Ex Parte Metzger et al

Patent Trial and Appeal Board

Feb 19, 2014

12001910 (P.T.A.B. Feb. 19, 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.
12/001,910 12/12/2007 Juergen Metzger 209,177 4570
38137 7590 02/19/2014
ABELMAN, FRAYNE & SCHWAB
666 THIRD AVENUE, 10TH FLOOR
NEW YORK, NY 10017
EXAMINER
BERTHEAUD, PETER JOHN
ART UNIT PAPER NUMBER
3746
MAIL DATE DELIVERY MODE
02/19/2014 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 1
___________ 2
3
BEFORE THE PATENT TRIAL AND APPEAL BOARD 4
___________ 5
6
Ex parte JUERGEN METZGER, 7
JUERGEN WAGNER, and 8
STEFAN SAENGER 9
___________ 10
11
Appeal 2012-002520 12
Application 12/001,910 13
Technology Center 3700 14
___________ 15
16
17
Before JOSEPH A. FISCHETTI, NINA L. MEDLOCK, and 18
THOMAS F. SMEGAL, Administrative Patent Judges. 19
SMEGAL, Administrative Patent Judge. 20
DECISION ON APPEAL 21

Appeal 2012-002520
Application 12/001,910

2

STATEMENT OF THE CASE1 1
Juergen Metzger, Juergen Wagner, and Stefan Saenger (Appellants) seek 2
review under 35 U.S.C. § 134 of a final rejection of claims 1, 4-8, 10 and 11, 3
the only claims pending in the application on appeal. We have jurisdiction 4
over the appeal pursuant to 35 U.S.C. § 6(b). 5
SUMMARY OF DECISION 6
We AFFIRM. 7
CLAIMED SUBJECT MATTER 8
Appellants’ claimed subject matter relates to a vacuum pump including 9
a hood partially surrounding a housing having cooling ribs and having a fan 10
for feeding cooling air in the space between the cooling ribs 11
(Specification 4: ll. 7-15). 12
An understanding of the invention can be derived from a reading of 13
exemplary claim 1, which is reproduced below, with highlighting added. 14
1. A vacuum pump for producing low or high vacuum, 15
comprising a housing (1') having an inlet (9) for admitting gas 16
and an outlet (9) for evacuating compressed gas from the 17
vacuum pump; pumping means (30) located in the housing (1') 18
for compressing the gas; a motor (25, 26) located in the housing 19
for driving the pumping means (30); a fan (6) also located in 20
the housing for cooling the vacuum pump together with the 21
motor; and a further motor (6a) for driving the fan (6), 22
Wherein the housing (1') has cooling ribs (8), and the fan 23
(6) is arranged for feeding cooling air in the space between the 24

1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed July 7, 2011) and Reply Brief (“Reply Br.,” filed November 16,
2011), and the Examiner’s Answer (“Ans.,” mailed October 13, 2011).

Appeal 2012-002520
Application 12/001,910

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cooling ribs (8), and wherein the pump further comprises a 1
hood (1) that at least partially surrounds the housing (1') and is 2
so formed in a region of the cooling ribs (8) that the cooling air 3
from the fan (6) is deflected from the hood in the space between 4
the cooling ribs (8). (Emphasis added.) 5
REFERENCES 6
The Examiner relies upon the following prior art: 7
Dennedy US 1,970,033 Aug. 14, 1934 8
Bassan US 4,268,230 May 19, 1981 9
de Simon US 5,971,725 Oct. 26, 1999 10
REJECTIONS ON APPEAL 11
Claims 1, 4, 10, and 11 stand rejected under 35 U.S.C. § 103(a) as 12
unpatentable over Dennedy and Bassan. 13
Claims 5-8 stand rejected under 35 U.S.C. § 103(a) as unpatentable over 14
Dennedy, Bassan, and de Simon. 15
FINDINGS OF FACT 16
The following enumerated Findings of Fact (FF) are supported by a 17
preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 18
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings 19
before the U.S. Patent and Trademark Office (“PTO”). Additional facts may 20
appear in the analysis. 21
Facts Related to Appellants’ Disclosure 22
FF1. The Specification disclosure states at page 6, lines 17-18 that “[i]n 23
Fig. 1b, the hood 1 is shown in a mounted condition on the vacuum pump 24
and surrounds a portion of the vacuum pump housing 1´.” 25
Appeal 2012-002520
Application 12/001,910

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FF2. The Specification disclosure states at page 8, lines 12-14 that 1
“In order for the fan to be able to aspirate the air and to deliver it into the 2
channels, the hood has an opening…formed as a plurality of aeration 3
slots 7.” 4
Facts Related to the Prior Art 5
Bassan 6
FF3. In Figure 1, Bassan illustrates vacuum pump 14 with end 7
plate 27 extending under and partially surrounding housing 11 so that 8
“[t]he air flows from the bottom of shroud 41 against fins 31 through 9
horizontally extending slot 46, close to the bottom of end plate 27.” Bassan, 10
col. 5, ll. 31-33. 11
FF4. With reference to FIGS. 1-4, Bassan states: 12
Vertically extending slots 47 and 48 on opposite sides of 13
plate 27 direct air flowing out of shroud 41 against fins 32 and 14
33, respectively. The elongated nature of slots 46-48 and the 15
positioning thereof relative to fins 31-33, as well as the nature 16
of fan 24, establishes a laminar air flow between adjacent fins 17
to enhance cooling. It has been found that the laminar air flow, 18
rather than a turbulent flow, enables relatively low speed axial 19
or laminar flow fan 24 to be employed. In addition, the relative 20
position of slots 46-48 and the bases of fins 31-33 on bottom 21
and side surfaces 30 of casing 11 enables the pumped air to 22
intercept the base of the fins at a relatively shallow angle to 23
prevent substantial reflection of the pumped air that impinges 24
on the bases of the fins. 25
Bassan, Col. 5, ll. 33-47. 26
Appeal 2012-002520
Application 12/001,910

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ANALYSIS 1
Claims 1, 4, 10, and 11 rejected under 35 U.S.C. § 103(a) as 2
unpatentable over Dennedy and Bassan. 3
Claims 1, 4, and 10 4
Appellants argue claims 1, 4-8, and 10 as a group (App. Br. 12). We 5
select claim 1 as the representative claim for this group and the remaining 6
claims stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2011). 7
We have considered Appellants’ arguments raised in the Appeal Brief 8
but do not find them persuasive to demonstrate reversible error in the 9
Examiner's position. Appellants argue that claim 1 10
[I]s not obvious because the combination of Dennedy and 11
Bassan would lack a hood at least partially surrounding the 12
housing and so formed in the region of the cooling ribs that the 13
cooling air from the fan is deflected from the hood in the space 14
between the cooling ribs. 15
(App. Br. 12, Reply Br. 4). Furthermore Appellants contend “that an end 16
plate is not a hood as this term is understood by one of ordinary skill in the 17
art” (Reply Br. 3). 18
We determine the scope of the claims in patent applications not solely on 19
the basis of the claim language, but upon giving claims “their broadest 20
reasonable interpretation consistent with the specification” and “in light of 21
the specification as it would be interpreted by one of ordinary skill in the 22
art.” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) 23
(citations omitted). It is the Appellants’ burden to precisely define the 24
invention, not the PTO’s. In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 25
1997). Appellants have not pointed to a lexicographic definition of “hood” 26
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Application 12/001,910

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in the Specification as it would be understood by one skilled in the art, only 1
providing a schematic illustration of ‘hood 1’ in Figure 1b) that “surrounds a 2
portion of the vacuum pump housing 1´” FF1. 3
We thus agree with the Examiner that Bassan teaches a hood (end plate 4
27) “that at least partially surrounds the housing 11, wherein the hood is so 5
formed in a region of the cooling ribs (31, 32, 33) that the cooling air from 6
the fan 24 is deflected into the space between the cooling ribs (see col. 5, 7
lines 31-42)” (Ans. 5). More particularly, we find that Figure 1 of Bassan 8
illustrates that end plate 27 extends under and at least partially surrounds 9
pump housing 11 (FF 3) while Bassan also teaches at column 5, lines 36-39 10
that “[t]he elongated nature of slots 46-48 and the positioning thereof 11
relative to fins 31-33, as well as the nature of fan 24, establishes a laminar 12
air flow between adjacent fins to enhance cooling” FF 4. 13
Appellants also argue that “portions of the pump housing [of Bassan] in 14
which the slots (46-48) are formed do not form a hood” (App. Br. 10), but 15
this alleged distinction is unpersuasive as Appellants’ specification 16
acknowledges that in order to aspirate air, its hood too has a plurality of 17
aeration slots 7, and hence a contiguous surface is not claimed FF 2. 18
Appellants further appear to argue that because “in Bassan, the fan (24) 19
is located outside of the casing (11) and outside of the plate (27)” (Reply Br. 20
3), that claim 1 is patentable for reciting “a fan (6) also located in the 21
housing.” However, we consider the frame members 11 and 12 in Bassan to 22
be the “housing” as required by the claims, hence meeting the claim 23
requirements. 24
Appeal 2012-002520
Application 12/001,910

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Claim 11 1
Appellants argue that claim 11 is patentable over the combination of 2
Denney and Bassan because “claim 11 recites that the hood at least partially 3
surrounds a portion of the housing provided with ribs” (App. Br. 13). 4
However, claim 11 fails to include any limitation not already recited in 5
claim 1 from which claim 11 depends. For that reason, we sustain the 6
rejection of dependent claim 11 as being unpatentable for the same reasons 7
stated above with respect to claim 1. 8
Claims 5-8 rejected under 35 U.S.C. § 103(a) as unpatentable over 9
Dennedy, Bassan and Simon. 10
In having argued claims 5-8 as a group with claim 1 (App. Br. 12) 11
Appellants have made no specific argument in response to this rejection, 12
including failing to rebut the Examiner’s reliance on Simon. For that reason 13
we sustain the Examiner’s rejection of dependent claims 5-8 as being 14
unpatentable for the same reasons stated above with respect to claim 1. 15
DECISION 16
The rejections of claims 1, 4-8, 10, and 11 are AFFIRMED. 17
No time period for taking any subsequent action in connection with this 18
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 19
§ 1.136(a)(1)(iv) (2011). 20
AFFIRMED 21
22
Vsh 23