Ex Parte Haynes et al

Board of Patent Appeals and Interferences

Oct 28, 2008

10401427 (B.P.A.I. Oct. 28, 2008)

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UNITED STATES PATENT AND TRADEMARK OFFICE 4
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BEFORE THE BOARD OF PATENT APPEALS 7
AND INTERFERENCES 8
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Ex parte JEFFREY D. HAYNES and STUART A. SANDERS 11
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Appeal 2008-4434 14
Application 10/401,427 15
Technology Center 3700 16
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Decided: January 29, 2009 19
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Before: WILLIAM F. PATE, III, JENNIFER D. BAHR, and 22
FRED A. SILVERBERG, Administrative Patent Judges. 23
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SILVERBERG, Administrative Patent Judge. 25
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DECISION ON REQUEST FOR REHEARING 28
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Jeffrey D. Haynes and Stuart A. Sanders (Appellants) filed a Request 30
for Rehearing (hereinafter “Request”) under 37 CFR § 41.52 of the Decision 31
mailed October 28, 2008 (hereinafter “Decision”). The Decision affirmed 32
the rejection of claims 1-9 under 35 U.S.C. § 103(a) as being unpatentable 33
over Alkhimov in view of Yamamuka. 34
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Appeal 2008-4434
Application 10/401,427
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SUMMARY 1
We GRANT Appellants’ REQUEST FOR REHEARING. 2
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ANALYSIS 4
Appellants’ Request contends that the Board misapprehended certain 5
facts and therefore erroneously affirmed the rejection of claims 1-9 under 35 6
U.S.C. § 103(a) as being unpatentable over Alkhimov in view of Yamamuka 7
(Request 1). In particular, Appellants’ Request contends that Fact 5 8
(Decision 4) is a misapprehension of what is actually disclosed by Alkhimov 9
(Request 1 and 2), as Fact 5 is based upon prior techniques over which 10
Alkhimov’s invention is an improvement and is not the invention of 11
Alkhimov (Request 3). Appellants’ Request further contends that the Board 12
failed to take into account Alkhimov’s discussion in column 14, lines 1-5 13
regarding the fact that after 1000 hours of prolonged operation the nozzle 14
did not have any alterations (Request 4). Alkhimov discloses in column 14, 15
lines 5-9 the following: 16
“Thin powder material coating films were found in 17
the area of critical cross section and the supersonic 18
portion thereof as a result of friction with the 19
nozzle walls during movement.” 20
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Alkhimov further discloses that the nozzle 4 includes supersonic portion 20 22
(col. 10, l. 20 and fig. 1). Therefore, Alkhimov’s nozzle exhibits some 23
material coating due to friction. Alkhimhov further discloses in column 14, 24
lines 9 and 10 the following: 25
“These films did not have any effect on operating conditions of the 26
nozzle.” 27
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Appeal 2008-4434
Application 10/401,427
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Therefore, in Alkhimov, the material coating does not produce any wear that 1
would affect the operating conditions of the nozzle. Further, as pointed out 2
on page 4 of the Request, Alkhimov states that “[t]he construction of the 3
apparatus ensures its operation during at least 1000 hours without 4
employment of expensive erosion-resistant and refractory materials” (col. 5
15, ll. 26-28). Accordingly, we do not agree with the Examiner’s analysis 6
(Ans. 4-6) as we find that Appellants correctly point out that there is no 7
rationale to combine the teachings of Alkhimov and Yamamuka (Request 7). 8
Therefore, we conclude that it would not have been obvious at the time the 9
invention was made to a person having ordinary skill in the art to combine 10
the teachings of Alkhimov and Yamamuka. 11
In light of the above, Appellants’ arguments in the Request persuade 12
us that we misapprehended certain facts and therefore erroneously affirmed 13
the rejection of claims 1-9 under 35 U.S.C. § 103(a) as being unpatentable 14
over Alkhimov in view of Yamamuka. 15
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CONCLUSION 17
Appellants’ Request has been granted. We conclude that the 18
Appellants have shown that the Examiner erred in rejecting claims 1-9 under 19
35 U.S.C. § 103 (a) as being unpatentable over Alkimhov in view of 20
Yamamuka. 21
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DECISION 23
The decision of the Examiner to reject claims 1-9 is reversed. 24
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REHEARING GRANTED 26
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Appeal 2008-4434
Application 10/401,427
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