s steel construction could not Appeal 2020-002779 Application 13/654,277 7 withstand the high temperatures of molten aluminum (Appeal Br. 9; Reply Br. 6). Appellant also argues that the applied prior art does not have an identical structure as a pump that achieves this claimed operation (Reply Br. 7). These arguments are not persuasive of reversible error in the Examiner’s obviousness determination, as they do not take into account the breadth of the claim language, the applied prior art as a whole, the knowledge of those of ordinary skill in the art, and the inferences that one of ordinary skill would have made (e.g., Ans. 7). For example, the Examiner does not rely upon the material of Palmer’s pump for the rejection. One of ordinary skill in the art would have readily appreciated that the material of the pump needs to withstand the temperature of molten aluminum as discussed in Stewart (e.g., col. 1, ll. 10−45). Appellant has not even asserted, let alone shown, that using a programmable fill program, such as exemplified in Kuhn and JP 311, would have been beyond the capabilities of a person of ordinary skill in the art. As we “take account of the inferences and creative steps that a person of ordinary skill in the art would employ,” and find a person of ordinary skill in the art would have overcome any difficulties within their level of skill. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); see also id. at 421 (“A person of ordinary skill is also a person of ordinary creativity, not an automaton.”); Ball Aerosol & Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009) (under the flexible inquiry set forth by the Supreme Court, the PTO must take account of the “inferences and creative steps,” as well as routine steps, that an ordinary artisan would employ). We further note that “[t]he test for obviousness is not whether the Appeal 2020-002779 Application 13/654,277 8 features of a secondary reference may be bodily incorporated into the structure of the primary reference. . . . Rather, the test is what the combined teachings of [those] references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). Cf. In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does not involve an ability to combine their specific structures.”). As pointed out by the Examiner, the Kuhn exemplifies that the filling schedule may include a time where the molten metal dwells at the inlet of the mold (Final Act. 16; Kuhn col. 7, ll. 30-45). Appellant has not offered persuasive evidence that the applied prior art combination would not have been capable of performing this function, especially since Palmer also exemplifies the obviousness of including a throttle valve (Ans. 7). In light of these circumstances, Appellant has not shown reversible error in the Examiner’s obviousness determination of the subject matter of the method recited in claim 12 (e.g., Final Act. 4; Ans. 5). Appellant relies on the arguments made for claim 12 for all of its dependent claims, not separately arguing any of the claims, including claim 14 that was separately rejected (e.g., Appeal Br. 12, 13). Accordingly, we sustain the Examiner’s § 103 rejections on appeal of method claims 12-15, 17, and 31. CONCLUSION The Examiner’s rejections of independent claims 1 and 18, along with all claims dependent thereon, are reversed. Appeal 2020-002779 Application 13/654,277 9 The Examiner’s rejections of independent claim 12, along with all its dependent claims, are sustained. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 10, 11, 18–21, 23– 25, 30, 32 Thut, Stahl, Palmer, JP 311, Kuhn 1–3, 10, 11, 18–21, 23– 25, 30, 32 4 Thut, Stahl, Palmer, Kuhn, Kinosz 4 7 Thut, Stahl, Palmer, Kuhn, Cooper 7 8 Thut, Stahl, Palmer, Kuhn, Amra 8 9 Thut, Stahl, Palmer, Kuhn, Trabilcy 9 12, 15, 17, 31 Stewart, Palmer, Kuhn 12, 15, 17, 31 1–4, 7–11, 18–21, 23– 25, 30, 32 13 Stewart, Palmer, Kuhn, Trabilcy 13 14 Stewart, Palmer, Kuhn, Cooper 14 Overall Outcome 12–15, 17, 31 1–4, 7–11, 18–21, 23– 25, 30, 32 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). Appeal 2020-002779 Application 13/654,277 10 AFFIRMED-IN-PART Copy with citationCopy as parenthetical citation