Ex Parte Jones et al

Patent Trial and Appeal Board

Sep 28, 2016

13664764 (P.T.A.B. Sep. 28, 2016)

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
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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").
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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."
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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.
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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
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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
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