Ex Parte Delves et alDownload PDFPatent Trial and Appeal BoardJun 27, 201310514960 (P.T.A.B. Jun. 27, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/514,960 08/25/2006 James Edward Delves KCC-030804 (PET-1008US) 2440 27778 7590 06/28/2013 COOPER CAMERON CORPORATION PO BOX 1212 HOUSTON, TX 77251-1212 EXAMINER HARP, WILLIAM RAY ART UNIT PAPER NUMBER 3651 MAIL DATE DELIVERY MODE 06/28/2013 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 PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JAMES EDWARD DELVES, NEIL KEITH YOUNG, and DAVID OLIVER DREW ____________________ Appeal 2011-004633 Application 10/514,960 Technology Center 3600 ____________________ Before: PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and NEIL A. SMITH, Administrative Patent Judges. KAUFFMAN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-004633 Application 10/514,960 2 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1- 5, 8, 10-13, 15-21, 23, and 25. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The Invention Appellants’ claimed invention “relates to fluidising apparatus which can be used, for example, to fluidise settled solids.” Spec. 1:3-4. Claims 1 and 25 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A fluidising apparatus comprising: a flow chamber having a fluid inlet and a fluid outlet in which the flow chamber is closed off at its outlet end by an end wall, the flow chamber further comprising a housing and a flow guide, the flow guide being situated at least partially within the housing, where the flow guide is substantially tubular and has a side wall in which is formed at least one opening for establishing a swirling flow in a fluid passing out of the fluid outlet, in which the housing comprises a cap which fits over the flow guide, where the end wall is perpendicular to the flow guide; and a transport outlet for transporting fluidised material away from the flow chamber, the transport outlet being situated externally of the flow chamber. Evidence Relied Upon Green Barber Bourdois Dimmock1 US 3,351,391 US 3,366,277 US 4,265,572 GB 2118512 A Nov. 7, 1967 Jan. 30, 1968 May 5, 1981 Nov. 2, 1983 1 Referred to by the Examiner and by Appellants as “'512.” See e.g., Ans. 6; App. Br. 21. Appeal 2011-004633 Application 10/514,960 3 The Rejections The following rejections are before us on appeal: I. Claims 1, 5, 8, 10-13, 15-19, 23, and 25 under 35 U.S.C. § 103(a) as unpatentable over Barber and Bourdois.2 II. Claims 2-4 under 35 U.S.C. § 103(a) as unpatentable over Barber, Bourdois, and Dimmock. III. Claims 20 and 21 under 35 U.S.C. § 103(a) as unpatentable over Barber, Bourdois, and Green. OPINION Claim 1 is directed to a fluidising apparatus that includes a flow chamber having an end wall perpendicular to the flow guide. Claim 25 is directed to a container, and is similar to claim 1 in that it includes a flow chamber having an end wall perpendicular to the flow guide. Each of the three rejections on appeal relies at least in part on the Examiner’s proposed combination of Barber and Bourdois. Ans. 4-7. The Examiner determined that Barber discloses the subject matter of independent claims 1 and 25 except an end wall perpendicular to the flow guide.3 The Examiner found that Bourdois discloses an end wall (extension 23) that is not perpendicular to the flow guide (first tube 11). Ans. 4. The Examiner 2 Appellants mistakenly list claims 20 and 21 as subject to this ground of rejection, but do not address these claims in the body of their argument. See App. Br. 5, 7-9; Ans. 4; Office Action dated March 23, 2010 at 3. 3 The Examiner also relied upon Bourdois for the end wall being a flange that is threaded onto the flow guide, and the flange being moveable along the central axis of the flow chamber. See Ans. 4. However, these limitations relate to dependent claims 16 and 18, respectively, and are not relevant to our analysis of the independent claims. Appeal 2011-004633 Application 10/514,960 4 concluded that modification of Bourdois’s end wall (extension 23) so that it is perpendicular to the flow guide (first tube 11) as claimed, would have been obvious. The Examiner provides two rationale for such modification. First, the Examiner reasons that the proposed modification would have been an obvious change in shape with no change in function. Ans. 4 (citing In re Dailey, 357 F.2d 669 (CCPA 1966)). A change of shape does not make a product nonobvious where the claimed shape is not of functional significance and accomplishes the same purpose as the prior art shape. In re Dailey 357 F.2d at 672-673. However, such is not the case here. The gas jet leaving Bourdois’s nozzle 19 is directed towards the bottom and towards the sides of the container so that the bottom of the container is cleaned when the nozzle reaches the bottom of the container. Bourdois, col. 4, ll. 6-10; fig. 1. If Bourdois’s nozzle 19 were modified as proposed by the Examiner, the jet would only be directed towards the sides of the container and not towards the bottom of the container, altering the function of the nozzle 19. Because the proposed modification results in a change in function, the modification is more than an obvious variation of shape. See In re Gal, 980 F.2d 717, 719 (Fed. Cir. 1992) (finding of obvious design choice precluded when claimed structure and the function it performs are different from the prior art). Second, in response to argument, the Examiner reasons that a person of ordinary skill in the art would have known to modify the end wall (extension 23) so that it is perpendicular to the flow guide (first tube 11) as claimed, because Bourdois discloses that the angle (ß) of the end wall Appeal 2011-004633 Application 10/514,960 5 (extension 23) may be adjusted by altering N1 and N2 based upon the powder being transferred.4 Ans. 8. The Examiner is correct that N1 and N2 may be varied as a function of the nature of the powder to be transferred. Bourdois, col. 5, ll. 4-7. However, for the reasons that follow, the variation in N1 and N2 disclosed by Bourdois does not result in an end wall (extension 23) that is perpendicular to the flow guide (first tube 11) as claimed. Bourdois discloses that the angle of the end wall (extension 23) with respect to horizontal is an acute angle (“acute angle ß”), which by definition is less than 90 degrees and therefore is not perpendicular to the flow guide (first tube 11). Bourdoi, col. 3, ll. 8-9; fig. 2. Further, Bourdois discloses that the intersection of the extension of the line of the end wall (extension 23) and the side of the container is level N1 and at most, N1 may be equal to N2. Col. 4, l. 60 - col. 5, l. 4. N2 is a level corresponding to the lower end of suction member 3. Bourdois, col. 5, ll. 3-4; fig. 1. Even when N1 is at its maximum (equal to N2), Bourdois’s end wall (extension 23) remains at an acute angle (less than perpendicular). Fig. 1. This is true because, as discussed supra with regard to the Examiner’s first rationale, the gas jet exiting nozzle 19 is intentionally directed towards both the side and the bottom of the container so that the bottom of the container is cleaned when the nozzle reaches the bottom of the container. Bourdois, col. 4, ll. 6-10; fig. 1. Consequently, we agree with Appellants that the Examiner’s proposed modification of Bourdois would not have been obvious for the reasons given 4 The Examiner also noted that N1 is the level of the material at the walls of the container and N2 is the bottom of the lower end of suction member 3. Appeal 2011-004633 Application 10/514,960 6 by the Examiner. App. Br. 12-21; Reply Br. 3-5. The Examiner does not rely upon Dimmock or Green to correct this deficiency. Ans. 6-7. Consequently, we do not sustain the three rejections. DECISION We reverse the Examiner’s decision to reject claims 1-5, 8, 10-13, 15- 21, 23, and 25. REVERSED rvb Copy with citationCopy as parenthetical citation