Ex Parte McCutchen

Patent Trial and Appeal Board

Jun 15, 2016

13585590 (P.T.A.B. Jun. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/585,590 08/14/2012
28827 7590 06/17/2016
GABLE & GOTW ALS
100 WEST FIFTH STREET, lOTH FLOOR
TULSA, OK 74103
FIRST NAMED INVENTOR
Clinton J. McCutchen
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.
006491-00034 4183
EXAMINER
TURNER, SONJI
ART UNIT PAPER NUMBER
1776
NOTIFICATION DATE DELIVERY MODE
06/17/2016 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):
iplaw@gablelaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE
THE PATENT TRIAL AND APPEAL BOARD
Ex parte CLINTON J. MCCUTCHEN 1
Appeal2015-000292
Application 13/585,590
Technology Center 1700
Before MARK NAGUMO, GEORGE C. BEST, and BRIAND. RANGE,
Administrative Patent Judges.
NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
Clinton J. McCutchen ("McCutchen") timely appeals
under 35 U.S.C. § 134(a) from the Final Rejection2 of claims 5-7, which are
all of the pending claims. We have jurisdiction. 35 U.S.C. § 6. We affirm.
1 The Real Party in Interest is identified as Christy, Inc. (Appeal Brief,
filed 10 July 2014 ("Br."), 3.)
2 Office Action mailed 11 February 2014 ("Final Rejection"; cited as "FR").
Appeal2015-000292
Application 13/585,590
A. Introduction 3
OPfNION
The subject matter on appeal relates to a dual storage dust-handling
assembly for a vacuum cleaner. The '590 Specification explains that dual
storage dust collectors comprise an upper hopper and a lower dump tank (or
disposable bag)4 separated by a flapper. (Spec. 1, 11. 3-5.) It is said to be
desirable to be able to disconnect, empty, and replace the dump tank "while
the vacuum is operating" (id. at 2, 11. 9-10) without stirring up and
circulating dust from the tank into the air and without reducing the vacuum
power of the unit by drawing air through the flapper assembly into the
hopper (id. at 1, 1. 20, to 2, 1. 2).
The Specification reveals that these problems may be overcome by
providing a valve in a "pneumatically distinct path" between the hopper and
the dump tank. When the valve is open, "the hopper and the dump tank are
at equalized pressure and dust in the hopper falls by force of gravity into the
dump tank." (Id. at 3, 11. 7-8.) When the valve is closed, "the hopper and
the dump tank are pneumatically separated and the dump tank can be
removed from the hopper, emptied, and reconnected to the hopper."
(Id. at 11. 8-10.) The Specification instructs further that, in addition to small,
portable vacuum systems, "the principles of dual storage herein disclosed
3 Application 13/585,590, Dual Storage Dust Collector,
filed 14 August 2012 as a continuation of 12/288,515,
filed 21 October 2008, (abandoned 1October2012, after a Board Decision
in Appeal 2011-001961, mailed 31July2012, (aff'd)), which is a
continuation of 11/655,505, filed 19 January 2007, now abandoned. We
refer to the "'590 Specification," which we cite as "Spec."
4 Henceforth we refer to both the tank and the bag as a "dump tank."
2
Appeal2015-000292
Application 13/585,590
may also be applied to permanent industrial vacuums many stories in
height." (Id. at 9, 11. 6-9.)
Sole independent claim 5 reads:
For a vacuum cleaner, a dust handling assembly comprising:
a hopper having an open outlet port;
a tank having an open inlet port;
a duct having
an upper end connected in pneumatic communication
with said hopper open outlet port and
a lower end detachably connected to said tank in
pneumatic communication with said tank open inlet
port,
said duct defining a pneumatically discrete passage
through which dust collected in said hopper
gravitationally transfers into said tank; and
an independently operable valve disposed in said duct,
said valve being operable during normal operation of the
vacuum cleaner
to switch said pneumatically discrete passage into and
out of a fully closed condition
in which said tank can be detached from and
reattached to said duct during normal operation of
the vacuum cleaner.
(Claims App., Br. 12; emphases, some indentation, and paragraphing added.)
The Examiner maintains the following ground of rejection: 5
Claims 5-7 stand rejected under 35 U.S.C. § 102(b) in view of
Sanders. 6
5 Examiner's Answer mailed 5 August 2014 ("Ans.").
6 Stephen M. Sanders and Roger D. Williams, Dust collector with
pneumatic seal, U.S. Patent No. 5,000,767 (1991).
3
Appeal2015-000292
Application 13/585,590
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
To be anticipatory, a reference must describe, either expressly or
inherently, each and every claim limitation, arranged or combined as
required by the claimed invention. See, e.g., In re Gleave, 560 F.3d 1331,
1334 (Fed. Cir. 2009).
McCutchen does not dispute that Sanders describes, in Fig. 1, below,
a dust handling assembly 10 attached to
a vacuum cleaner, wherein the dust-
laden air enters inlet 20 and is trapped on
the exterior of cylindrical filters 14. The
trapped dust is dislodged by bursts of air
pushed backwards through the filters and
falls into hopper 22, whence it falls
through slide valve 24 in a duct
comprising flexible conduit 26, into
detachable container 28. (Sanders,
col. 4, 11. 19--28.)
24
' \
\
I
I
I
{Sanders Fig. 1 shows a dust handling assembly}
4
Appeal2015-000292
Application 13/585,590
McCutchen acknowledges that "Sanders uses a conventional slide
valve 24 for opening and closing the
hopper 22, all in a known manner [that
is, as in the prior art as explained by
Sanders]." (Br. 8, 11. 15-17.)
McCutchen emphasizes, however, that
Sanders discloses an inflatable seal 54
that is designed to assure the air-tight
condition necessary to normal operation
of the dust collector (Br., para.
bridging 8-9), i.e., while the vacuum
cleaner is operating. Inflatable seal 54
is illustrated in Sanders Fig. 3, left.
38
50
{Fig. 3 shows inflatable seal 54
between sidewall 34 of drum 28
and flange 48 of lid 38}
Annular seal 44 is said to be "usually sufficient" under new or ideal
conditions, but under conditions of practical use, it tends to fail to seal upper
lip 36 of drum 30 to lid 38. (Sanders, col. 2, 11. 27--40.) Sanders teaches
that, when deflated, as shown by the broken lines, "seal 54 occupies a
sufficiently small portion of the annular spacing 50 to permit the entire
lid 38 to be placed onto, or lifted off of, the drum 30." (Sanders, col. 4,
11. 57-59.) When inflated, however, seal 54
extends fully across the annular spacing 50 and engages
over a large area of contact the drum side wall 34, thereby
forming a full and complete annular barrier extending
entirely around the drum 30 and all the way across the
spacing 50 to prevent any air from flowing into or out of
5
Appeal2015-000292
Application 13/585,590
the drum 30 or the hopper 22 that communicates with the
drum 30.
(Id. at col. 4, 1. 63, to col. 5, 1. 1.)
McCutchen urges that because Sanders discloses that the drum cannot
be removed without breaking (deflating) the seal, "it is inescapable that
when Sanders' drum is removed the dust collector is either not operating or
it is operating in violation of the air-tight requirement (either recirculating
collected particles in the system or blowing particles into the environment)."
(Br. 9, 11. 6-8.)
The Examiner responds that
Appellant has not contested cited structure, but only, argues
the intended usage of the claimed apparatus. Appellant
further alleges that the device of Sanders et al. is incapable of
functioning as Appellant's invention, yet does not provide
any factual evidence in support, and only alleges that if the
valve were closed then Sanders et al. would not function as
Appellant's device.
(Ans. 6, 11. 4--9.)
The difficulty with McCutchen's analysis is, as the Examiner points
out, that McCutchen has not come forward with evidence or reasoning
indicating that slide valve 24, when closed, does not form an air-tight seal
between hopper 22 and container 28. McCutchen's focus on the seal 54 is
misplaced. Sanders teaches that because valve 24 is normally open when the
dust collector is operating, seal 54 is necessary to ensure a "good,
substantially air-tight seal with the container portion of the drum to prevent
the flow of air into the hopper caused by the vacuum in the dust collector
during operation." (Sanders, col. 2, 11. 17-27.) Sanders emphasizes that
6
Appeal2015-000292
Application 13/585,590
slide valve 24 "is closed only when the drum becomes filled with dust and
must be replaced with an empty drum." (Id. at 11. 18-20.)
McCutchen has not directed our attention to any teaching in Sanders
that slide valve 24 (or the "conventional rotary air-lock valve" or the
"double dump valve" alternatives (id. at col. 1, 1. 59, to col. 2, 1. 12) are
leaky when closed. Thus, McCutchen has not shown that valve 24 does not
(or cannot) "switch said pneumatically discrete passage into and out of a
fully closed condition," as required by claim 5.
We conclude that the weight of the evidence supports the Examiner's
findings of fact and the factual conclusion that Sanders anticipates the
claimed invention.
C. Order
It is ORDERED that the rejection of claims 5-7 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)(l )(iv).
AFFIRMED
7