11587269 - (D) (P.T.A.B. Jun. 28, 2013)

Ex Parte Balk

Patent Trials and Appeals BoardJun 28, 2013

11587269 - (D) (P.T.A.B. Jun. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte WOUTER BALK ____________________ Appeal 2011-007607 Application 11/587,269 Technology Center 3600 ____________________ Before: JOHN C. KERINS, JAMES P. CALVE, and SCOTT A. DANIELS, Administrative Patent Judges. DANIELS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-007607 Application 11/587,269 2 STATEMENT OF THE CASE Wouter Balk (Appellant) appeals under 35 U.S.C. § 134 from a rejection of claims 1-9 and 11-20. App. Br. 4. Claims 1, 4 and 11 are the independent claims. Claims 10, 21 and 22 are objected to as being dependent upon a rejected base claim. App. Br. 4. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION The claims are directed to a method and device for buffering products along a packaging or filling line, for example in a bottling plant where “[t]he handling rate may be temporarily higher or lower at different locations in the line.” Spec. 1. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of buffering products, in particular substantially cylindrical containers, said method comprising carrying the products upwards on a moving, inclined first conveying surface at a first flow rate towards a guide member for transferring the products from the first conveying surface to a second conveying surface, the guide member being disposed adjacent an upper end of the first conveying surface, such that the products on the first conveying surface can be stopped by and accumulate against the guide member, and guiding the products from the guide member onto the second conveying surface, and conveying the products onwards on the second conveying surface at a second flow rate, the second flow rate being different from the first flow rate, wherein in said carrying of the products upward on the first conveying surface, the first conveying Appeal 2011-007607 Application 11/587,269 3 surface is inclined at an angle and is provided with a surface condition such that the dragging force exerted on the products from the first conveying surface is greater than the force of gravity being exerted on the products in a direction along the first conveying surface, so as to allow the products to move relative to the first conveying surface as the first conveying surface carries the products upwards. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Sikorski Steeber Leathers US 3,866,739 US 6,152,291 US 6,419,078 B1 Feb. 18, 1975 Nov. 28, 2000 Jul. 16, 2002 REJECTIONS The Examiner made the following rejections: Claims 1, 3, 4, 6-8, 11, 16, and 18 stand rejected under 35 U.S.C. §102(b) as being anticipated by Steeber. Ans. 3. Claims 2, 5, 12-15, 17 and 191 stand rejected under 35 U.S.C §103(a) as being unpatentable over Steeber and Sikorski. Ans. 6. Claim 9 stands rejected under 35 U.S.C §103(a) as being unpatentable over Steeber and Leathers. Ans. 8. Claim 20 stands rejected under 35 U.S.C §103(a) as being unpatentable over Steeber, Sikorski and Leathers. Ans. 8. 1 Claims 12-15, 17 and 19 are not specifically listed in the Answer in the statements of this ground of rejection. Ans. 3, 6. The claims, however, depend from either claim 2 or claim 5, and the Examiner addresses the claims and the rationale behind the obviousness rejection immediately after the discussion of claims 2 and 5 as being obvious over Steeber and Sikorski. Appeal 2011-007607 Application 11/587,269 4 ANALYSIS Claims 1, 3, 4, 6-8, 11, 16, and 18 as anticipated by Steeber Each of the Examiner’s rejections relies on a finding that Steeber discloses all the limitations of independent claims 1, 4 and 11, including inter alia carrying products on a moving, inclined first (infeed) conveyor A towards a guide member D for transfer to a second (outfeed) conveyor B, that the guide member D is located at an upper end of the first conveyor A, and that the products can be stopped and accumulate on the first conveyor surface A against the guide member D. Ans. 3-4.; see Steeber figs. 1 and 4. The Examiner also found that Steeber discloses the conveyor surface A inclined at an angle and having “a surface condition…so as to allow the products 10 to move relative to the first conveying surface (A) as the first conveying surface (A) carries the products 10 upwards.” Ans. 4 citing Steeber fig. 4, (emphasis added). The Examiner explained that in Steeber the conveyors were driven in such a manner as to minimize the drag of conveyors on the supporting track, and therefore the products move relative to the conveying surface when considering “the track system being a[]part of the conveying surface.” Ans. 10 citing Steeber col. 5 ll. 62-65. Appellant argues that figure 4 of Steeber does not disclose a surface condition of the first conveying surface which allows the products supported on the first conveying surface “to move relative to the first conveying surface as the first conveying surface carries the products upwards” as recited in claim 1. App. Br. 11-12. Appellant asserts specifically that Steeber is entirely silent with respect to the movement of articles relative to the conveyors and that the necessity to provide drive to overcome any drag Appeal 2011-007607 Application 11/587,269 5 between the conveyors and the supporting track does not explain “the movement of articles on any of the conveyors.” Reply Br. 4. We agree. The Examiner initially relies on the moving infeed conveyor A from Steeber as meeting the limitation of a “first conveying surface.” Ans. 3. The Examiner then characterizes the claimed first conveying surface as the stationary supporting track 58 upon which Steeber’s infeed conveyor A rides by finding that the product is moved relative to the conveying surface where the track system is a part of the conveying surface. See Ans. 10. However, the supporting track 58, best shown in Steeber figure 9 comprising parallel strips 62, 64 and explained at column 6, lines 23-26 of Steeber, is a different structure from the infeed conveyor A. While the track 58 may support the first conveyor A, it is not the moving or driveable conveying surface carrying the products. The Examiner has erred in finding that the claimed “first conveying surface” is on one hand satisfied by Steeber’s moving infeed conveyor A, and on the other hand also satisfied subsequently by a different element, i.e. Steeber’s stationary supporting track 58. Thus, the rejection of independent claims 1, 4 and 11 and their respective dependent claims 3, 6-8, 16, and 18 as anticipated by Steeber is not sustained. Additionally, the Examiner also found incorrectly that Steeber discloses that products on the first conveyor surface can “accumulate against the guide member” as called for in each of claims 1, 4 and 11. Ans. 4. The Examiner reasoned that stopping the infeed conveyor A met Appellant’s accumulation limitation. Ans. 9. The word “accumulate” however means more than merely carried, or supported. A common definition of “accumulate” is: “to collect or gather something in an increasing quantity.” CHAMBERS 21ST CENTURY DICTIONARY (2001) Appeal 2011-007607 Application 11/587,269 6 (http://www.credoreference.com/entry/chambdict/accumulate) (last visited June 26, 2013). If the infeed conveyor A is stopped, the quantity of products at the guide member cannot increase. For this reason we also cannot sustain the anticipation rejection of claims 1, 4 and 11 and their respective dependent claims. Claims 2, 5, 9, 12-15, 17, 19 and 20 as unpatentable over Steeber and Sikorski, Steeber and Leathers, and Steeber, Sikorski and Leathers The rejections of claims 2, 5, 12-15, 17 and 19 as unpatentable over Steeber and Sikorski, of claim 9 over Steeber and Leathers, and of claim 20 over Steeber, Sikorski and Leathers, rely upon the same unsubstantiated findings as discussed above, and neither Sikorski nor Leathers remedies the Examiner’s incorrect findings with respect to claims 1, 4 and 11. Thus, we also cannot sustain these rejections. DECISION For the above reasons, the Examiner’s rejection of claims 1-9 and 11- 20 is REVERSED. REVERSED Klh