Andrew Jones et al.Download PDFPatent Trials and Appeals BoardMar 19, 20212018004046 (P.T.A.B. Mar. 19, 2021) Copy Citation 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. 13/541,261 07/03/2012 Andrew Jones M1213.70013US01 2092 32047 7590 03/19/2021 GROSSMAN, TUCKER, PERREAULT & PFLEGER, PLLC 55 SOUTH COMMERCIAL STREET MANCHESTER, NH 03101 EXAMINER LOUIS, LATOYA M ART UNIT PAPER NUMBER 3785 NOTIFICATION DATE DELIVERY MODE 03/19/2021 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): drobertson@gtpp.com jhobbs@gtpp.com lpelletier@gtpp.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ANDREW JONES and RICHARD L. MILLER ____________ Appeal 2018-004046 Application 13/541,261 Technology Center 3700 ____________ Before BRANDON J. WARNER, LISA M. GUIJT, and LEE L. STEPINA, Administrative Patent Judges. WARNER, 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 1–23, which are all the pending claims. Appeal Br. 3. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to the “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Manta Devices, LLC. Appeal Br. 2. Appeal 2018-004046 Application 13/541,261 2 CLAIMED SUBJECT MATTER Appellant’s disclosed invention relates to “devices, systems, and methods that are used to deliver a dose of a powder, such as a medicament, a flavorant, or another substance,” including “features that allow the dose to be protected (e.g., from contamination and/or degradation) prior to use, and to be delivered in a metered manner.” Spec., p. 1, ll. 16–20. Claims 1, 8, 10, 11, 13, and 21 are independent. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A dose delivery device, comprising: a housing having an inlet at a first end, an outlet at a second end, and an air path extending between the inlet and the outlet; a first chamber having an inlet and an outlet, fluid entering the first chamber via the first chamber inlet being arranged in an inlet direction, the first chamber, the first chamber inlet and the first chamber outlet being arranged such that fluid flowing in an outlet direction to the first chamber outlet is transverse to, and crosses, fluid flowing in the inlet direction; a second chamber having an inlet arranged to receive dose entrained air from the first chamber outlet, and an outlet fluidly coupled to the housing to provide dose entrained air to the housing inlet, the second chamber arranged to disperse a dose in the dose entrained air provided to the housing inlet; at least one bypass inlet through a side wall of the second chamber to allow air to bypass the first chamber and flow into the second chamber in a generally radially inward direction to induce circulatory flow in the second chamber about a longitudinal axis of the second chamber; and a dose chamber arranged to hold a dose. Appeal 2018-004046 Application 13/541,261 3 EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Whaley US 6,119,688 Sept. 19, 2000 Jones US 2009/0013994 A1 Jan. 15, 2009 Kakade US 2010/0006096 A1 Jan. 14, 2010 REJECTIONS The following rejections are before us for review: I. Claims 1–10, 13–16, and 19–23 stand rejected under 35 U.S.C. § 102(b) as anticipated by Jones. Final Act. 3–11. II. Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Jones and Whaley. Id. at 12–14. III. Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Jones and Kakade. Id. at 14–15. ANALYSIS All of the rejections rely primarily on Jones for their requisite factual basis. It is undisputed that Jones (which, incidentally, is Appellant’s own prior work from the same inventors as this application) and the claimed invention relate to dose delivery devices for inhalation. But Appellant argues that the claimed invention includes various features related to flow paths and the structures that create them—namely, the first bypass inlet directing flow radially inwardly, the second bypass inlet directing flow longitudinally to intersect air from the second chamber outlet, and the first chamber inlet and outlet cooperatively creating crossing flow as the fluid Appeal 2018-004046 Application 13/541,261 4 flows into, around, and out of the first chamber—that are different from Jones. In short, we agree with Appellant, and we address each of these claimed features below. First Bypass Inlet (Radial Flow) Independent Claims 1, 8, and 11 (and Associated Dependent Claims) Independent claim 1 recites, in relevant part, a dose delivery device that includes a housing with an inlet and an outlet, a first chamber with an inlet and an outlet, a downstream second chamber with an inlet and an outlet, and “at least one bypass inlet through a side wall of the second chamber to allow air to bypass the first chamber and flow into the second chamber in a generally radially inward direction to induce circulatory flow in the second chamber about a longitudinal axis of the second chamber.” Appeal Br., Claims App. (emphasis added). Independent claims 8 and 11 include similar recitations with respect to the structure and function of a first bypass inlet. See id. In rejecting the claims, the Examiner relies on Jones for disclosing such a first bypass inlet that is structured and functions as claimed. Final Act. 3–4 (specifically citing the “inlet of chamfer as bypass inlet”); see also id. at 5 (including an annotated reproduction of Jones, Fig. 4B, showing the identified chambers and the chamfer). Appellant persuasively explains, however, that the Examiner’s reliance on Jones “is based on an unreasonable interpretation of claim 1 and/or an improper characterization of Jones.” Appeal Br. 16–17. In particular, Appellant points out various distinctions between the identified chamfer of Jones and the first bypass inlet recited in the claims. Id. at 17–20 Appeal 2018-004046 Application 13/541,261 5 (including reproductions of Appellant’s Figs. 3, 4C, and 4D compared with the Examiner’s annotated reproduction of Jones, Fig. 4B). Upon review of the evidence before us, we agree with Appellant that the Examiner’s reliance on the “inlet of chamfer” of Jones as disclosing the claimed first bypass inlet, including the structure and function required, is not adequately supported by the cited art. For example, we agree with Appellant that, although the chamfer of Jones may be an inlet for some bypass air to enter the second chamber, it is not an inlet “through a side wall of the second chamber,” as claimed, because it does not extend through any wall. Further, we agree with Appellant that there is no indication in Jones that air entering via the chamfer area would flow into the second chamber “in a generally radially inward direction to induce circulatory flow in the second chamber,” as claimed; rather, it appears that any such air would flow into the second chamber and continue generally longitudinally (upwardly, as depicted in Jones). In sum, for the reasons presented by Appellant regarding various distinctions as to the first bypass inlet claimed and the inlet chamfer of Jones, we agree with Appellant that Jones is deficient in establishing the factual background necessary to support the Examiner’s rejections. See Appeal Br. 17–20; see id. at 21–23 (similar arguments). Second Bypass Inlet (Longitudinal Flow) Independent Claims 10 and 11 (and Associated Dependent Claims) Independent claim 10 recites, in relevant part, a dose delivery device that includes a housing with an inlet and an outlet, a first chamber, and a downstream second chamber having an inlet, an outlet, and “a concave Appeal 2018-004046 Application 13/541,261 6 depression opposite and facing the housing inlet” including at least one opening or second bypass inlet “to direct bypass air toward the housing inlet such that the bypass air bypasses the first chamber . . . and intersects with the dose entrained air at the outlet of the second chamber.” Appeal Br., Claims App. (emphasis added). Independent claim 11 includes similar recitations with respect to a second bypass inlet, expressly stating that the inlet or opening directs air “along a longitudinal axis of the dose delivery device into the second chamber near the second chamber outlet,” such that air flow therefrom and transverse fluid flow from the second chamber outlet (which is directed radially inwardly) intersect one another. Id. (emphasis added). In rejecting the claims, the Examiner relies on Jones for disclosing such a concave depression including an opening or second bypass inlet that is structured and functions as claimed. Final Act. 7–8 (specifically citing surface 523 as the concave depression and opening 507 as the second bypass inlet therein); see also id. at 13 (citing analogous opening 407 from a different embodiment as the second bypass inlet for claim 11). Appellant persuasively explains, however, that the Examiner’s reliance on Jones for this feature is in error because sloped surface 523 “is located in the first chamber 501,” such that this identified surface is neither part of the second chamber, nor is it opposite and facing the housing inlet, as claimed. Appeal Br. 25; see id. at 24–26 (including reproductions of Appellant’s Fig. 3 compared with Jones, Fig. 5A). Further, upon review of the evidence before us, the Examiner’s reliance on elements of Jones is similarly problematic for recitations in claim 11 in that identified opening or Appeal 2018-004046 Application 13/541,261 7 second bypass inlet 407 does not direct air into identified second chamber 406, as claimed.2 In sum, for the reasons presented by Appellant regarding various distinctions as to the second bypass inlet claimed and the identified elements of Jones, we agree with Appellant that Jones is deficient in establishing the factual background necessary to support the Examiner’s rejections. See Appeal Br. 24–26. First Chamber Inlet and Outlet Creating Crossing Flow Independent Claims 1, 13, and 21 (and Associated Dependent Claims) Independent claim 1 recites, in relevant part, a dose delivery device that includes a housing with an inlet and an outlet, a first chamber with an inlet and an outlet, a downstream second chamber with an inlet and an outlet, with “fluid entering the first chamber via the first chamber inlet being arranged in an inlet direction,” and with “the first chamber, the first chamber inlet and the first chamber outlet being arranged such that fluid flowing in an outlet direction to the first chamber outlet is transverse to, and crosses, fluid flowing in the inlet direction.” Appeal Br., Claims App. (emphasis added). Independent claims 13 and 21 include similar recitations with respect to the flow direction caused by the structure of the first chamber, the first chamber inlet, and the first chamber outlet, whereby fluid entering the 2 Somewhat curiously, the Examiner identifies channels 406 as the claimed second chamber in the rejection of claim 11 (as opposed to fluid path 403 being the claimed second chamber in the rejections of other claims), presumably in an effort to account for the flow being transverse since flow through element 407 is longitudinal. As discussed above, element 403 also extends longitudinally (upwardly, as depicted in Jones). Appeal 2018-004046 Application 13/541,261 8 first chamber flows generally radially outwardly along the top of the chamber in an inlet direction, then turns down and flows back generally radially inwardly, finally turning up and (after crossing the inlet flow from underneath) exiting the first chamber in a generally longitudinal outlet direction that is transverse to the inlet direction. See id.; see also Figs. 1–3. In rejecting the claims, the Examiner relies on Jones for disclosing such a structure of the first chamber, the first chamber inlet, and the first chamber outlet so as to cause the resulting fluid flow as claimed. Final Act. 4–5 (including an annotated reproduction of Jones, Fig. 4B, and referencing the flow direction arrows thereon); see also id. at 8–11 (also referencing Jones, Fig. 4B, and additionally citing another embodiment of Jones, Figs. 6A and 6E). Again, Appellant persuasively explains that the Examiner’s reliance on Jones for this feature is in error because the rejection “is based on an unreasonable interpretation of [the claims] and/or [an] improper characterization of Jones.” Appeal Br. 26; see id. at 26–30; see also id. at 30–32 (similar arguments). In particular, Appellant points out distinctions between the disclosed flow path of Jones and the required flow path of the claimed invention. Id. at 27–30 (including reproductions of Appellant’s Fig. 2 compared with Jones, Figs. 6A, 6E, and a cross-section shown in Jones, Fig. 6B). Critically, the chamber outlet and inlet of Jones, as relied on by the Examiner, are not transverse to one another as claimed; moreover, fluid flowing in the outlet direction would not cross fluid flowing in the inlet direction as also claimed. See id. In sum, for the reasons presented by Appellant regarding various distinctions as to the arrangement of the chamber outlet and inlet, and the Appeal 2018-004046 Application 13/541,261 9 fluid flow directions resulting therefrom, between those claimed and those identified in Jones, we agree with Appellant that Jones is deficient in establishing the factual background necessary to support the Examiner’s rejections. See Appeal Br. 26–30; see id. at 30–32 (similar arguments). As discussed above, all of the rejections rely on asserted disclosures from Jones that are insufficiently supported by the evidence. For the reasons detailed above, we agree with Appellant that Jones, as relied on in the rejections, does not disclose or suggest these claimed features. We note that the obviousness rejections also rely on Whaley or Kakade for teaching other features, but not in a way that would cure the fundamental deficiencies from Jones. Accordingly, because the rejections are premised on findings that are not supported by a preponderance of the evidence, we do not sustain them. DECISION We REVERSE the Examiner’s decision rejecting claims 1–10, 13–16, and 19–23 under 35 U.S.C. § 102(b) as anticipated by Jones. We REVERSE the Examiner’s decision rejecting claims 11 and 12 under 35 U.S.C. § 103(a) as being unpatentable over Jones and Whaley. We REVERSE the Examiner’s decision rejecting claims 17 and 18 under 35 U.S.C. § 103(a) as being unpatentable over Jones and Kakade. Appeal 2018-004046 Application 13/541,261 10 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–10, 13–16, 19–23 102(b) Jones 1–10, 13–16, 19–23 11, 12 103(a) Jones, Whaley 11, 12 17, 18 103(a) Jones, Kakade 17, 18 Overall Outcome 1–23 REVERSED Copy with citationCopy as parenthetical citation