Ex Parte Kleber et al

Patent Trial and Appeal Board

Apr 26, 2018

13261541 (P.T.A.B. Apr. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/261,541 02/04/2013
513 7590 04/30/2018
WENDEROTH, LIND & PONACK, L.L.P.
1030 15th Street, N.W.,
Suite 400 East
Washington, DC 20005-1503
FIRST NAMED INVENTOR
Jorg Kleber
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
60066 9543
EXAMINER
BROWN, ADAM WAYNE
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
04/30/2018 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):
eoa@wenderoth.com
kmiller@wenderoth.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOERG KLEBER and ANDREAS WILHELM
Appeal2017-007668
Application 13/261,541
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
LYNNE H. BROWNE, Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Joerg Kleber and Andreas Wilhelm (Appellants) appeal under 35
U.S.C. § 134 from the rejection of claims 14--33. We have jurisdiction
under 35 U.S.C. § 6(b ).
We REVERSE.
Appeal2017-007668
Application 13/261,541
CLAIMED SUBJECT MATTER
Claims 14 and 27 are independent. Claim 14, reproduced below, is
illustrative of the claimed subject matter:
14. A device for removing moisture from a hydraulic
medium having a degree of water saturation and a temperature,
compnsmg:
a supply of a gaseous drying medium, said gaseous drying
medium having a moisture absorbing capacity, a gas temperature
and a gas moisture content and being located in an area
surrounding the hydraulic medium;
a conveyor conducting said gaseous drying medium from
said area surrounding the hydraulic medium only when the gas
moisture content of the gaseous drying medium is lower than the
degree of water saturation of the hydraulic medium;
a gas sensor measuring the gas moisture content and the
gas temperature of said gaseous drying medium conveyed to the
hydraulic medium; and
a hydraulic sensor measuring the degree of water
saturation and the temperature of the hydraulic medium.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Babcock
Ebrahim
Rake
Ling
US 2011/0049015 Al
US 7,045,913 B2
US 6,447,573 Bl
us 4,131,011
2
Mar. 3, 2011
May 16, 2006
Sept. 10, 2002
Dec. 26, 1978
Appeal2017-007668
Application 13/261,541
REJECTIONS 1
I. Claims 14--21, 23, 24, and 27-32 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Rake and Ling.
II. Claims 14--16, 18-22, 27-29, 31, and 32 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Babcock, Ling, and
Rake.
III. Claims 25, 26, and 33 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Rake, Ling, and Ebrahim.
IV. Claims 25, 26, and 33 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Babcock, Ling, Rake, and Ebrahim.
DISCUSSION
Rejection I
The Examiner finds that Rake and Ling disclose or suggest all of the
limitations of claims 14 and 27. See Final Act. 5---6. Particularly, the
Examiner finds that Rake discloses
a conveyer ("air compressor", col. 6, II. 39, which forces air
through the lubrication chamber, as described in col. 6, II. 39-
55) from an area surrounding the hydraulic medium to the
hydraulic medium ( col. 6, II. 39-67) only when the moisture
content of the respective gaseous drying medium is lower than
the degree of water saturation of the hydraulic medium.
Id. at 5 (citing Rake 5:55---65). Id.
1 Claims 23 and 26 were amended to overcome an objection and a rejection
under 35 U.S.C. § 112(b), second paragraph (entered by the Examiner in the
Advisory Action mailed October 7, 2016). Accordingly, that objection and
rejection are not before us for review.
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Appeal2017-007668
Application 13/261,541
Appellants contend that "[t]he Examiner commits reversible error in
finding that claim 14 does not require comparing the moisture levels of the
drying air in the hydraulic medium." Appeal Br. 4. In support of this
contention, Appellants note that "claim 14 recites that the gaseous medium
is conducted 'only when the moisture content of the gaseous drying medium
is lower than the degree of water saturation of the hydraulic medium.'" Id.
Appellants argue that "[t]his recitation necessitates a comparison of the
moisture contents" which is not inherent in Rake since the disclosure of 'dry
air' is not disclosed to be 'drier' than the oil and since no comparison of the
air and oil characteristics is disclosed or sensed." Id. at 4--5.
Responding to this argument, the Examiner explains that, in Rake, by
virtue of the air being described as "dry" air, "the drying air is always drier
than the air in void space V." Ans. 12. The Examiner explains that "Rake
further describes the step of providing the dry air as 'withdrawing moisture
from the oil by a continuous moisture equilibrium interaction between the
agitated lubricant and the dry air above the lubricant."' Id. ( citing Rake
2:28-31 ). The Examiner further explains that "[g]iven its customary
meaning, the phrase 'moisture equilibrium' is taken to mean that moisture is
moved from an area of high concentration, the lubricating oil or hydraulic
medium in this case, to an area of low concentration, i.e. the drying air or
gaseous drying medium." Id. The Examiner concludes that "drying the
lubricating oil requires that the moisture content of the gaseous drying
medium ( drying air) be lower than the water saturation of the hydraulic
medium (lubricating oil)" and that "when Rake discusses providing 'dry' air
to remove moisture from the lubricating oil, it necessarily means that the air
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Appeal2017-007668
Application 13/261,541
is drier than the lubricating oil." Id. Thus, we understand the Examiner's
rejection to be based on the premise that Rake's device and method
inherently (i.e., necessarily) provide a gaseous drying medium that always
has a lower moisture content that the degree of water saturation of the
hydraulic medium.
Responding to the Examiner's further explanation of the rejection,
Appellants argue that "[a]lthough the hydraulic medium is only dried when
the air has a lower moisture content than the hydraulic medium, without
making a comparison, the air is not necessarily always dryer than the
hydraulic medium." Reply Br. 2. Appellants explain that "[f]or example,
the air could have a high moisture content due to the environment or other
factors or the hydraulic medium could have an extremely low moisture
content." Id.
Appellants have the better position. Rake does not address the degree
of water saturation of the hydraulic medium. See generally Rake. Thus, the
Examiner does not adequately show that Rake's device and method
inherently provide a gaseous drying medium having a gas moisture content
that is lower than the degree of saturation of the hydraulic medium, as
required by claims 14 and 27.
Accordingly, we do not sustain the Examiner's decision rejecting
claims 14 and 27. We likewise do not sustain the Examiner's decision
rejecting claims 15-21, 23, and 24 (which depend from claim 14) and claims
28, 29, 31, and 32 (which depend from claim 27) for the same reasons.
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Appeal2017-007668
Application 13/261,541
Rejection II
The Examiner finds that the combination of Babcock, Ling, and Rake
discloses or suggests all of the limitations of claim 14. See Final Act. 8-10.
The Examiner's further explains discussed supra applies to this rejection as
well. Ans. 11-12. Thus, this rejection suffers from the same deficiencies as
Rejection I discussed supra.
Accordingly, we do not sustain the Examiner's decision rejecting
claims 14 and 27, and claims 15, 16, 18-22, 28, 29, 31, and 31 which
depend from either claim 14 or claim 27 as unpatentable over Babcock,
Ling, and Rake.
Rejection III and IV
Rejections III and IV also rely upon the same erroneous finding based
on inherency as the rejections of claims 14 and 27 discussed supra. The
Examiner's application of Ebrahim does not cure the deficiencies of Rake,
Ling, and Babcock. Accordingly, we do not sustain the Examiner's decision
rejecting claims 25, 26, and 33 for the same reason.
DECISION
The Examiner's rejections of claims 14--33 are REVERSED.
REVERSED
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