Ex Parte Clusserath

Board of Patent Appeals and Interferences

Jul 26, 2012

11050484 (B.P.A.I. Jul. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte LUDWIG CLÜSSERATH
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Appeal 2009-014837
Application 11/050,484
Technology Center 3700
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Before STEVEN D.A. McCARTHY, PHILLIP J. KAUFFMAN and
MICHELLE R. OSINSKI, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellant1 appeals under 35 U.S.C. § 134 from the Examiner’s 1
decision rejecting claims 21-40, at least one of which is twice rejected. The 2
Examiner rejects under 35 U.S.C. § 103(a) claims 21-28 and 31-38 as being 3
unpatentable over Clüsserath (US 5,713,403, issued Feb. 3, 1998) and 4
Schoenewolff (US 6,134,866, issued Oct. 24, 2000); and claims 29, 30, 395

1 The Appellant identifies the real party in interest as KHS Maschinen-
und Anlagenbau AG of Dortmund, Federal Republic of Germany.
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and 40 as being unpatentable over Clüsserath, Schoenewolff and Forss (US 1
4,626,262, issued Dec. 2, 1986). Claims 1-20 are cancelled. We have 2
jurisdiction under 35 U.S.C. § 6(b). 3
We REVERSE. 4
Claims 21 and 31 are independent. Claim 21 is reproduced in an 5
appendix due to length. Each of claims 21 and 31 recites a plant including a 6
rotary filling machine, a rotary closing machine and a clean room. More 7
specifically, each independent claim recites that “said filling machine and 8
said closing machine [are] disposed inside said clean room.” 9
Clüsserath describes a system for the simultaneous filling, closing and 10
subsequent labeling of bottles. (Clüsserath, col. 2, ll. 62-64). The system 11
includes a rotary filling machine and a rotary closing machine. (Clüsserath, 12
col. 3, ll. 17-20 and 46-48; id., fig. 1). The Examiner correctly finds that 13
“CLÜSSERATH ET AL does not specifically disclose the use of a clean 14
room.” (Ans. 3). 15
Schoenewolff describes an apparatus including a blow-fill-seal 16
machine 80 for producing pre-filled syringes. (see Schoenewolff, col. 6, ll. 17
21-29). More specifically, Schoenewolff discloses: 18
[a]pparatus for manufacturing articles including 19
isolation structure isolating the first end of an 20
article producing machine from the second end of 21
the machine to permit a higher level of cleanliness 22
to be established at the first machine end where the 23
articles are actually manufactured than at the 24
second machine end. 25
(Schoenewolff, col. 3, ll. 48-53). 26
The apparatus also includes opposed end walls 41, 42; opposed side 27
walls 43, 44; a ceiling 46 and a bottom or floor 47 enclosing a 28
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“manufacturing room” 48. (Schoenewolff, col. 4, ll. 16-30; figs. 2-4). An 1
intermediate wall 100 and a seal 102 divide the “manufacturing room” 48 2
into a “clean room” 104 air-sealed from a “mechanical room” 106. 3
(Schoenewolff, col. 5, l. 61 – col. 6, l. 8; figs. 2-4). The blow-fill-seal or 4
article producing machine 80 includes a rightward portion residing in the 5
“clean room” 104 and a leftward portion residing in the “mechanical room” 6
106. (Schoenewolff, col. 6, ll. 8-16). Schoenewolff teaches that the 7
rightward portion of the blow-fill-seal machine 80 in the “clean room” 104 8
produces some particulates, but fewer particulates than are produced by the 9
rightward portion of the machine 80 residing in the “mechanical room” 106. 10
(Shoenewolff, col. 6, ll. 30-39). 11
Schoenewolff’s “clean room” 104 has a pressurized high efficiency 12
particulate (“HEPA”) air source for providing HEPA air to the “clean room” 13
104.” (Schoenewolff, col. 6, ll. 16-21). Consequently, the “clean room” 104 14
is at a sufficiently high pressure relative to either the pressure in the 15
“mechanical room” 106 or the ambient temperature outside the 16
“manufacturing room” 48 to inhibit air from either source from entering the 17
“clean room” 104. (Shoenewolff, col. 6, l. 58 – col. 7, l. 7). A chimney 120 18
extending through the intermediate wall 100 induces air and entrained 19
particulates produced by the leftward portion of the blow-fill-seal machine 20
80 to flow from the “clean room” 104 into the “mechanical room” 106. 21
(Schoenewolff, col. 6, ll. 40-46). 22
The Appellant does not define the term “clean room” in the 23
Specification. The common usage of the term “clean room” as of the filing 24
date most consistent with the usage of the term in the Specification is that set 25
forth in Federal Standard 209E: “A room in which the concentration of 26
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airborne particles is controlled and which contains one or more clean 1
zones.2” (Inst. of Environmental Sciences, FEDERAL STANDARD 209E, 2
Airborne Particulate Cleanliness Classes in Cleanrooms and Clean Zones at 3
2 (1992, cancelled 2001)(“FED-STD-209E”); see also Spec. 4 (citing “Clean 4
Room Class 100” as an example of “clean room conditions required for 5
aseptic production”)). 6
The Examiner concludes that it would have been obvious “to modify 7
the invention of CLÜSSERATH ET AL by enclosing it in a sectioned clean 8
room, as taught by SCHOENEWOLFF ET AL . . . , in order to minimize the 9
health risks of air- and dust-borne germs.” (Ans. 4). Schoenewolff appears 10
to teach controlling the concentration of airborne particulates at the leftward 11
portion of the blow-fill-seal or article producing machine 80, even at the 12
expense of allowing airborne particulates to flow toward the rightward 13
portion of the machine 80. This teaching would have suggested that one of 14
ordinary skill in the art might have minimized the health risks of air- and 15
dust-borne germs while improving cost-efficiency by permitting a higher 16
level of cleanliness to be established at ends of Clüsserath’s rotary filling 17
and closing machines where bottles were actually filled and sealed. The 18
Appellant is correct in arguing that the teachings of Clüsserath and 19
Shoenewolff do not provide a rational underpinning on which one might 20
conclude that one of ordinary skill in the art would have had reason to 21
dispose filling and closing machines of a container filling plant inside a 22
clean room as recited in independent claims 21 and 31. (See App. Br. 23).23

2 FED-STD-209E defines a “clean zone” as a “defined space in which
the concentration of airborne particles is controlled to meet a specified
airborne particulate cleanliness standard.” (Id. at 2).
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We do not sustain the rejection of claims 21-28 and 31-38 under 1
§ 103(a) as being unpatentable over Clüsserath and Schoenewolff. With 2
regard to the rejection of claims 29, 30, 39 and 40, the Examiner cites Forss 3
as disclosing “an air cleaner and filter arranged to provide a false ceiling 4
(11) over a clean room.” (Ans. 7). The Examiner does not persuasively 5
explain how the teachings of Forss might remedy the deficiencies in the 6
combined teachings of Clüsserath and Shoenewolff. We do not sustain the 7
rejection of claims 29, 30, 39 and 40 under § 103(a) as being unpatentable 8
over Clüsserath, Schoenewolff and Forss. 9
10
DECISION 11
We REVERSE the Examiner’s decision rejecting claims 21-40. 12
13
REVERSED 14
15
Klh 16
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APPENDIX 1
Independent claim 21 reads as follows: 2
21. A container filling plant for 3
aseptically filling containers with filling material, 4
said container filling plant comprising: 5
a rotary filling machine being configured 6
and disposed to fill containers with filling material; 7
said filling machine comprising a rotor and a 8
plurality of container filling devices disposed on 9
the periphery of said rotor; 10
a first conveyor arrangement being 11
configured and disposed to move containers into 12
said filling machine; 13
a rotary closing machine being configured 14
and disposed to close filled containers; 15
said closing machine comprising a rotor and 16
a plurality of container closing devices disposed on 17
the periphery of said rotor; 18
a second conveyor arrangement being 19
configured and disposed to move filled containers 20
from said filling machine into said closing 21
machine; 22
a third conveyor arrangement being 23
configured and disposed to move filled, closed 24
containers out of said closing machine to a 25
container handling machine; 26
a clean room comprising a ceiling structure, 27
a floor structure, and a wall structure, each 28
comprising an airtight material; 29
said filling machine and said closing 30
machine being disposed inside said clean room; 31
said wall structure being configured and 32
disposed to substantially outline the outer surfaces 33
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of each of said filling machine and said closing 1
machine to minimize the size of said clean room; 2
said wall structure further comprising 3
openings being configured and disposed to permit 4
containers to enter and exit said clean room; 5
at least one filtering device being configured 6
and disposed to introduce filtered air into said 7
clean room to minimize the presence of 8
contaminants on or in containers; 9
at least a first shield being disposed within 10
said wall structure, ceiling structure, and floor 11
structure of said clean room, and comprising an 12
airtight material; 13
said first shield being disposed to surround 14
one of said filling machine and said closing 15
machine to minimize the passage of contaminants 16
produced by the operation or repair of one of said 17
filling machine and said closing machine into an 18
area of said clean room outside of said first shield; 19
said first shield being configured to be 20
attached to and supported by at least one of: said 21
ceiling structure, said floor structure, and its 22
corresponding filling machine or closing machine; 23
said first shield being configured to and 24
disposed to form an exhaust air duct to permit an 25
upward flow of said therethrough; 26
said first shield being disposed immediately 27
adjacent and sufficiently close to the periphery of 28
said rotor of one of said filling machine and said 29
closing machine to guide the upward flow of air 30
past containers in one of said filling machine and 31
said closing machine, and then past components of 32
one of said filling machine and said closing 33
machine disposed above the containers , to remove 34
contaminants produced by the operation or repair 35
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of one of said filling machine and said closing 1
machine; 2
at least a first air outlet being disposed 3
adjacent said ceiling structure and to permit the 4
upward flow of air out of the area enclosed by said 5
first shield, through said ceiling structure and thus 6
out of said clean room, to exhaust contaminants 7
produced by the operation or repair of one of said 8
filling machine and said closing machine upwardly 9
out of said clean room; 10
said first shield comprising an upper portion 11
disposed adjacent said ceiling structure and a 12
lower portion disposed adjacent said floor structure 13
and opposite said upper portion; and 14
one of said (A) and (B): 15
(A) said lower portion of said 16
first shield being disposed a distance 17
from said floor structure to form a gap 18
to permit the flow of filtered air from 19
the area of said clean room outside of 20
said first shield and into the area 21
enclosed by said first shield; and 22
(B) said lower portion 23
comprising at least one opening being 24
configured and disposed to permit the 25
flow of filtered air from the area of 26
said clean room outside of said first 27
shield and into the area enclosed by 28
said first shield. 29