Ex Parte Arik et al

Patent Trial and Appeal Board

Jan 22, 2018

14220326 (P.T.A.B. Jan. 22, 2018)

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.
14/220,326 03/20/2014 Mehmet Arik 225442-13 (GEL8083.218) 6877
62204 7590 01/24/2018
GE GLOBAL PATENT OPERATION
GE LICENSING (62204)
901 MAIN AVENUE
NORWALK, CT 06851
EXAMINER
HWU, DAVIS D
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
01/24/2018 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):
rlt @ zpspatents. com
docket@fyiplaw.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MEHMET ARIK and WILLIAM EDWARD BURDICK JR.
Appeal 2016-008423
Application 14/220,326
Technology Center 3700
Before BRETT C. MARTIN, ANNETTE R. REIMERS, and
THOMAS F. SMEGAL, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Mehmet Arik and William Edward Burdick Jr. (Appellants) seek our
review under 35 U.S.C. § 134 of the Examiner’s rejections1 under 35 U.S.C.
§ 103(a) of claims 1—6 as unpatentable over Glezer (US 2006/0185822 Al,
pub. Aug. 24, 2006) and Hess (US 2009/0084867 Al, pub. Apr. 2, 2009);
under 35 U.S.C. § 102(a) of claims 7, 8, 10-14, and 16—20 as anticipated by
Yokomizo (US 2006/0281398 Al, pub. Dec. 14, 2006); and under 35 U.S.C.
1 Appeal is taken from the adverse decision of the Examiner, initially set
forth in the Final Office Action, dated September 29, 2015 (“Final Act.”),
and as modified in the Answer dated July 7, 2016 (“Ans.”).
Appeal 2016-008423
Application 14/220,326
§ 103(a) of claims 9 and 15 as unpatentable over Yokomizo.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM—IN—PART.
CLAIMED SUBJECT MATTER
Claims 1, 7, and 13 are independent claims. Claims 1 and 7 are
reproduced below and illustrate the claimed subject matter, with disputed
limitations emphasized.
1. A synthetic jet actuator comprising:
a first plate and a second plate spaced apart from one
another;
a housing positioned about the first and second plates and
defining a chamber, the housing having at least one orifice
formed in the housing such that the chamber is in fluid
communication with an external environment;
an actuator element coupled to at least one of the first and
second plates to selectively cause deflection thereof so that fluid
is projected out of the at least one orifice of the housing; and
a mounting mechanism to mount the first and second
plates within the housing, the mounting mechanism comprising:
a plurality of female connectors on opposing end
surfaces of each of the first and second plates; and
a plurality of male connectors extending inward
from the housing and configured to engage the female
connectors.
7. A synthetic jet actuator comprising:
a housing defining a chamber, the housing having an
orifice formed therein such that the chamber is in fluid
communication with an external environment;
2 In the Examiner’s Answer, the Examiner withdrew the double patenting
rejection of claims 7—20. Ans. 3^4.
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Appeal 2016-008423
Application 14/220,326
a first plate and a second plate spaced apart from one
another and positioned within the housing;
an actuator element coupled to at least one of the first and
second plates to selectively cause deflection thereof so that fluid
is projected out of the at least one orifice of the housing; and
a mounting mechanism to mount the first and second
plates within the housing, the mounting mechanism providing an
interference fit arrangement between the first plate and the
housing, and an interference fit arrangement between the second
plate and the housing.
ANALYSIS
Obviousness of Claims 1—6 over Glezer and Hess
We are persuaded by Appellants’ arguments that the Examiner erred
in rejecting claims 1—6 over Glezer and Hess. See App. Br. 3—10; Reply Br.
2-6.
The Examiner determines that Glezer discloses a synthetic jet actuator
with all the limitations of claim 1 except that Glezer does not disclose the
mounting mechanism as recited, and looks to Hess for teaching a droplet
spray system including “a male and female combination of rivets 15.” Ans.
2. The Examiner reasons that it would have been obvious “to have used
male and female connectors as taught by Hess [] to connect the plates to the
housing at extensions 91-94 of the housing [of Glezer].” Id. (referring to
Glezer, Fig. 8). The Examiner also points out that “[i]t is known in the art
that there are various types of rivets including a ‘capped rivet’ which
comprises a male part (a pin) fitted into a female part,” and that “[s]uch a
rivet could be used to hold the parts of Glezer [] together.” Id. at 4.
In contesting the Examiner’s rejection of claim 1 as obvious over
Glezer and Hess, Appellants explain that
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Appeal 2016-008423
Application 14/220,326
while Glezer may teach the general structure of a synthetic jet
actuator and Hess may teach the use of rivets as fasteners, the
combined teachings of Glezer and Hess. . . does not teach or
suggest the specifically claimed elements of claim 1 regarding a
plurality of female connectors on opposing end surfaces of each
of the first and second plates and a plurality of male connectors
extending inward from the housing and configured to engage the
female connectors.
App. Br. 6.
In response, the Examiner contends that “[t]he plates and their
respective platforms would be drilled to form through holes and the pin
would be inserted into the holes and capped, wherein this method is well
known in connecting various parts together.” Ans. 2—3.
However, we agree with Appellants that “[w]ere capped rivets to be
incorporated into Glezer to secure the plates 98, 99 therein to the upper and
lower platforms 91, 92 and 93, 94,” that “the male connectors of the rivets
would be located on the bottom surface of the platforms 91, 92. . . and
oriented such that they [would] extend vertically through a thickness of the
platforms 91, 92 and plate 98 to mate with respective female connectors.”
Reply Br. 3.
“The mere fact that the prior art may be modified in the manner
suggested by the Examiner does not make the modification obvious unless
the prior art suggested the desirability of the modification.” In re Fritch,
972 F.2d 1260, 1266 (Fed. Cir. 1992) (citing In re Gordon, 733 F.2d 900,
902 (Fed. Cir. 1984)). Here, the Examiner fails to provide a persuasive
reason for modifying Glezer by employing the rivets of Hess to mount the
plates in the housing. Absent some articulated rationale for doing so, the
Examiner’s conclusory assertion is inadequate to support a conclusion of
obviousness. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
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Appeal 2016-008423
Application 14/220,326
The Examiner has the initial burden of supplying the requisite factual basis
and may not, because of doubts that the invention is patentable, resort to
speculation, unfounded assumptions, or hindsight reconstruction to supply
deficiencies in the factual basis. See also In re Warner, 379 F.2d 1011, 1017
(CCPA 1967) (holding that “[t]he legal conclusion of obviousness must be
supported by facts. [] Where the legal conclusion is not supported by facts it
cannot stand.”).
For the foregoing reasons, we do not sustain the Examiner’s rejection
of claims 1—6 over Glezer and Hess.
Anticipation of claims 7, 8, 10—14, and 16—20 by Yokomizo
Claims 7, 10—13, and 16—20
Appellants argue claims 7, 10—14, and 16—20 together in contesting
the rejection of these claims as anticipated by Yokomizo. App. Br. 10—14;
Reply Br. 6—7. We select claim 7 as the representative claim for this group,
and the remaining claims stand or fall with claim 7. 37 C.F.R. §
41.37(c)(l)(iv).
The Examiner finds that Yokomizo discloses a synthetic jet actuator
with all the limitations of claim 7 including spaced first and second plates
(18) within a housing (1) with an orifice (lb) and a “mounting mechanism
[5a and 5b] providing an interference fit between the first plate and the
housing and the second plate and the housing.” Final Act. 3.
In contesting the Examiner’s rejection of claim 7 as anticipated by
Yokomizo, Appellants contend that “a teaching of an interference fit
between actuators 5 a and 5 b and the housing 1 would not teach an
interference fit between a first plate 18 and the housing 1 and between a
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Appeal 2016-008423
Application 14/220,326
second plate 18 and the housing 1 as called for in the claims — as actuators
5a and 5b are clearly not ‘plates.’” App. Br. 13—14.
In response, the Examiner explains that “plates 18 [of Yokomizo] are
mounted in part 9 of 5a and 5b via an interference fit, and part 9 is within the
housing, thus meeting the claim language,” reasoning that “[t]he claims do
not specifically recite the plates being directly connected to the housing.”
Ans. 4—5.
Appellants reply that
even if the plates 18 in Yokomizo are mounted in part 9 of 5a
and 5b via an “interference fit,” Yokomizo would at best teach
that disc-shaped yoke 18 is mounted in coil bobbin 9 via an
interference fit, but would not teach a mounting mechanism that
provides an interference fit arrangement between the disc-shaped
yoke 18 and the casing/housing 1.
Reply Br. 7.
However, we agree with the Examiner that the presence of additional
structures in Yokomizo does not undermine a rejection where the claim
defines the invention using the open-ended term “comprising.” See Exergen
Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1319 (Fed. Cir. 2009) (“The
claim uses the term ‘comprising,’ which is well understood in patent law to
mean ‘including but not limited to.’” (quoting CIAS, Inc. v. Alliance Gaming
Corp., 504 F.3d 1356, 1360 (Fed. Cir. 2007)).
For the foregoing reason, we discern no error in the Examiner’s
findings and agree that Yokomizo anticipates claims 7, 10—13, and 16—20.
Claims 8 and 14
We are persuaded by Appellants’ arguments that the Examiner erred
in rejecting claims 8 and 14 as anticipated by Yokomizo. App. Br. 14—15;
Reply Br. 7—8.
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Application 14/220,326
Appellants point out that, “[i]n rejecting claims 8 and 14, the
Examiner did not specifically address any of the elements called for therein
— i.e., the mount mechanism comprising point-contact holders,” further
explaining that “there is no teaching in Yokomizo of a mounting mechanism
that includes point-contact holders.” App. Br. 14—15.
In response, the Examiner contends that “[Regarding claim 8, the
inside surface of the bobbin 9 is a point-contact holder forming an
interference fit with the plates 18.” Ans. 5. However, the Examiner
misreads Yokomizo. We agree with Appellants that “there is no disclosure
in Yokomizo of the inside surface of the bobbin 9 forming an interference fit
with the plates 18.” Reply Br. 8.
For the foregoing reason, we do not sustain the Examiner’s rejection
of claims 8 and 14 as anticipated by Yokomizo.
Obviousness of Claims 9 and 15 over Yokomizo
The rejection of claims 9 and 15 over Yokomizo, which depend
respectively from claims 8 and 14, is based on the same unsupported
findings discussed above with respect to Yokomizo and must be reversed for
the same reason.
DECISION
We REVERSE the Examiner’s rejection of claims 1—6 under 35
U.S.C. § 103(a) as obvious over Glezer and Hess.
We AFFIRM the Examiner’s rejection of claims 7, 10—13, and 16—20
under 35 U.S.C. § 102(a) as anticipated by Yokomizo.
We REVERSE the Examiner’s rejection of claims 8 and 14 under 35
U.S.C. § 102(a) as anticipated by Yokomizo.
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Appeal 2016-008423
Application 14/220,326
We REVERSE the Examiner’s rejection of claims 9 and 15 under 35
U.S.C. § 103(a) as unpatentable over Yokomizo.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-fN—PART
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