Ex Parte McCutchen

Board of Patent Appeals and Interferences

Jul 27, 2012

12288515 (B.P.A.I. Jul. 27, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte CLINTON J. MCCUTCHEN
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Appeal 2011-001961
Application 12/288,515
Technology Center 1700
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Before EDWARD C. KIMLIN, CHARLES F. WARREN, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 5-6. We have
jurisdiction under 35 U.S.C. § 6(b).
Claim 5 is illustrative:
5. For a vacuum cleaner, a dust handling assembly comprising:

a hopper receiving the collected dust;

a tank;

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a duct connected between said hopper and said tank, said duct
defining a pneumatically discrete passage for gravitational transfer of the
collected dust from said hopper into said tank; and

a valve disposed in said duct, said valve being operable during normal
operation of the vacuum cleaner into and out of a fully closed condition, said
tank being at substantially equalized pressure with said hopper when said
valve is out of said fully closed condition whereby the dust falls
gravitationally from said hopper into said tank during normal operation of
the vacuum cleaner and being in pneumatic isolation from said hopper when
said valve is in said fully closed condition whereby said tank can be
disconnected from said duct during normal operation of the vacuum cleaner.

The Examiner relies upon the following references in the rejection of
the appealed claims (Ans. 2):
Anderson 4,121,915 Oct. 24, 1978
DeMarco 4,790,865 Dec. 13, 1988

Appellant’s claimed invention is directed to a dust handling assembly
for use with a vacuum cleaner. The assembly comprises a hopper that
receives dust and a duct through which the collective dust is transferred to a
tank. A valve is disposed in the duct and, when the valve is not in a fully
closed condition, the hopper and tank are at substantially equalized pressure
whereby the collected dust falls gravitationally from the hopper into the
tank. When the valve is closed, the tank and hopper are in pneumatic
isolation from each other such that the tank can be disconnected from the
duct during normal operation of the vacuum cleaner.
Appealed claims 5-6 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Anderson and DeMarco.
We have thoroughly reviewed the respective positions advanced by
Appellant and the Examiner. In so doing, we agree with the Examiner that
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the claimed subject matter is described by Anderson within the meaning of
§ 102. However, the § 102 rejection over DeMarco is not well founded.
We consider first the rejection over Anderson. There is no dispute
that Anderson describes a vacuum cleaner comprising a hopper 20 and a
tank 26 connected by a valve 28, and like Appellant’s system, when valve 28
of Anderson is closed the tank is pneumatically isolated from the hopper
such that a vacuum may still collect dust in the hopper. We do not subscribe
to Appellant’s argument that “Anderson does not disclose a serial
arrangement of a hopper, a duct and a tank with a valve in the duct which is
operable during the normal operation of the vacuum cleaner (line 8) into and
out of a fully closed condition (line 9)” (App. Br. 8, second para.). To the
extent Appellant argues that Anderson does not disclose a valve in a duct,
we note that Figure 2 of Anderson depicts valve 64 in a closed position
within a duct which connects the hopper 20 and tank 26.
Appellant also maintains that Anderson’s valve must be connected to
an air logic system whereas “Appellant’s valve can be opened or closed at
the whim of the user without any interruption in the suction applied by the
vacuum cleaner to its task” (id.). However, the appealed claims do not
preclude the presence of an air logic system of the type described by
Anderson, nor do the appealed claims require that the system be operated
manually. Hence, Appellant’s argument is not germane to the claimed
subject matter.
We will not sustain the § 102 rejection over DeMarco because we
concur with Appellant that the tank of DeMarco is not disconnected from the
duct “during normal operation of the vacuum cleaner”, as presently claimed.
We disagree with the Examiner that a reasonable interpretation of the claim
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language in light of the present Specification includes turning the vacuum
off during the normal operation of the vacuum cleaner (see Ans. Sentence
bridging 4-5). We agree with Appellant that the claim language “normal
operation of the vacuum cleaner” requires that the vacuum is activated.
In conclusion, based on the foregoing, the Examiner’s § 102 rejection
over Anderson is sustained, whereas the § 102 rejection over DeMarco is
reversed. Accordingly, the Examiner’s decision rejecting the appealed
claims is affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED

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