Ex Parte Micheli

Board of Patent Appeals and Interferences

Sep 22, 2008

10223648 (B.P.A.I. Sep. 22, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte PAUL R. MICHELI
____________________

Appeal 2008-2641
Application 10/223,648
Technology Center 3700
____________________

Decided: September 22, 2008
____________________

Before: WILLIAM F. PATE, III, ANTON W. FETTING and
STEVEN D.A. McCARTHY, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellant appeals under 35 U.S.C. § 134 (2002) from the final 2
rejection of claims 1-3, 7-9, 21, 24-31, 35-39, 41, 45, 46, 49, 50, 53, 55,3
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64-67, 70-76, 79, 85-87, 90 and 91.1 We have jurisdiction under 35 U.S.C 1
§ 6(b) (2002). 2
We AFFIRM the rejection of claims 30, 31, 35-39, 41, 45, 46, 49, 50, 3
55, 75, 76, 79, 85, 86, 90 and 91. 4
We REVERSE the rejections of claims 1, 2, 3, 7, 8, 12, 15, 17-19, 21, 5
24-28, 65-67, 70-74 and 87. 6
The claims on appeal relate to a spray coating device which the 7
Appellant asserts provides internal mixing and breaking up of the fluid prior 8
to atomization. (Spec. 1, ll. 6-8.) Independent claim 35 is typical of the 9
claims on appeal: 10
11
1. A spray coating device, comprising: 12
a fluid delivery assembly comprising a fluid 13
tip section having a plurality of impinging liquid 14
jets upstream of a fluid exit of the fluid tip section, 15
wherein the plurality of impinging liquid jets are 16
oriented in non-parallel directions; and 17
an atomization assembly comprising at least 18
one atomizing jet directed toward a fluid ejection 19
area downstream of the fluid exit. 20
21
22
ISSUES 23

1 Claims 59-63 are allowed. Claims 12, 15, 17-19, 42-44, 56-58, 81,
83, 84, 88 and 89 are objected to as being dependent on rejected base claims,
but are indicated to be allowable if rewritten in independent form including
all of the limitations of the base claims and any intervening claims. Claims
6, 10, 13, 22, 32, 34, 40, 47, 54, 68 and 77 are withdrawn from consideration
as being directed to a non-elected species. (Ans. 2). The Examiner’ Answer
withdrew previous rejections of claims 12, 15, 17-19, 42-44, 56-58, 81, 83
and 84. (Ans. 10).
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The issues in this appeal are whether the Appellant has shown that the 1
Examiner erred by: 2
rejecting claims 1, 7, 8, 21, 25-28, 64-67, 70-74 and 87 3
under 35 U.S.C. § 102(b) (2002) as being anticipated by Hedger 4
(Patent US 6,021,962, issued 8 Feb. 2000); 5
rejecting claims 30, 31, 35-39, 41, 45, 46, 49, 50, 53, 55, 6
75, 76, 79, 81, 83, 85, 86, 90 and 91 under § 102(b) as being 7
unpatentable over Hubbard (Patent US 1,650,128, issued 22 8
Nov. 1927); 9
rejecting claims 2 and 3 under 35 U.S.C. § 103(a) (2002) 10
as being unpatentable over Hedger; and 11
rejecting claim 24 under § 103(a) as being unpatentable 12
over Hedger and Mellette (Patent US 5,180,104, issued 19 Jan. 13
1993). 14
These issues turn on whether Hedger discloses or suggests impinging 15
jets oriented in a non-parallel direction and on whether Hubbard discloses a 16
plurality of liquid impingement orifices directed toward one another in a 17
fluid impingement region. 18
19
FINDINGS OF FACT 20
The record supports the following findings of fact (“FF”) by a 21
preponderance of the evidence. 22
1. Hedger discloses a chopper gun applicator. (Hedger, col. 4, ll. 23
8-11). 24
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2. The applicator includes a gun head 15 having an inlet fitting 17 1
connectable to a source of resin mixture. The fitting leads to a flow path 19, 2
the distal end of which slidably receives an inlet end 21 of a slidable conduit 3
20 having an outlet end 23 which comprises a seat for a ball valve 25 4
contained within a valving chamber 24. (Hedger, col. 4, ll. 12-17). 5
3. The valving chamber 24 leads to outlet passages 27 which 6
comprise a resin mixture diffuser. (Hedger, col. 4, ll. 17-19). The outlet 7
passages are shown in Hedger’s Fig. 1 as being straight, parallel to each 8
other and parallel to the direction of fluid flow. 9
4. Thereafter, the resin flows through an orifice 31 to a first 10
channel 33 and thence through a nozzle 35. (Hedger, col. 4, ll. 26-30). The 11
orifice 31 is shown in Hedger’s Fig. 1 as being immediately surrounded by a 12
conical surface. 13
5. Hubbard discloses a device for spraying and atomizing fluid oil. 14
(Hubbard 1, ll. 1-9). 15
6. The device includes a nozzle member provided with a conically 16
shaped cavity. (Hubbard 1, ll. 71-74 and Fig. 1). An annular cavity is 17
formed in the end of the nozzle. Ducts diverging with respect to an axis of 18
the nozzle member connect the conically shaped cavity with the annular 19
cavity. (Hubbard 1, ll. 74-76 and Fig. 1). 20
7. A plurality of ducts connects the annular cavity with a nozzle 21
orifice. The ducts are located so as to be tangential to the nozzle orifice and 22
also preferably so as to have a direction toward the exit and at an angle to 23
the axis the exit. (Hubbard 1, ll. 93-98). A projection extends into the 24
nozzle orifice so that the nozzle orifice is annular. (Hubbard 1, ll. 86-92). 25
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8. The ducts conduct fluid under pressure from the annular cavity 1
to the orifice of the nozzle. (Hubbard 1, ll. 101-03). The ducts inject the 2
fluid into the orifice tangentially. (Hubbard, Figs. 6 and 7). While the fluid 3
is being whirled around in the orifice, it is also being driven toward the exit 4
end by reason of the angular relation of the ducts. (Hubbard 1, l. 103 – 2, l. 5
2). 6
9. Hubbard describes the annular nozzle orifice as relatively small. 7
(Hubbard 2, ll. 2-6). 8
10. Mellette teaches a hydraulically assisted high volume low 9
pressure air spray gun assembly. At its forward end the gun has a spray 10
head assembly that includes an air nozzle and an airless fluid tip. (Mellette, 11
col. 4, ll. 20-28). 12
11. An annular atomizing air orifice is defined around the airless 13
fluid tip through the front face of the air nozzle. (Mellette, col. 5, ll. 65-68). 14
15
PRINCIPLES OF LAW 16
“To anticipate a claim, a prior art reference must disclose every 17
limitation of the claimed invention, either explicitly or inherently.” In re 18
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). A claim is unpatentable 19
for obviousness under 35 U.S.C. § 103(a) if “the differences between the 20
subject matter sought to be patented and the prior art are such that the 21
subject matter as a whole would have been obvious at the time the invention 22
was made to a person having ordinary skill in the art to which said subject 23
matter pertains.” In Graham v. John Deere Co., 383 U.S. 1 (1966), the 24
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Supreme Court set out factors to be considered in determining whether 1
claimed subject matter would have been obvious: 2
3
Under § 103, the scope and content of the prior art 4
are to be determined; differences between the prior 5
art and the claims at issue are to be ascertained; 6
and the level of ordinary skill in the pertinent art 7
resolved. Against this background, the 8
obviousness or nonobviousness of the subject 9
matter is determined. 10
11
Id., 383 U.S. at 17. 12
13
ANALYSIS 14
A. The Rejection of Claims 1, 7, 8, 21, 25-28, 64-67, 70-74 and 87 15
under § 102(b) as Being Anticipated by Hedger 16
Independent claim 1 recites a spray coating device including a fluid 17
tip section having a plurality of impinging liquid jets upstream of a fluid exit 18
of the fluid tip section. The impinging liquid jets are oriented in non-parallel 19
directions. Independent claim 64 recites a spray coating method which 20
includes impinging a plurality of liquid jets onto one another within a fluid 21
breakup section of a coating spray device. Hedger discloses a chopper gun 22
applicator having parallel outlet passages. (FF 1 and 3). We agree with the 23
Appellant (App. Br. 8 and 10) that Hedger does not disclose impinging jets 24
oriented in a non-parallel direction or the step of impinging a plurality of 25
liquid jets into one another. 26
The Examiner agrees that the jets generated by the outlet passages 27
initially will be parallel. The Examiner finds the jets will impinge off the 28
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conical surface immediately surrounding the orifice to the channel leading to 1
the nozzle (see FF 4) and intersect in or immediately in front of the orifice. 2
Based on these findings, the Examiner determines that the jets will be non-3
parallel at impingement. (Ans. 9). 4
The Appellant counters that the fluid flow will break up upon 5
impacting or impinging the conical wall immediately surrounding the 6
orifice. The jets themselves will not impinge. (Reply Br. 3). We choose not 7
to speculate concerning the structure of the flow, if any, in the region 8
immediately between the outlet passages and the passage leading to the 9
nozzle in Hedger’s chopper gun applicator. The Examiner has not provided 10
reasoning sufficient to convince us that Hedger expressly or inherently 11
discloses orienting the jets themselves in a non-parallel direction. Likewise, 12
the Examiner has not provided reasoning sufficient to convince us that 13
Hedger expressly or inherently discloses performing the step of impinging a 14
plurality of jets into one another. 15
On the record before us, the Appellant has shown that the Examiner 16
erred in rejecting independent claims 1 and 64 under § 102(b). Since claims 17
7, 8, 12, 15, 17-19, 21, 25-28, 65-67, 70-74 and 87 depend from claims 1 18
and 64, the Appellant has shown that the Examiner erred in rejecting these 19
claims under § 102(b) as well. 20
21
B. The Rejection of Claims 2 and 3 Under § 103(a) as Being 22
Unpatentable Over Hedger 23
Claims 2 and 3 depend from claim 1. In support of the rejection of 24
claims 2 and 3, the Examiner reasons that it would have been obvious to 25
orient the jets in acute impingement angles relative to an exit of the fluid tip 26
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section, stating that “where the general conditions of a claim are disclosed in 1
the prior art, discovering the optimum workable ranges involves only routine 2
skill in the art.” (Ans. 8). Since we agree with the Appellant (Reply Br. 5) 3
that Hedger does not disclose or suggest orienting jets in non-parallel 4
directions, Hedger provides no design factor which one of ordinary skill in 5
the art might have optimized so as to orient the jets as recited in claims 2 and 6
3. On the record before us, the Appellant has shown that the Examiner erred 7
in rejecting claims 2 and 3 under § 103(a). 8
9
C. The Rejection of Claim 24 Under § 103(a) as Being 10
Unpatentable Over Hedger and Mellette 11
Claim 24 depends from claim 1. Mellette teaches a hydraulically 12
assisted high volume low pressure air spray gun assembly having an annular 13
atomizing air orifice disposed concentrically about an airless fluid tip. (FF 14
10 and 11). The Examiner reasons that it would have been obvious to 15
modify Hedger’s chopper gun applicator to provide an annular atomizing air 16
orifice disposed concentrically about the holes through which fluid exits the 17
applicator in order to better atomize the fluid. (Ans. 8-9). We agree with 18
the Appellant (App. Br. 15-16) that neither Hedger nor Mellette discloses or 19
teaches orienting jets in non-parallel directions as recited in claim 1 and, by 20
dependency, claim 24. On the record before us the Appellant has shown that 21
the Examiner erred in rejecting claim 24 under § 103(a). 22
23
D. The Rejection of Claims 30, 31, 35-39, 41, 45, 46, 49, 50, 53, 24
55, 75, 76, 79, 85, 86, 90 and 91 under § 102(b) as 25
Being Anticipated by Hubbard 26
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Independent claim 30 and dependent claims 31, 36-39, 41, 90 and 91 1
recite a spray coating device in which a plurality of liquid impingement 2
orifices are oriented in different directions relative to a longitudinal axis of a 3
breakup section. Hubbard discloses a device for spraying and atomizing 4
fluid including ducts which connects an annular cavity with a nozzle orifice. 5
The Appellant contends that Hubbard does not disclose “liquid impingement 6
orifices” because the fluid exiting the ducts does not impinge. (App. Br. 12). 7
Since the Examiner has a reasonable and unrebutted belief that the ends of 8
the ducts disclosed in Hubbard are “liquid impingement orifices” (see Ans. 9
10), we sustain the Examiner’s finding the Hubbard discloses such orifices. 10
We conclude that the limitation “liquid impingement orifices” is 11
functional to the extent that it requires that the orifices be capable of 12
directing liquid so as to impinge on other such liquid or an obstacle. 13
14
[W]here the Patent [and Trademark] Office has 15
reason to believe that a functional limitation 16
asserted to be critical for establishing novelty in 17
the claimed subject matter may, in fact, be an 18
inherent characteristic of the prior art, it possesses 19
the authority to require the applicant to prove that 20
the subject matter shown to be in the prior art does 21
not possess the characteristic relied on. 22
23
In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997)(quoting In re 24
Swinehart, 439 F.2d 210, 213 (CCPA 1971)). 25
The ducts disclosed in Hubbard are inclined annularly so that they 26
inject the fluid into the nozzle orifice tangentially. (FF 5, 7 and 8). The 27
nozzle orifice itself is annular (FF 7) and serves to confine the fluid entering 28
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from the ducts. Given this structure, the Examiner had a reasonable basis to 1
believe that the walls of the annular nozzle orifice shown in Hubbard would 2
capable of confining and directing liquid jets entering tangentially into the 3
orifice so that each jet impinges on the flow from an adjacent jet. The 4
Appellant has not submitted evidence in the form of a declaration or 5
otherwise sufficient to rebut this belief. Therefore, we sustain the 6
Examiner’s finding that Hubbard discloses liquid impingement orifices. On 7
the record before us, the Appellant has not shown that the Examiner erred in 8
rejecting claims 30, 31, 36-39, 41, 90 and 91 under § 102(b). 9
Claim 35 depends from claim 1. The Appellant contends that 10
Hubbard does not disclose a plurality of liquid impingement orifices directed 11
toward one another in a fluid impingement region because Hubbard’s ducts 12
intersect the nozzle orifice tangentially. (App. Br. 12). Since we sustain the 13
Examiner’s finding that the ends of the ducts of Hubbard’s device are liquid 14
impingement orifices, we agree with the implicit finding that Hubbard’s 15
nozzle orifice is a fluid impingement region. We also agree with the 16
Examiner (Ans. 10) that the ducts of Hubbard’s device are directed toward 17
one another. 18
During prosecution, the Patent and Trademark Office applies to the 19
words of a claim “the broadest reasonable meaning of the words in their 20
ordinary usage as they would be understood by one of ordinary skill in the 21
art, taking into account whatever enlightenment by way of definitions or 22
otherwise that may be afforded by the written description contained in the 23
applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 24
1997). The ordinary usage of the word “toward” is not limited to ducts 25
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directed at each other but is broad enough to include ducts directed at or 1
near each other. Since the ducts of Hubbard’s device are inclined radially at 2
a converging angle relative to an axis of the exit to Hubbard’s device (FF 7) 3
and since the nozzle orifice is relatively small (FF 9), the end of each one of 4
the ducts tangentially entering Hubbard’s nozzle orifice is directed toward 5
the end of another of the ducts. In other words, the ducts are directed toward 6
one another. On the record before us, the Appellant has not shown that the 7
Examiner erred in rejecting claim 35 under § 102(b). 8
The Appellant contends that Hubbard does not anticipate independent 9
claim 45 and dependent claims 46, 49, 50 and 55 because Hubbard does not 10
disclose a plurality of fluid impingement orifices or a plurality of fluid 11
passages converging inwardly toward one another. (App. Br. 12-13). The 12
Appellant contends that Hubbard does not anticipate independent claim 75 13
and dependent claims 76, 79, 85 and 86 because Hubbard does not disclose a 14
fluid impingement region. We have already sustained the Examiner’s 15
findings the Hubbard discloses these limitations. On the record before us, 16
the Appellant has not shown that the Examiner erred in rejecting claims 45, 17
46, 49, 50, 55, 75, 76, 79, 85 and 86 under § 102(b). 18
19
CONCLUSIONS 20
On the record before us, the Appellant has not shown that the 21
Examiner erred in rejecting claims 30, 31, 35-39, 41, 45, 46, 49, 50, 55, 75, 22
76, 79, 85, 86, 90 and 91 under § 102(b)as being anticipated by Hubbard. 23
The Appellant has shown that the Examiner erred in rejecting claims 1, 7, 8, 24
12, 15, 17-19, 21, 25-28, 65-67, 70-74 and 87 under § 102(b) as being 25
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anticipated by Hedger. The Appellant also has shown that the Examiner 1
erred in rejecting claims 2 and 3 under § 103(a) as being unpatentable over 2
Hedger and in rejecting claim 24 under § 103(a) as being unpatentable over 3
Hedger and Mellette. 4
5
DECISION 6
We AFFIRM the rejections of claims 30, 31, 35-39, 41, 45, 46, 49, 50, 7
55, 75, 76, 79, 85, 86, 90 and 91. 8
We REVERSE the rejections of claims 1, 2, 3, 7, 8, 12, 15, 17-19, 21, 9
24-28, 65-67, 70-74 and 87. 10
No time period for taking any subsequent action in connection with 11
this appeal may be extended under 37 C.F.R. § 1.136(a) (2007). See 37 12
C.F.R. § 1.136(a)(1)(iv) (2007). 13
14
AFFIRMED 15
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vsh 20
PATRICK S. YODER 21
FLETCHER, YODER & VAN SOMEREN 22
P.O. BOX 692289 23
HOUSTON, TX 77269-2289 24