PMS Handelskontor GmbH

Patent Trials and Appeals Board

Dec 9, 2021

2020003875 (P.T.A.B. Dec. 9, 2021)

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.
15/528,577 05/22/2017 Oscar SCHARFE GRAF-047 4244
21884 7590 12/09/2021
WELSH FLAXMAN & GITLER LLC
1451 Dolley Madison Blvd., Suite 210
McLean, VA 22101
EXAMINER
BROWN, JARED O
ART UNIT PAPER NUMBER
3725
MAIL DATE DELIVERY MODE
12/09/2021 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 OSCAR SCHARFE
____________

Appeal 2020-003875
Application 15/528,577
Technology Center 3700
____________

Before PHILLIP J. KAUFFMAN, ANNETTE R. REIMERS, and
TARA L. HUTCHINGS, Administrative Patent Judges.

HUTCHINGS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 2–6, 8–14, 16, 17, and 19, which are all of the pending
claims.2 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies PMS Handelskontor GmbH as the
real party in interest. Appeal Br. 1. As used herein, “Appeal Br.” refers to
pages 1–18 of the Appeal Brief filed on March 2, 2020, and “Claims App.”
refers to the Claims Appendix provided in the Response to Notice of Non-
Compliant Appeal Brief, filed on March 16, 2020.
2 Claims 1, 7, 15, and 18 have been canceled. See Appeal Br. 3.
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CLAIMED INVENTON
Appellant’s invention is directed to “a comminution device or
crushing device for the mechanical crushing of materials.” Spec. 1.
Claim 19, the sole independent claim on appeal, is representative of
the claimed subject matter:
19. A comminution device for the mechanical crushing of
materials that has a working position and a maintenance position,
the comminution device comprising:
at least one rotor rotating around a vertical rotation axis (R)
located in a crushing chamber having an upper end and a bottom
end, the crushing chamber being supported by a supporting base,
whereby the at least one rotor is held at the bottom end of the
crushing chamber in a fixed stationary position in relation to the
supporting base,
the crushing chamber has an inlet at the upper end for infeed
of materials and an outlet at the bottom end for outfeed of
materials, the crushing chamber includes a plurality of striking
tools which project radially into the crushing chamber and a
crushing chamber wall that encloses the crushing chamber, the
crushing chamber wall being movable between a working
position wherein a bottom edge of the crushing chamber wall
rests on a feeder plate of the supporting base against which the
bottom edge fits tightly to create a hermetic seal and a
maintenance position wherein the bottom edge of the crushing
chamber wall is lifted vertically along the vertical rotation axis
(R) above the supporting base such that the bottom edge of the
crushing chamber wall is located vertically above a top of all of
the plurality of striking tools and at least one rotor to expose all
of the plurality of striking tools and the at least one rotor,
a lifting device is secured between the supporting base and
the crushing chamber wall and selectively moves the crushing
chamber wall between the working position and the maintenance
position, the lifting device is connected to a side of the crushing
chamber wall by a plurality of horizontal support arms which
project radially from and are attached to the crushing chamber
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wall, the lifting device is height-adjustable relative to the
supporting base so as to lift the crushing chamber wall between
the working position and the maintenance position.
Claims App.

REJECTIONS3
Claims 2–5, 8–14, 16, 17, and 19 are rejected under 35 U.S.C. § 103
as unpatentable over Scharfe (WO 2013/167398 A1, published Nov. 14,
2013),4 Planiol (US 2,609,993, issued Sept. 9, 1952), and Lehtonen
(US 2010/0163657 A1, published July 1, 2010).5
Claim 6 is rejected under 35 U.S.C. § 103 as unpatentable over
Scharfe, Planiol, Lehtonen, and Illsley (US 3,076,487, issued Feb. 5, 1963).

ANALYSIS
We are persuaded that the Examiner erred in rejecting claim 19 under
35 U.S.C. § 103, because the combination of Scharfe and Lehtonen does not
teach or suggest a crushing chamber wall that is
movable between a working position wherein a bottom edge of
the crushing chamber wall rests on a feeder plate of the
supporting base against which the bottom edge fits tightly to
create a hermetic seal and a maintenance position wherein the
bottom edge of the crushing chamber wall is lifted vertically
along the vertical rotation axis (R) above the supporting base
such that the bottom edge of the crushing chamber wall is located
vertically above a top of all of the plurality of striking tools and

3 The Examiner indicated in the Advisory Action mailed on January 28,
2020, that the rejection under 112(b) is withdrawn.
4 Our Decision references the English language translation of the Abstract
for Scharfe.
5 We treat the Examiner’s identification of canceled claim 15 in the rejection
heading as inadvertent error. See Final Act. 3.
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at least one rotor to expose all of the plurality of striking tools
and the at least one rotor,
and a lifting device that “selectively moves the crushing chamber wall
between the working position and the maintenance position,” as recited in
claim 19. See Appeal Br. 8–16; see also Reply Br. 1–5. In rejecting
independent claim 19 under 35 U.S.C. § 103, the Examiner relies primarily
on Scharfe as teaching the comminution device. See Final Act. 3–4. The
Examiner acknowledges that Scharfe does not teach or suggest the argued
claim limitations. See id. at 4–5.
However, the Examiner finds that Lehtonen teaches a comminution
device having a crushing chamber wall that is movable between a working
position and a maintenance position, and a lifting device that lifts the
crushing chamber wall between the working position and the maintenance
position. Id. at 5 (citing Lehtonen ¶ 47, Figs. 3, 8, 9). Lehtonen teaches a
crushing unit having vertical main shaft 3; a lower frame; and an upper
frame mounted to the lower frame by four hydraulic cylinders 9. Lehtonen
¶¶ 28, 47, Fig. 1. The upper frame moves with respect to the lower frame.
Id. ¶ 47. Lower crushing blade 2 is connected to vertical main shaft 3 and
the lower frame, and is surrounded by the frame of the crusher. Id. ¶ 28.
Upper crushing blade 1 is connected to an upper frame. Id. The two
crushing blades 1, 2 form a crushing chamber for crushing rock or
construction waste, both blades used as wearing parts. Id. ¶¶ 28–29. In
operation, the distance between the opposite surfaces of crushing blades 1, 2
becomes smaller as material is crushed between crushing blades 1, 2, and
flows outwards. Id. ¶¶ 29, 41; see also id. ¶ 48 (describing that the
difference between the maximum and minimum gap between the crushing
blades is called the “stroke of the crusher”). Cylinders 9 have a
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safeguarding property, allowing crushing blades 1, 2 “to draw away from
each other, when there is material between them that cannot be crushed by
the crushing blades.” Id. ¶ 47. Lehtonen also describes adjusting the
smallest gap occurring during the cycle (the “setting”), and the difference
between the maximum and minimum of the gap (the “stroke”) to change the
grain size distribution of the crushed material. Id. ¶ 48. In other words,
adjusting how much cylinders 9 raise and lower the upper frame impacts the
grain size of the crushed material.
The Examiner “takes the position that the ‘drawn away position’
taught by Lehtonen [at paragraph 47] for removing material that cannot be
crushed reads on [the claimed] maintenance position.” Final Act. 6; see also
Ans. 6. The Examiner determines that it would have been obvious to one of
ordinary skill in the art to modify Scharfe with a lifting device to vertically
lift Scharfe’s “circular cylindrical wall relative to the supporting base into a
maintenance position, as taught by Lehtonen.” Final Act. 6. Yet, claim 19
recites that in the maintenance position “the bottom edge of the crushing
chamber wall is lifted vertically”; whereas, Lehtonen teaches moving only
the upper frame, i.e., an upper portion of the crushing chamber wall. See
Lehtonen ¶¶ 38, 47 (providing that cylinders 9 move the upper frame
relative to the lower frame). The Examiner, thus, finds that Lehtonen’s
upper frame alone — without the lower frame — constitutes the crushing
chamber wall. Final Act. 5; see also id. at 6 (annotating Figure 1 of
Lehtonen to indicate that the upper frame is a chamber wall and the lower
wall is a supporting base); Ans. 5. However, the Examiner’s finding is not
adequately supported or explained in light of the disclosure in Lehtonen.
See Lehtonen ¶ 29 (defining the crushing chamber as both the upper and
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lower frames); see also id. ¶ 28 (describing lower crushing blade 2 as being
“surrounded by the frame of the crusher,” not a base of the crusher). At least
because Lehtonen does not teach or suggest that the bottom edge of
Lehtonen’s crushing chamber wall (i.e., the bottom of the lower frame) is
lifted, Lehtonen does not disclose or suggest the claimed maintenance
position, as required by claim 19.
Claim 19 further requires the bottom edge of the crushing chamber
wall to be “located vertically above a top of all of the plurality of striking
tools and at least one rotor to expose all of the plurality of striking tools and
the at least one rotor” in the maintenance position. The Examiner
acknowledges that Lehtonen does not teach this aspect of the claim
language. Final Act. 6; Ans. 6. However, the Examiner concludes that
once the lifting device (9 of Lehtonen) is provided to Scharfe . . .
Scharfe would then be configured to perform in the claimed
manner and determining the ideal height to lift the bottom edge
of the crushing chamber wall relative to the supporting base so
that desired maintenance can be performed can easily be done
via routine engineering and experimentation, and it would have
been obvious for one of ordinary skill in the art . . . to further
configure Scharfe to enable lifting the bottom edge of the
crushing chamber wall above a top of all of the plurality of
striking tools and at least one rotor so that they can be easily
maintained and/or replaced.
Final Act. 6–7; see also Ans. 9 (“one [of ordinary skill in the art] would
recognize that where it is good to have direct access to any of the striking
tools and rotors, it is even better to have direct access to all of the striking
tools and rotors”). Yet, the Examiner does not adequately explain why one
of ordinary skill in the art would have been motivated to provide the lift
device of Lehtonen to the combustion chamber of Scharfe, particularly in
light of the structural and functional differences between the two devices.
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As an initial matter, contrary to the Examiner’s suggestion, Lehtonen
describes drawing away crushing blade 1 from crushing blade 2 when the
material between the crushing blades cannot be crushed, not to access the
crushing blades and at least one rotor for performing maintenance or
replacement. See Lehtonen ¶ 47; see also Reply Br. 3. For example, if a
piece gets stuck between the opposing faces of the crushing blades, drawing
the faces apart would set the piece free. Reply Br. 3. The Examiner’s
suggestion that Lehtonen teaches that “it is good to have direct access to any
of the striking tools and rotor” appears, at most, to be based on speculation.
See Ans. 9.
In addition, Scharfe’s disintegration chamber, unlike Lehtonen’s
crushing chamber, is not structured so that one crushing blade moves toward
the other crushing blade to crush material therebetween. Instead, Scharfe’s
disintegration chamber includes impacting tools 38 extending radially from
coaxially arranged rotors 26, 28, 30 toward chamber wall 42. See Scharfe
Fig. 1. Lehtonen teaches lifting the upper frame to modify the crushing gap
between the crushing blades. See, e.g., Lehtonen ¶¶ 47–48. But lifting
Scharfe’s chamber wall would not adjust any crushing gap. See Reply Br. 3.
We determine that the Examiner’s analysis and evidence provided falls short
of adequately explaining why one of ordinary skill in the art would have
been motivated to modify Scharfe in view of Lehtonen to provide a lifting
device that lifts the bottom edge of Scharfe’s crushing chamber wall to a
maintenance position. The Examiner’s analysis and evidence also fails to
adequately explain why the skilled artisan would have further modified the
combination of Scharfe and Lehtonen through routine engineering and
experimentation to arrive at the claimed maintenance position having a
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bottom edge of the chamber located vertically above a top of all of the
plurality of striking tools and at least one rotor.
Therefore, we do not sustain the rejection of independent claim 19,
and the rejections of the dependent claims under 35 U.S.C. § 103.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§ References/Basis Affirmed Reversed
2–5, 8–
14, 16,
17, 19
103 Scharfe, Planiol, Lehtonen
2–5, 8–14,
16, 17, 19
6 103 Scharfe, Planiol, Lehtonen, Illsley 6
Overall
Outcome
2–6, 8–14,
16, 17, 19

REVERSED