10987040 (B.P.A.I. Mar. 21, 2011)

Ex Parte Chen

Board of Patent Appeals and InterferencesMar 21, 2011

10987040 (B.P.A.I. Mar. 21, 2011)

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. 10/987,040 11/12/2004 Ye-Mon Chen TS1366 (US) 8678 7590 03/22/2011 Charles W. Stewart Shell Oil Company Legal - Intellectual Property P.O. Box 2463 Houston, TX 77252-2463 EXAMINER NGUYEN, DINH Q ART UNIT PAPER NUMBER 3752 MAIL DATE DELIVERY MODE 03/22/2011 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte YE-MON CHEN ____________________ Appeal 2009-014834 Application 10/987,040 Technology Center 3700 ____________________ Before LINDA E. HORNER, STEVEN D.A. McCARTHY and STEFAN STAICOVICI, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-014834 Application 10/987,040 2 The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 1 decision finally rejecting claim 1 under 35 U.S.C. § 103(a) as being 2 unpatentable over Glendenning (US 1,526,061, issued Feb. 10, 1925) and 3 Leon (US 5,968,601, issued Oct. 19, 1999) or, in the alternative, over Dou 4 (US 5,289,976, issued Mar. 1, 1994) and Leon. Claims 2-22 have been 5 cancelled. We have jurisdiction under 35 U.S.C. § 6(b). 6 We REVERSE. 7 Claim 1 reads: 8 1. A feed nozzle assembly for 9 introducing a mixture of gas and liquid 10 hydrocarbon droplets into a vessel in the form of a 11 substantially sheet-like spray, which feed nozzle 12 assembly comprises: 13 a nozzle body comprising means to supply 14 the gas and means to supply the liquid 15 hydrocarbon to said nozzle body at an upstream 16 part, and comprising a closed outlet end at a 17 downstream part, 18 the closed outlet end comprises an elongated 19 opening and an insert positioned with the 20 elongated opening to form a continuous loop 21 opening for discharge of the mixture of gas and 22 liquid droplets. 23 We adopt and incorporate by reference the Examiner’s findings 24 starting at page 4, line 1 of the Answer (“Glenden[n]ing discloses . . .”) and 25 ending at page 4, line 6 of the Answer (“. . . elongated opening 109”.); and 26 starting at page 4, line 8 of the Answer (“Glenden[n]ing does not teach . . .”) 27 and ending at page 4, line 12 of the Answer (“. . . continuous loop opening 28 137 (see column 3, lines 57+ and figures 4, 7).”). We also adopt and 29 incorporate by reference the Examiner’s findings starting at page 4, line 18 30 Appeal 2009-014834 Application 10/987,040 3 of the Answer (“Dou et al. discloses . . .”) and ending at page 5, line 1 of the 1 Answer (“. . . elongated opening 85”); and starting at page 5, line 3 of the 2 Answer (“Dou et al. does not teach . . .”) and ending at page 5, line 7 of the 3 Answer (“. . . continuous loop opening 137 (see column 3, lines 57+ and 4 figures 4, 7).”). In particular, neither Glendenning nor Dou discloses a feed 5 nozzle assembly in which an insert positioned within an elongated opening 6 of a closed outlet end forms a continuous loop opening. 7 The Appellant contends that the Examiner has failed to articulate a 8 persuasive reason why one of ordinary skill in the art would have combined 9 the teachings of either Glendenning or Dou with the teachings of Leon in the 10 fashion claimed in claim 1. (Br. 3 and 4.) The Examiner reasons that it 11 would have been obvious “to have provided the device of Glenden[n]ing 12 with [a] continuous loop opening as suggested by Leon et al. Doing so 13 would provide a curtain [flow] of gas mixture (see column 3, line 67).” 14 (Ans. 4.) Nevertheless, since Glendenning and Dou each disclose nozzles 15 having slot openings capable of producing sheet-like sprays, we find that the 16 capacity of Leon’s nozzle to provide a “curtain of gas in the configuration of 17 the elongated closed loop of aperture 137” would not have provided one of 18 ordinary skill in the art reason to substitute a closed loop aperture for the slot 19 openings disclosed by Glendenning and Dou. 20 Alternatively, the Examiner reasons that: 21 The combination of Glenden[n]ing reference or 22 Dou et al reference with the Leon’s reference is 23 proper because (a) the Glen[n]dening or Dou et al 24 reference and the Leon’s reference are known work 25 in one of field of endeavor, (b) such modification is 26 merely the use of known technique of the Leon’s 27 nozzle to improve a similar spraying nozzle of the 28 Appeal 2009-014834 Application 10/987,040 4 Glenden[n]ing reference or Dou et al reference, 1 and (c) such modification, i.e. choosing from a 2 finite number of predictable solutions, is not of 3 innovation but of ordinary skill and common 4 sense. 5 (Ans. 6 (italics in original).) 6 The Examiner’s reason (a) is not persuasive of obviousness. The fact 7 that all elements of a claimed device were known independently in the art 8 does not itself imply that a particular combination of the elements would 9 have been obvious. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 10 (2007). 11 The Examiner provides no findings to establish a rational 12 underpinning for either statement (b) or statement (c). Leon describes a 13 method for depositing a liquid material entrained in a gaseous stream onto a 14 substrate in a substantially uniform manner. (See, e.g., Leon, col. 5, ll. 42-15 45 (preamble of claim 1).) The Examiner provides no findings or technical 16 reasoning to explain how the closed loop opening described by Leon might 17 improve the nozzle of Glendenning or of Dou. Neither does the Examiner 18 provide findings or technical reasoning identifying the problem afflicting the 19 nozzle of Glendenning or of Dou for which the closed loop opening of Leon 20 is one of a finite number of known solutions. 21 The Examiner has not articulated reasoning with some rational 22 underpinning adequate to support the conclusion that the subject matter of 23 claim 1 would have been obvious. We do not sustain the rejection of claim 24 1 under § 103(a) as being unpatentable over Glendenning and Leon. Neither 25 do we sustain the rejection of claim 1 under § 103(a) as being unpatentable 26 over Dou and Leon. 27 Appeal 2009-014834 Application 10/987,040 5 DECISION 1 We REVERSE the Examiner’s decision rejecting claim 1. 2 3 REVERSED 4 5 6 Klh 7 8 9 CHARLES W. STEWART 10 SHELL OIL COMPANY 11 LEGAL – INTELLECTUAL PROPERTY 12 P.O. BOX 2463 13 HOUSTON, TX 77252-2463 14