Ex Parte Oberste-Berghaus et al

Patent Trial and Appeal Board

Jun 24, 2013

11410046 (P.T.A.B. Jun. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________
Ex parte JORG OBERSTE-BERGHAUS,
SALIM BOUARICHA, JEAN-GABRIEL LEGOUX,
CHRISTIAN MOREAU, and BERNARD HARVEY
____________________

Appeal 2011-005412
Application 11/410,046
Technology Center 3700
____________________

Before: CHARLES N. GREENHUT, BRETT C. MARTIN, and
BARRY L. GROSSMAN, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-005412
Application 11/410,046
2
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
2, 4-7, 9-20, and 22-25. App. Br. 2. We have jurisdiction under 35 U.S.C.
§ 6(b).
We reverse.

The claims are directed to a method and apparatus for fine particle
liquid suspension feed for a thermal spray system. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A method for injecting a fine powder suspension into a
plasma for plasma spraying, the method comprising:
a. supplying the fine powder suspension in a suspension
supply tube;
b. providing a propellant in a propellant supply tube, the
propellant supply tube being contained within the suspension
supply tube, at least proximate an end of the propellant supply
tube;
c. ejecting the propellant with the suspension into a
plume of a thermal spray apparatus, so that the propellant
occupies a core and the suspension occupies an annular sheath
disposed radially about the core.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Gitzhofer
Matsui
Jungmann
US 5,609,921
US 6,334,977
US 2004/0015269 A1
Mar. 11, 1997
Jan. 1, 2002
Jan. 22, 2004
Kear
Tsuneyoshi
US 6,723,387
JP-04059618
Apr. 20, 2004
Feb. 26, 1992
Appeal 2011-005412
Application 11/410,046
3

REJECTIONS
Claims 1 and 2 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Matsui. Ans. 3.
Claims 4, 5 and 23-25 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Matsui, Gitzhofer and Kear. Ans. 4.
Claims 6, 7 and 9-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Matsui, Gitzhofer, Kear, and Jungmann. Ans. 5.
Claim 22 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Matsui and Tsuneyoshi. Ans. 5.

OPINION
Independent claim 1 requires “ejecting the propellant with the
suspension into a plume of a thermal spray.” The Examiner cites Figure 1
and lines 33-38 of column 1 of Matsui to address this limitation. Ans. 3-4.
Matsui describes an inner nozzle 2 carrying a plasma gas, an intermediate
nozzle 3 carrying a feed gas and powder surrounding the inner nozzle 2, and
an outer nozzle 4 carrying a shielding gas and surrounding intermediate
nozzle 3. Matsui, fig. 1, col. 1, ll. 33-38. The Examiner does not identify the
specific element of Matsui interpreted as the “propellant.” Matsui’s feed gas
would seem to be a propellant, but based on the Examiner’s discussion of
the suspension the Examiner appears to have interpreted the feed gas and
powder combination as the recited “suspension.” If the feed gas were
interpreted as the “propellant” it is not be apparent what the Examiner would
interpret as the “suspension.” Thus, we understand the Examiner to regard
(over Appellants’ objection; App. Br. 12-15) Matsui’s powder and feed gas
combination as the suspension, and the plasma gas as the “propellant.” The
Appeal 2011-005412
Application 11/410,046
4
problem with this interpretation is that the Examiner has not established how
then Matsui’s plasma gas is ejected “with” the powder and feed gas into the
plume. App. Br. 16-17. These flows appear to be separately ejected into
Matsui’s plume in Figure 1 and there is no discussion in Matsui of the two
of them being ejected into the plume together. Cf. e.g., Application fig. 2
(wherein a mixing chamber 40 allows for the suspension or powder carrier
to mix with the propellant so they are ejected together into the plume).
Accordingly, at best, the Examiner’s rejection of claim 1 as anticipated by
Matsui is premised upon a speculative assumption without any basis in logic
or fact and therefore cannot be sustained.
Turning to claim 11, the Examiner does not provide any detailed
explanation of the claim limitations, instead referring back to previously
mentioned claims having different limitations. Ans. 5. While the phrase “for
axial injection of feedstock into the center of a plume” is a functional
limitation recited in the preamble, this limitation defines something about
the structure of the claimed device. See, e.g., K-2 Corp. v. Salomon S.A., 191
F.3d 1356, 1363 (Fed. Cir. 1999); Rowe v. Dror, 112 F.3d 473 (Fed. Cir.
1997). This limitation requires the claimed device to have a structure
rendering it capable of axially injecting feedstock or powder into the center
of a plume. Matsui only discloses the annular injection of powder into the
plume and the Examiner provides no evidence or reasoning to account for
this distinction. App. Br. 22-23. Accordingly, we must also reverse the
Examiner’s rejection of claim 11.
As the Examiner has not cited any facts or articulated any reasoning to
account for the aforementioned deficiencies in the rejections of independent
claims 1 and 11, we are constrained to reverse all of the Examiner’s
rejections.
Appeal 2011-005412
Application 11/410,046
5

DECISION
The Examiner’s rejections are reversed.

REVERSED

mls