Ex Parte MicheliDownload PDFBoard of Patent Appeals and InterferencesSep 22, 200810223648 (B.P.A.I. Sep. 22, 2008) Copy Citation 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 Appeal 2008-2641 Application 10/223,648 2 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 Claims 6, 10, 13, 22, 32, 34, 40, 47, 54, 68 and 77 are withdrawn from consideration as being directed to a non-elected species.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). Appeal 2008-2641 Application 10/223,648 3 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 Appeal 2008-2641 Application 10/223,648 4 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 Appeal 2008-2641 Application 10/223,648 5 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 Appeal 2008-2641 Application 10/223,648 6 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 Appeal 2008-2641 Application 10/223,648 7 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 Appeal 2008-2641 Application 10/223,648 8 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 Appeal 2008-2641 Application 10/223,648 9 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 Appeal 2008-2641 Application 10/223,648 10 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 Appeal 2008-2641 Application 10/223,648 11 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 Appeal 2008-2641 Application 10/223,648 12 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 16 17 18 19 vsh 20 PATRICK S. YODER 21 FLETCHER, YODER & VAN SOMEREN 22 P.O. BOX 692289 23 HOUSTON, TX 77269-2289 24 Copy with citationCopy as parenthetical citation