Ex Parte Bruckmann

Board of Patent Appeals and Interferences

Jul 17, 2012

10962614 (B.P.A.I. Jul. 17, 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.
10/962,614 10/13/2004 Theodor Bruckmann 008111-583 9882
73368 7590 07/17/2012
PHAN LAW GROUP PLLC
P.O. B0X 748
Alexandria, VA 22313-0748
EXAMINER
ZEMEL, IRINA SOPJIA
ART UNIT PAPER NUMBER
1765
MAIL DATE DELIVERY MODE
07/17/2012 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 THEODOR BRUCKMANN
____________

Appeal 2011-000798
Application 10/962,614
Technology Center 1700
____________

Before ADRIENE LEPIANE HANLON, LINDA M. GAUDETTE, and
JAMES HOUSEL, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

Appeal 2011-000798
Application 10/962,614

2
DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision1
finally rejecting claims 1, 3-8, 10, 23-27, 29-33, and 44-49.2 We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
Claim 46 is representative of the invention and is reproduced below from the
Claims Appendix to the Appeal Brief 3:
46. Method for thermally processing polyester pellets in order
to achieve partial crystallization, comprising
feeding polyester melt to an underwater pelletizer,
pelletizing the polyester melt in the underwater pelletizer to
obtain pellets,
conveying the pellets from the underwater pelletizer to a
water/solids separating device to dry the pellets,
feeding the dried pellets at a pellet surface temperature of
greater than 100°C to an agitation device comprising a vibrating
conveyor, an oscillating conveyor, or a spiral conveyor;
agitating and crystallizing the pellets in the agitation device
wherein the crystallization uses specific heat present in the pellets,
and
removing partially crystallized pellets from the agitation device
at a pellet surface temperature of over 80°C.

1 Final Office Action mailed Jan. 4, 2010.
2 Appeal Brief filed Jun. 18, 2010 (“App. Br.”).
3 Claim 1, the only other independent claim, is similar to claim 46, but further
limits the type of agitation device to “a vibrating conveyor device” (claim 1).
Appeal 2011-000798
Application 10/962,614

3
Appellant requests review of the following grounds of rejection (App. Br. 3
(as clarified in Office Communication mailed Aug. 27, 2010)):
1. claims 1, 3-8, 10, 23-27, 29-33, and 44-49 under 35 U.S.C. § 103(a)
as unpatentable over Balint (US 3,544,525, issued Dec. 1, 1970) in view of
Rüssemeyer (US 5,119,570, issued Jun. 9, 1992) (Ans.4 4-7); and
2. claims 1, 3-8, 10, 23-27, 29-33, and 44-49 under 35 U.S.C. § 103(a)
as unpatentable over Fellinger (AT 410942B, published Aug. 25, 2003, as
translated in US 2005/0062186 A1, published Mar. 24, 2005) in combination with
Balint, and further in view of Rüssemeyer (Ans. 7-10).
We decide the following issue in favor of Appellant and, therefore, identify
it as dispositive of the appeal: did the Examiner reversibly err in finding that the
applied prior art discloses or suggests the step of “feeding the dried pellets . . . to
an agitation device comprising a vibrating conveyor, an oscillating conveyor, or a
spiral conveyor” (claim 46 (emphasis added))?
The above-stated issue turns on whether we interpret the terms “vibrating
conveyor,” “oscillating conveyor,” or “spiral conveyor” as encompassing the
fluidized beds of Balint and Rüssemeyer wherein pellets are transported via
entrainment in a gas (see e.g. Balint col. 5, ll. 5-15; Rüssemeyer Abstract and
col. 8, ll. 3-6), or the mixing element of Fellinger wherein pellets are moved from
entry to exit ports via gravity (see e.g. Fellinger Fig. 1, ¶ [0041]).
During examination, claim terms must be given their broadest reasonable
construction consistent with the Specification. In re ICON Health & Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007).
The Specification describes the agitation device as a channel having
“vibration motors so that the pellets located therein are permanently agitated.”

4 Examiner’s Answer mailed Aug. 11, 2010 (“Ans.”).
Appeal 2011-000798
Application 10/962,614

4
(Spec. at [0033]; see also, id. at [0038]; claim 45 (“wherein the vibrating conveyor
device comprises a vibration motor”).) The Specification describes “convey[ing]
the pellets during heat treatment over a vibrating conveyor or oscillating conveyor,
so that, on the one hand, the pellets are conveyed to a subsequent processing unit,
and, on the other hand, agglomeration of the pellets is effectively prevented by the
vibrations acting on them.” (Id. at [0030.1].) A spiral conveyor may be utilized
instead of an oscillating chute conveyor. (Id.)
The description in the Specification supports Appellant’s contention that the
claims require a step of feeding dried pellets to a device which, itself, is movable to
convey pellets between two locations, and movable in a vibratory or oscillatory
manner, e.g., by a motor, so as to agitate the pellets. The claims do not encompass
stationary devices which agitate and transport pellets solely via entrainment in a
gas or by gravity, i.e., the devices disclosed in the applied prior art.
Appellant has persuasively argued the Examiner’s proposed prior art
combinations would not have resulted in a method which includes a step of feeding
dried pellets to an agitation device as required by independent claims 1 and 46. As
such, we do not sustain the Examiner’s rejections.
The Examiner’s decision to reject claims 1, 3-8, 10, 23-27, 29-33, and 44-49
is:
REVERSED.

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