Ex Parte BucknerDownload PDFPatent Trial and Appeal BoardJan 22, 201813568390 (P.T.A.B. Jan. 22, 2018) Copy Citation 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 Copy with citationCopy as parenthetical citation