Ex Parte Kikkawa et al

Patent Trial and Appeal Board

Jun 2, 2016

12733424 (P.T.A.B. Jun. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
121733,424 03/01/2010 Akimitsu Kikkawa
23364 7590 06/06/2016
BACON & THOMAS, PLLC
625 SLATERS LANE
FOURTH FLOOR
ALEXANDRIA, VA 22314-1176
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.
KIKK3003/FJD 1335
EXAMINER
GORMAN, DARREN W
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
06/06/2016 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):
MAIL@BACONTHOMAS.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AKIMITSU KIKKA WA, YOSHIO WATANABE,
TAKAHIRO ISHIHARA, TAKAFUMI ANEZAKI, and TATSUKI ENDO
Appeal2014--005526
Application 12/733,424
Technology Center 3700
Before LYNNE H. BROWNE, THOMAS F. SMEGAL, and
LISA M. GUIJT, Administrative Patent Judges.
SMEGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Akimitsu Kikkawa et al. (Appellants)1 seek our review under
35 U.S.C. § 134 of the Examiner's Final Rejection under 35 U.S.C. § 102(b)
of claims 1, 3-8, and 10 as anticipated by Lueddecke (US 5,762,144, iss.
June 9, 1998); and by Pounder (US 4,580,729, iss. Apr. 8, 1986). We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to Appellants, the real party in interest is Yamato Protec
Corporation. Appeal Br. 1.
Appeal2014--005526
Application 12/723,424
CLAIMED SUBJECT MATTER
Claim 1, the only independent claim, is reproduced below and
illustrates the claimed subject matter, with disputed limitations emphasized.
1. A fire-extinguishing spray nozzle, comprising:
a main body with an injecting port for injecting fire-
extinguishing liquid;
a support portion supported by said main body; and
an obstacle mounted to said support portion, with which the
fire-extinguishing liquid injected from the port collides, wherein:
said obstacle is arranged within an injection region of the fire-
extinguishing liquid injected from said injecting port;
said obstacle is a truncated-cone, which has an opposing surface
and an inclined outer peripheral surface, said opposing surface is a
plane opposed to said injecting port; and
said obstacle has a groove in addition to said inclined outer
peripheral surface.
ANALYSIS
Anticipation of Claims 1, 3 8, and 10 by Lueddecke
Appellants argue claims 1, 3-8, and 10 as a group. See Appeal Br.
4---6; Reply Br. 2-3. We select independent claim 1 as the representative
claim for this group such that the remaining claims stand or fall with claim
1. See 37 C.F.R. § 41.37(c)(l)(iv). We have considered Appellants'
arguments raised in the Appeal and Reply Briefs, but do not find them
persuasive to demonstrate error in the Examiner's rejection of claim 1 as
being anticipated by Lueddecke.
The Examiner finds that Lueddecke anticipates claim 1 by disclosing
a fire-extinguishing spray nozzle comprising a main body with an injecting
port for injecting fire-extinguishing liquid, a support portion supported by
the main body, and including, inter alia,
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Application 12/723,424
an obstacle (7, and 9 with integrally formed portion 8) mounted
to the support portion with which the fire-extinguishing liquid
injected from the port collides; ... wherein the obstacle is a
truncated cone (both portions 7 and 9 exhibit a truncated conical
shape), which has an opposing surface (top of 9, or the upper
surface of7 that does not include 'inner cone 11 ')and ... wherein
the obstacle has a groove (groove 11 and 23 in portion 7; or any
of the grooves 10 in portion 8) in addition to the inclined outer
peripheral surface.
Final Act. 3.
Appellants respond to a portion of the final rejection, first observing
that "Lueddecke discloses a sprinkler nozzle including a scattering pot 7
which has a depression identified as a smaller inner cone 11," and also "that
the pot 7 is truncated, but [contend that] no spray strikes the inclined
surface," which "is not the case with the present invention." Appeal Br. 5.
Appellants then repeat these observations in the Reply Brief and contend
that "these three distinctions are sufficient to define over Lueddecke."
Reply Br. 2.
The Examiner points out that "element '7' of Lueddecke is the first of
two applied interpretations of that prior art reference in view of the broadly
claimed 'obstacle"'. Ans. 2. Also see Final Act. 3, as cited above. The
Examiner explains that "element '7' meets the recited 'obstacle', as shown
in at least Figure 1 of Lueddecke, [where] the outer circumferential surface
of element '7' is clearly of a truncated cone-shape[]." Id. The Examiner
also points out that "element '7' of Lueddecke is an obstacle located in the
direct path of liquid ejected from the port (3) of the main body," so that
"there is no question that at least some of the ejected liquid from the port
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Application 12/723,424
will collide with obstacle '7', including its truncated-conical outer surface."
Id. at 3.
Although Appellants did not contest the Examiner's alternative
rejection over Lueddecke, the Examiner further explains that "[i]n the
second interpretation, the combination of integrally-formed portions '9' and
'8' of ... Lueddecke are also applied to the broadly recited 'obstacle,' ...
[making it] unmistakable to anyone viewing the prior art drawings [of]
Lueddecke that elements '9' and '8' form an obstacle located in the direct
path of liquid ejected from the port (3) of the main body," and that "portion
'9' of this obstacle is formed in the shape of a truncated cone." Ans. 3. The
Examiner concludes from the foregoing that "since the obstacle of
Lueddecke is clearly in the direct path of the liquid ejected from the port (3),
there is no question that at least some of the ejected liquid will collide with .
. . the truncated-conical outer surface of portion '9. "' Id. Appellants offer
no response to the Examiner's explanation, other than to incorrectly contend
that they "see no such language in the final rejection." Reply Br. 3. Again,
see Final Act. 3, as cited above.
Appellants next contend that the inner core of 11 of scattering pot 7 is
not "equivalent to the groove [in] the present invention," pointing out that
"[i[f Lueddecke teaches a groove, then it must be specifically stated, and it is
not." Appeal Br. 5. However, Appellants' contention amounts to
unsupported attorney argument, and thus is entitled to little, if any, weight.
See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (holding that
arguments and conclusions unsupported by factual evidence carry no
evidentiary weight). Moreover, the Examiner explains that "the term
'groove' is so broadly recited that it does not preclude the application of
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Application 12/723,424
element '11' of Lueddecke," also pointing out that "reference number '23' is
alternatively applied to the 'groove' of the obstacle (in the aforementioned
first interpretation of the recited 'obstacle' being element '7')," and that
"Appellant[ s have] not addressed this alternative application in the Appeal
Brief." Ans. 3. We agree.
Thus, in the Reply Brief at page 3, for the first time Appellants argue
that "number 23 of Lueddecke refers to a cylindrical bore formed in the
scatter pot 7 [that] does not even closely resemble the groove 63 of the
present invention." Reply Br. 3. However, Appellants did not present this
argument in the Appeal Brief, and it is not responsive to an argument newly
raised in the Examiner's Answer. Appellants did not set forth this argument
in a timely manner prior to filing of the Reply Brief to permit the Examiner
an opportunity to fully respond. See 37 C.F.R. § 41.41(b)(2) (2014) ("Any
argument raised in the reply brief which was not raised in the appeal brief, or
is not responsive to an argument raised in the examiner's answer ... will not
be considered by the Board for purposes of the present appeal, unless good
cause is shown.").
Appellants also take issue with the Examiner having suggested that
"radial slit 10 of a distributor star 8 amounts to the groove of the present
invention," and that "support cone 9 integrally formed with the distributor
star 8 amounts to the obstacle of the present invention," contending that
"[t]he [E]xaminer is redesigning from the Lueddecke reference." Appeal Br.
5. Appellants also contend that "even if the cone 9 and the star 8 are
considered one structure, there is no groove shown." Id. at 6.
However, the Examiner has the better position, pointing out that
"portion '8' of the applied 'obstacle' of Lueddecke clearly includes groove
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Application 12/723,424
elements ( 10), each of which quite reasonably anticipates the broadly recited
'groove', as applied in the office action mailed April 2, 2013." Ans. 4.
Appellants have not apprised us of any error in the Examiner's findings and
conclusions regarding elements 10 being grooves, and we find none.
For the reasons set forth above, we agree with the Examiner that the
fire-extinguishing spray nozzle disclosed by Lueddecke anticipates claim 1,
and claims 3-8 and 10, which fall with claim 1.
Anticipation of Claims 1, 3--8, and 10 by Pounder
Appellants argue claims 1, 3-8, and 10 as a group. See Appeal Br. 6.
We select independent claim 1 as the representative claim for this group
such that the remaining claims stand or fall with claim 1. We have
considered Appellants' arguments raised in the Appeal and Reply Briefs, but
do not find them persuasive to demonstrate error in the Examiner's rejection
of claim 1 as being anticipated by Pounder.
The Examiner finds that Pounder anticipates claim 1 by disclosing a
fire-extinguishing spray nozzle comprising a main body with an injecting
port for injecting fire-extinguishing liquid and including, inter alia, an
obstacle, "arranged within an injection region of the fire-extinguishing liquid
injected from the injecting port," which
is a truncated cone ... which has an opposing surface (top of 24,
or the upper surface of 26) and an inclined outer peripheral
surface (outer peripheral surface of portion 24 is inclined),
wherein the opposing surface is located in a plane opposed to the
injecting port ... and wherein the obstacle has a groove (portion
28 of obstacle portion 24 is shown to include grooves, and
reference number 27 in portion 26 are shown to be grooves).
Final Act. 4.
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Application 12/723,424
Although acknowledging that "Pounder discloses a central boss 24
with an inclined ... top surface [that] has a loading pin 28 provided to
receive the lower end of a thermally responsive element 30," Appellants first
argue that because Pounder is "[ w ]ithout the opposing surface being a plane
as defined in claim 1 for receiving flow which is then dispersed and collides
with the dispersion flow which strikes the inclined outer peripheral surface,
the desired dispersion of the fire-extinguishing fluid is not possible."
Appeal Br. 6.
In response, the Examiner reasons that "when viewing at least Figure
1 of Pounder, it is clear that the top surface of obstacle portion '24' is a
circular planar surface," and that "[t]he existence of portion '28' of Pounder
does not preclude portion '24' from anticipating ... the recited limitation
'said opposing surface is a plane opposed to said injecting port' of claim 1."
Ans. 5. We agree.
Appellants also argue that although the Examiner "suggests that a
boss 24 of Pounder amounts to the obstacle of the present invention," that
because "Pounder discloses ... loading pin 28 for receiving an element that
blocks flow not disperses it" that "[p ]in 28 is clearly not equivalent to the
cone of the present invention." Appeal Br. 6. (emphasis added).
The Examiner responds that "[Appellants' argument that 'pin] 28 is
clearly not equivalent to the cone of the present invention' [is] completely
irrelevant, since the structures shown by Pounder ... clearly anticipate the
broadly recited structures of claim 1, including the broadly recited 'groove' .
. . (see Figure 1, which shows a spiral groove on [pin] '28'). Ans. 5---6. The
Examiner alternatively reasons that "truncated-conical element '24' is
directly connected with deflector element '26"' that "includes groove
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Application 12/723,424
elements (27), each of which quite reasonably anticipates the broadly recited
'groove,'" noting "that the Appeal Brief is silent with respect to this
alternative interpretation of the prior art to Pounder as applied to claim 1."
Id. at 6. Appellants have not apprised us of any error in the Examiner's
findings and conclusions regarding Pounder teaching grooves. See Reply
Br., generally.
For the reasons set forth above, we agree with the Examiner that the
fire-extinguishing spray nozzle disclosed by Pounder anticipates claim 1,
and claims 3-8 and 10, which fall with claim 1.
DECISION
We AFFIRM the Examiner's rejections.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv) (2012).
AFFIRMED
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