Ex Parte Morando et al

Patent Trial and Appeal Board

Sep 11, 2017

11631885 (P.T.A.B. Sep. 11, 2017)

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.
11/631,885 03/1 i/2008 Jorge A. Morando MLCZ 200132US01 9082
27885 7590 09/11/2017 EXAMINER
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor STIMPERT, PHILIP EARL
The Halle Building
Cleveland, OH 44115 ART UNIT PAPER NUMBER
3746
MAIL DATE DELIVERY MODE
09/11/2017 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 JORGE A. MORANDO, JON TIPTON,
GEORGE JS. MORDUE, MARK BRIGHT, LENNARD LUTES,
RICHARD S. HENDERSON, and CHRIS T. VILD1
Appeal 2016-001739
Application 11/631,885
Technology Center 3700
Before JOHN C. KERINS, JAMES P. CALVE, and
BRANDON J. WARNER, Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Action
rejecting claims 1, 7, 9, 10, 12, 57, 60, 62-64, 66-73, 75, and 76. Claims 2
6, 8, 11, 13-56, 58, and 61 are cancelled. Appeal Br. 11-16 (Claims
Appendix). Claim 74 is allowed, and claims 59 and 65 are objected to as
being dependent upon a rejected base claim. Final Act. 9. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify the real party in interest as Pyrotek, Inc. Appeal Br. 1
Appeal 2016-001739
Application 11/631,885
CLAIMED SUBJECT MATTER
Appellants disclose a connector between support posts and a motor
support platform for leveling the motor support platform. See Spec, f 19.
Claims 1, 9, 10, 69, and 71 are independent. Claim 1 is reproduced
below.
1. A connector for connecting a post assembly of an
associated molten metal pump to a motor mount, the connector •
comprising:
a side wall;
an internal wall extending from the side wall and
including an axially aligned opening adapted to receive an
elongated rod, the side wall and the internal wall defining a
lower receptacle adapted to receive a barrel nut of the post
assembly and an upper receptacle adapted to cooperate with a
motor mount or a structure connected to the motor mount, the
barrel nut including a threaded opening adapted to align with
the opening of the internal wall, and a fastener having a first
end configured to engage the motor mount and a second end
configured to engage the threaded opening of the barrel nut.
REJECTIONS
Claims 10, 12, 62, 64, and 68-73 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Mordue (US 2003/0075844 Al, pub. Apr. 24,
2003).2 Final Act. 3-6.
Claims 1, 7, 9, 57, 60, 63, 66, 67, 75, and 76 are rejected under 35
U.S.C. § 103(a) as unpatentable over Mordue and Fahnle (US 5,452,646, iss.
Sept. 26, 1995).3 Final Act. 7-9.
2 Appellants identify only claims 10, 12, 62, 64, and 68-70 as subject to this
rejection. Appeal Br. 7.
3 Although the caption of this rejection lists only claims 1, 7, 9, 57, 60, 63,
and 66, the Examiner included findings for these claims and claims 67, 75,
and 76. See Final Act. 7-9.
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Appeal 2016-001739
Application 11/631,885
ANALYSIS
Claims 10, 12, 62, 64, and 68-73
The Examiner found that Mordue discloses an adjustable connection
including fastener 1049 having a first end (head end) configured to engage a
motor mount and a second end (threaded end) configured to engage a cavity
in a post, as recited in independent claims 10, 69, and 71. Final Act. 3-6.
The Examiner interpreted “configured to engage” to mean that an element
does not necessarily have to engage another element as long as it includes
structure that allows it to do so. Id. at 3-4. The Examiner reasoned that
fastener 1049 is attached to rod 1029, and rod 1029 extends into a cavity in
post 1031, so fastener 1049 “at least indirectly engages the cavity.” Ans. 15.
Appellants argue that Mordue’s fastener 1049 is a horizontal portion
of bracket 1045 that includes a hole through which rod 1029 passes, but a
second end of bracket 1045 is attached to a bolt of clamp 1047, rather than
to a motor mount as claimed. Appeal Br. 7-8. Appellants also argue that
fastener 1049 does not include any element configured to engage a cavity in
the post, as claimed. Id. at 8. Appellants argue the structure of bracket 1045
and fastener 1049 lack the ability to perform the claimed limitations. Id. In
particular, Appellants argue that fastener 1049 is attached to rod 1029, which
engages a cavity in post 1031, but rod 1029 is not a fastener. Reply Br. 6.
The Examiner has not established by a preponderance of evidence that
Mordue discloses a fastener having a second end “configured to engage” a
cavity in the post as recited in claim 10. We agree with the Examiner that
fastener 1049 includes a first end configured to engage a motor mount.
Final Act. 13. Fastener 1049 is part of bracket 1045, which attaches at one
end to clamp 1047 on the motor mount. Mordue If 80, Fig. 19.
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Appeal 2016-001739
Application 11/631,885
Mordue discloses that the other end of bracket 1045 is attached to rod
1029 by way of fastener 1049. Id. The configuration of fastener 1049 that
attaches to rod 1029 is an aperture through which the upper end of rod 1029
passes, as shown in Figure 19. Mordue discloses that the upper end of rod
1029 extends through insulation layer 1023 and opening 1048 before being
secured with nut 1041. Id.*\} 78, Figs. 19, 20. Thus, nut 1041 is configured
to engage the upper end of rod 1029 via a threaded engagement that secures
the upper end of rod 1029. However, fastener 1049 is configured as a flat
plate with an aperture therethrough. Fastener 1049 attaches to rod 1029 via
an aperture through which the upper end of rod 1049 passes. Id., Fig. 19.
We are not persuaded that fastener 1049 is configured to engage a cavity in
rod 1029 even if rod 1029 included a cavity at its upper end. See Final Act.
3 (citing Mordue 80). The Examiner’s alternate finding that fastener 1049
is configured to engage a cavity in the post (outer sheath 1031) by engaging
rod 1029, which extends into a cavity in outer sheath 1031 (Ans. 15), does
not explain how the fastener 1049 itself includes structure that can engage a
cavity in post 1031, as the claim requires.4 The aperture and plate shape of
fastener 1049 are not configurations that can engage a cavity in rod 1029 or
post assembly 1031. Thus, we do not sustain the rejection of claims 10, 12,
62, 64, and 68-73.
4 Appellants disclose that threaded fastener 86 screws into threaded opening
88 in an upper end 84 of rod 42 to connect post assembly 32, which includes
rod 42 encased in outer sheath 36, to motor mount plate 34. Spec. H 58, 59,
Fig. 2. We interpret “configured to engage” in light of this disclosure and an
ordinary meaning of “engage” to require a structure that directly “interlocks
or meshes” with a cavity in the post. See Definition of engage by Merriam-
Webster at http://www.merriam-webster.com/dictionary/engage (last viewed
Sept. 6, 2017) (“to interlock with: mesh” “to come together and interlock”).
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Appeal 2016-001739
Application 11/631,885
Claims 1, 7, 9, 57, 60, 63, 66, 67, 76, and 76
as unpatentable over Mordue and Fahnle
The Examiner found that Mordue discloses a connector, as recited in
claim 1, including a post (post assembly 1027) and fastener 1049 with a first
end configured to engage the motor mount and a second end (threaded end)
configured to engage a cavity in the post, but not a barrel nut. Final Act. 7.
The Examiner found that Fahnle teaches that elements of a pump are affixed
with a barrel nut, and skilled artisans would appreciate that barrel nuts could
be substituted for the nuts of Mordue as suitable alternate means of affixing
pump parts to each other for predictable results. Id. at 7-8. The Examiner
interpreted “configured to engage the threaded opening of the barrel nut” as
not requiring a threaded engagement, as long as a corner of fastener 1049 is
capable of being inserted into the threaded opening of the barrel nut. The
Examiner reasoned that such insertion could allow the fastener to move the
barrel nut, which could be considered engagement. Ans. 11.
Appellants argue that claim 1 requires a post with an internal passage
configured to receive a fastener, and there is no fastener disposed in the post
of Mordue. Appeal Br. 5. Appellants further argue that fastener 1049 is a
horizontal portion of bracket 1045 including a hole through which rod 1029
passes. Id. at 6. Therefore, Appellants argue that fastener 1049 lacks any
element suitable for engaging a threaded opening of the barrel nut, such as a
second threaded end. Id. Appellants argue that no element of fastener 1049
or bracket 1045 engages the threaded opening of a barrel nut as required by
claim 1, and fastener 1049 and bracket 1045 lack the structure that is capable
of engaging a threaded opening. Id.; Reply Br. 4-5.
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Appeal 2016-001739
Application 11/631,885
For the reasons discussed above in the previous rejection, Mordue
does not disclose a fastener “configured to engage” a threaded opening of a
barrel nut. Instead, fastener 1049 is configured to attach to rod 1029 via an
aperture through which rod 1029 extends. Mordue f 80, Fig. 19. Rod 1029
also is engaged at its upper end by nut 1041. Id. 78. We are not persuaded
that the plate shape of fastener 1049 or its aperture is “configured to engage”
a threaded opening in a barrel nut, as we have interpreted the term to require
a structure or ability to interlock or mesh directly with a threaded opening.
The Examiner’s finding that a corner of fastener 1049 could be inserted into
a threaded opening and engage the threaded opening sufficient to move the
barrel nut is speculative and not supported by a preponderance of evidence.
Thus, we do not sustain the rejection of claims 1, 7, 9, 57, 60, 63, 66,
67, 75, and 76.
DECISION
We reverse the rejections of claims 1, 7, 9, 10, 12, 57, 60, 62-64, 66-
73, 75, and 76.
REVERSED
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