Ex Parte BUCKNER

Patent Trial and Appeal Board

Jan 22, 2018

13568390 (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.
13/568,390 08/07/2012 DON M. BUCKNER 0121983 8356
73325 7590 01/24/2018
Matthew G. McKinney
Allen, Dyer, Doppelt & Gilchrist, P.A.
255 South Orange Avenue
Suite 1401
Orlando, EL 32801
EXAMINER
LEE, CHEE-CHONG
ART UNIT PAPER NUMBER
3752
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):
mmckinney @ allendyer.com
creganoa @ allendyer. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DON M. BUCKNER
Appeal 2017-001281
Application 13/568,390
Technology Center 3700
Before EDWARD A. BROWN, GEORGE R. HOSKINS, and
FREDERICK C. LANEY, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Don M. Buckner (Appellant)1 appeals under 35 U.S.C. § 134(a) from
the Examiner’s decision rejecting claims 10—16, 20, and 21.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 The Appeal Brief identifies the inventor, Don M. Buckner, as the real
party in interest. Appeal Br. 2 (filed April 13, 2016).
2 Claims 1—9 and 17—19 have been cancelled. Appeal Br. 2.
Appeal 2017-001281
Application 13/568,390
CLAIMED SUBJECT MATTER
Claims 10 and 21 are independent. Claim 10, reproduced below, is
illustrative of the claimed subject matter.
10. A pulsating nozzle, the nozzle comprising:
an impeller adapted to rotate about an axis;
an annular housing securing the impeller therein;
a supply aperture secured to the annular housing, wherein
the supply aperture is orientated to direct a stream of pressurized
fluid to impact the impeller; and
a discharge port secured to the annular housing to
discharge a pulsating stream of fluid;
the impeller comprising
a plurality of radial spaced vanes positioned to cause the
impeller to rotate by the stream of pressurized fluid, wherein the
plurality of vanes is configured to intermittently block the
discharge port as the impeller rotates to generate the pulsating
stream of fluid; and
a cavity formed between each vane of the plurality of
vanes, wherein each cavity having an opening and a closed
bottom to fill the respective cavity with a volume of the
pressurized fluid at the supply aperture and to discharge the
volume of pressurized fluid back through the opening at the
discharge port.
Appeal Br. 14 (Claims App.).
REJECTIONS
I. Claims 10-15, 20, and 21 are rejected under 35 U.S.C. § 102(b)
as anticipated by Kwan (US 4,209,132, issued June 24, 1980).
II. Claims 10-15, 20, and 21 are rejected under 35 U.S.C. § 102(b)
as anticipated by Neibrook (US 5,862,985, issued Jan. 26, 1999).
III. Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Kwan and Heitzman (US 3,473,736, issued Oct. 21, 1969).
2
Appeal 2017-001281
Application 13/568,390
IV. Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Neibrook and Heitzman.
ANALYSIS
Rejection I—Claims 10—15, 20, and 21
Claims 10—15 and 20
Regarding claim 10, the Examiner finds that Kwan discloses a nozzle
comprising an annular housing (rotary valve chamber body 22) securing an
impeller (rotary valve 35) therein, and a supply aperture (inlet 25) and a
discharge port (spray discharge outlet 5) secured to the annular housing,
wherein the impeller comprises radial spaced vanes (turbine blades 38) and a
cavity (“hollow spaces between 38”) formed between each vane, each cavity
having an opening and a closed bottom. Final Act. 2—3 (citing Kwan, Figs.
1—11). In support, the Examiner provides an annotated reproduction of
Figure 4 of Kwan and a first annotated reproduction of a portion of Figure 2
of Kwan. See id. at 5.
Appellant contends that Kwan does not describe or show a “cavity
having a closed bottom,” as claimed. Appeal Br. 5. Appellant contends that
it is unclear what element in Kwan the Examiner finds is the “closed
bottom” of each cavity. Id. at 6. Appellant further contends that claim 10
recites functional limitations relating to the cavity not taught or suggested by
Kwan; namely, “the structure of the cavity having an opening and a closed
bottom followed by the function to fill the respective cavity with a volume
of the pressurized fluid at the supply aperture and to discharge the volume of
pressurized fluid back through the opening at the discharge port.” Id. at 7.
3
Appeal 2017-001281
Application 13/568,390
The Examiner responds that, in Kwan, a closed bottom of the cavity is
the “surface on plate 37 enclosed by turbine blades 38.” Ans. 11. In
support, the Examiner provides a second annotated reproduction of the
portion of Figure 2 of Kwan, having the annotation, “[t]he cavity is formed
by a closed bottom, two side walls (vane), and three openings.” Id. The
Examiner explains:
each cavity [has] an opening and a closed bottom ... to (capable
of) fill(ing) the respective cavity with a volume of the pressurized
fluid {the volume of the pressurized fluid contained between 38)
at (adjacent) the supply aperture (inlet 25) and to (capable of)
discharge(ing) the volume of pressurized fluid back through the
opening at the discharge port (outlets 5).
Id. (emphasis added).
In the Reply Brief, Appellant cites the description at column 5, lines
9-25, of Kwan to support the contention that Kwan does not disclose the
claimed cavity function. Reply Br. 3^4. “Instead, Kwan describes a flow
where water impinges on the blades 38 and the water passes through the
rotary valve 35 to the outlets 5.” Id. at 4.
Appellant’s contentions are persuasive. Setting aside whether Kwan
discloses the limitation of “each cavity having an opening and a closed
bottom,” it is not apparent how Kwan meets other limitations in claim 10
from the Examiner’s annotated reproduction of Figure 2. Particularly, it is
not apparent how each “cavity” in Kwan has “an opening and a closed
bottom to fill the respective cavity with a volume of the pressurized fluid at
the supply aperture and to discharge the volume ofpressurized fluid back
through the opening at the discharge port,” as claimed. Appellant’s Figures
4 and 5 show an embodiment comprising an impeller 120 including a
plurality of cavities 124 formed between vanes 122. The Specification
4
Appeal 2017-001281
Application 13/568,390
describes that “[a] cavity 124 is disposed between each vane 122 and fills
with fluid by the supply port 104 and discharges through the discharge port
106.” Spec. 119. Figure 4 shows how fluid flows into each respective
cavity to fill it, and how the as-filled fluid in each cavity is then discharged
“back through” the cavity at discharge port 106.
In Kwan, it is not apparent how a volume of pressurized fluid would
fill a cavity formed between adjacent turbine blades 38 at inlet 25 such that
the same volume of pressurized fluid filling the cavity is discharged back
through the opening of the cavity at discharge outlets 5. Rather, it appears
that water simply passes through rotary valve 35 from inlet 25 to outlets 5.
See Kwan, col. 5,11. 9-25, Fig. 4.
Claim 10 also recites that “the plurality of vanes is configured to
intermittently block the discharge port as the impeller rotates to generate the
pulsating stream of fluid.” Appeal Br. 14 (Claims App. (emphasis added)).
The Examiner’s annotated Figure 4 of Kwan includes the annotation, “blade
3 8 [intermittently] blocking (hindering fluid passage) the discharge port,”
and indicates that this blocking occurs at about the 6 o’clock position of
valve chamber body 22. See Final Act. 5. However, Kwan discloses, “in
operation the arcuate flaps cyclically occlude outlets 5 during rotation of the
turbine when the control switch is set to allow flow through the valve
chamber, to give a pulsating spray through outlets 5.” Kwan, col. 5,11. 22—
25 (emphasis added), Fig. 4. Figure 4 shows how a flap 36 occludes
opening 5. The Examiner’s finding that a turbine blade 38 blocks an outlet 5
is not supported by a preponderance of the evidence.
For these reasons, we do not sustain the rejection of claim 10, or
claims 11—15 and 20 depending therefrom, as anticipated by Kwan.
5
Appeal 2017-001281
Application 13/568,390
Claim 21
Claim 21 recites “a plurality of cavities formed in the impeller,
wherein each cavity having an opening at a periphery of the impeller, and a
closed bottom.” Appeal Br. 16 (Claims App.). In contrast to claim 10,
claim 21 recites no functional limitations related to the cavities.
Appellant contends that the Examiner has failed to give the terms
“cavity” and “closed bottom” their plain meanings, but has instead given
them improper meanings. Id. at 8.
We are not persuaded. Appellant proffers no plain meaning of the
term “cavity” or the term “closed bottom.” The Examiner has indicated
what structure in Kwan’s device corresponds to these terms. See Ans. 11.
In the Reply Brief, Appellant does not address the Examiner’s finding that,
as shown in Figure 2 of Kwan, “[t]he cavity is formed by a closed bottom,
two side walls (vane), and three openings,” or the finding that a closed
bottom of the cavity is the “surface on plate 37 enclosed by turbine blades
38.” Id. Appellant’s argument appears to implicitly suggest that “closed
bottom” limits the impeller to a structure in which adjacent vanes are
connected together at the base of the vanes that are closest to an axis of
rotation to block the flow of fluid traveling through the opening from the
perimeter of the vanes toward the axis, as shown in Figure 5 of the
Specification. Appeal Br. 6, 8. Appellant, however, does not expressly
propose such a construction, nor explain why the Examiner’s broader
interpretation is unreasonable. Accordingly, Appellant does not apprise us
of any error with the Examiner’s interpretation or the factual findings based
thereon. We sustain the rejection of claim 21 as anticipated by Kwan.
6
Appeal 2017-001281
Application 13/568,390
Rejection II—Claims 10—15, 20, and 21
Claims 10—15 and 20
Regarding claim 10, the Examiner finds that Neibrook discloses a
nozzle comprising an annular housing (“310 of 300 and 70”) having an
impeller (rotary turbine 330) therein, and a supply aperture (inlet end 312)
and a discharge port (outlet holes 318) secured to the annular housing,
wherein the impeller comprises radial spaced vanes (impellers 339) and a
cavity (“hollow spaces between 339”) formed between each vane, with each
cavity having an opening (“top end as shown in Fig. 3 A”) and a closed
bottom (valving projection 337). Final Act. 6 (citing Neibrook, Figs. 1—
10C). In support, the Examiner provides an annotated reproduction of a
portion of Figure 3C of Neibrook, having the annotations “closed bottom”
and “[t]he cavity is formed by a closed bottom, two side walls (vane), and
three openings.” Ans. 14.
Appellant contends that Neibrook fails to describe or suggest the
claimed cavities. Appeal Br. 8. Appellant also contends that Neibrook fails
to disclose or suggest the claimed functional limitations relating to the
cavities. Id. at 10. In support, Appellant cites to the description at column
10, lines 37—47 of Neibrook. Id. at 9. Appellant contends that Neibrook
describes a valving projection that is driven by a turbine and used to cover
and uncover outlets. Id. at 8. In operation, water is forced through
transverse nozzles 342 and into turbine cup 310. Id. at 8—9. This water
forces rotary turbine 330 within turbine cup 310 to rotate. Id. at 9. As rotary
turbine 330 rotates, water fills the inside of cup 310 and exits through outlet
holes 318 that are not covered by valving projection 337 on bottom 316 of
cup 310. Id. Rotary turbine 330, and valving projection 337, cover and
7
Appeal 2017-001281
Application 13/568,390
uncover successive outlets 318 to create pulsating jets of water. Id.
Appellant asserts that water simply flows between turbine blades 339 and
outlet holes 318. Id.
Appellant’s contentions are persuasive. The Examiner finds that each
cavity in Neibrook includes a “closed bottom,” that is, valving projection
337. Final Act. 6. We note, however, Neibrook discloses that “[a] valving
projection 337 partially covers the outlet end 334 of the rotary turbine 330.”
Neibrook, col. 9,11. 55—56 (emphasis added). Figure 3C of Neibrook shows
that valving projection 337 does not extend a full 360 degrees in rotary
turbine 330. Consequently, Neibrook does not support the finding that
valving projection 337 forms a “closed bottom” between each impeller 339
(i.e., vane) of rotary turbine 330.
Additionally, it is not apparent how, in Neibrook, a volume of
pressurized fluid would be able to “fill” a “cavity” formed between each
impeller 339 at inlet end 312 such that the volume of pressurized fluid could
be discharged back through the “opening” of the cavity at outlet holes 318.
As Neibrook does not appear to disclose that each “cavity” has a “closed
bottom,” as claimed, it follows that Neibrook does not appear to disclose
that “each cavity [has] an opening and a closed bottom to fill the respective
cavity with a volume of the pressurized fluid at the supply aperture and to
discharge the volume of pressurized fluid back through the opening at the
discharge port,” as claimed. Appeal Br. 14 (Claims App. (emphasis added)).
Further, Neibrook discloses that "the valving projection 33 7 blocks
some of the throughgoing exit holes 318 in the outlet end 314 of the turbine
cup 310 during the rotation of the turbine 330.” Neibrook, col. 9,11. 58—61
(emphasis added); see also id. at col. 10,11. 41—46. Accordingly, the
8
Appeal 2017-001281
Application 13/568,390
Examiner’s finding that Neibrook discloses the limitation “theplurality of
vanes is configured to intermittently block the discharge port as the impeller
rotates to generate the pulsating stream of fluid” (Appeal Br. 14 (Claims
App. (emphasis added)) is not supported by a preponderance of the
evidence.
For these reasons, we do not sustain the rejection of claim 10, or
claims 11—15 and 20 depending therefrom, as anticipated by Neibrook.
Claim 21
Appellant contends that Neibrook fails to disclose the claimed
cavities. Appeal Br. 10. We agree. As discussed above for claim 10, the
Examiner does not establish that valving projection 337 forms a “closed
bottom” between each impeller 339 (i.e., vane) of rotary turbine 330.
Consequently, we do not sustain the rejection of claim 21 as anticipated by
Neibrook.
Rejection III—Claim 16
Claim 16 depends from claim 10 and recites that “each vane is
triangular shaped to form the cavity between each vane.” Appeal Br. 15
(Claims App., emphasis added). The Examiner’s reliance on Heitzman to
teach triangular shaped vanes fails to cure the deficiencies in the rejection of
claim 10 based on Kwan (Rejection I). Final Act. 9 (citing Heitzman, Fig.
5). Thus, we do not sustain the rejection of claim 16 as unpatentable over
Kwan and Heitzman.
Rejection IV-—Claim 16
The Examiner’s reliance on Heitzman to teach triangular shaped
vanes fails to cure the deficiencies in the rejection of claim 10 based on
9
Appeal 2017-001281
Application 13/568,390
Neibrook (Rejection II). Final Act. 10. Thus, we do not sustain the
rejection of claim 16 as unpatentable over Neibrook and Heitzman.
DECISION
We affirm the rejection of claim 21, and reverse the rejection of
claims 10-15, and 20, as anticipated by Kwan.
We reverse the rejection of claims 10-15, 20, and 21 as anticipated by
Neibrook.
We reverse the rejection of claim 16 as unpatentable over Kwan and
Heitzman.
We reverse the rejection of claim 16 as unpatentable over Neibrook
and Heitzman.
No time period for taking any subsequent action in connection with
this appeal maybe extended according to 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
10