Ex parte SWON et al.

Board of Patent Appeals and Interferences

Apr 10, 1998

08051377 (B.P.A.I. Apr. 10, 1998)

Application for patent filed April 23, 1993.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 34
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JAMES E. SWON
AND HENRY HOFER
_____________
Appeal No. 97-1884
Application 08/051,3771
______________
ON BRIEF
_______________
Before HAIRSTON, KRASS, and TORCZON, Administrative Patent
Judges.
HAIRSTON, Administrative Patent Judge.
Appeal No. 97-1884
Application 08/051,377
2
Appeal No. 97-1884
Application 08/051,377
3
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1
through 3, 11 and 14 through 20. In the final rejection,
claims 4 through 10 and 13 were objected to as being dependent
upon a rejected base claim, but would be allowable if
rewritten in independent form including all of the limitations
of the base claim and any intervening claims. In an Amendment
After Final (paper number 16), claim 11 was amended, and
claims 4 and 13 were rewritten in independent form. In an
Advisory Action (paper number 17), the examiner indicated that
claims 4 through 11 and 13 were allowed, and that claims 1
through 3 and 14 through 20 were rejected. Appellants’
amendment (paper number 29) filed in response to a new ground
of rejection of claims 14 through 19 in the Answer (paper
number 27) was not entered by the examiner (paper number 30).
Appellants’ Petition to the Commissioner (paper number 31)
requesting entry of the amendment and a reply brief was denied
(paper number 32). As a result of appellants’ failure to file
a timely response to the new ground of rejection of claims 14
through 19, the appeal as to these claims is dismissed.
Appeal No. 97-1884
Application 08/051,377
4
Accordingly, claims 1 through 3 and 20 remain before us on
appeal.
The disclosed invention relates to a laboratory stirring
shaft and solution monitoring comparator device.
Claim 1 is illustrative of the claimed invention, and it
reads as follows:
1. A laboratory stirring shaft and solution monitoring
comparator device comprising in combination: monitoring means
adapted for use in association with a downwardly-directed
revolvable linearly-extending stirring shaft having a distal
end at least one of (a) carrying and (b) adapted to carry at
least one stirring blade, said monitoring means being for
measuring physical attributes of the downwardly directed
revolving linearly-extending stirring shaft when the linearly-
extending stirring shaft has the distal end stably mounted and
positioned to be revolved within media such that the at least
one stirring blade is enabled to agitate the media within a
vessel stably positioned relative to the linearly-extending
stirring shaft in which physical attributes include at-least
one of (a) wobble during revolving thereof, (b) verticality,
(c) rate of revolutions, and (d) current magnitude of wobble-
induced vibrations; and a visual display means for visually
displaying data measured by said monitoring means of said
physical attributes.
The reference relied on by the examiner in the only
remaining rejection is:
Pollard 4,594,883 June 17,
1986
Appeal No. 97-1884
Application 08/051,377
5
Claims 1 through 3 and 20 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Pollard.
Reference is made to the brief and the answer for the
respective positions of the appellants and the examiner.
Appeal No. 97-1884
Application 08/051,377
6
OPINION
We have carefully considered the entire record before us,
and we will reverse the 35 U.S.C. § 102(b) rejection of claims
1 through 3 and 20.
In Figure 1 of Pollard, an impeller 4 mounted on the end
of a shaft 3 is rotated at a constant angular velocity by
motor 12. Vibrations induced in shaft 3 by virtue of the
stirring action of impeller 4 are sensed by a transducer 5
mounted on the shaft. Pollard indicates that viscosity of the
material being stirred may be inferred from measurements of
shaft vibration (column 4, lines 18 through 25).
The examiner is of the opinion that the vibrations
measured by Pollard “are a measure of wobble and changes in
verticality” (Answer, page 4). Appellants argue (Brief, page
18) that Pollard has absolutely nothing to do with wobble.
Pollard indicates that properties of a material are monitored
by “using the material under test as the means of generating
the vibrations” (column 2, lines 55 through 60). Thus, we
agree with appellants that the vibrations in Pollard are not
Appeal No. 97-1884
Application 08/051,377
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caused by wobble or changes in verticality of the stirring
shaft 3.
The examiner acknowledges (Answer, page 5) that “Pollard
lacks teaching of providing means to measure the revolutions
per unit time of the stirring shaft teaching instead that the
stirring shaft is rotated at a constant angular velocity (eg.
see column 6[,] lines 19-21).”
In summary, the 35 U.S.C. § 102(b) rejection of claims 1
through 3 and 20 is reversed because Pollard does not measure
wobble, verticality or rate of revolutions.
DECISION
The decision of the examiner rejecting claims 1 through 3
and 20 under 35 U.S.C. § 102(b) is reversed.
REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
ERROL A. KRASS ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
Appeal No. 97-1884
Application 08/051,377
8
RICHARD TORCZON )
Administrative Patent Judge )
Appeal No. 97-1884
Application 08/051,377
9
William T. Hough
P.O. Box 326
Liberty Corner, NJ 07938