Ex Parte McKernan et al

Patent Trial and Appeal Board

Feb 23, 2018

13451320 (P.T.A.B. Feb. 23, 2018)

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.
13/451,320 04/19/2012 Pat S. McKernan 0041.0408 1616
152 7590 02/23/2018
CHERNOFF, VILHAUER, MCCLUNG & STENZEL, LLP
111 SW Columbia Street
Suite 725
PORTLAND, OR 97201
EXAMINER
TEKA, ABIY
ART UNIT PAPER NUMBER
3745
MAIL DATE DELIVERY MODE
02/23/2018 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 PAT S. MCKERNAN and GREGORY A. NAGLE
Appeal 2016-006423
Application 13/451,320
Technology Center 3700
Before EDWARD A. BROWN, WILLIAM A. CAPP, and
ARTHUR M. PESLAK, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 seek our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1—15, 30, 31, and 34—37. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Cascade Corporation as the real-party-in-interest.
Appeal Br. 2.
Appeal 2016-006423
Application 13/451,320
THE INVENTION
Appellants’ invention relates to hydraulic systems. Spec. 11.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A fluid power control system for regulating a respective
flow of hydraulic fluid to a first hydraulic actuator and a
respective flow of hydraulic fluid to a second hydraulic
actuator, to enable said actuators to move respective load-
engaging members simultaneously, said control system
comprising:
(a) an electrically-controlled fluid-power valve assembly
including a valve controller, automatically operable to
regulate said respective flows of hydraulic fluid so as to
control movement of said first hydraulic actuator
separately from movement of said second hydraulic
actuator;
(b) a sensor assembly operable to enable said controller to
sense a difference in movement, between said first
hydraulic actuator and said second hydraulic actuator,
and to generate a signal in response to said difference;
(c) said electrically-controlled fluid-power valve assembly
being operable, automatically in response to said signal,
to decrease said difference by variably decreasing said
respective flow of hydraulic fluid to said second
hydraulic actuator by variably extracting a portion of
fluid therefrom, without thereby decreasing said
respective flow of hydraulic fluid to said first hydraulic
actuator, and combining said portion of fluid with said
flow of hydraulic fluid to said first hydraulic actuator.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Probst US 3,648,565
Colarelli US 6,189,432 B1
Schumacher US 6,789,458 B2
Mar. 14, 1972
Feb. 20, 2001
Sept. 14, 2004
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Application 13/451,320
The following rejections are before us for review:
1. Claims 1—6, 10-12, 14, 15, 30, 31, and 34—37 are rejected under
35 U.S.C. § 102(b) as being anticipated by Colarelli.2
2. Claims 7, 8, and 13 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Colarelli and Schumacher.
3. Claim 9 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Colarelli and Probst.
OPINION
Anticipation by Colarelli
Claim 1
The Examiner finds that Colarelli discloses all of the elements of the
claimed invention. Final Action 3—5. In particular, the Examiner finds that
Colarelli’s valve assembly is operable to “variably extract” a portion of fluid
through orifice 48 in the manner claimed. Id. at 4.
Appellants traverse the Examiner’s rejection by arguing that Colarelli
provides an “additional” hydraulic fluid to whichever hydraulic actuator may
require such additional fluid to correct a lagging condition. Appeal Br. 7
(citing Colarelli, col. 3, line 65). Appellants contrast this situation with
variably extracting a portion of fluid to variably decrease the flow of
hydraulic fluid to a hydraulic actuator. Id. Appellants further argue that an
extraction of fluid flow to Colarelli’s actuators 14 or 16 would require a
reversal of flow through Colarelli’s valves 40 or 44, which Appellants allege
is “impossible.” Id. at 8.
2 The Examiner fails to mention claim 31 in the heading of this ground of
rejection. See Final Action 3. However, claim 31 is explicitly included in
this ground of rejection. Id. at 5.
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Application 13/451,320
In response, the Examiner explains that, in Colarelli, the “extraction”
of fluid occurs in a flow path that includes orifice 48 before the fluid reaches
valves 40 or 44. Ans. 2. With respect to Appellants’ “extraction” versus
“addition” contention, the Examiner explains that Colarelli teaches that
pump 22 supplies both actuators 14 and 16. Id. The Examiner further
explains that actuators 14 and 16 include both a leading and a lagging
actuator. Id. Explaining further, the Examiner states that:
fluid going to both actuators in line (21) will have its portion
extracted via orifice (48) to be re-supplied to only the lagging
actuator (thereby reducing flow delivered to the leading
actuator).
Id. at 2. Therefore, according to the Examiner, Colarelli teaches decreasing
respective flow to the leading actuator by extracting a portion of fluid via
orifice (48) without decreasing flow to the lagging actuator. Id. at 3.
Essentially, the Examiner finds that increasing the supply of fluid to
Colarelli’s lagging actuator results in decreasing the supply of the fluid to
the leading actuator, which corresponds to the subject matter as presently
claimed. Id.
In reply, Appellants reiterate that Colarelli supplies an “additional
portion” to the lagging actuator. Reply Br. 3.
Claim 1 is therefore not anticipated by Colarelli because
claim 1 requires a subtractive correction technique by slowing
the speed of a leading actuator. This is the opposite of
Colarelli’s additive correction technique which increases the
speed of a trailing actuator.
Id.
Colarelli is directed to a hydraulic control circuit with a feedback
sensor, a valve manifold, and two or more hydraulic lift cylinders. Colarelli,
Abstract. In operation, when the control system is actuated, pressurized
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Application 13/451,320
hydraulic fluid travels through connecting hose 34 to manifold assembly 12.
Colarelli, col. 5,11. 34—37. The fluid then passes through flow control
valve 36 through line 37 and enters a fluid proportioning valve or flow
divider/combiner valve 38 through port 38A where the fluid flow is split
approximately equally to each port 38B and 38C. Id. col. 5,11. 37-44. Fluid
exiting valve 38 through port 38B enters branch line 39, and passes through
valve 40. Id. col. 5,11. 44-46. Similarly, fluid exiting the valve 38 through
port 38C enters branch line 43 and passes through valve 44. Id. col. 5,
11. 51—54. To compensate for unequal flow distribution of hydraulic fluid
during a lifting cycle, a small amount of hydraulic fluid is extracted from
fluid line 37 and routed through controlling orifice 48 and directed by a
diverting valve 50 to either branch line 39 or 43. Id. col. 6,11. 4—8. The
branch line, either 39 or 43, to which the fluid is routed is selected for the
hydraulic lifting cylinder, either 14 or 16, which is observed to be lagging
though feedback sensors 52 and 54. Id. col. 6,11. 17—19.
With respect to the application under appeal, Appellants’
Specification recites as follows:
[l]f such difference in magnitude is not less than the minimum
error tolerance, the controller 14 actuates the valve 40 to
decrease the flow through actuator A, in relation to the size of
the difference, by variably restricting the flow exhausted from
the rod end of actuator A during its extension, thus retarding the
extension movement of actuator A and thereby decreasing the
position difference in movement between leading actuator A
and lagging actuator B. Valve 42, however, is not
simultaneously actuated and remains in its normal open
condition. Therefore any excess pressurized flow from the
pump 18 resulting from the restriction of flow through actuator
A by valve 40 is automatically diverted to actuator B through
conduit 34 to speed up the extension movement of the lagging
actuator B to more rapidly catch up to actuator A.
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Application 13/451,320
Spec. 118 (emphasis added). Neither the word “extract,” nor any derivation
thereof, appears in paragraph 18. Id. The word “extract” appears,
surrounded by parenthetical enclosures, in paragraph 15 where it is
associated with the meaning of “variably relieve . . . hydraulic fluid from the
fluid flow to decrease the flow, and exhaust such extracted fluid to the
reservoir 16 through valve 24 and conduit 28.” Spec. 115.
Appellants’ Figure 1 shows a hydraulic circuit with a reservoir 16 and
pump 18. Fig. 1. Pump 18 supplies fluid under pressure through valve 24 to
supply conduit 30. Id. Conduit 30 divides into two branches, branch 32,
which supplies hydraulic piston/cylinder A, and branch 34, which supplies
hydraulic piston/cylinder B. Id. Fluid returns from piston/cylinder A
through conduit 36 and valve 40. Id. Fluid returns from piston/cylinder B
through conduit 38 and valve 42. Id. Conduits 36 and 38 join and then pass
through valve 24 and eventually return to reservoir 16. Id. Valves 40
and 42 are controlled by controller 46 via control signals A and B
respectively. Id. The language in claim 1 regarding “variably extracting a
portion of fluid” must be understood in the context of the foregoing
description in the Specification, as well as the preceding claim language
directed to a valve assembly that is operable to decrease a difference in the
movement of the first and second hydraulic actuators “by variably
decreasing” the flow of hydraulic fluid to the second hydraulic actuator.
Claims App. claim 1, elements (b) and (c).
In view of the foregoing and based on the record before us, we find
that Examiner’s position more persuasive. Appellants’ argument that
Colarelli is an “additive” system fails to account for the fact that the amount
of fluid that is added to the lagging cylinder is necessarily first subtracted
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Application 13/451,320
from the fluid supplied to the leading cylinder by operation of orifice 48 and
valve 50. See Colarelli, Fig. 1. This process is similar to the teaching in
paragraph 18 of Appellants’ Specification whereby
pressurized flow from the pump 18 resulting from the
restriction of flow through actuator A by valve 40 is
automatically diverted to actuator B through conduit 34 to
speed up the extension movement of the lagging actuator B.
Spec. 118. In other words, flow extracted/diverted from leading actuator A
is essentially “added” to the flow to lagging actuator B. Id. We do not view
this operation as patentably distinct from the manner in which Colarelli
diverts fluid through orifice 48 and then selectively controls operation of
valve 50 to differentially supply hydraulic fluid to lifting cylinders 14
and 16. See Colarelli, Fig. 1. Thus, we agree with the Examiner that
Colarelli decreases the flow of hydraulic fluid to the second (i.e., leading)
hydraulic actuator by variably extracting fluid from it and does so without
decreasing flow to the first (i.e., lagging) hydraulic actuator in accordance
with claim 1.
The Examiner’s position is supported by a preponderance of the
evidence and, accordingly, we sustain the anticipation rejection of claim 1.
Claims 2, 5, 6, 10—12, 14, 15, and 37
Appellants do not argue for the separate patentability of claims 2, 5, 6,
10—12, 14, 15, and 37 apart from arguments presented with respect to
claim 1 which we have previously considered.3 Accordingly, we sustain the
Examiner’s anticipation rejection of claims 2, 5, 6, 10—12, 14, 15, and 37.
See 37 C.F.R. § 41.37(c)(iv) (failure to separately argue claims).
3 See Reply Br. 5 (“applicant withdraws the separate arguments raised with
respect to claim 37”).
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Application 13/451,320
Claims 3 and 4
Appellants argue claims 3 and 4 together. Appeal Br. 10. We select
claim 3 as representative. See 37 C.F.R. § 41.37(c)(l)(iv). Claim 3 depends
from claim 1 and adds the limitation:
wherein said electrically-controlled fluid-power valve assembly
is operable to decrease said respective flow of hydraulic fluid
through said second hydraulic actuator by restriction thereof.
Claims App.
Appellants argue that the Examiner erroneously interprets the claimed
fluid flow to be an oppositely-functioning flow of fluid that restricts actuator
movement. Appeal Br. 10. In response, the Examiner explains that flow
that is discharged from the actuators to the tank enables the load engaging
piston to move downward. Ans. 5. In reply, Appellants essentially rely on
the same argument regarding addition (or increase) that we considered in
connection with the rejection of claim 1 and found unpersuasive. The same
argument is equally ineffective with respect to the rejection of claim 4.
As discussed above in connection with the rejection of claim 1,
Colarelli diverts fluid through orifice 48 and then variably discharges fluid
through valve 50 to even out the movement of hydraulic lifting cylinders 14
and 16. Colarelli, Fig. 1.
To compensate for unequal flow distribution of hydraulic fluid
during a lifting cycle . . . extracted hydraulic fluid is routed
through a controlling orifice 48 and directed by . . . valve 50 to
the branch line 39, 43 on the output side of the flow divider
valve 38 . . . The branch line 39, 43 to which the fluid is routed
is selected for the hydraulic lifting cylinder 14, 16 which is
observed to be lagging though feedback sensors 52 and 54.
Colarelli, col. 6,11. 4—20. Thus, the flow to the leading actuator is decreased
by restriction as valve 50 operates to divert more flow to the lagging
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Application 13/451,320
cylinder than to the leading cylinder. Id.4 The limitation of claim 3 is fully
met by the foregoing disclosure in Colarelli.
Accordingly, we sustain the anticipation rejection of claims 3 and 4.
Claim 30
In challenging the rejection of independent claim 30, Appellants focus
on the following limitation:
said electrically-controlled fluid-power valve assembly being
operable, automatically in response to said signal, to decrease
said difference by variably decreasing said respective flow of
hydraulic fluid through said second hydraulic actuator, while
simultaneously enabling an increase in said respective flow of
hydraulic fluid through said first actuator resulting from said
decreasing of said respective flow through said second
hydraulic actuator.
Appeal Br. 8; Claims App., Claim 30, element (c).
Appellants argue that it is “impossible” for Colarelli to satisfy this
limitation for the same reasons that are argued in connection with the
rejection of claim 1. Appeal Br. 8.
We find Appellants’ “impossibility” argument unpersuasive for
essentially the same reasons that we sustained the Examiner’s rejection of
claim 1. We sustain the Examiner’s anticipation rejection of claim 30.
Claim 31
Claim 31 depends from claim 30. Claims App. Appellants group
claim 31 with the arguments presented for claims 3 and 4 discussed above.
Appeal Br. 10. We sustain the rejection of claim 31 for the same reasons
expressed above for claims 3 and 4.
4 Such could just as easily be expressed as valve 50 variably restricts flow to
the leading cylinder and diverts such flow to the lagging cylinder.
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Claim 34
In challenging the rejection of independent claim 34, Appellants focus
on the following limitation:
said electrically-controlled fluid-power valve assembly being
operable, automatically in response to said signal, to decrease
said difference by variably decreasing one of said respective
flows of hydraulic fluid in proportion to said difference, to
cause respective simultaneous asynchronous speeds of said first
hydraulic actuator and said second hydraulic actuator..
Appeal Br. 9; Claims App., Claim 34, element (c).
Appellants argue that this limitation is not met by Colarelli, because
Colarelli discloses that the amount of fluid bypassing the flow divider valve
is controlled by the size of the opening in control orifice 48. Id. Appellants
contend that Colarelli possesses no ability to “automatically adjust” as
claimed. Id.
In response, the Examiner explains that Colarelli’s sensor
assembly 52, 54, enables controller 56 to sense a vertical height variation
and that controller 56 automatically adjusts the supply of fluid in proportion
to the sensed difference. Ans. 4 (citing Colarelli, col. 6,11. 56—64, Fig. 1).
Thus, according to the Examiner, “even if the orifice (48) is deemed
nonadjustable, since the direction of fluid flow can be automatically adjusted
to supply line (39) or line (43) the claimed limitation is adequately addressed
by Colarelli.'1'’ Id.
In reply, Appellants reassert the same “additional portion” argument
that we considered and found unpersuasive in connection with the rejection
of claim 1 and we find is equally unpersuasive here. Reply Br. 4.
The Examiner’s finding regarding automatic adjustment is amply
supported by the above referenced passage in Colarelli relied on by the
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Application 13/451,320
Examiner. Ans. 4 (citing Colarelli, col. 6,11. 56—64, Fig. 1). We sustain the
Examiner’s anticipation of claim 34.
Claim 36
In challenging the rejection of independent claim 36, Appellants focus
on the following limitation:
a reversing valve capable of selectively reversing said
respective flow of hydraulic fluid through said second hydraulic
actuator without simultaneously reversing said respective flow
of hydraulic fluid through said first hydraulic actuator.
Appeal Br. 9; Claims App., Claim 34, element (c).
Appellants argue that claim 36 is not met by Colarelli, because
Colarelli’s lagging actuator is moving in the same direction as its leading
actuator. Id. “The respective directions of movement of Colarelli’s
actuators are always the same at any particular time, due to the ‘same-
direction’ high-volume control guaranteed by Colarelli’s flow
divider/combiner valve 38.” Id.
In response, the Examiner agrees that both of Colarelli’s actuators
move in the same direction at any particular time. Ans. 4. Nevertheless, the
Examiner explains that valve 50 has only two positions and supplies fluid
from line 21 to whichever actuator is lagging. Id. According to the
Examiner, during operation, Colarelli’s valve 50 supplies fluid in a first
direction during upward movement to the lagging actuator. Id. (citing
Colarelli, col. 6,11. 46—60). The Examiner further explains that, during
downward movement, valve 50 is operative in reversing the direction of
flow from a first direction to an opposite second direction without
simultaneously reversing the flow of fluid from the leading actuator through
valve 50. Id. at 5. Thus, according to the Examiner, Colarelli meets the
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Application 13/451,320
claimed limitation despite the fact that the actuators are moving in the same
direction. Id.
In reply, Appellants disagree with the Examiner and reiterate the
position espoused in the Appeal Brief. Reply Br. 4—5. Appellants argue that
Colarelli’s system cannot permit different opposite directions of movement
of the actuators during lowering. Id. at 5.
Colarelli explains its operation during lowering of the hydraulic
figures as follows:
To compensate for the unequal combination of the hydraulic
fluid streams at the flow divider/combiner valve 38, resulting in
uneven descent rates for the automotive lift members, the
central processing unit switches the three-way valve 50 to allow
a portion of fluid from the lagging hydraulic lifting cylinder 14,
16 to bypass the flow divider valve 38 and return to the fluid
reservoir 18 through the control orifice 48 . . . Once sufficient
hydraulic fluid has been withdrawn from the lagging hydraulic
lifting cylinder 14, 16 such that it is now in a leading position,
the central processing unit signals the solenoid 58 to switch the
three-way valve to the second position, draining fluid from the
second, now lagging, hydraulic lifting cylinder 14, 16. This
process repeats until the descent cycle is completed.
Colarelli, col. 7,1. 57 — col. 8,1. 6. Based on the foregoing disclosure, we
agree with the Examiner that valve 50 meets the claim limitation directed to
a reversing valve as valve 50 is operable during both lifting and lowering
operations of the cylinders. Appellants’ argument that Colarelli’s system
cannot permit different, opposite direction of movement of the actuators
during lowering is not persuasive as the claim merely requires a reversal of
flow of hydraulic fluid through the second hydraulic actuator without
simultaneously reversing the flow of fluid through the first actuator. Claims
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App., claim 36, element (c). Thus, Appellants’ argument is not
commensurate with the scope of the claim.
In view of the foregoing discussion, we determine the Examiner’s
findings of fact are supported by a preponderance of the evidence and,
accordingly, we sustain the Examiner’s anticipation rejection of claim 36.
Unpatentability of Claims 7—9 and 13
Claims 7—9 and 13 are rejected as unpatentable over Colarelli in
combination with either Schumacher or Probst. Final Action 6—8.
Appellants do not argue for the separate patentability of these claims, the
rejections of which are hereby sustained. 37 C.F.R. § 41.37(c)(iv).
DECISION
The decision of the Examiner to reject claims 1—15, 30, 31, and 34—37
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)(l)(iv).
AFFIRMED
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