Ex parte Batdorf

Board of Patent Appeals and Interferences

Mar 15, 2000

08251494 (B.P.A.I. Mar. 15, 2000)

Application for patent filed May 31, 1994.1
As noted in the Answer, pages 2 and 3, claim 23 as presented by appellant in2
the amendment dated Jan. 11, 1996, Paper No. 4, has been renumbered as claim 22 since
the claims as originally filed contained no claim 18.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for
publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 12
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte DANIEL J. BATDORF
_________
Appeal No. 1997-0998
Application 08/251,4941
___________
ON BRIEF
___________
Before OWENS, WALTZ and SPIEGEL, Administrative Patent Judges.
WALTZ, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the
examiner’s refusal to allow claims 1 through 5, 9, 13 through
15 and 22 as amended subsequent to the final rejection (see2
Appeal No. 1997-0998
Application 08/251,494
2
the amendment dated June 24, 1996, Paper No. 6, entered as per
the Advisory Action dated July 3, 1996, Paper No. 7).
According to appellant, the invention is directed to a
method of cutting a fibrous work piece by means of a focused,
high energy liquid jet that contains a sealant and employs a
high pressure air stream to compress the fibrous work piece
(Brief, pages 2-3). Claim 1 is illustrative of the subject
matter on appeal and a copy of claim 1 is attached as an
Appendix to this decision.
The examiner relies upon the following references as
evidence of obviousness:
Franz 3,524,367 Aug. 18, 1970
Gerber 3,877,334 Apr. 15, 1975
Mercer et al. (Mercer) 4,435,902 Mar. 13, 1984
Claims 1-5, 9, 13-15 and 22 stand rejected under 35
U.S.C.
Appeal No. 1997-0998
Application 08/251,494
The rejected claims are incorrectly listed on page 3 of the Answer as claims3
1-6 and 11-15. Since the examiner lists the correct claims on page 2 of the Answer and
appellant has responded to the rejection including the correct claims (except that claim
23 has been renumbered as claim 22, see the Brief, page 3), we hold this error to be
harmless. Therefore we consider claims 1-5, 9, 13-15 and 22 as the claims on appeal and
included in the sole rejection. We must also note the examiner’s statement on page 2 of
the Answer that “appellant has failed to include as an issue the outstanding double
patenting rejection.” On the record before us, we find no double patenting rejection
has ever been made in this application. Upon return of this application to the
jurisdiction of the examiner, this matter should be clarified on the record.
3
§ 103 as unpatentable over Franz in view of Mercer and Gerber
(Answer, page 3). We reverse this rejection for reasons3
which follow.

OPINION
The method of claim 1 on appeal recites “introducing and
mixing a sealant into a liquid prior to said liquid exiting a
nozzle as a focused, high energy liquid jet” and “sealing an
edge of a kerf ... with said sealant ... to encapsulate dust
and short length fibers formed by said cutting of said fibrous
work piece.”
The examiner states that “Franz discloses a high energy
liquid jet cutting device wherein the liquid jet is water
combined with a long chain polymer such as methyl cellulose
which is widely used as an adhesive.” (Answer, page 3).
Appeal No. 1997-0998
Application 08/251,494
4
However, the examiner has failed to establish, on this record,
that methyl cellulose is a well known adhesive and that, as an
adhesive, it would have functioned as a sealant as required by
claim 1 on appeal. The examiner has not shown that the other
“long chain polymers” of Franz are known adhesives or
sealants, i.e., why would one of ordinary skill in the art
have selected an adhesive such as methyl cellulose as the
“long chain polymer.”
The examiner fails to state any conclusion regarding the
obviousness of adding a sealant to the water of the liquid jet
(Answer, page 4). However, in the examiner’s response to
appellant’s arguments on page 5 of the Answer, the examiner
states:
[I]t is notorious that materials cut by high
velocity liquid jets retain some of the liquid at
the cut edges. Franz states that such wetting
occurs using his liquid jet cutting device although
the undesirable effects therefrom are reduced
(column 5, lines 5-7). Because Franz’ liquid jet is
a mixture of water and a long chain polymer it is
inherent that the wet edges will include the polymer
together with the water. As a result [the] liquid
jet will have some sealing effect on the wetted
edges. (Emphasis added).
Appeal No. 1997-0998
Application 08/251,494
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The examiner’s analysis is in error for two reasons. First,
the examiner has not provided evidence or convincing reasons
why the “long chain polymer” of Franz would have acted or
functioned as a sealant. Second, the examiner has not shown,
by evidence or convincing reasons, that any amount of water
and “long chain polymer” inherently included on the wet edges
of the cut in Franz would have had a sealing effect such as
“to encapsulate dust and short length fibers” as required by
claim 1 on appeal, not just “some sealing effect” as stated by
the examiner (Answer, page 5, emphasis added).
Mercer was applied by the examiner to show that high
velocity liquid jet cutters have been used to cut fiberglass
resins (Answer, page 3). Gerber has been applied by the
examiner to show the conventional use of compressed air
streams to compress and harden limp material to enable a high
velocity cutting jet to produce a sharper and more accurate
cut (Answer, page 4). Neither reference remedies the
deficiencies of the Franz reference and the examiner’s
reasoning as discussed above.
For the foregoing reasons, we determine that the examiner
has not met the initial burden of establishing a prima facie
Appeal No. 1997-0998
Application 08/251,494
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case of obviousness from the reference evidence. Accordingly,
the rejection of claims 1-5, 9, 13-15 and 22 under § 103 over
Franz in view of Mercer and Gerber is reversed. In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992).
The decision of the examiner is reversed.
REVERSED
TERRY J. OWENS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
THOMAS A. WALTZ )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
)
)
CAROL A. SPIEGEL )
Administrative Patent Judge )
TAW/kis
SCHULLER INTERNATIONAL, INC.
P. O. Box 5108
Denver, CO 80217
Appeal No. 1997-0998
Application 08/251,494
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APPENDIX
Appeal No. 1997-0998
Application 08/251,494
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1. A method of simultaneously cutting and sealing a
fibrous work piece comprising:
providing a fibrous work piece;
introducing and mixing a sealant into a liquid prior to
said liquid exiting a nozzle as a focused, high energy liquid
jet;
cutting said fibrous work piece by directing said
focused, high energy liquid jet from said nozzle onto a
surface of said fibrous work piece;
sealing an edge of a kerf formed by said cutting of said
fibrous work piece with said sealant carried in said focused,
high energy liquid jet to encapsulate dust and short length
fibers formed by said cutting of said fibrous work piece; and
placing portions of said fibrous work piece in
compression adjacent where said focused, high energy liquid
jet is cutting said fibrous work piece by directing at least
one stream of high pressure air onto the surface of said
fibrous work piece adjacent where said focused, high energy
liquid jet is cutting said fibrous work piece to facilitate
the formation of a clean edge on said kerf.