Yamaguchi, Kazuo et al.

Patent Trials and Appeals Board

Jul 1, 2020

13810672 - (D) (P.T.A.B. Jul. 1, 2020)

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.
13/810,672 01/17/2013 Kazuo Yamaguchi 408494US41PCT 7336
22850 7590 07/01/2020
OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET
ALEXANDRIA, VA 22314
EXAMINER
HOWELL, MARC C
ART UNIT PAPER NUMBER
1774
NOTIFICATION DATE DELIVERY MODE
07/01/2020 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):
OBLONPAT@OBLON.COM
iahmadi@oblon.com
patentdocket@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAZUO YAMAGUCHI, TAKAYA UDA, YOSHINORI
KURODA, and TSUGUSHI FUKUI
Appeal 2019-003062
Application 13/810,672
Technology Center 1700
BEFORE BEVERLY A. FRANKLIN, JAMES C. HOUSEL, and
MONTÉ T. SQUIRE, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–12 and 15–20. We have jurisdiction
under 35 U.S.C. § 6(b). An oral hearing was held on June 11, 2020.
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as KABUSHIKI
KAISHA KOBE SEIKO SHO. Appeal Br. 1.
Appeal 2019-003062
Application 13/810,672

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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of Appellant’s subject matter on appeal
and is set forth below (with text in bold for emphasis):
1. A continuous mixer for continuously mixing a material,
comprising:
a barrel with a hollow interior;
a hopper positioned to feed a material to be mixed to the
interior of the barrel; and
a pair of mixing rotors which are housed in the barrel and
rotate in mutually different directions, each of the mixing rotors
including a feeding portion which is an upstream part in an
axial direction, the feeding portion including a first screw flight
shaped to feed the material supplied from the hopper to the
downstream side through the barrel, a mixing portion which is
an intermediate part in the axial direction, the mixing portion
including a plurality of mixing flights shaped to mix the
material fed from the feeding portion, the mixing flights being
formed about an axial center of the mixing rotor and projecting
radially outward, and a discharging portion which is a
downstream part in the axial direction, the discharging portion
including a second screw flight shaped to feed the material
mixed by the mixing portion to the downstream side, wherein:
each of the mixing flights is shaped differently from each
of the first screw flight and the second screw flight;
the mixing flights each have a tip, a spacing between the
tip of one mixing flight of the pair of mixing rotors and the
other mixing flight of the pair of mixing rotors comprising an
inter-rotor clearance which is a smallest clearance between the
mixing portions in a cross section perpendicular to axial
directions of both of the mixing rotors at each rotation phase of
the mixing rotors, the rotations of the pair of mixing rotors in
the mutually different directions causing respective surfaces of
the mixing rotors to move in the same direction on the both
sides of the inter-rotor clearance;
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both of the mixing rotors are arranged so as to make a
center distance there between smaller than a rotation outer
diameter of each of the mixing flights; and
the inter-rotor clearance at each rotation phase of the
mixing portions of the mixing rotors has a size equal to or
smaller than 0.16-fold of an inner diameter of the barrel
over a rotation region of 85% or more of one rotation of
each of the mixing rotors.

Appeal Br. 15–16 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Street US 3,447,582 June 3, 1969
Song et al. US 6,086,925 July 11, 2000
Ek et al. US 2009/0213681 A1 Aug. 27, 2009

REJECTIONS
1. Claims 1–10 and 15–20 are rejected under pre-AIA 35 U.S.C.
103(a) as being unpatentable over Street in view of Song et al. (hereinafter
“Song”).
2. Claims 11 and 12 are rejected under pre-AIA 35 U.S.C. 103(a) as
being unpatentable over Street in view of Song, as applied to claim 10
above, and further in view of Ek et al. (hereinafter “Ek”).
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t
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has long been the Board’s practice to require an applicant to identify the
alleged error in the examiner’s rejections.”). After considering the evidence
presented in this Appeal (including the Examiner’s Answer, the Appeal
Brief, and the Reply Brief), we are persuaded that Appellant identifies
reversible error. Thus, we reverse the Examiner’s rejections, with the
following emphasis.
In making our determinations herein, we focus on the claim element
pertaining to the size of the inter-rotor clearance being “equal to or smaller
than 0.16-fold of an inner diameter of the barrel over a rotation region of
85% or more of one rotation of each of the mixing rotors” as recited in claim
1.
The Examiner finds that Street suggests that the square flights 49 in
Street can have the same clearance C1 as the V-shaped flights 48 in Street,
and therefore meets the aforementioned claimed element. Ans. 3–4.
However, as argued by Appellant (Appeal Br. 9–12), the gap clearance C1 at
the V-shaped flights 48 of Street is controlled to meter the material thickness
on the flights 48 so that the material in a thin layer can be exposed to a
vacuum and polymerized on flights 48; the square threads 49 instead have
the function of positively advancing the polymerized material under pressure
(Street, col. 5, lines 33–35). The valid point being made is that the different
functions undermines the Examiner’s position that Street suggests that the
square flights 49 in Street can have the same clearance C1 as the V-shaped
flights 48 in Street.
In response to this argument, the Examiner states that the gap
clearance is a result effective variable. Ans. 9–10. However, we agree with
Appellant that this finding by the Examiner is without proper foundation.
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Reply Br. 1–2. As Appellant explains, there is no disclosure in Street to
indicate that the inter-rotor clearance of the square threads 49 would be
effective for generating an extensional flow in the material. The Examiner’s
Answer itself recognizes that this disclosure is only found in Appellant’s
own Specification. Ans. 9. Reliance upon Appellants’ own Specification
rather than the applied prior art in this manner is improper. See W.L. Gore
& Assocs. v. Garlock, Inc., 721 F.2d 1551, 1553 (Fed. Cir. 1983), cert.
denied, 469 U.S. 851 (1984) (“To imbue one of ordinary skill in the art with
knowledge of the invention in suit, when no prior art reference or references
of record convey or suggest that knowledge, is to fall victim to the insidious
effect of a hindsight syndrome wherein that which only the inventor taught
is used against its teacher.”).
Lastly, with regard to the Examiner’s position that Figure 1 of Street
would appear to show that threads 48 and 49 have similar clearances
(Ans. 4), we agree with Appellant that the rejection acknowledges that the
drawings are not to scale (Ans. 4), and that no other disclosure in Street
supports the Examiner’s interpretation of Figure 1 in this regard. Appeal
Br. 12. It is well settled that “[a]bsent any written description in the
specification of quantitative values, arguments based on measurement of a
drawing are of little value.” In re Wright, 569 F.2d 1124, 1127 (CCPA
1977). Precise proportions should not be read into patent drawings when the
patent does not expressly provide such proportions. Nystrom v. TREX Co.,
Inc., 424 F.3d 1136, 1149 (Fed. Cir. 2005). Therefore, such “arguments
based on measurement of the drawing features are of little value.” MPEP
2125(11).
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In view of the above, we reverse Rejections 1 and 2 (the Examiner
does not rely upon the other applied references in Rejection 2 to cure the
stated deficiencies of the combination of references applied Rejection 1).
CONCLUSION
We reverse the Examiner’s decision.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–10,
15–20
103 Street, Song 1–10,
15–20
11, 12 103 Street, Song, Ek 11, 12
Overall
Outcome
1–12,
15–20

REVERSED