Ex Parte Jones et alDownload PDFPatent Trial and Appeal BoardSep 28, 201613664764 (P.T.A.B. Sep. 28, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/664,764 10/31/2012 Ricky Jones 40842 7590 09/29/2016 B. CRAIG KILLOUGH P. 0. DRAWER H CHARLESTON, SC 29402 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. 3458.006 6901 EXAMINER STONER, KILEY SHAWN ART UNIT PAPER NUMBER 1735 MAILDATE DELIVERY MODE 09/29/2016 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 RICKY JONES, DON GURLEY, KAREN BRUER, THOMAS DEVINE, and MIKE QUINN Appeal2015-003272 Application 13/664,764 Technology Center 1700 Before BRADLEY R. GARRIS, JAMES C. HOUSEL, and JEFFREY R. SNAY, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 2--4, 7-9, and 11-13. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We cite to the Specification ("Spec.") filed Oct. 31, 2012; Final Office Action ("Final Act.") mailed Mar. 14, 2014; Examiner's Answer ("Ans."); and Appellant's Supplemented Appeal Brief ("Br."). 2 Appellants identify Amee Bay, LLC, as the real party in interest. Br. 3. Appeal2015-003272 Application 13/664,764 BACKGROUND The subject matter involved in this appeal relates to cleaning metal surfaces with dry ice particles. Spec 1. Claims 9 and 13 are reproduced from the Claims Appendix of the Appeal Brief as follows: 9. A process for cleaning ferrous or non-ferrous metal surfaces having dirt, loose paint, debris and contaminants thereon comprising: (a) blasting said metal surfaces with dry ice pellets having a diameter between about 2.5 mm and about 3.5 mm at a pressure between about 50 to about 250 psi by passing said pellets from an ice hopper through an accompanying pressure hose and nozzle at a flow rate of up to 500 ft3 /min. to dislodge at least a substantial portion of the loose paint, debris and contaminants from the metal surface to provide clean metal surfaces; (b) to thereby improve welding characteristics of said clean metal surfaces when said surfaces are welded together; and (c) removing said disiodged ioose paint, debris, and contaminants from said cleaned surfaces. 13. A process for treating weldable metal surfaces, which comprises: (a) supplying dry ice pellets from an ice hopper operating at a pressure of 50 to about 250 psi by passing said pellets from said ice hopper through an accompanying hose and nozzle at a flow rate of up to 500 ft3/min; (b) blasting said weldable metal surfaces having debris and contaminants thereon with an amount of dry ice pellets, said dry ice pellets have a diameter between about 2.5 mm and about 3.5 mm, sufficient to dislodge at least a substantial portion of said debris and contaminants and provide metal surfaces suitable for welding; and 2 Appeal2015-003272 Application 13/664,764 ( c) removing said dislodged debris from the cleaned surfaces; whereby increased surface conductivity levels permeated into said metal surfaces is reduced. Each of claims 2--4, 7, 8, 11, and 12 depends from either claim 9 or claim 13 . 3 REJECTIONS The Examiner maintained the following grounds of rejection: 4 I. Claims 9 and 11 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Gabzdyl, 5 Y amahuru, 6 and Armstrong. 7 II. Claims 2--4, 7, 8, 12, and 13 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Gabzdyl, Yamahuru, Armstrong, and Gasparrini. 8 III. Claims 9 and 11 also stand rejected under 35 U.S.C. § 103(a) as unpatentabie over Mikios, 9 Y amahuru, and Armstrong. IV. Claims 2, 4, 7, 8, 12, and 13 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Miklos, Y amahuru, Armstrong, and Gasparrini. 3 Appellants' request to cancel claims 7 and 11, Br. 3, was not entered by the Examiner. Accordingly, these claims are before us. 4 Final Act. 2-14; Ans 2. 5 US 2003/0119423 Al, published Jun. 26, 2003 ("Gabzdyl"). 6 US 2004/0005848 Al, published Jan. 8, 2004 ("Yamahuru"). 7 US 5,184,427, issued Feb. 9, 1993 ("Armstrong"). 8 US 5,107,764, issued Apr. 28, 1992 ("Gasparrini"). 9 US 2009/0014422 Al, published Jan. 15, 2009 ("Miklos"). 3 Appeal2015-003272 Application 13/664,764 DISCUSSION I, II With regard to Rejection I, Appellants argue the rejected claims as a group. Br. 7-13. With the exception of claims 8 and 12, Appellants do not separately argue Rejection II other than an implicit reliance on the arguments presented in connection with Rejection I. Id. In accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select claim 9 as representative, and decide the propriety of Rejections I and II based on the representative claim alone. Separately argued claims 8 and 12 are separately addressed. The Examiner found, and Appellants do not dispute, that Gabzdyl discloses a process for cleaning a metal surface by blasting with dry ice pellets and removing consequently dislodged material, thereby preparing the metal surface for welding. Compare Final Act. 2 with App. Br. 7-20. Gabzdyl teaches a higher operating pressure-from 20 to 50 bar-relative to the claimed pressure range, 10and does not specify a size for the dry ice pellets. Final Act. 3; Gabzdyl i-f 13 and generally. For those features, the Examiner found that one of ordinary skill in the art would have recognized the operating conditions in Gabzdyl, e.g., the stream pressure and the dry ice particle size, to be result-effective variables, the optimization of which would have involved routine experimentation for a given material to be cleaned. Final Act. 4; Ans. 4, 9. The Examiner additionally found that Y amaharu teaches dry ice blasting with pellets generally having the claimed size, and that Armstrong teaches variable operating pressures that 10 Appellants characterize Gabzdyl's disclosure of 20 to 50 bar as corresponding to 280 to 700 psi. Br. 10. Claim 9 recites a pressure in the range of "about 50 to about 250 psi." 4 Appeal2015-003272 Application 13/664,764 encompass the claimed pressure range. Final Act. 3; Y amaharu i-f 46 (teaching 3 mm particle diameter); Armstrong col. 4, 11. 31-35 (teaching pressure ranging from 0 to 500 psi). Appellants argue that one skilled in the art would not have recognized particle size and stream pressure as result-effective variables. Br. 10-11. We disagree. "[T]he prior art need not provide the exact method of optimization for the variable to be result-effective. A recognition in the prior art that a property is affected by the variable is sufficient to find the variable result-effective." In re Applied Materials, 692 F.3d 1289, 1297 (Fed. Cir. 2012). "[A] court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). "If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability." Id. at 417; see also Ball Aerosol & Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009) (under the flexibie inquiry set forth by the Supreme Court, the PTO must take account of the "inferences and creative steps," as well as routine steps, that an ordinary artisan would employ). In this case, we have no difficulty in concluding that the desired surface cleaning in Gabzdyl would have been recognized as variably dependent upon the size of the dry ice particles and the pressure at which they are impacted against the surface. Moreover, the Examiner found that particle size would relate to smoothness of the treated surface 'just like finer grades of sand paper or sand blasting particles." Ans. 4. The Examiner further found that "increasing or decreasing the pressure will predictably/expectedly influence the cleaning ability of the dry-ice blasting process." Id. at 9. Appellants did not file a Reply Brief to dispute these particular findings. 5 Appeal2015-003272 Application 13/664,764 Indeed, Appellants acknowledge that Y amaharu notes drawbacks associated with using high pressure air compressors for dry ice blasting, and teaches low pressure air compressors instead. Br. 11; Y amaharu Abstract (recognizing that low pressure blasting suppresses the abrasion of the dry-ice particles, decreases noise, and reduces the overall size and weight of the device). Appellants also argue that in relying upon the cited references the Examiner "failed to provide[] a basis for their combination." Br. 12. Here too, we disagree. The Examiner reasoned that selection of appropriate dry ice particle size and stream pressure for cleaning a metal surface would have involved routine experimentation for a given material to be cleaned, and pointed to Yamaharu and Armstrong as examples of dry ice blasting processes involving particle sizes and operating pressures at or near those which are recited in the claims. We are persuaded that the Examiner's reasoning provided sufficient basis to support the articuiated combination of references. See In re Aller, 220 F.2d 454, 456 (CCPA 1955) ("[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."); Regarding claim 8, Appellants argue that optimizing nozzle sweep speed along with particle size and operating pressure would have required "undue experimentation." Br. 12. Appellants do not point us to any evidence of record or technical reasoning in support of their argument. As such, we deem Appellants' argument as to claim 8 to be conclusory and non- persuasive. Regarding claim 12, Appellants argue that Gasparrini "is directed [to] a method for cleaning equipment in the graphic arts," and that "one skilled 6 Appeal2015-003272 Application 13/664,764 in the art would not look to the graphic arts for teachings to combine with Gabzdyl." Id. In response, the Examiner explained that Gasparrini and Gabzdyl are "reasonably pertinent to the particular problem (providing a clean surface by particle blast cleaning) with which the Appellant was concerned." Ans. 11. Appellants did not dispute the Examiner's finding in a Reply Brief. On this record, we are not persuaded that the Examiner reversibly erred by looking to Gasparrini as evidence that it was known to remove debris with a vacuum after dry ice pellet cleaning. For the foregoing reasons, we are not persuaded of reversible error in the Examiner's rejection of claim 9 or the separate rejection of claims 8 and 12. We sustain Rejections I and II. III, IV Appellants' arguments against Rejections III and IV mirror those presented and discussed above in connection with Rejections I and II. As such, we sustain Rejections III and IV for the reasons set forth above. DECISION The Examiner's decision rejecting claims 2--4, 7-9 and 11-13 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136. AFFIRMED 7 Copy with citationCopy as parenthetical citation