Ex Parte Gopalan et al

Patent Trial and Appeal Board

Feb 23, 2017

12845679 (P.T.A.B. Feb. 23, 2017)

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.
2640.200NP I486
EXAMINER
KIM, CHRISTOPHER S
ART UNIT PAPER NUMBER
3752
MAIL DATE DELIVERY MODE
12/845,679 07/28/2010
83182 7590 02/23/2017
J. ANDREW MCKINNEY & ASSOC., LLC
PO Box 1290
Millersville, MD 21108
Shridhar GOPALAN
02/23/2017 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 SHRIDHAR GOP ALAN and GREGORY RUSSELL
Appeal 2015-004185
Application 12/845,679
Technology Center 3700
Before: CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
BRENT M. DOUGAL, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1—
7 and 21—28. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-004185
Application 12/845,679
CLAIMED SUBJECT MATTER
The claims are directed to a rain style nozzle assembly. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A nozzle assembly, comprising:
(a) a manifold configured to receive pressurized fluid, said
manifold including an open interior volume which is pressurized
with inward flowing turbulent fluid, said manifold being
bounded by a perforated front face defining a plurality of front
face channels configured to permit turbulent manifold fluid to
flow distally or forwardly into said manifold's front face
channels;
(b) a first fluidic oscillator for establishing alternating
vortices, said fluidic oscillator being in fluid communication
with one of said manifold's front face channels, wherein said first
fluidic oscillator has a fluidic chamber therein, said fluidic
chamber having a fluidic inlet for receiving manifold fluid under
pressure from said manifold and admitting said fluid into said
fluidic chamber and a fluidic outlet for issuing pressurized fluid
from said fluidic chamber forwardly and into an ambient
environment, said fluidic inlet and fluidic outlet defining a fluid
flow path therebetween for flow of fluid from said manifold
through said fluidic chamber, and an oscillation-inducing
structure for causing the fluid issued from said fluidic outlet to
cyclically sweep back and forth, said oscillation-inducing
structure comprising a structural surface disposed in the fluid's
flow path and responsive to said fluid from said fluidic inlet
impinging thereon for establishing alternating vortices in said
fluid at side-by-side locations downstream of said oscillation-
inducing structure, where said fluid is accelerated in a fluidic
power nozzle having a selected power nozzle width; and
(c) an eddy filter structure having a first array of spaced
posts and a second, staggered array of spaced posts, said eddy
filter structure being in fluid communication with and responsive
to said inward flowing turbulent fluid from said manifold to
reduce adverse effects of turbulence in said manifold fluid on
said fluidic oscillator's establishment of alternating vortices.
2
Appeal 2015-004185
Application 12/845,679
REJECTIONS
Claims 26—28 are rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite.1
Claims 1,2, and 21—23 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Russell (US 2006/0108442 Al).
Claims 24—26 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Russell.
Claims 1—7 and 21—28 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Russell and Romack (US 2004/0227021 Al).
OPINION
The rejection under § 112 is not contested. Appellants file an
untimely amendment (see 37 C.F.R. § 41.33) with the Reply Brief and
contend the finality of the May 20, 2014 rejection was premature. Reply Br.
5,10. The finality of an Office Action and the Examiner’s refusal to enter
an amendment thereafter are matters outside the scope of our review. In re
Berger, 279 F. 3d 975, 98^U85 (Fed. Cir. 2002); see also MPEP § 706.07
(regarding finality, and § 706.07(b) in particular regarding first-action
finality). As no substantive issues are raised concerning this rejection, we
summarily sustain it. See In re Berger, 279 F.3d at 984 (The Board affirmed
an uncontested rejection of claims under 35 U.S.C. § 112, second paragraph,
and on appeal the Federal Circuit affirmed the Board’s decision and found
that the appellant had waived his right to contest the indefmiteness rejection
1 The Examiner withdrew the § 112 rejections of claims 23—25 and claim 26
insofar as the rejection of claim 26 was based on the “proximate” limitation.
Ans. 5. The Examiner maintained the § 112 rejection of claim 26 and its
dependents insofar as it was based on the “eddy filter structure” limitation.
Final Act. 3.
3
Appeal 2015-004185
Application 12/845,679
by not presenting arguments as to error in the rejection on appeal to the
Board). See also, Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008)
(“the applicant can waive appeal of a ground of rejection”).
In rejecting representative claim 1 (see 37 C.F.R. § 41.37(c)(iv)) as
anticipated by Russell the Examiner correctly interpreted the “spaced posts”
in claim 1, which are further defined to comprise “filter posts” in dependent
claim 2, as including Russell’s filter posts 4n. See Final Act 4 (citing
Russell Fig. 31 A); see also Russell para. 94. There is no evidentiary support
for Appellants’ position that “[t]he cited filter posts in Russell ’480 are.. .to
strain out particles (filtration) and not to change the turbulent nature of (or
condition) the flow.” Reply Br. 6; App. Br. 12. If Appellants are to assert
that what appears to be an identical structure, described using identical
nomenclature, in the identical art, has different latent properties or functional
characteristics it is incumbent upon Appellants to provide technical
reasoning or evidence in support of that assertion. See In re Spada, 911 F.2d
705, 708 (Fed. Cir. 1990) accord In re Swinehart, 439 F.2d 210, 213 (CCPA
1971) (“[Wjhere the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the claimed
subject matter may, in fact, be an inherent characteristic of the prior art, it
possesses the authority to require the applicant to prove that the subject
matter shown to be in the prior art does not possess the characteristic relied
on.”). The fact that RusselFs posts have the same structure, and are
described using the same language in the same art provides a reasonable
basis for the Examiner’s belief that they possess the same latent
characteristics with regard to their ability to condition fluid flow.
As to Appellants’ other argument, that the posts in Russell are
“aligned in a single semicircular array” (Reply Br. 6; App. Br. 12), all the
4
Appeal 2015-004185
Application 12/845,679
posts being in a semicircular array does not preclude various posts from also
being in other arrays. Using the term “array,” without more, simply refers to
an ordered collection or series. The Examiner identifies different groupings
of Russell’s posts that are reasonably considered arrays. Final Act. 4 (“two
outboard posts; or the bottom two”; “next two inboard posts, [] or top two.”).
As Appellants do not address the Examiner’s position in this regard (see 37
C.F.R. § 41.37(c)(iv)(“The arguments shall explain why the examiner erred
as to each ground of rejection contested by appellant”), the Examiner’s
interpretation is both reasonable and uncontroverted.
Turning to the § 103(a) rejection of claim 24, which is representative
of claims 24—26, Appellants argue that Russell, in the cited Figures 8A—E,
“does not show configurations for anything more than eight channels.” App.
Br. 13. This is correct, but undisputed, and formed the basis for the
Examiner rejecting these claims under § 103(a) as opposed to § 102. See
Final Act. 4; Ans. 6. The Examiner’s determination of obviousness (see id.)
stands uncontroverted. We acknowledge that Appellants additionally state
“that combination would not permit turbulent pressurized manifold fluid to
flow distally or forwardly.” App. Br. 13. However, we are unable to discern
the basis for this unsupported assertion.
Turning lastly to the § 103(a) rejection of claims 1—7 and 21—28, for
which claim 1 is again representative, Appellants repeat the arguments
discussed above regarding the anticipation rejection of claim 1. App. Br. 14.
However, the Examiner took an alternate, and uncontested, position
regarding the “array[sj” in the § 103(a) rejection of claim 1. See Final Act. 5
(citing Russell’s Figure 7D embodiment and Romack’s Figure 11 A). Thus,
only Appellants’ argument relating to the function of Russell’s filter post, is
relevant to the § 103(a) rejection of claim 1. For the reasons discussed
5
Appeal 2015-004185
Application 12/845,679
above we remain unapprised of error in light of this argument. Appellants
additionally state “that combination would provide an enclosure for a fluidic
oscillator (from Russell) with no manifold and no turbulent flow which is
somehow also a tool-free quick disconnect nozzle assembly with no
manifold and no turbulent flow.” App. Br. 15, (emphasis omitted).
However, we are unable to identify from this argument precisely what claim
language or determination by the Examiner Appellants are arguing. Thus,
Appellants arguments do not apprise us of error in the Examiner’s rejection.
See Ex Parte Frye, 94 USPQ2d 1072, 1075-6 (BPAI 2010) (precedential)
(“Filing a Board appeal does not, unto itself, entitle an appellant to de novo
review of ah aspects of a rejection . . . [. T]he Board will not, as a general
matter, unilaterally review those uncontested aspects of the rejection.”)
(citations omitted); See, also e.g., Halliburton Energy Services, Inc. v. M-I
LLC, 514 F.3d 1244, 1250 n.2 (Fed. Cir. 2008) (“‘A skeletal ‘argument’,
really nothing more than an assertion, does not preserve a claim .... Judges
are not like pigs, hunting for truffles buried in briefs.”) (citation omitted).
DECISION
The Examiner’s rejections are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
6