Brian T. Hazel et al.

Patent Trials and Appeals Board

Nov 26, 2019

14993582 - (D) (P.T.A.B. Nov. 26, 2019)

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.
14/993,582 01/12/2016 Brian T. Hazel 91337US01-U(15-354) 8552
52237 7590 11/26/2019
Bachman & LaPointe, P.C.
900 Chapel St., Suite 1201
New Haven, CT 06510
EXAMINER
BAREFORD, KATHERINE A
ART UNIT PAPER NUMBER
1718
MAIL DATE DELIVERY MODE
11/26/2019 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 BRIAN T. HAZEL, JESSICA L. SERRA, and XUAN LIU
_______________
Appeal 2018–008580
Application 14/993,582
Technology Center 1700
_______________
Before KAREN M. HASTINGS, CHRISTOPHER C. KENNEDY, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 2, 4–6, 9, 12–14, and 16–23 of
Application 14/993,582. See Final Office Action (mailed December 7, 2017
(“Final Act.”) 1. An oral hearing was held on November 1, 2019. We have
jurisdiction under 35 U.S.C. § 6.

1 In our Decision, we refer to Specification filed January 12, 2016 (“Spec.”)
of Application 14/999,582 (“the ’582 App.”); the Final Office Action dated
October 3, 2017 (“Final Act.”); the Appeal Brief filed April 12, 2018
(“Appeal Br.”); and the Examiner’s Answer dated June 29, 2018 (“Ans.”);
and the Reply Brief filed August 29, 2018 (“Reply Br,”).
2 We use the word “Appellant” to refer to “Applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies United Technologies Corporation as the
real party in interest. Appeal Br. 2.
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For the reasons set forth below, we AFFIRM.
BACKGROUND
The ’582 Application relates to liquid feedstock suspension and
solution plasma spray guns. Spec. ¶1. According to the Specification,
suspension plasma spray (“SPS”) is a form of plasma spray wherein a
particulate suspended in a carrier liquid is delivered to the plasma spray gun,
and solution plasma spray involved delivery of a solution to the plasma
spray gun. Id. ¶ 2. Both methods are considered liquid feedstock methods,
as distinguished from methods wherein powder is fed directly into a gun to
interact with plasma and residual carrier gas or from non-powder systems.
Id. The plasma spray guns, apparatus, and methods of the claims comprise a
plurality of liquid feedstock outlets. Appeal Br. 21–24 (Claims App.).
Claims 1 and 21 are representative of the ’582 Application’s claims
and are reproduced below from the Claims Appendix of the Appeal Brief.
1. A plasma spray gun comprising:
a plasma outlet having an axis; and
a plurality of liquid feedstock outlets having a non-
uniform distribution about said axis.
21. A plasma spray method using a plasma spray gun, the
method comprising:
discharging a plasma from a plasma outlet; and
discharging a pair of liquid feedstock streams from a pair
of liquid feedstock outlets, the liquid feedstock streams being
drawn from a single liquid feedstock source and having a non-
uniform distribution about an axis of the plasma.
Appeal Br. 21, 24 (indentation added).
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REFERENCES
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Name Reference Date
Vogts et al.
(“Vogts”)
US 3,949,266 Apr. 6, 1976
Gupta et al.
(“Gupta”)
US 4,198,442 Apr. 15, 1980
Coffee et al.
(“Coffee”)
US 4,553,702 Nov. 19, 1985
Correll et al.
(“Correll”)
US 2004/0230008 A1 Nov. 18, 2004
Mack et al.
(“Mack”)
US 2009/0110904 A1 Apr. 30, 2009
Hazel et al.
(“Hazel”)
US 2013/0224453 A1 Aug. 29, 2013
Cotler et al.
(“Cotler”)
US 2013/0270355 A1 Oct. 17, 2013
VanEvery US 2015/0086725 A1 Mar. 26, 2015
Stöver et al., New Material Concepts for the Next Generation of
Plasma-Sprayed Thermal Barrier Coatings, J. Thermal Spray
Tech., Vol. 13(1), 76–83 (2004) (hereinafter “Stöver”).
Kassner et al., Application of Suspension Plasma Spraying
(SPS) for Manufacture of Ceramic Coatings, J. Thermal Spray
Tech., Vol. 17(1), 115–123 (2008) (hereinafter “Kassner”).
REJECTIONS
On appeal, the Examiner maintains the following rejections under 35
U.S.C. § 103(a):3
1. Claims 1, 2, 4, 17, and 20 over Kassner (Final Act. 4–6);

3 Because this application was filed before the March 16, 2013, effective
date of the America Invents Act, we refer to the pre-AIA version of the
statute.
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2. Claims 5, 6, 9, and 12–14 over Kassner in view of Stöver, as
evidenced by Correll (id. at 6–8);
3. Claim 16 over Kassner in view of Cotler and Vogts (id. at 8–9);
4. Claims 18 and 19 over Kassner in view Stöver, further in view of
Mack, and for claim 18, as evidenced by Gupta (id. at 9–11);
5. Claim 16 over Kassner in view of Hazel (id. at 11–12);
6. Claims 18–20 over Kassner in view of Hazel and VanEvery (id. at
12–13);
7. Claims 21 and 22 over Kassner in view of Hazel and VanEvery,
further in view of Coffer (id. at 13–16); and
8. Claim 23 over Kassner in view of Hazel, further in view of
VanEvery and Coffee (id. at 16–18).
DISCUSSION
Ground 1: Rejection of claims 1, 2, 4, 17, and 20 as obvious over
Kassner
The Examiner determines that claims 1, 2, 4, 17, and 20 would have
been obvious over Kassner. Final Act. 4–6. Appellant argues the claims as
a group. Appeal Br. 7–14. We select claim 1 as representative. Claims 2, 4,
17, and 20 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
Regarding claim 1, the Examiner finds that Kassner discloses a
plasma spray gun comprising a plasma outlet having an axis and a plurality
of liquid feedstock outlets. Final Act. 4. The Examiner finds that Kassner
teaches two feedstock injectors used at an angle of 120 degrees that give a

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non-uniform distribution about the plasma axis of the two outlets. Id. at 5
(citing Kassner, Fig. 5 and section 3.2.1); Ans. 6. In other words, Kassner
describes using two outlets 120 degrees apart to feed a suspension in what
would be an actual application, even if used for experimental purpose. Ans.
6.
The Examiner determines that it would have been obvious to one of
ordinary skill in the art at the time of the invention to modify Kassner to
eliminate any outlets in addition to the two outlets because omission of an
element and its function is obvious if the function of the element is not
desired. Final Act. 5 (citing MPEP 2144.04(II)(A); In re Larson, 340 F.2d
965 (CCPA 1965); and In re Kuhle, 526 F.2d 553 (CCPA 1975)). The third,
unused, outlet is an element whose presence and function may be omitted
and obvious under current case law, according to the Examiner. Ans. 6–7,
12, and 13. Removal of the function of the outlet in Kassner would leave the
device functioning properly because Kassner only uses two feedstock
outlets. Id. at 13. Irrespective of other devices in the field, the operation of
the device and process used in Kassner would not be altered negatively by
the removal of an outlet. Id.
Appellant’s argument for patentability of claim 1 accuses the
Examiner of engaging in hindsight reconstruction by imposing artificial
constraints that ignore what a skilled artisan would do. See Appeal Br. 7, 8,
9, and 14. Appellant contends that Kassner discloses using spray guns with
either three outlets or a single outlet. Id. at 8. Appellant explains that when
Kassner discussed manufacturing solid oxygen fuel cells by injecting each of
two suspensions separately (Kassner, Fig. 5), Kassner used two of the three
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outlets of the spray gun for the separate injection of two suspensions; thus,
three outlets were provided, even though only two were used. Id.
According to Appellant, the Examiner provides no support or
reasoning, no teaching, suggestion, or motivation, for eliminating one of the
three outlets in Kassner, such that two outlets remain in their original
configuration of a 120 degree angle from each other (making them have a
non-uniform distribution about the axis of the plasma outlet). Id. at 9, 10.
Appellant argues that physically removing the (third) outlet rather than just
not using it imposes costs with no offsetting benefit. Id. If redesigning the
spray gun to have only two outlets, Appellant contends that the two outlets
would be made diametrically opposite, as shown in Appellant’s illustration
of a prior art device in Figure 2 of the ’582 Application. Id. Thus,
Appellant urges, the Examiner’s proposed modification frustrates the
purpose of Kassner in reusing an existing three-outlet gun for experimental
purpose. Id.
Distinguishing Larson and Kuhle, Appellant argues that changing to
asymmetric location of outlets is not akin to the mere capacity reduction as in
Larson, and a function is not being removed as in Kuhle. Id. at 10. Instead,
Appellant urges, the simpler alternative is to have just a diametrically opposed
pair of outlets. Id.
Appellant does not show reversible error by the Examiner in rejecting
claim 1 as obvious over Kassner.
We do not find persuasive Appellant’s arguments that we focus on
“the art as a whole” and statements in the Specification, rather than on the
specific prior art identified by the Examiner and the claims in issue. See
Appeal Br. 10.
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To render an invention obvious, the prior art does not have to address
the same problem addressed by a patent applicant. KSR Int'l Co. v. Teleflex
Inc., 550 U.S. 398, 419–20 (2007) (“In determining whether the subject
matter of a patent claim is obvious, neither the particular motivation nor the
avowed purpose of the patentee controls. What matters is the objective
reach of the claim. If the claim extends to what is obvious, it is invalid
under § 103.”). “One of ordinary skill in the art need not see the identical
problem addressed in a prior art reference to be motivated to apply its
teachings.” Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424
F.3d 1293, 1323, (Fed. Cir. 2005) (citing In re Oetiker, 977 F.2d 1443, 1448
(Fed. Cir. 1992); see also KSR, 550 U.S. at 418 (“[T]he [obviousness]
analysis need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ.”).
For purposes of § 103, a reference is prior art for all that it discloses.
Symbol Techs., Inc. v. Opticon, Inc., 935 F.2d 1569, 1578 (Fed. Cir. 1991).
A reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom. In re Fritch, 972 F.2d 1260, 1264–65 (Fed. Cir.
1992). The question under 35 U.S.C. § 103 is not merely what the
references teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made. All disclosures of the prior art
must be considered. In re Lamberti, 545 F.2d 747, 750 (CCPA 1976).
Kassner discloses a plasma spray gun comprising a plasma outlet
having an axis and two liquid feedstock outlets 120 degrees apart. Kassner,
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Fig. 5. Comparing Kassner’s disclosure with claim 1, we find that the claim
encompasses the prior art.
The name of the game is the claim. See In re Hiniker Co., 150 F.3d
1362, 1369 (Fed. Cir. 1998) (“The invention disclosed in Hiniker’s written
description may be outstanding in its field, but the name of the game is the
claim.”). Analysis of obviousness requires comparison of the properly
construed claim to the available prior art. Oakley, Inc. v. Sunglass Hut
International, 316 F.3d 1331, 1339 (Fed. Cir. 2003); Amazon.com, Inc. v.
Barnesandnoble.com, Inc., 239 F.3d 1343, 1351 (Fed. Cir. 2001) (“Only
when a claim is properly understood can a determination be
made . . . whether the prior art anticipates and/or renders obvious the
claimed invention.”). During prosecution, claims are given their broadest
reasonable scope consistent with the specification. In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim
must be read in light of the specification, as it would have been interpreted
by one of ordinary skill in the art at the time of the invention. Id.
Claim 1 contains the open transitional term “comprising,” which
permits elements in addition to those specified to be included in the
composition of the claim. In re Crish, 393 F.3d 1253, 1257 (Fed. Cir. 2004)
(“[I]t is well-established that ‘[c]omprising is a term of art used in claim
language which means that the named elements are essential, but other
elements may be added and still form a construct within the scope of the
claim.’”) (quoting Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed.
Cir. 1997)). “Comprising” in claim 1 permits the presence of more than two
liquid feedstock outlets in a plasma spray gun. See id. Claim 1 requires
“a plurality” of liquid feedstock outlets to have a non-uniform distribution
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about the axis of the plasma outlet. Appeal Br. 21 (Claims App.). In light of
the “comprising” language, the claim does not require all feedstock outlets
have a non-uniform distribution to each other, merely that a plurality of
feedstock outlets do.
One of ordinary skill in the art at the time of the invention would have
found it obvious to employ a plasma spray gun as shown in Kassner and
either hook up only two feedstock outlets, or remove a feedstock outlet,
either of which solution reads on claim 1 (the two feedstock outlets
employed in Kassner constitute “a plurality”). Appellant’s contention that
two feedstock outlets would have been made diametrically opposite because
they were so positioned in other prior art does not overcome Kassner’s
disclosure of two feedstock outlets 120 degrees apart. Nor does Appellant’s
position that Kassner is merely experimental negate the teaching of the
reference.
It is well settled that the omission of a feature disclosed by the prior
art along with its attendant function or advantage as a matter of simplicity
would have been obvious to one of ordinary skill in the art. See In re
Thompson, 545 F.2d 1290, 1294 (CCPA 1976) (obvious to eliminate wax
pretreatment and its function); In re Kuhle, 526 F.2d at 555 (deletion of
switch member and its function was an obvious expedient); In re Marzocchi,
456 F.2d 790, 793 (CCPA 1972) (omission of paraffin and its function
would not be an unobvious expedient); In re Larson, 340 F.2d at 969
(obvious to dispense with added cargo handling features of prior art); In re
Keegan, 331 F.2d 315, 319 (CCPA 1964) (omission of suture holder and its
function of guarding against accidental displacement was obvious); and In re
Porter, 68 F.2d 971, 973 (CCPA 1934) (no invention where omission of an
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element is attended by a corresponding omission of the function performed
by that element). Appellant has not demonstrated any unexpected result or
particular advantage to manufacturing or purchasing a two-outlet spray gun
with diametrically opposite outlets; Appellant merely posits that it would
have been more expensive to modify a three-outlet spray gun. See Appeal
Br. 9. Appellant’s argument is based on presumption, not facts. See id.
Appellant’s contention that modifying a three-outlet spray gun would
frustrate Kassner’s purpose is not convincing. See id. Appellant again
posits that Kassner’s purpose is merely to reuse an existing three-outlet
spray gun for an experiment. See id. Kassner’s purpose, however, is
employing two spray outlets for application of materials. See Kassner, Fig.
5. This purpose would not be frustrated by the Examiner’s proposed
modification because the same two outlets could be employed to apply the
materials.
Appellant fails to show reversible error in asserting that the Examiner
engages in hindsight by ignoring what “[t]he overwhelming bulk of prior art
of record” shows is also unpersuasive of reversible error. Appeal Br. 7.
While “[a]ny judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning,” “so long as it takes into
account only knowledge”—such as Kassner—which was within a skilled
artisan’s knowledge and “does not include knowledge gleaned only from
applicant’s disclosure, such a reconstruction is proper.” See In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Such is the case here.
As to Appellant’s argument that Nylen (U.S. Patent No. 7, 557,324)
(mentioned in the Final Office Action, but not a reference in the rejection) is
a “massive teaching away,” we find that it is not. Appeal Br. 12. Nylen
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merely states that “[p]referably, the nozzles (or powder ports) are evenly
distributed (at the same angular distance from each other) around the inner
periphery of the frame element.” See Appeal Br. 12. Teaching away
requires that a reference “criticize, discredit, or otherwise discourage the
solution claimed” by Appellant. In re Fulton, 391 F.3d 1195, 1201 (Fed.
Cir. 2004). Nylen’s stated “preference” falls far short of the requirements
for teaching away. See Galderma Labs., L.P., v. Tolmar, Inc., 737 F.3d 731,
738 (Fed. Cir. 2013) (A “teaching away” requires more than the mere
expression of a general preference.).
We sustain the rejection of claim 1 as obvious over Kassner. For the
same reasons, we sustain the rejection of claims 2, 4, 17, and 20.
Ground 2: Rejection of claims 5, 6, 9, and 12–14 as obvious over
Kassner in view of Stöver, as evidenced by Correll
Claim 5 depends from claim 1 and further recites, “wherein the
plurality of liquid feedstock outlets comprises a pair of liquid feedstock
outlets spaced by a nonzero angle of less than 45° about said axis.” Appeal
Br. 21 (Claims Appendix). Claims 6, 9, and 12–14 depend from claim 5. Id.
at 21–23.
The Examiner finds that Kassner describes using a pair of outlets at an
angle of 120 degrees, and applying a different material from each of the
outlets. Final Act. 6. Stöver, the Examiner finds, describes how composited
materials of two different materials can be thermally sprayed as a mixture, or
applied as co-sprayed with two injectors located on opposite sides. Id. The
Examiner finds that Stöver teaches the desirability to provide a small
angle—such as 10°—between particle jets to give a more homogeneous
distribution of materials and avoid alternating layers of two materials created
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when trajectories of the particle jets diverge after crossing in the plasma
flame. Id. at 6–7. The Examiner finds that Correll evidences how co-
spraying with a single device is understood to be providing a single device
with two or more separate feed streams of different material, thus Stöver is
understood to describe spraying one material from one injector and the other
material from the other injector. Id. at 7. The Examiner concludes that it
would have been obvious to one of ordinary skill in the art to modify
Kassner with the teaching of Stöver and Correll to provide co-spraying of
two different materials from two injector outlets set at a small angle to each
other in order to provide a more homogeneous distribution of different
materials. Id.
The Examiner finds that Stöver as evidenced by Correll indicates that
outlet angles are result effective variables. Id. The Examiner finds that the
references would suggest to one of ordinary skill in the art to optimize the
angle between outlets to obtain a desirable coating, such angles being in the
ranges claimed in claims 5, 12, and 13. Id. The Examiner finds that
Stöver’s disclosure would apply to suspension plasma spraying, as both
Stöver and Kassner feedstock include particles injected into plasma. Id. at
7–8.
Appellant argues that Stöver as evidenced by Correll does not cure the
deficiencies of Kassner. Appeal Br. 14. Appellant contends that no basis
exists for assuming that the two different specific materials (glass and metal)
in Stöver have the same interaction as two liquid suspensions. Id. at 16.
Appellant also argues that the Examiner’s rationale (providing a more
homogeneous distribution of two different materials) does not apply to two
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streams of the same material, discussed further in Appellant’s response to
the rejections in Grounds 7 and 8. Id. at 15.
Appellant’s reliance on the December 4, 2017, Declaration of Brian T.
Hazel (“Hazel Decl.”), a co-inventor on the ’580 Application, is
unpersuasive of reversible error in the rejection. See Reply Br. 22; see also
Hazel Decl. § 15. We agree with the Examiner that claims 5, 6, 9, and 12–
14 do not require use of two flows of a single material, or prevent use of
different materials, for each of the two outlets streams. See Ans. 15.
Therefore, the skilled artisan would have been motivated to combine the
modified device of Kassner with the narrower outlet angle of Stöver to
provide a more homogeneous distribution of materials from the outlets.
Both Kassner and Stöver teach the desirability of homogeneity of the
deposited streams. See Kassner 118; see also Stöver 81. In addition, Stöver
teaches that the industrially available bond coat powder and ordinary white
container glass chosen were adapted for use with plasma spraying. Stöver
80.
As to Appellant’s argument that no basis exists for assuming that the
two different specific materials (glass and metal) in Stöver have the same
interaction as two liquid suspensions, we note that the rejected claims are not
limited to liquid suspensions. See Appeal Br. 21–23.
We sustain the rejection of claims 5, 6, 9, and 12–14 as obvious over
Kassner in view of Stöver, as evidenced by Correll.
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Ground 3: Rejection of claim 16 as obvious over Kassner in view of
Cotler and Vogts
Claim 16 depends from claim 1:4
16. A plasma spray apparatus including the plasma spray gun
of claim 0 [sic] and further comprising:
a suspension or solution supply line coupled to the
plasma spray gun;
a suspension of solution supply coupled to the suspension
of solution supply line;
a carrier gas supply coupled to the plasma spray gun; and
a power line coupled to the plasma spray gun.
Appeal Br. 23 (Claims App.).
The Examiner finds that Kassner teaches providing suspension
through outlets (injectors) attached to a spray gun. Final Act. 9. The
Examiner finds that Cotler teaches that it was conventional to provide a
suspension supply coupled to a suspension supply line coupled to an
injector. Id. The Examiner determines that it would have been obvious to
one of ordinary skill in the art at the time of the invention to modify Kassner
to be coupled to a suspension supply line coupled to an injector, as taught by
Colter, in order to provide a desirable supply of feedstock. Id. at 8–9.
The Examiner finds that Vogt discloses that plasma spray guns are
conventionally provided with coupled carrier gas supplies and power lines.
Id. at 9. The Examiner concludes that it would have been obvious to the
skilled artisan to modify Kassner in view of Cotler to provide a carrier gas

4 In the Claims Appendix to the Appeal Brief, claim 16 recites “the plasma
spray gun of claim 0,” but this appears to be a typographical error based on
the originally filed version of claim 16, which depends from claim 1.
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supply and a power line because Kassner provides use of a plasma spray gun
and Vogt discloses that plasma sprays conventionally have a power line and
gas supply coupled to the spray gun. Id.
Appellant merely argues that the Examiner’s assertions do not cure
the deficiencies in Ground 1 (obviousness over Kassner). Appeal Br. 16; see
also Reply Br. 22.
Having found no deficiencies in Kassner in Ground 1, supra, we
sustain the rejection of claim 16 as obvious over Kassner in view of Cotler
and Vogt.
Ground 4: Rejection of claims 18 and 19 as obvious over Kassner in
view of Stöver and Correll, and further in view of Mack and Gupta
Claims 18 and 19 depend from claim 17. We sustained the rejection
of claim 17 as obvious over Kassner in Ground 1 supra. Claims 18 and 19
recite that the method of claim 17 is used to apply a coating to a part
wherein (1) the part comprises a nickel-based superalloy substrate (claim
18), or (2) the part is a gas turbine engine component (claim 19). Appeal Br.
23–24 (Claims App.).
The Examiner finds, inter alia, that Mack teaches that glass-metal
composites can be desirably applied as part of forming thermal barrier
coatings on gas turbine engine components, and the substrate can be a
superalloy. Final Act. 10. The Examiner finds that Gupta provides a nickel
base superalloy. Id. The Examiner concludes that it would have been
obvious to one of ordinary skill in the art at the time of the invention to have
modified Kassner in view of Stöver, as evidenced by Correll, to apply glass-
metal composites to nickel base superalloy and gas turbine engine
components, as suggested by Mack and evidenced by Gupta. Id. More
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specifically, the Examiner concludes that Kassner in view of Stöver and
Correll would have indicated how mixed material coatings could be applied
using two injectors, one for each component, and Stöver would have
indicated such material could be a glass-metal composite. Id. Further, the
Examiner concludes that Mack and Gupta would have indicated applying
composites such as nickel bas superalloys to gas turbine engine components.
Id. at 10–11.
Appellant merely argues that the Examiner’s assertions do not cure
the deficiencies in Ground 1 or Ground 2. Appeal Br. 16; see also Reply Br.
22.
Having sustained the rejections in Grounds 1 and 2, we sustain the
rejection of claims 18 and 19 as obvious over Kassner in view of Stöver and
Correll, and further in view of Mack and Gupta.
Ground 5: Rejection of claim 16 as obvious over Kassner in view of
Hazel
Claim 16 was reproduced in the discussion of Ground 3 supra. In this
rejection, the Examiner’s findings regarding Kassner’s disclosure are the
same as in Ground 3. Compare Final Act. 8–9 and 11. With regard to
Hazel, the Examiner finds that Hazel shows that it was conventional to
provide a suspension supply coupled to a suspension supply line coupled to
a spray gun, also coupled to a power line and gas supply. Id. at 11–12.
As in Ground 3, here Appellant merely argues that the Examiner’s
assertions do not cure the deficiencies in Ground 1. Appeal Br. 17; see also
Reply Br. 22.
Having sustained the rejection in Ground 1 and 2, we sustain the
rejection of claim 16 as obvious over Kassner in view of Hazel.
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Ground 6: Rejection of claims 18–20 as obvious over Kassner in
further of Hazel and VanEvery
Claims 18–20 depend from claim 17. Appeal Br. 23–24 (Claims
App.). Claims 18 and 19 were discussed in Ground 4 supra. Claim 20
recites that the method of claim 17 is used to apply a coating to a part
wherein the coating is a stabilized zirconia. Id. at 24.
The Examiner’s findings regarding Kassner as it applies to claim 17
were previously discussed. The Examiner finds that Hazel describes how
stabilized zirconia coatings can be applied by suspension plasma spraying
desirably onto gas turbine engine components and nickel base superalloys.
Final Act. 12. The Examiner finds that VanEvery provides that larger
volumes of feedstock can be injected with increased output is desirable in
plasma spraying. Id. The Examiner concludes that it would have been
obvious to one of ordinary skill in the art at the time of the invention to
modify Kassner to provide application of stabilized zirconia coatings to
nickel base superalloys and gas turbine engines as suggested by Hazel in
order to provide a desirable coated article. Id. at 12–13. The Examiner also
concludes that it would have been obvious to modify Kassner to apply
stabilized zirconia coatings using multiple nozzles described in Kassner to
increase coating output as suggested by VanEvery. Id. at 13.
Appellant argues first that the Examiner misuses a three-outlet system
disclosed in Kassner configured to discharge three streams of the same
material to discharge two streams of two different substances. Appeal Br.
17. Appellant contends that Kassner discharges two different streams for a
limited experimental purpose. Id. Appellant then argues that the Examiner
modifies Kassner back in a different way to discharge identical streams,
defeating the purpose of starting with Kassner. Id. Appellant contends that
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the Examiner’s findings ignore the teaching of the art as a whole, as well as
that of the references. Id.
Appellant contends that VanEvery identifies diametrically opposite
feedstock injectors, which, combined with Kassner’s three-outlet device,
fails to suggest an asymmetric two-outlet system. Id.
Appellant fails to show reversible error in the rejection. Kassner
discloses successful use of two feedstock outlets separated by 120 degrees.
See Kassner Fig. 5. Hazel describes spraying stabilized zirconia coatings on
gas turbine engines or nickel-based superalloy by suspension plasma
spraying. See Hazel §§ 1, 3, 5, and 16. VanEvery discloses spraying a
single material from multiple feedstock injectors. VanEvery ¶ 37.
VanEvery’s disclosure of a preferred embodiment having feedstock injectors
located opposite to each other does not negate Kassner’s teaching of two
outlets at an angle of 120 degrees. Appellant’s argument that the Examiner
misuses the three-outlet system disclosed in Kassner is unavailing, as
Kassner clearly shows use of only two outlets asymmetrically located. The
Examiner provides sufficient rationale for combining the references, i.e., to
increase output of a plasma sprayer system. The Examiner’s explanation of
the reasons a person of ordinary skill in the art would have had to combine
the prior art teachings is sufficient when an allowance is made for “the
inferences and creative steps that a person of ordinary skill in the art would
employ.” KSR, 550 U.S. at 418.
We sustain the rejection of claims 18–20 as obvious over Kassner in
view of Hazel and VanEvery.
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Group 7: Rejection of claims 21 and 22 over Kassner in view of Hazel
and VanEvery, and further in view of Coffee
Claim 21 is independent and recites:
21. A plasma spray method using a plasma spray gun, the
method comprising:
discharging a plasma from a plasma outlet; and
discharging a pair of liquid feedstock streams from a pair
of liquid feedstock outlets, the liquid feedstock streams being
drawn from a single liquid feedstock source and having a non-
uniform distribution about an axis of the plasma.
Appeal Br. 24 (Claims App.). Claim 22 depends from claim 21, and further
requires that “a flowpath from the single liquid feedstock source branches
out to feed the pair of liquid feedstock outlets.” Id.
The Examiner finds that Kassner teaches a plasma spray gun
comprising a plasma outlet and discharging liquid feedstock streams from a
pair of outlets having non-uniform distribution about an axis of the plasma.
Final Act. 13–14. As in Ground 6, the Examiner finds that Hazel and
VanEvery teach applying a single coating with a plasma spray gun with
increased coating output. Id. at 14. The Examiner finds that Coffee
discloses providing one liquid supply source through a flowpath that
branches to outlets. Id. at 15. The Examiner concludes that it would have
been obvious to one of ordinary skill in the art at the time of the invention to
modify the device disclosed in Kassner to include a single liquid feedstock
source that branches out to feed a pair of liquid feedstock outlets as
suggested by Coffee. Id. at 16.
Appellant argues that the Examiner has not cured the deficiencies in
Grounds 1 and 6. Appeal Br. 18. Appellant contends that Coffee involves
an agricultural sprayer, thus is not in Applicant’s field of endeavor and not
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reasonably pertinent to Applicant’s problem. Id. at 19. Appellant urges that
it is known to supply suspension plasma sprays in symmetric patterns from
multiple outlets being fed from one source. Id.
We addressed the combination of Kassner, Hazel, and VanEvery in
Ground 6 supra. Here, we agree with the Examiner that Coffee is analogous
art to the claimed invention.
“Whether a reference in the prior art is ‘analogous’ is a fact question.”
In re Clay, 966 F.2d 656, 658 (Fed. 1992). The scope of analogous art is to
be construed broadly. Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed.
Cir. 2010) (“The Supreme Court’s decision in KSR . . . directs us to construe
the scope of analogous art broadly, stating that familiar items may have
obvious uses beyond their primary purposes, and a person of ordinary skill
often will be able to fit the teachings of multiple patents together like pieces
of a puzzle.”). To label a reference as analogous art “merely connotes that it
is relevant to a consideration of obviousness under [section] 103 as ‘prior
art.’” In re Sovish, 769 F.2d 738, 742 (Fed. Cir. 1985).
Our reviewing court has stated that “[t]wo separate tests define the
scope of analogous prior art: (1) whether the art is from the same field of
endeavor, regardless of the problem addressed[;] and (2) if the reference is
not within the field of the inventor’s endeavor, whether the reference still is
reasonably pertinent to the particular problem with which the inventor is
involved.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (citations and
internal quotes omitted). Art is “reasonably pertinent” when it would
“logically commend itself” to an inventor’s attention in considering his
problem. In re Icon Health and Fitness, Inc., 496 F.3d 1374, 1379–80 (Fed.
Cir. 2007) (citing Clay, 966 F.2d at 658–59).
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In the case at bar, we agree with the Examiner that Coffee is
reasonably pertinent to Appellant’s problem because the reference describes
how liquids conventionally can be fed from one material source to multiple
outlets, while Appellant is similarly concerned with providing single sources
of suspensions to multiple feedstock outlets. See Ans. 21. Moreover,
Appellant acknowledges that it was known to supply suspension plasma
sprays in symmetric patterns from multiple outlet being fed from one source.
See Appeal Br. 19. The skilled artisan seeking to deliver a feedstock to
multiple outlets would logically look to art broader than that of plasma spray
systems, and find Coffee’s disclosure of a single source of material feeding
multiple outlets because Coffee addresses the same problem. See Icon
Health and Fitness, 496 F.3d at 1379–80.
We sustain the rejection of claims 21 and 22 as obvious over Kassner
in view of Hazel and VanEvery, and further in view of Coffee.
Ground 8: Rejection of claim 23 over Kassner in view of Hazel, and
further in view of VanEvery and Coffee
Claim 23 depends from claim 16, and further recites, “the suspension
of solution supply line branches out from the suspension of solution supply
to the plurality of liquid feedstock outlets.” Appeal Br. 24 (Claims App.).
The Examiner makes the same findings regarding Kassner and Hazel
as in Ground 3 supra. Final Act. 16. The Examiner makes the same
findings regarding Hazel, VanEvery, and Coffee as in Ground 7 supra.
Compare id. at 14–15 with 17. The Examiner determines that it would have
been obvious to one of ordinary skill in the art at the time of the invention to
modify the device in Kassner in view of Hazel and VanEvery to provide a
single supply for liquid feedstock to be sprayed to achieve an increased
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output of feedstock. Id. The Examiner concludes that it would have been
obvious to provide a supply line from a single liquid source that branches
out to feed a plurality of liquid feedstock outlets as suggested by Coffee,
which, like VanEvery, uses multiple outlets. Id.
Appellant argues that the rejection in Ground 8 fails to cure the
deficiencies in Grounds 1 and 6. Appeal Br. 20.
For the reasons provided in our discussion of the rejections in
Grounds 1 and 6, Appellant’s arguments do not show reversible error. We
sustain the rejection of claim 23 as obvious over Kassner in view of Hazel,
further in view of VanEvery and Coffee.
Hazel Declaration
Appellant refers to, but does not elaborate on, sections of the Hazel
Declaration in multiple places in the Appeal Br. See, e.g., Appeal Br. 10,
12, 14, and 16. We here separately address the Hazel Declaration.
In section 11, Mr. Hazel states “if one were designing a gun for
injection of YSZ and LSM described in Kassner, one would not provide the
two outlets at the 120° angle and remove the third but rather would use a
conventional diametrically opposed two-outlet configuration.” Hazel Decl.
§ 11. However, Mr. Hazel provides no analysis or factual support as to why
one of skill in the art would use a diametrically opposed two-outlet
configuration, other than that such plasma spray guns were known in the art.
See id. Mr. Hazel does not address Kassner’s use of two outlets in a plasma
spray gun wherein the two outlets are separated by 120 degrees. We do not
find this portion of the declaration sufficient to overcome the teachings of
the art.
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Section 13 of the declaration states that the Nylen reference “is clear
teaching away.” Hazel Decl. § 13. Such testimony is conclusory and
inadequately supported by factual evidence, thus entitled to little weight.
See In re Chilowsky, 306 F.2d 908 (CCPA 1962).
We consider Mr. Hazel’s testimony that Nylen teaches an even
distribution of nozzles (outlets), but find that it does not overcome the
teaching of the prior art cited by the Examiner. See id.
Mr. Hazel also quotes Zimmermann: “To benefit from the triple
symmetry [], it is preferable to select three injectors arranged in a way that
maximum energy of the three arcs is used for melting and accelerating the
powder.” Id. (quoting Zimmermann, 170). Mr. Hazel testifies that the
relationship (of three injectors and three arcs) reflects the general knowledge
in the art and practice of the Triplex manufacturer for the correlation
between three cathodes and three outlets. Id. Mr. Hazel then testifies that
Zimmermann teaches away from the Examiner’s proposal. Id.
We consider Mr. Hazel’s testimony that the general knowledge in the
art correlates three outlets and three cathodes. However, the weight to be
given Mr. Hazel’s conclusion is limited to Zimmermann’s discussion of the
specific configuration of three cathodes and three outlets. Mr. Hazel does
not address the disclosure in Kassner, which is the primary reference at issue
before us, and the Examiner does not rely on Zimmermann in the rejections.
In section 14 Mr. Hazel indicates that removing third outlet in Kassner
“appears to be an absurd artificial constraint,” and that Kassner did not teach
any desirability of a 120 degree spacing outlets. Id. § 14. Mr. Hazel testifies
that Zimmermann teaches that three in-use powder outlets have a synergistic
relationship with the three cathodes, but that this does not constitute a
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teaching of some advantageous property of 120 degrees for a two-outlet
configuration. Id. We note that the Examiner does not rely on Zimmermann
for teaching two outlets separated by 120 degrees. See, e.g., Final Act. 4–5.
Mr. Hazel’s testimony as to what Zimmermann does not teach does not
outweigh the Examiner’s findings in relation to Kassner.
Mr. Hazel testifies in section 15 that the Examiner committed clear
error in finding that Stöver would be understood to apply to suspension
plasma spraying. Id. § 15. Such testimony is on a legal conclusion, thus
entitled to no weight.
In section 16, Mr. Hazel quotes the Examiner’s findings regarding the
Hazel and VanEvery references, and testifies that the Examiner “appears to
require Applicant to prove impossibility rather than massive teaching away
and other logical flows.” Id. § 16. Mr. Hazel provides no analysis or factual
support for his conclusion.
Finally, in section 17, Mr. Hazel testifies that Coffee involves an
agricultural sprayer on a tractor, and that it “is not the art of anything else at
issue and has no relevance thereto.” Id. § 17. We consider Mr. Hazel’s
testimony, but decline to let it guide us on the issue of relevance.
We have discretion to give more weight to one item of evidence over
another “unless no reasonable trier of fact could have done so.” Yorkey v.
Diab, 601 F.3d 1279, 1284 (Fed. Cir. 2010); see also In re American
Academy of Science Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (“[T]he
Board is entitled to weight the declarations and conclude that the lack of
factual corroboration warrants discounting the opinions expressed in the
declarations.”); and Velander v. Garner, 348 F.3d 1359, 1371 (Fed. Cir.
2003) (“In giving more weight to prior publications than to subsequent
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conclusory statements by experts, the Board acted well within [its]
discretion.”). Conclusory statements in a declaration is entitled to little
weight. In re Lindner, 457 F.2d 506, 508 (CCPA 1972) (“[M]ere conclusory
statements in the [S]pecification and affidavits are entitled to little weight
when the Patent Office questions the efficacy of those statements.”); see also
In re Oelrich, 579 F.2d 86, 91 (CCPA 1978) (In assessing the probative
value of declaratory evidence, one must consider the nature of the matter
sought to be established as well as the strength of the opposing evidence.).
A declaration that primarily characterizes the experts opinion about what the
references says without providing additional technical analysis is insufficient
to supplant its actual teachings. Moreover, an affidavit by a co-applicant as
to the advantages of his invention is less persuasive than one made by a
disinterested person. See In re Bulina, 362 F.2d 555, 559 (CCPA 1966).
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Basis Affirmed Reversed
1, 2, 4, 17,
20
103(a Kassner 1, 2, 4, 17, 20
5, 6, 9,
12–14
103(a) Kassner, Stöver,
Correll
5, 6, 9, 12–14
16 103(a) Kassner, Cotler,
Vogts
16
18, 19 103(a) Kassner, Stöver,
Correll, Mack,
Gupta
18, 19
16 103(a) Kassner, Hazel 16
18–20 103(a) Kassner, Hazel,
VanEvery
18–20
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21, 22 103(a) Kassner, Hazel,
VanEvery, Coffee
21, 22
23 103(a) Kassner, Hazel,
VanEvery, Coffee
23
Overall
Outcome

1, 2, 4–6, 9,
12–14, 16–23

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED