Ex Parte Asokan et alDownload PDFPatent Trial and Appeal BoardDec 23, 201311735673 (P.T.A.B. Dec. 23, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte THANGAVELU ASOKAN, GOPICHAND BOPPARAJU, and ADNAN KUTUBUDDIN BOHORI ____________________ Appeal 2012-001132 Application 11/735,673 Technology Center 3700 ____________________ Before: GAY ANN SPAHN, JOHN W. MORRISON, and NINA L. MEDLOCK, Administrative Patent Judges. MORRISON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-001132 Application 11/735,673 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1-3, 5-14, and 16-20 under 35 U.S.C. § 103(a) as being unpatentable over Witherspoon (US 6,001,426, issued Dec. 14, 1999), Britt (US 3,977,191, issued Aug. 31, 1976), and Brunet (US 6,740,841 B2, issued May 25, 2004). We have jurisdiction under 35 U.S.C. § 6(b). We reverse. CLAIMED INVENTION Claim 1, reproduced below, with emphasis by italics added, is illustrative of the claimed subject matter: 1. An ablative plasma gun comprising: a cup of ablative material forming a generally cylindrical chamber with an open end and a closed end; a first gun electrode having a distal end extending through the cup proximate the open end of the chamber; a second gun electrode having a distal end extending through the cup proximate the closed end of the chamber and diagonally opposite the first gun electrode; and a cover enclosing at least a portion of the cup and forming a divergent nozzle for the open end of the chamber. Br., Clms. App’x. Independent claim 13 is directed to “[a}n apparatus” including, inter alia, “an ablative plasma gun . . . , wherein the ablative plasma gun comprises a chamber with an open end, a closed end, and walls made of an ablative material. Id. Emphasis by italics added. Appeal 2012-001132 Application 11/735,673 3 ANALYSIS Addressing claim 1’s limitation of “a cup of ablative material forming a generally cylindrical chamber with an open end and a closed end,” and claim 13’s limitation of “a chamber with an open end, a closed end, and walls made of an ablative material,” the Examiner finds that Witherspoon discloses “a cup of ablative material . . . , i.e.[,] ablative plastic liner,” having “a generally cylindrical chamber 3 (fig. 1A) with an open end 11 (fig. 1A), and a closed end (see figure 1A, i.e.[,] the opposite end of open end (11)[)].” Ans. 4-5 (citing Witherspoon, col. 5, ll. 33-49 and col. 7, ll. 55-56); see also Witherspoon, col. 10, ll. 35-41. The Examiner further finds that Witherspoon substantially discloses the remainder of the recited claim limitations, “except for the distal ends of the gun electrodes extending through the walls of the cup or chamber; [and] a cover enclosing at least a portion of the cup.” Ans. 6. The Examiner then finds that Brunet “teaches a cover 3 (fig. 1) enclosing at least a portion of the cup.” Ans. 7 (citing Brunet, col. 2, l. 64-65). The Examiner further finds that Britt “teaches the distal ends of the gun electrodes 2/3/4 (fig. 1) extending through the walls of the cup or chamber 1.” Ans. 7 (citing Britt, Fig. 1 and col. 2, ll. 48-50). The Examiner concludes: it would have been obvious . . . to modify Witherspoon [] with a cover enclosing at least a portion of the cup; the cover is made of the same material; and wherein the ablative polymer is Polyoxymethylene of Brunet [] in order to generate light gases through the action of a plasma. Ans. 8. The Examiner further concludes [I]t would have been obvious . . . to modify Witherspoon [] with the distal ends of the gun electrodes extending through the walls of the cup or chamber of Britt in order to increase in Appeal 2012-001132 Application 11/735,673 4 speed and expand outward from center via centrifugal force causing the atoms to enlarge in size. Id. Appellants argue that “the Office action fails to establish a prima facie case of obviousness.” Br. 14. In particular, the Appellants argues “at least the feature of a cup of ablative material forming a generally cylindrical chamber with an open end and a closed end, and a cover forming a divergent nozzle for the open end of the chamber, is not taught or suggested in the cited references.” Id. In rejecting claims under 35 U.S.C. § 103(a), the Examiner bears the initial burden of establishing a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); see also In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984). Only if this initial burden is met does the burden of coming forward with evidence or argument shift to the Appellants. See Oetiker, 977 F.2d at 1445; see also Piasecki, 745 F.2d at 1472. Obviousness is then determined on the basis of the evidence as a whole and the relative persuasiveness of the arguments. Id. The Examiner reliance on Witherspoon’s column 5, lines 33-49 and column 7, lines 55-56 to disclose claim 1’s “cup of ablative material forming a generally cylindrical chamber with an open end and a closed end,” and claim 13’s limitation of “a chamber with an open end, a closed end, and walls made of an ablative material,” is misplaced, because neither of these disclosures adequately supports that Witherspoon teaches a cup or a chamber having a closed end. More particularly, at column 5, lines 33-49, Witherspoon states that: The basic capillary discharge device with ablative liner is illustrated in FIG. 18. It consists of a long, narrow discharge Appeal 2012-001132 Application 11/735,673 5 channel comprised of an insulating wall with electrodes at either end. One end, usually the cathode, is closed off to contain the pressure generated by the discharge. The anode end is formed by an annular electrode, with an inner diameter that may sometimes be smaller than the capillary (forming a throat), through which the discharge plasma flows. The capillary electrodes are fabricated of typical high performance electrode materials such as tungsten, thoriated tungsten, graphite, copper alloys, or other advanced electrode materials designed for low erosion. Careful operational tailoring and optimization will be required to maximize electrode lifetimes. Witherspoon, col. 5, ll. 33-49. At column 7, lines 55-56, Witherspoon states that “FIGS. 3A, 3B and 3C show an early embodiment of the invention which utilized an ablative capillary liner.” Witherspoon, col. 7, ll. 55-56. Emphasis by italics added. Although it is not clear whether the Examiner is relying on Witherspoon’s Figure 18 embodiment, Figure 1A embodiment, or Figure 3A-3C embodiment to disclose the cup and the chamber having a closed end, we note that in none of these embodiments does Witherspoon’s cup and chamber have a closed end. First, if the Examiner is relying on the Figure 18 embodiment for the disclosure of a cup and chamber having a closed end, then the Examiner’s finding is in error and the Examiner has not set forth a prima facie case of obviousness, because the electrode and insulator extending through the left-hand side of the containment block shows that the cup and chamber do not have a closed end. Second, if the Examiner is relying on Witherspoon’s Figure 1A embodiment to disclose the cup and chamber having a closed end, then the Examiner’s finding is in error and the Examiner has not set forth a prima facie case of obviousness, because capillary 3 has an orifice 106 in the bottom thereof connected to an inlet 22 which extends therethrough as Appeal 2012-001132 Application 11/735,673 6 shown in Figure 1A. Thus, the end that the Examiner points to a being “closed” is not closed because of the orifice 106 and inlet 22. Third, if the Examiner is relying on Witherspoon’s Figure 3A-3C embodiment to disclose a cup and chamber having a closed end, then the Examiner’s finding is in error and the Examiner has not set forth a prima facie case of obviousness, because the chamber 75 as shown in Figure 3B does not have a closed end 79 because the unlabeled structure on the left- hand side of Figure 3B extends through the end 79 and therefore, the end 79 is not a closed end. In other words, Witherspoon’s only written disclosure with respect to Figure 3A’s ablative capillary liner states that “[c]apillary tube 3 with a liner 81 extends into end 79 of the chamber 75.” Witherspoon, col. 10, ll. 38-39. The liner 81 appears to be a tubular sleeve that surrounds the capillary tube 3. See Witherspoon, Fig. 3A. A sleeve has two open ends and lacks the “closed end” recited in claims 1 and 13. As discussed above, the Examiner does not rely on either Britt or Burnet for the teaching of a chamber with an open end and a closed end formed of ablative material. Because there is no persuasive evidence or reasoning to show that the prior art teaches a cup and chamber with an open end and a closed end formed of ablative material, the Examiner has failed to meet his initial burden to establish a prima facie case of obviousness. Accordingly, we do not sustain the rejection of independent claims 1 and 13, and claims 2, 3, 5-12, 14, and 16-20 which depend therefrom, as unpatentable over Witherspoon, Britt, and Brunet. Appeal 2012-001132 Application 11/735,673 7 DECISION For the above reasons, the Examiner’s decision to reject claims 1-3, 5-14, and 16-20 is reversed. REVERSED llw Copy with citationCopy as parenthetical citation