10568792 (P.T.A.B. Feb. 19, 2014)

Ex Parte Peltola et al

Patent Trial and Appeal BoardFeb 19, 2014

10568792 (P.T.A.B. Feb. 19, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 10/568,792 02/17/2006 Esa Peltola 37888-400200 6422 27717 7590 02/19/2014 SEYFARTH SHAW LLP 131 S. DEARBORN ST., SUITE 2400 CHICAGO, IL 60603-5803 EXAMINER CERNOCH, STEVEN MICHAEL ART UNIT PAPER NUMBER 3752 MAIL DATE DELIVERY MODE 02/19/2014 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 ESA PELTOLA and MIKKO ASUMANIEMI ____________ Appeal 2012-002858 Application 10/568,792 Technology Center 3700 ____________ Before HUBERT C. LORIN, BIBHU R. MOHANTY, and MICHAEL C. ASTORINO, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-17. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). An oral hearing was held on February 11, 2014. We REVERSE. Appeal 2012-002858 Application 10/568,792 2 Claimed Subject Matter Claims 1, 5, 7, 16, and 17 are independent. Claim 17, reproduced below, is illustrative of the subject matter on appeal. 17. A nozzle of a piercing tool for spraying a fire extinguishing medium comprising: a substantially conical front end for piercing a shell of a burning object; a fastening means at a rear end of the nozzle for fastening the nozzle to the piercing tool, at least one feed channel for feeding a fire extinguishing medium to the nozzle, a plurality of orifices extending from the feed channel through the substantially conical front end to an outer surface of the nozzle, the orifices being directed obliquely forwards such that the farther away from the front end of the nozzle a single orifice resides, the larger an acute angle between the middle axis of the orifice and the middle axis of the nozzle, wherein the longitudinal cross section of the nozzle, the orifices are arranged to pass via substantially the same imaginary plane so that the fire extinguishing medium fed through the orifices forms a plurality of single jets which intersect one another to form a single uniform jet having a flat curtain-like shape; and a solid front most portion of the conical front end between a front most pair of the plurality of orifices. Rejections The following Examiner’s rejections are before us for review: claims 1-10 and 14-17 under 35 U.S.C. § 103(a) as unpatentable over Relyea (US 5,301,756, iss. Apr. 12, 1994) and Glowienke (US 4,043,397, iss. Aug. 23, 1977); Appeal 2012-002858 Application 10/568,792 3 claim 11 under 35 U.S.C. § 103(a) as unpatentable over Relyea, Glowienke, and Geddes (US 2,246,797, iss. June 24, 1941); and claims 12 and 13 under 35 U.S.C. § 103(a) as unpatentable over Relyea, Glowienke, Geddes, and Nicholson (US 4,435,891, iss. Mar. 13, 1984). OPINION The Examiner finds that Relyea discloses the subject matter of independent claims 1, 5, 7, 16, and 17, except for the orifice pattern called for by these claims. For example, the Examiner finds Relyea does not disclose, “an orifice pattern that shows directing a plurality of single jets expelled from the orifices so that they intersect one another to form a single uniform jet having a flat curtain-like shape.” Final Off. Act. 2. To remedy this deficiency with respect to independent claims 1, 5, 7, 16, and 17 the Examiner relies on Glowienke’s orifice pattern. Id. at 2, 3-4, 5, 7, and 8 (citing Glowienke, figs. 1 and 6, and col. 3, ll. 9-15). The Examiner concludes, “it would have been obvious to one of ordinary skill in the art to provide the orifices of Relyea . . . with the orifice pattern of Glowienke.” Id. at 2, 4, 5, 7, and 8 (emphasis added). The Appellants contend that the Relyea and Glowienke would not have been obvious to combine because, among other things, “[t]here is no structure in Relyea and Glowienke that, alone or combined, produces a boom system that can both (1) pierce a burning object; and (2) expel flame retardant in a flat, curtain-like shape.” App. Br. 17. To support this contention the Appellants point out that “Relyea discloses a conical structure converging at a point at the front-most end, and Glowienke discloses a Appeal 2012-002858 Application 10/568,792 4 divergent structure that is wider at the front-most end than at the rear end of the nozzle.” Reply Br. 2; see Relyea, fig. 15 and Glowienke, fig. 6. The Examiner attempts to shed light on the proffered combination by commenting, “modifying Relyea with Glowienke only replaces the orifice pattern specifically, the orifices would still reside on nozzle 196 with element 198 still being threaded into it.” Ans. 8. This comment appears to be the best offering from the Examiner to explain the details of the proffered combination. Despite the Examiner’s attempts we cannot readily ascertain the result of providing the orifice pattern of Relyea’s with the orifice pattern of Glowienke. For example, the Appellants understand the combined teachings of Relyea and Glowienke to change the structure of the Relyea’s tapered portion 196 to include Glowienke’s outwardly arched nozzle nose 19. See Reply Br. 2. This understanding seems reasonable since Glowienke’s orifice pattern, a honey-combed discharge, follows from its structure, i.e., an outwardly arched nozzle nose 19 having an integral web 21 and partition walls 23 and 24 that create discharge openings 25 and 26. Glowienke, col. 2, ll. 49-64, figs. 6 and 8. Another possibility is that the Examiner has not combined the teachings of Relyea and Glowienke to change the structure of the Relyea’s tapered portion 196, but merely replaced the Relyea’s orifice 200 pattern with Glowienke’s honey-combed orifice pattern. First, since we cannot fully ascertain the Examiner’s proffered combination, we determine that the Examiner has failed established a prima facie case of obviousness. Second, of what we can ascertain from the Examiner’s proffered combination, it is apparent that the combined teachings of Relyea and Glowienke would not have resulted in a single Appeal 2012-002858 Application 10/568,792 5 uniform jet having a flat curtain-like shape as called for by independent claims 1, 5, 7, 16, and 17. See App. Br. 17; see also App. Br. 11 and Reply Br. 5-7. Glowienke discloses that its spray nozzle 16 “discharges a relatively wide unbroken wall of water” (Glowienke, col. 3, ll. 11-13), i.e., a single uniform jet having a flat curtain-like shape. Notably, the structure of the nozzle affects the discharge or jet of water from a nozzle. The structure of the nozzle 16 at its front end (nose) 19 is arched outwardly and includes an orifice pattern that has an uninterrupted series of discharge openings 25 and 26. Glowienke’s teaching of an “unbroken wall of water” appears to result in-part from its nozzle 16 having an uninterrupted series of discharge openings 25 and 26. It is clear from the Examiner’s proffered combination that Relyea’s penetrating tip 198 remains and is unaffected by the modification of orifices 200. See Ans. 8 (“the orifices would still reside on nozzle 196 with element 198 still being threaded into it”); see also Relyea, col. 10, ll. 35-38 and fig. 15. Maintaining penetrating tip 198 in position creates a spatial gap between orifices (discharge openings) 200 at the front end of Relyea’s piercing nozzle 192. This spatial gap interrupts the series of discharge openings at the front end of Relyea’s nozzle. The Examiner’s proffered combination does not account this spatial gap at the front end of Relyea’s modified nozzle. As such, the Examiner’s determination that Relyea’s modified nozzle would discharge an unbroken wall of water, i.e., a single uniform jet having a flat curtain-like shape, lacks adequate reasoning. Appeal 2012-002858 Application 10/568,792 6 Thus, the rejection of independent claims 1, 5, 7, 16, and 17 as unpatentable over Relyea and Glowienke is not sustained. Additionally, we will also not sustain the rejection of claims 2-4, 6, 8-10, 14, and 15, because these claims directly depend from one of independent claims 1, 5, and 7. The remaining rejections based on Relyea and Glowienke in combination with Geddes or Geddes and Nicholson rely on the same erroneous reasoning discussed above. As such, we cannot sustain the rejections under 35 U.S.C. § 103(a) of claim 11 under 35 U.S.C. § 103(a) as unpatentable over Relyea, Glowienke, and Geddes, and claims 12 and 13 as unpatentable over Relyea, Glowienke, Geddes, and Nicholson. DECISION We REVERSE the rejections of claims 1-17. REVERSED Vsh