Andrew Jones et al.

Patent Trials and Appeals Board

Mar 19, 2021

2018004046 (P.T.A.B. Mar. 19, 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.
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

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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

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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
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Application 13/541,261

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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
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(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
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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
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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).
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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
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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

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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