Ex Parte Griepsma et al

Patent Trial and Appeal Board

Nov 25, 2014

11113536 (P.T.A.B. Nov. 25, 2014)

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.
11/113,536 04/25/2005 Bart Griepsma 665560.45 7373
27162 7590 02/02/2015
CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO
5 BECKER FARM ROAD
ROSELAND, NJ 07068
EXAMINER
ROST, ANDREW J
ART UNIT PAPER NUMBER
3753
MAIL DATE DELIVERY MODE
02/02/2015 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte BART GRIEPSMA and EMIL FEHR
____________________

Appeal 2012-0114861
Application 11/113,536
Technology Center 3700
____________________

Before ANTON W. FETTING, MICHAEL C. ASTORINO, and
PHILIP J. HOFFMANN, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

STATEMENT OF THE CASE
Appellants filed a Request for Rehearing (“Request”) on January 21,
2015, of the Decision (“Decision”) mailed November 25, 2014. In the
Decision, we affirmed the Examiner’s rejection of claims 1, 11, 13, 14, 16,
17, 19, 21, and 22 under 35 U.S.C. § 103(a) as unpatentable over McEwan
(US 4,767,424, iss. Aug. 30, 1988), Bogaerts (US 5,595,454, iss. Jan. 21,
1997), and Klein (US 6,670,573 B2, iss. Dec. 30, 2003). See Decision 6.

1 Appellants identify Sulzer Chemtech LTD as the real party in interest. See
Appeal Br. 2.
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In accordance with 37 C.F.R. § 41.52(a)(1), the Request includes
certain points, in particular, which Appellants believe the Board
misapprehended or overlooked in reaching its Decision.
For the following reasons, we deny Appellants’ Request.

DISCUSSION
Appellants first discuss, among other topics, independent claim 1 and
the prior art references McEwan and Bogaerts. Request 2–4.
Appellants argue:
Bogaerts does not disclose that the plurality of tabs
(43,44) of Fig. 4 that are received within slots
(41,42) of plate members (10) “are subsequently
welded in place.” Accordingly, the Examiner’s
position as set forth in the Final rejection is in error
and to the extent that the Board has adopted the
Examiner’s position, the Board is in error as a
matter of fact.
Request 4–5.
We note that Appellants do not identify expressly what position of the
Examiner it is with which they disagree. To the extent Appellants’ argument
is that the Examiner’s position is that Bogaerts discloses a plurality of tabs
that are received within slots to be welded in place, neither the Examiner nor
the Board relies on Bogaerts to disclose tabs within slots to be welded. For
example, our Decision references “the Examiner’s proposed modification of
McEwan and Bogaerts to include Klein’s welds.” Decision 5. Thus, this
argument is unpersuasive.
Appellants argue, “[t]he Examiner has not provided any evidence that
one of ordinary skill in the art would be motivated to curve the tabs 42,43 of
Bogaerts in order to fit into curved slots[,] nor has the Board. Clearly,
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Bogaerts does not fairly suggest the desirability of such a modification.”
Request 5–6. We note, however, that although independent claim 1 requires
“a plurality of spaced apart curved guide lamellae” (Appeal Br., Claims
App.), the claim requires neither curved slots nor curved tabs — instead
claim 1 only requires that “each said lamellae having a first plug connection
including a pair of elements inserted in . . . a respective pair of openings in
said base panel in shape matching relation and a second plug connection
including a pair of elements inserted in . . . a respective pair of openings in
said top panel in shape matching relation” (id., emphases added). Thus,
Appellants’ argument is directed to unclaimed subject matter. Regardless,
Appellants’ do not establish persuasively that the Examiner erroneously
relies on any reference to disclose curved tabs and curved slots, or that the
Examiner erroneously proposes to modify any reference such that its tabs
and slots are curved. Rather, we that the Examiner consistently refers to the
slots and tabs as having “the same cross section” (Final Action mailed Nov.
18, 2011, 5, 7) and as “shape matching” (id. at 6, 7), and finds that Bogaerts
discloses such tabs and slots (see id. at 5–7). Thus, this argument is
unpersuasive.
Appellants argue that the record contains sufficient evidence to
establish that “to provide the curved vanes of McEwan with tabs, such as
tabs 21 of Bogaerts[,] would hold the vanes 14 spaced away from and out of
contact with the top and bottom panels (walls 12,13) and that to do so would
leave gaps through which a portion of the liquid-containing gas passing into
the supply and distribution assembly 3 would bypass the vanes 14.” Request
7 (original square brackets changed to parentheses). Even assuming
arguendo Appellants are correct, this assumption does not change the results
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of our analysis on pages 3–4 of the Decision. As set forth in the Decision,
Appellants argued:
[O]ne of ordinary skill in the art would not be
motivated by the teachings of Bogaerts to provide
the curved vanes of McEwan with tabs, such as the
tabs 21 of Bogaerts, [as this would] [] hold the
vanes 14 spaced away from and out of contact with
the top and bottom panels [walls 12, 13]. To do so
would leave gaps through which at least a portion
of the liquid-containing gas passing into the supply
and distribution assembly 3 would bypass the
vanes 14 and not be properly directed into the
column 1. This would be contrary to the teachings
of McEwan. If the proposed modification or
combination of the prior art would change the
principle of operation of the prior art invention
being modified, then the teachings of the
references are not sufficient to render the claims
prima facie obvious. The Examiner’s proposal
would change the principle of operation of
McEwan.
Decision 3–4 (citing Appeal Br. 8 (underlining and citations omitted)).
Assuming that Appellants are correct that the proposed modification would
“leave gaps” between the vanes and the walls, as we point out in the
Decision, “Appellants submit only attorney argument . . . rather than facts or
evidence, with respect to McEwan’s principle of operation, and thus
Appellants do not establish that any modification proposed by the Examiner
[including a modification that leaves gaps between vanes and walls in
McEwan] would [change] McEwan’s principle of operation.” Id. at 4. In
other words, because Appellants do not establish persuasively what
McEwan’s principal of operation is, Appellants do not establish persuasively
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that any modification to McEwan would change that principal of operation.
Thus, this argument is unpersuasive.
Finally, Appellants argue the Board’s opinion is not supported as a
matter of law. See Request 8–9. Contrary to Appellants’ arguments
separately addressing the deficiencies of each of McEwan, Bogaerts, and
Klein (see id.), our decision sets forth reasons why it would have been
obvious to modify McEwan in view of Bogaerts (see Decision 3–5), as well
as reasons why it would have been obvious to further modify McEwan and
Bogaerts in view of Klein (see id. at 5–6). Thus, this argument is
unpersuasive.
DECISION
We have carefully considered Appellants’ arguments set forth in the
Request, but, for the foregoing reasons, we do not find them persuasive to
show error in the Board’s Decision.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

DENIED

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