Ex Parte Pabst

Patent Trial and Appeal Board

Sep 8, 2017

13621502 (P.T.A.B. Sep. 8, 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.
13/621,502 09/17/2012 Kirby Norman Pabst DIETR-32908/US- l/ORD 7309
72960 7590 09/12/2017
Casimir Jones, S.C.
2275 DEMING WAY, SUITE 310
MIDDLETON, WI 53562
EXAMINER
KASTURE, DNYANESH G
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
09/12/2017 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):
docketing @ c asimirj ones .com
pto.correspondence@casimirjones.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KIRBY NORMAN PABST
Appeal 2017-007646
Application 13/621,5021
Technology Center 3700
Before STEFAN STAICOVICI, ARTHUR M. PESLAK, and
ANTHONY KNIGHT, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kirby Norman Pabst (“Appellant”) appeals under 35 U.S.C. § 134(a)
from the Examiner’s decision rejecting claims 1—9.2 We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We REVERSE.
1 According to the Appeal Brief, The Brothers Dietrich is the real party in
interest. Appeal Br. 3 (filed Jan. 17, 2017).
2 Claims 1—6 and 10 are cancelled. Id.
Appeal 2017-007646
Application 13/621,502
INVENTION
Appellant’s invention relates to a pump assembly for transferring
liquids containing suspended solids. Spec. 3,11. 5—10.
Claim 7, the sole independent claim, is representative of the claimed
invention and reads as follows:
7. A pump for transfer of liquids containing suspended
solids comprising
a flexible bellows having a liquid communicating port at
one end mounted fixedly within a rigid housing and mounted at
the opposite end to a plate adapted for slidable reciprocal
movement within the housing, wherein said bellows is Tillable
with said liquids containing suspended solids via said liquid
communicating port,
reciprocating drive means attached to the slidable plate to
effect extension and retraction of the bellows,
a first flexible tubular pinch-type valve, operable by
pneumatic means, connected to said communicating port of the
bellows,
a second flexible tubular pinch-type valve having the
same operating configuration as the first valve,
first and second mechanically operated quick pneumatic
relief valves having inlet and exhaust ports that exhaust directly
to the atmosphere, said valves mounted on said two tubular
pinch-type valves respectively and connected via the actuating
pneumatic port of the pneumatic quick relief valve to
a pneumatic inlet port thereby activating said tubular pinch-type
valve; and
programmed control means for electronic timing and
coordinating the operation of the pinch-type valves and
reciprocating drive means.
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Appeal 2017-007646
Application 13/621,502
REJECTIONS
The following rejections are before us for review:
I. The Examiner rejected claims 7—9 under 35 U.S.C. § 103(a) as
being unpatentable over Kato et al. (US 8,033,801 B2, issued
Oct. 11, 2011, hereafter “Kato”), Lehnhardt et al. (US
2004/0149942 Al, published Aug. 5, 2004, hereafter
“Lehnhardt”), and Jones (US 2006/0292018 Al, published Dec.
28, 2006).
II. The Examiner rejected claims 7—9 under 35 U.S.C. § 103(a) as
being unpatentable over Kato, Appellant’s Admitted Prior Art
(page 6 of Appellant’s remarks to previous Office Action,
hereafter “AAPA”)3, Ho et al. (US 2007/0209704 Al,
published Sept. 13, 2007, hereafter “Ho”), and Jones.
Appellant presents additional evidence in the Declarations filed by
inventor Mr. Kirby Norman Pabst on May 8, 2014 (“Pabst Declaration 1”),
Oct. 1, 2014 (“Pabst Declaration 2”), July 10, 2015 (“Pabst Declaration 3”),
and Feb. 10, 2016 (“Pabst Declaration 4”).
ANALYSIS
Rejection I
The Examiner finds that the pumping device of Kato, as modified by
Lehnhardt, discloses most of the limitations of independent claim 7, but fails
to disclose “that the interior of the bellows type chamber fills up with fluid.”
3 Appellant’s remarks to the previous Office Action, the Non-Final Action of
Mar. 23, 2016, were filed on Feb. 11, 2016.
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Application 13/621,502
Non-Final Act. 4—7.4 However, the Examiner finds that “Jones discloses a
chamber (216A) interior to the bellows type pump that fills up with fluid.”
Id. at 7. Hence, the Examiner concludes that it would have been obvious for
a person of ordinary skill in the art “to modify the bellows of Kato such that
it fills up with fluid as taught by Jones for the purpose of reducing resistance
for the fluid leaving the discharge port and reducing the load on the
actuator.” Id. According to the Examiner, the “one proposed modification
[to Kato] in view of Jones is to simply arrange the bellows to be above the
annular fixing plate (20) of Kato” because “MPEP 2144.04 (VI-C) states
that rearranging parts of an invention involves routine skill in the art” and
“MPEP 2144.04 (VI-A) states that a mere reversal of parts (interchanging
the position of the annular fixing plate and bellows) involves only routine
skill in the art.” Id. The Examiner further notes “that the elimination of the
spring of Kato could be another reason to make the modification because it
results in simplification of the apparatus.” Id.
Appellant argues that the Examiner’s modification of the pumping
device of Kato “to employ a bellows that fills with fluid as disclosed in
Jones . . . would both 1) render the Kato [pump] inoperable for its intended
purpose of precision pumping and 2) that the proposed modification would
change the principle] of operation of the Kato pump and require a
substantial reconstruction and redesign of the elements shown in Kato.”
4 The Examiner employs the teachings of Lehnhardt to determine that it
would have been obvious for a person of ordinary skill in the art to use
Lehnhardt’s mechanically operated quick pneumatic relief valves 64
between Kato’s flexible tubular pinch valves 30, 32 “for the purpose of
increasing efficiency by reducing the opening/closing time of the valvefs].”
Non-Final Act. 5—6 (citing Lehnhardt, para. 35).
4
Appeal 2017-007646
Application 13/621,502
Appeal Br. 6. According to Appellant, if Kato’s bellows 14a is placed on
top of annular fixing plate 20, then spring 50 would have to be positioned
between annular fixing plate 20 and partition plate 14b. Id. at 8 (citing Pabst
Declaration 3, para. 4). Thus, Appellant contends that when applying
compressed air via air inlet 38, the compressed air would cause bellows 14a
to collapse because the air pressure is applied externally to bellows 14a,
rather than internally, as in Kato’s pumping system. Id.
Presented below is a diagram of the Examiner’s modification of
Kato’s pumping system, as understood by Appellant:
The Examiner’s modification of Kato’s pump system, as understood
by Appellant, shows bellows 14A positioned above fixing plate 20 and
spring 50 positioned between fixing plate 20 and partition plate 14B. Id.',
see also Pabst Declaration 3, para. 4.
In a first instance, we do not agree with Appellant’s position because
the Examiner is not proposing to relocate spring 50, but rather, either
relocating only bellows 14a or eliminating spring 50 altogether. The
Examiner specifically states that “it is not necessary to change the position
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Application 13/621,502
of the coil spring 50.” Ans. 5 (transmitted Feb. 24, 2017). As such, the
modification of Kato’s pumping system shown above, as envisioned by
Appellant, is not commensurate with the Examiner’s rejection.
However, for the reasons set forth below, we agree with Appellant,
that if Kato’s bellows 14a is repositioned below plate 20, such repositioning
would render Kato’s pump inoperable.
Presented below is an annotated Figure 1 of Kato’s pumping system:
Annotated Figure 1 of Kato’s pumping system shows side valves 30,
32, pump chamber 16, pressure operation chamber 18, plate 20, rod 46, and
spring 50, with bellows 14a positioned below plate 20.
In Kato’s pumping system, bellows 14a expands and collapses
depending on the pressure differential between pump chamber 16 (green)
and pressure operation chamber 18 (yellow). See Pabst Declaration 4, para.
6 (4). Specifically, when compressed air is not introduced into chamber 18,
as spring 50 expands upwards, due to the elastic force of the spring, partition
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Application 13/621,502
plate 14b is likewise lifted upwards via rod 46 such that bellows 14a
contracts, thereby increasing the volume of pump chamber 16 so that liquid
intake occurs in pump chamber 16. See Kato, col. 8,11. 43—50, Fig. 2(a).
However, when compressed air is introduced into chamber 18 (yellow),
bellows 14a expands in accordance with the balance between the air pressure
inside pressure operation chamber 18 and the elastic force of spring 50 such
that liquid discharge occurs from pump chamber 16 (green). See id., col. 8,
11. 53—65, Fig. 2(b); see also Pabst Declaration 3, para. 3, Pabst Declaration
4, paras. 4, 5.
Presented below is a diagram showing our understanding of the
Examiner’s modification of Kato’s pumping system:
The Examiner’s modification of Kato’s pumping system includes
pump housing 12, bellows 14a, partition plate 14b, pump chamber 16,
pressure operation chamber 18, plate 20, rod 46, and spring 50, with bellows
14a positioned above plate 20.
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Application 13/621,502
Using the same principle of operation as described in Kato, in the
Examiner’s modification of Kato’s pumping system, when compressed air is
not introduced into chamber 18, as spring 50 expands upwards, due to the
elastic force of the spring, partition plate 14b is likewise lifted upwards via
rod 46 such that bellows 14a expands, thereby increasing the volume of
pump chamber 16 so that liquid intake occurs in pump chamber 16. On the
other hand, when compressed air is introduced into Kato’s modified pressure
operation chamber 18, bellows 14a should contract in accordance with the
balance between the air pressure inside pressure operation chamber 18 and
the elastic force of spring 50 in order to control the amount of liquid
discharge occurring from pump chamber 16.
However, because the compressed air not only acts upon the top of
partition plate 14b, but also flows around partition plate 14b to fill the empty
space between the bottom of partition plate 14b, bellows 14a, fixing plate
20, and pump housing 12, the air pressure inside pressure operation chamber
is the same at every point within chamber 18, and thus, will not necessarily
compress bellows 14a as there is no pressure differential between the top
and bottom surfaces of partition plate 14b. Hence, a force is not generated
that can balance the elastic force of spring 50 so as to compress bellows 14b
and provide liquid discharge from pump chamber 16.
Therefore, the Examiner’s finding that moving Kato’s bellows 14a
above fixing plate 20 results in discharging liquid from pump chamber 16 is
based on speculation and conjecture based on an unfounded assumption that
bellows 14a contracts in accordance with the balance between the air
pressure inside pressure operation chamber 18 and the elastic force of spring
50. As speculation and conjecture cannot form the basis for concluding
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Application 13/621,502
obviousness, we do not sustain the rejection under 35 U.S.C. § 103(a) of
claims 7—9 as unpatentable over Kato, Lehnhardt, and Jones.
Rejection II
With respect to the obviousness rejection based upon the combined
teachings of Kato, AAPA, Ho, and Jones, the Examiner relies on the same
modification to Kato’s pumping system discussed supra, namely, “to simply
arrange the bellows to be above the annular fixing plate (20) of Kato.” Non-
Final Act. 11.
The Examiner’s use of the AAPA and Ho disclosures does not remedy
the deficiency of the Examiner’s modification of Kato’s pumping system
based upon the teachings of Jones. Id. at 10—11. Therefore, for the same
reasons discussed above, we also do not sustain the rejection under
35 U.S.C. § 103(a) of claims 7—9 as unpatentable over Kato, AAPA, Ho, and
Jones.
SUMMARY
The Examiner’s decision to reject claims 7—9 under 35 U.S.C. § 103(a)
as unpatentable over Kato, Lehnhardt, and Jones is reversed.
The Examiner’s decision to reject claims 7—9 under 35 U.S.C. § 103(a)
as unpatentable over Kato, AAPA, Ho, and Jones is reversed.
REVERSED
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