Ex Parte Amey et al

Board of Patent Appeals and Interferences

Jan 23, 2012

11678117 (B.P.A.I. Jan. 23, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/678,117 02/23/2007 Stephen L. Amey MBC-5891 1158
23575 7590 01/24/2012
CURATOLO SIDOTI CO., LPA
24500 CENTER RIDGE ROAD, SUITE 280
CLEVELAND, OH 44145
EXAMINER
MARCANTONI, PAUL D
ART UNIT PAPER NUMBER
1731
MAIL DATE DELIVERY MODE
01/24/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte STEPHEN L. AMEY,
ANTHONY A. SCHLAGBAUM,
and BRUCE J. CHRISTENSEN
____________

Appeal 2011-000458
Application 11/678,117
Technology Center 1700
____________

Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and
RAE LYNN P. GUEST, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134 from the Examiner's
rejection of claims 1-23 and 38-42. We have jurisdiction under 35 U.S.C.
§ 6. An oral hearing was held on January 12, 2012.

STATEMENT OF THE CASE
Claim 1 is representative of the subject matter on appeal and is set
forth below:
Appeal 2011-000458
Application 11/678,117

2

1. A method for supplying adjustable ratios of admixture raw
materials to a cementitious composition to generate performance
characteristics comprising:

a. providing values for material and process variables related to the
performance characteristics of the cementitious composition;

b. calculating proportional amounts of at least two admixture raw
materials required to provide the performance characteristics;

c. adjusting the ratio of the at least two admixture raw materials to be
dispensed on demand to the cementitious composition.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Valle 5,203,629 Apr. 20, 1993
Kreinheder 6,224,250 B1 May 1, 2001

THE REJECTION
Claims 1-23 and 38-42 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Kreinheder.
ISSUE
Did the Examiner err in determining that Kreinheder suggests the
subject matter of claim 1, and in particular, the aspect of claim 1 pertaining
to a method of supplying adjustable ratios of admixture raw materials “on
demand” to a cementitious composition?
We answer this question in the negative and AFFFIRM.

Appeal 2011-000458
Application 11/678,117

3
ANALYSIS
(with Findings of Fact and Principles of Law)

As an initial matter, Appellants have not presented separate arguments
for all of the rejected claims. Rather, Appellants’ arguments are principally
directed to independent claim 1. Any claim not separately argued will stand
or fall with its respective independent claim. See 37 C.F.R.
§ 41.37(c)(1)(vii).
We essentially adopt the Examiner’s findings pertinent to the issue
raised by Appellants for this rejection. We, therefore, incorporate the
Examiner’s position as set forth in the Answer. We add the following for
emphasis only.
Appellants argue that Kreinheder pertains to providing a system and
method for manufacturing a formulated concrete admixture at a customer’s
site wherein the concrete admixtures are sold as a “finished product,” and,
therefore, not dispensed on demand. We refer to pages 11-16 of the Brief,
and also to the Reply Brief in general, in this regard.
On the other hand, it is the Examiner’s position that Kreinheder
suggests the method recited in claim 1, including the aspect of dispensing
“on demand.” See Answer generally. We agree with the Examiner’s
position for the reasons expressed by the Examiner in the Answer. We add
that, as emphasized by the Examiner on page 4 of the Answer, Kreinheder
teaches that the manufacturer is able to adjust the process at the destination
site and can “make quick and important adjustments to the raw materials,
blending ratio(s), or physical characteristics of the final product.”
Kreinheder, col. 2, ll. 59 through col. 3, ll. 4. Hence, the teachings of
Kreinheder suggest adjustments of the raw materials in a manner that
Appeal 2011-000458
Application 11/678,117

4
facilitates on demand dispensing of the raw materials. In other words, when
it is recognized that an adjustment of the raw materials is needed, that
adjustment is quickly made, and the adjusted raw material is dispensed
accordingly.
On page 8 of the Reply Brief, Appellants argue that their method does
not prepare a finished additive or admixture product, but involves separately
dosing admixture raw materials directly to the cementitious composition,
and as such, on demand batch-to-batch availability of different admixture
raw material combinations is unlimited. However, claim 1 is not so limited.
“Many of appellant’s arguments fail from the outset because . . . they are not
based on limitations appearing in the claims. . . .” In re Self, 671 F.2d 1344,
1348 (CCPA 1982). We note that while we consult the Specification to
determine the meaning of the claim terms, we take care to not limit the claim
to the specific embodiments disclosed in the Specification when the terms
appear to have a broader meaning. See In re Van Geuns, 988 F.2d 1181,
1184 (Fed. Cir. 1993) (“[L]imitations are not to be read into the claims from
the specification.”) and Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed.
Cir. 2005)(en banc) (“[T]he line between construing terms and importing
limitations can be discerned with reasonable certainty and predictability if
the court's focus remains on understanding how a person of ordinary skill in
the art would understand the claim terms. For instance, although the
specification often describes very specific embodiments of the invention, we
have repeatedly warned against confining the claims to those
embodiments.”). Furthermore, as mentioned, supra, Kreinheder suggests the
concept of making “quick and important adjustments to the raw materials,
blending ratio(s), or physical characteristics . . .” as needed.
Appeal 2011-000458
Application 11/678,117

5
In view of the above, we affirm the rejection.
CONCLUSIONS OF LAW AND DECISION
The rejection is affirmed.
TIME PERIOD FOR RESPONSE
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

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