Ex Parte Swinderman et al

Patent Trial and Appeal Board

Nov 24, 2014

12539746 (P.T.A.B. Nov. 24, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte R. TODD SWINDERMAN and CRISTIAN VAVA
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Appeal 2012-006082
Application 12/539,746
Technology Center 3600
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Before: JENNIFER D. BAHR, PHILLIP J. KAUFFMAN, and
JILL D. HILL, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 8–13 and 21 under 35 U.S.C. § 103(a) as
unpatentable over Morin and Miller.1 We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.

1 Morin (US 5,622,249; iss. Apr. 22, 1997); Miller (US 5,276,622; iss. Jan.
4, 1994).
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The Claimed Subject Matter
Appellants’ claimed invention relates to apparatus such as conveyor
belt cleaners used in combination with conveyor in a bulk material handling
system, such as used in connection with storage and movement of bulk
materials such as grain, sand, gravel, coal, and the like. Spec. ¶¶ 2, 9.
Of the claims on appeal, claims 8 and 21 are independent.
Independent claim 8 is illustrative and is reproduced below:
8. A bulk material handling apparatus, comprising
a bulk material conveyor comprising a belt to convey
bulk material,
a scraping member to scrape bulk material from the belt
of the bulk material conveyor belt, the scraping member having
a movement sensor associated therewith to generate a status
signal indicative of movement of the scraping member,
a damper coupled to the scraping member, the damper to
dampen movement of the scraping member based upon a
control signal, and
a controller to generate the control signal of the damper
based upon the status signal.
Claims 9–13 depend from claim 8. Independent claim 21 is similar to
independent claim 8.

OPINION
The Examiner rejected claims 8–13 and 21 as unpatentable under
35 U.S.C. § 103(a) over Morin and Miller. Office Action dated June 2,
2011, 3–6.2 Specifically, the Examiner found that Morin discloses a bulk
material conveyor that includes a conveyor belt (belt 20) and a scraper

2 This is the Office Action from which appeal was taken. The rejection of
this Office Action was not repeated in the Examiner’s Answer. Further
references to “Office Action” are to this action unless otherwise stated.
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member (scraper blade 134) coupled to a damper (damper unit 150) to
dampen movement of the scraper member. Id. at 4 (parentheticals are
Morin’s nomenclature). Appellants concede this finding by acknowledging
that Morin discloses a conveyor belt scraper assembly wherein a scraper is
biased against a conveyor belt with an adjustable force and wherein a
damper can be provided to dampen the motion of the scraper. App. Br. 6.
The significance is that the difference between the prior art and the claimed
subject matter has been established. Specifically, the prior art damper was
passive in that it was not adjusted by a control signal from a controller based
upon a status signal indicative of movement of the scraping member from a
movement sensor. Office Action 4.
The Examiner proposed to modify Morin’s passive system to be an
active isolation or controlled system as disclosed by Miller. Office Action 4.
Specifically, the Examiner found that Miller discloses adjusting a damper
(damper assembly 22) by a control signal from a controller (controller 46)
based upon a status signal indicative of movement of the scraping member
(members 12, 14) as indicated by movement sensors (motion sensors 48,
50). Id. (parentheticals are Miller’s nomenclature). The Examiner also
found that Miller’s system can improve the isolation of a stationary system
that includes a damper. Id. (citing Miller, col. 15, ll. 25–30).
The Examiner concluded that it would have been obvious to modify
Morin’s bulk conveyor system to actively control the damper by adding a
controller and associated movement sensors as taught by Miller. Id. The
Examiner reasoned that a person of ordinary skill in the art would have made
such modification to improve Morin’s control system. Id.

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Claims 8–13
Appellants argue claims 8–13 as a group. App. Br. 7. We select
claim 8 as representative. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
Appellants assert that it would not have been obvious to combine
Morin and Millar as proposed by the Examiner because Miller is non-
analogous art. App. Br. 4–7; Reply Br. 1–23. The Examiner does not
contend that Miller is in the claimed field of endeavor, and consequently our
inquiry narrows to whether Miller would have been reasonably pertinent to
the problem faced by the claimed inventor. See Office Action 3–4; Ans. 4–
5; see also In re Kahn, 441 F.3d 977, 986–87 (Fed. Cir. 2006) (a reference is
analogous art if it is in the field of the applicant’s endeavor or is reasonably
pertinent to the problem the inventor faced).
To begin, Appellants’ argument that Miller is not analogous art is
based upon the characterization that the claimed apparatus minimizes
disengagement of the scraper member from the conveyor belt without
causing excessive wear, and also reduces scraper member chatter, while in
contrast Miller serves the function of reducing end-stop collision. See e.g.,
App. Br. 5–6; Reply Br 1. Appellants’ characterization is not commensurate
in scope with independent claim 8. Claim 8 only requires that the damper is
controlled based on a control signal that is based upon the status signal of
the movement sensors associated with the scraping member’s movement.
Minimizing disengagement and reducing chatter are not claimed. Further,
Appellants define the problem too narrowly. In an obviousness analysis we
are concerned with the general problem that confronted the inventor. See In

3 The pages of the Reply Brief are not numbered. Our numbering is based
upon the page that begins “Remarks” being considered page 1.
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re Kahn, 441 F.3d at 988. The general problem facing Appellants was
controlling the force of a damper to decrease vibration, or chatter. Spec. ¶¶
4–7. Likewise, as the Examiner determined and Appellants do not contest,
Miller relates to controlling damping forces on a sprung mass member to
attenuate the excitation, or vibration, of the sprung mass member. See Ans.
5; Miller, col. 1, ll. 32–35, 41–44.
The Examiner’s conclusion that a person of ordinary skill in the art
would have considered Miller’s controller system because it could improve a
passive system such as Morin’s bulk material handling apparatus is
reasonable and supported by the references as detailed above. The Federal
Circuit has recognized that an inventor considering a hinge and latch
mechanism for portable computers would naturally look to references
employing other “housings, hinges, latches, springs, etc.” See In re ICON
Health & Fitness, Inc., 496 F.3d 1374, 1379–80 (Fed. Cir. 2007). Likewise,
a person of ordinary skill in the art seeking to improve attenuation of
vibration, or chatter of a scraper blade on a bulk material conveyor would
consider a reference such as Miller that discloses a controller and associated
sensors that can improve the damping isolation of such a stationary system.
See Ans. 4–5. Therefore, Miller is analogous art because it logically would
have commended itself to an inventor’s attention. See In re ICON Health &
Fitness, Inc., 496 F.3d at 1379–80.
Consequently, Appellants’ arguments do not persuade us of error in
the Examiner’s rejection of claim 8, and claims 9–13 fall with claim 8.

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Claim 21
Independent claim 21 is similar to independent claim 8 except that the
damper of claim 21 is configured and adapted to: (1) dampen movement of
the scraping member toward and away from the belt in a manner that is at
least partially dependent on the control signal (“dampening movement”),
and (2) biasing the scraper member against the conveyor belt (“biasing the
scraper”). Appellants argue that Miller does not disclose or suggest
dampening movement and Morin does not disclose biasing the scraper.
App. Br. 7. Appellants' argument is unpersuasive because it does not
address the rejection as articulated by the Examiner. Specifically, the
Examiner relied upon Morin, not Miller, as disclosing dampening
movement, and relied upon Miller, not Morin, for biasing the scraper.
Office Action 5–6.
Appellants also apply the argument against the rejection of claim 8 to
the rejection of claim 21. App. Br. 7. Our analysis of that argument with
regard to claim 8 is equally applicable here.
Consequently, Appellants’ arguments do not persuade us of error in
the Examiner’s rejection of claim 21.

DECISION
We affirm the Examiner’s decision to reject claims 8–13 and 21 under
35 U.S.C. § 103(a) as unpatentable over Morin and Miller.

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

AFFIRMED

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