Ex Parte Richerzhagen et alDownload PDFPatent Trial and Appeal BoardJan 30, 201811667484 (P.T.A.B. Jan. 30, 2018) Copy Citation 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. 11/667,484 05/10/2007 Bernold Richerzhagen 2360-0468PUS1 1830 127226 7590 02/01/2018 BIRCH, STEWART, KOLASCH & BIRCH, LLP 8110 Gatehouse Road Suite 100 East Falls Church, VA 22042-1248 EXAMINER CHOU, JIMMY ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 02/01/2018 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): mailroom @ bskb. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BERNOLD RICHERZHAGEN and AKOS SPIEGEL Appeal 2017-002839 Application 11/667,4841 Technology Center 3700 Before LINDA E. HORNER, ERIC C. JESCHKE, and PAUL J. KORNICZKY, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claims 18-23, 25-28, and 30-34. Final Office Action (May 26, 2016) (hereinafter “Final Act.”).2 We have jurisdiction under 35 U.S.C. § 6(b). Appellants contest the Examiner’s determination of obviousness of independent claims 18 and 23. The rejections of these claims are based on findings that Sanders discloses a constricted gas outlet nozzle at a distance downstream from and opposite the liquid nozzle and that Kojima 1 Appellants identify Synova SA as the real party in interest. Appeal Brief 1 (September 26, 2016) (hereinafter “Appeal Br.”). 2 Claims 1-17, 24, 29, and 35 are canceled. Appeal 2017-002839 Application 11/667,484 discloses a gas retaining space downstream of a liquid nozzle. The Examiner’s finding as to the disclosure in Sanders is supported by a preponderance of the evidence. As such, we sustain the Examiner’s decision rejecting independent claim 18 and its dependent claims. The Examiner’s finding as to the location of Kojima’s gas retaining space is not supported by a preponderance of the evidence. As such, we do not sustain the Examiner’s decision rejecting independent claim 23 and its dependent claims. Thus, we AFFIRM-IN-PART. CLAIMED SUBJECT MATTER Appellants’ claimed subject matter relates to “a method for generating a jet of liquid which is suitable for guiding, in the manner of a waveguide, a laser beam which is injected into it, for the purpose of processing a workpiece.” Substitute Specification 1,11. 12-15 (filed February 3, 2015) (hereinafter “Spec.”). Claims 18 and 23 are the independent claims. Claim 18 is illustrative of the subject matter on appeal and is reproduced below. 18. A method for generating a jet of liquid which is suitable for guiding, in the manner of a waveguide, a laser beam which is injected into said jet of liquid, for the purpose of processing a workpiece, comprising the steps of: a) providing a liquid nozzle, b) feeding a liquid to said liquid nozzle to generate the jet of liquid with said liquid nozzle, c) focusing a laser beam into said liquid nozzle such as to inject said laser beam into said jet of liquid and to guide the laser beam in the manner of a waveguide by the jet of liquid, d) injecting said jet of liquid into a gas retaining space, said gas retaining space being provided in a housing and having 2 Appeal 2017-002839 Application 11/667,484 a constricted gas outlet nozzle arranged at a distance downstream from and opposite the liquid nozzle, e) introducing a gas through at least one gas inlet into said gas retaining space, said gas being lead to the constricted gas outlet nozzle such that a gas stream is formed downstream of the constricted gas outlet nozzle, and f) jetting the jet of liquid through said gas retaining space and through said constricted gas outlet nozzle such that the jet of liquid does not touch the constricted gas outlet nozzle but is jetting through the constricted gas outlet nozzle and thereby is surrounded by said gas stream downstream of said constricted gas outlet nozzle. Appeal Br., Claims Appendix 1. Independent claim 23 is directed to a “device for generating a jet of liquid” and recites “a housing defining a gas retaining space adjoined to and downstream of said liquid nozzle.” Id. at Claims Appendix 2. EVIDENCE The Examiner’s decision relies upon the following evidence: Dykhno US 5,705,785 US 5,902,499 US 6,525,291 B1 US 2005/0109745 A1 JP 2000-334590 A Jan. 6, 1998 May 11, 1999 Feb. 25, 2003 May 26, 2005 Dec. 5, 2000 Richerzhagen Sanders Wessner Kojima 3 Appeal 2017-002839 Application 11/667,484 REJECTIONS The following rejections are before us on appeal3 4: 1. Claims 18, 20, 23, 25, 26, 28, and 30-34 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Kojima and Sanders. 2. Claims 21 and 22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Kojima, Sanders, and Wessner. 3. Claims 19 and 27 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Kojima, Sanders, Richerzhagen, and Dykhno. ISSUES The outcome in this case turns on the propriety of certain fact findings upon which the Examiner’s determination of obviousness rests. As to claim 18, the issue is whether Sanders discloses a housing having a constricted gas outlet nozzle at a distance downstream from and opposite a liquid nozzle. As to claim 23, the issue is whether Kojima discloses a housing having a gas retaining space downstream of a liquid nozzle. ANALYSIS Independent Claim 18 The Examiner found that Kojima discloses a method substantially as called for in claim 18, including injecting a jet of liquid into a gas retaining space having a constricted gas outlet nozzle. Final Act. 3. The Examiner found that Kojima’s constricted gas outlet nozzle is not arranged at a 3 The Final Office Action also included a rejection of claim 23 under 35 U.S.C. § 112, second paragraph, as being indefinite. Final Act. 2. The Examiner subsequently withdrew this rejection. Examiner’s Answer 16 (October 27, 2016) (hereinafter “Ans.”). 4 Appeal 2017-002839 Application 11/667,484 distance downstream from and opposite the liquid nozzle. Id. at 4. The Examiner proposed to modify Kojima based on Sanders, which discloses a constricted gas outlet nozzle arranged at a distance downstream from and opposite the liquid nozzle. Id. Appellants contend that the Examiner erred in rejecting claim 18 because “nowhere in Fig. 4b, or elsewhere in Sanders, is there any disclosure that the holes 29d are ‘constricted’ nor are they arranged opposite the liquid nozzle.” Appeal Br. 6. In light of this contention, we consider whether Sanders’s holes 29d are “constricted” and whether Sanders’s holes 29d are arranged “opposite” a liquid nozzle. We find no error in the Examiner’s finding that Sanders discloses a “constricted” nozzle. We interpret “constricted” gas outlet nozzle from the view of a person having ordinary skill in the art in light of the Specification. In re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (Claim terminology is construed during examining by giving claims “their broadest reasonable interpretation consistent with the specification” and “claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art”) (internal quotation and citations omitted). Appellants’ Specification discloses “[t]he inner wall 20 of the housing 7 which adjoins the nozzle block 1 extends to a maximum, circular internal diameter 21 and then tapers again conically as an inner wall part 24 toward a gas outlet nozzle 23.” Spec. 14,11. 26-29. Figure 1 shows a gas outlet nozzle 23, which has an opening that is smaller in area than other cross sections taken at portions of the gas retaining space upstream of the outlet nozzle, e.g., at the maximum inner wall diameter 21. Spec., Fig. 1. 5 Appeal 2017-002839 Application 11/667,484 The Specification further discloses, with respect to another embodiment depicted in Figure 6, “[t]he gas nozzle duct 79 forms the constricted gas outlet of the gas retaining space. Depending on requirements it can have a specific aerodynamic shape in order to shape the gas stream.” Spec. 22,11. 33-36. In light of the Specification, we understand a “constricted” gas outlet nozzle to refer to a nozzle having an opening with an area smaller than a cross-sectional area of a gas retaining space upstream from the outlet nozzle. In Sanders, holes 29d lie at one end of a series of ducts formed between nozzle disk 12 and shield gas disk 29a. Sanders, Figs. 4a, 4b. At the opposite end of each of these ducts is a large open space. Id. (space to the right of the duct where reference number “27” is shown). Holes 29d are “constricted” in that they are smaller in area than a cross-section taken in the large open space at the opposite end of this duct. Appellants have not proffered a narrower definition of “constricted,” or otherwise explained in any detail in their briefs why Sanders’s holes 29d are not “constricted” gas outlet nozzles when the claim language is read in view of the Specification. Appeal Br. 5-6. We also find no error in the Examiner’s finding that Sanders discloses a constricted gas outlet nozzle “opposite” the liquid nozzle. Claim 18 recites “a constricted gas outlet nozzle arranged at a distance downstream from and opposite the liquid nozzle.” Emphasis added. This recitation of the location of gas outlet nozzle as both downstream from and opposite the liquid nozzle implies, perhaps, that “opposite” means something different from 6 Appeal 2017-002839 Application 11/667,484 downstream. We look to Appellants’ Specification for the use of this term in context. Appellants’ Specification discloses that the housing can be embodied as a double cone with cone tips lying opposite one another and having the liquid nozzle arranged in the upper cone tip and the gas outlet nozzle arranged in the opposite lower cone tip. Spec. 11,11. 1-6. The Specification further discloses with regard to one embodiment, “[t]he housing 7 is embodied as a double cone, with the liquid nozzle 1 (nozzle block) being arranged in the one cone tip and the gas outlet nozzle 23 being arranged opposite, that is to say below it.” Spec. 14,11. 29-33. In light of the Specification, we understand opposite to mean that the gas outlet nozzle is located below the liquid nozzle. In Sanders, liquid nozzle 5a is depicted as being above holes 29d. Sanders, Fig. 4b. Thus, holes 29d are downstream of and below (opposite) liquid nozzle 5a. Appellants have not proffered a narrower definition of “opposite” or otherwise explained in any detail in their briefs why Sanders’s holes 29d are not “opposite” its liquid nozzle. Appeal Br. 5-6. For these reasons, we sustain the rejection of claim 18. Dependent Claims 20-22 Pursuant to 37 C.F.R. § 41.37(c)(l)(iv), claim 20 falls with claim 18. Appellants rely on the same arguments presented for claim 18 in support of the patentability of dependent claims 19, 21, and 22 over Kojima, Sanders, and one or more of Wessner, Richerzhagen, and Dykhno. As such, we also sustain the rejections of these dependent claims. 7 Appeal 2017-002839 Application 11/667,484 Independent Claim 23 Unlike claim 18, which recites simply “said gas retaining space being provided in a housing,” independent claim 23 further defines that the “gas retaining space [is] adjoined to and downstream of said liquid nozzle Appeal Br., Claims Appendix 2 (emphasis added). The Examiner found that Kojima discloses a gas retaining space, being the space within Kojima’s gas nozzle 23, that is adjoined to and downstream of the liquid nozzle. Final Act. 7. The Examiner provided a copy of Figure 2 of Kojima with the recited claim elements identified by annotation. Id. at 13. A copy of annotated Figure 2 is reproduced below: m The above-reproduced Figure 2 of Kojima shows annotations by the Examiner identifying a liquid nozzle, a constricted gas outlet nozzle, and a gas retaining space. The Examiner explains in the Answer that “[t]he word ‘downstream’ means the lower part of a st[r]eam” and “[t]he gas retaining space [in annotated Figure 2 of Kojima] is located at a lower part of [the] stream within the liquid nozzle.” Ans. 16. 8 Appeal 2017-002839 Application 11/667,484 We agree with Appellants that “downstream ‘of the liquid nozzle’ should be interpreted as after the liquid nozzle along the stream path.” Reply Brief 2 (December 22, 2016); Spec. 6,11. 22-27 (“In contrast to the prior art, long stable jet lengths are obtained if. . . the jet of liquid is firstly formed with the laser radiation injected and the applied gas is fed in only after a predefined amount of travel (i.e. [,] downstream with respect to the liquid nozzle)”). Figure 2 of Kojima shows the gas retaining space surrounding the liquid nozzle and coextensive with it; Kojima’s gas retaining space is not downstream of its liquid nozzle. For this reason, we do not sustain the rejection of independent claim 23. Dependent claims 25-28 and 30-34 The rejection of dependent claims 25, 26, 28, and 30-34 as unpatentable over Kojima and Sanders, and the rejection of claim 27 as unpatentable over Kojima, Sanders, Richerzhagen, and Dykhno likewise rely on the deficient finding that Kojima discloses a gas retaining space located downstream of the liquid nozzle. Final Act. 9-12. Accordingly, we also do not sustain the rejections of these dependent claims. DECISION The decision of the Examiner rejecting claims 18-22 is affirmed; the decision of the Examiner rejecting claims 23, 25-28, and 30-34 is reversed. 9 Appeal 2017-002839 Application 11/667,484 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 10 Copy with citationCopy as parenthetical citation