Ex Parte HiemerDownload PDFPatent Trial and Appeal BoardApr 9, 201812850420 (P.T.A.B. Apr. 9, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/850,420 08/04/2010 20350 7590 04/11/2018 KILPATRICK TOWNSEND & STOCKTONLLP Mailstop: IP Docketing - 22 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 Andreas Hiemer 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 66234-079200US-788686 9816 EXAMINER LEE, CHEE-CHONG ART UNIT PAPER NUMBER 3752 NOTIFICATION DATE DELIVERY MODE 04/11/2018 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): ipefiling@kilpatricktownsend.com KTSDocketing2@kilpatrick.foundationip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDREAS HIEMER Appeal2016-003803 1 Application 12/850,4202 Technology Center 3700 Before KENNETH G. SCHOPPER, BRADLEY B. BAY AT, and AMEE A. SHAH, Administrative Patent Judges. SCHOPPER, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 from the rejection of claims 1-16. We have jurisdiction under 35 U.S.C. § 6(b ). We REVERSE. 1 Our decision references the Appeal Brief ("Appeal Br.," filed July 20, 2015) andReplyBrief("ReplyBr.," filed Feb. 18, 2016), and the Examiner's Answer ("Ans.," mailed Jan. 5, 2016) and Final Office Action ("Final Act.," mailed Feb. 24, 2015). The record includes a transcript of the oral hearing held March 19, 2018. 2 According to Appellant, the real party in interest is Sulzer Mixpac AG. Appeal Br. 3. Appeal 2016-003803 Application 12/850,420 BACKGROUND According to Appellant, "[ t ]he invention relates to a static spray mixer for the mixing and spraying of at least two flowable components." Sub. Spec. i12. ILLUSTRATIVE CLAIM Claim 1 is the only independent claim on appeal recites: 1. A static spray mixer for the mixing and spraying of at least two flowable components, the static spray mixer comprising: a tubular, one-piece mixer housing which extends in the direction of a longitudinal axis (A) up to a distal end which has an outlet opening for the components, having at least one mixing element arranged in the mixer housing for the mixing of the components and the at least one mixing element being completely accommodated in the mixer housing as well as having an atomization sleeve which has an inner surface which surrounds the mixer housing in its end region, wherein the atomization sleeve has an inlet for a pressurized atomization medium, characterized in that a plurality of grooves, defined by a space between the mixer housing and the atomization sleeve, are provided in the inner surface of the atomization sleeve which respectively extend in the direction of the longitudinal axis (A) and through which the atomization medium can flow from the inlet of the atomization sleeve to the distal end of the mixer housing. REJECTIONS 1. The Examiner rejects claims 1-10, 13, 14, and 16 under 35 U.S.C. § 103(a) as unpatentable over Anderson. 3 2. The Examiner rejects claims 11 and 12 under 35 U.S.C. § 103(a) as unpatentable over Anderson in view of Miura. 4 3 Anderson, US 6,951,310, iss. Oct. 4, 2005. 4 Miura et al., US 3,893,654, iss. July 8, 1975. 2 Appeal 2016-003803 Application 12/850,420 3. The Examiner rejects claim 15 under 35 U.S.C. § 103(a) as unpatentable over Anderson in view of Homer. 5 DISCUSSION With respect to claim 1, the Examiner finds that Anderson discloses a static spray mixer including a tubular, one-piece mixer housing 16, mixing elements 12 and 32, and an atomization sleeve 77. Final Act. 3 (citing Anderson Figs. 13, 14). The Examiner also finds that portion "31 of 12 is completely accepted in, and completely fills, the space provided by the mixer housing 16," and thus, Anderson discloses that at least one mixing element is completely accommodated in the mixer housing. Id. The Examiner also finds that Anderson's device includes "a plurality of grooves 40 defined by a space between the mixer housing and the atomization sleeve, [which] are provided in the outer surface of the mixer housing," and the Examiner concludes it would have been obvious to include these grooves on the inner surface of the atomization sleeve as required by claim 1. Id. at 3- 4. As discussed below, we are persuaded of reversible error in the rejection of claim 1 because the Examiner has not identified a mixing element in Anderson that is completely accommodated in the mixer housing identified by the Examiner. As noted above, the Examiner finds that Anderson discloses a one- piece mixer housing 16 and mixing elements 12 and 32, and the Examiner finds that the mixing element is completely accommodated within the mixer housing because element "31 of [tube] 12 is completely accepted in, and 5 Homer, US 4,093,188, iss. June 6, 1978. 3 Appeal 2016-003803 Application 12/850,420 completely fills, the space provided by the mixer housing 16." Final Act. 3. Further, the Examiner finds: The entire tube (12) is completely accommodated (i.e. accepted) in the mixer housing (16) based on the Examiner's interpretation of "accommodated in," which allows for part of a body being accepted into something to mean that the entire body is accepted into the thing, even though the entire body is not completely "enclosed within" thing. In other words, accommodated (i.e. accepted) into means something different from "enclosed within" as argued by the Applicant. Ans. 18. We determine the scope of the claims in patent applications not solely on the basis of the claim language, but upon giving claims "their broadest reasonable interpretation consistent with the specification" and "in light of the specification as it would be interpreted by one of ordinary skill in the art." In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004 ). Here, we find that the Examiner's interpretation of the claim to require only that a portion of the mixing element is "accepted" into the mixer housing is not consistent with the broadest reasonable interpretation of claim 1. Assuming, arguendo, that we agreed with the Examiner that "accommodated" means "accepted," the claim additionally requires that the mixing element is completely accepted into the mixer housing, i.e., that the entirety of the mixing element is accepted into the mixer housing. The Examiner appears to take the position that because the mixer housing is completely filled, the mixing element is completely accepted within the mixer housing. We find that this interpretation is inconsistent with the plain meaning of the claim and with the Specification before us, each of which supports the interpretation that the mixer housing must allow for the entirety of the mixing element to be inserted therein. See, e.g. Spec. Fig. 1 (showing 4 Appeal 2016-003803 Application 12/850,420 the entirety of mixing element 3 within the mixer housing 2). Thus, we find that even if accommodated were interpreted to mean accepted, the Examiner has not identified any mixing element in Anderson that is entirely accepted within the mixer housing identified by the Examiner. In fact, it is only a small, reduced diameter portion of tube 12 in Anderson that may be inserted into element 16. Accordingly, the Examiner has not shown that the art of record teaches or otherwise makes obvious all of the requirements of claim 1, and thus, we do not sustain the rejection of claim 1. Regarding to the dependent claims on appeal, it is not readily apparent on the record before us that the art relied upon by the Examiner cures the deficiency found above with respect to the rejection of independent claim 1. Accordingly, we also do not sustain the rejection of claims 2-16 for the reasons discussed above. CONCLUSION We REVERSE the rejections of claims 1-16. REVERSED 5 Copy with citationCopy as parenthetical citation