Ex Parte Sanchez et alDownload PDFPatent Trial and Appeal BoardJun 19, 201512095534 (P.T.A.B. Jun. 19, 2015) 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. 12/095,534 09/16/2008 Celia Sanchez 4195-060 2812 24112 7590 06/19/2015 COATS & BENNETT, PLLC 1400 Crescent Green, Suite 300 Cary, NC 27518 EXAMINER CONLEY, SEAN EVERETT ART UNIT PAPER NUMBER 1799 MAIL DATE DELIVERY MODE 06/19/2015 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 CELIA SANCHEZ, ANNABELLE COUVERT, and CHRISTOPHE RENNER ____________ Appeal 2013-007844 Application 12/095,534 Technology Center 1700 ____________ Before CHUNG K. PAK, MICHAEL P. COLAIANNI, and GEORGE C. BEST, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 20, 21, 26‒28, 30, and 42 of Application 12/095,534 under 35 U.S.C. § 102(b) as anticipated and claims 22‒25, 29, 31, 32, 40, and 41 under 35 U.S.C. § 103(a) as obvious. Final Act. (May 16, 2012). Appellants1 seek reversal of these rejections pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). For the reasons set forth below, we REVERSE. 1 OTV SA is identified as the real party in interest. Br. 2. We note that Appellants did not number the pages of their Brief. We have done so for ease of reference. Appeal 2013-007844 Application 12/095,534 2 BACKGROUND The ’534 Application describes methods for deodorization of gaseous effluents using a reactor through which the effluent passes in the presence of a wash solution. Spec. 1. Claim 20 is the ’534 Application’s only independent claim and is reproduced below with the limitation that is central to this appeal italicized: 20. A method for removing odiferous compounds from a gaseous influent[,] the method comprising: directing gaseous stream into a reactor and passing the gaseous stream through a mesh contained within the reactor, the mesh having strands; and as the gaseous stream passes through the mesh, mixing the gaseous stream with a wash solution to form a liquid-gas mixture, wherein mixing the gaseous stream with the wash solution as the gaseous stream passes through the mesh promotes turbulence and contact between the gaseous stream and the wash solution in the liquid-gas mixture. Br. 8 (Claims App’x) (emphasis added). REJECTIONS On appeal, the Examiner maintains the following rejections: 1. Claims 20, 21, 26‒28, 30, and 42 are rejected under 35 U.S.C. § 102(b) as anticipated by Arita.2 Final Act. 2. 2. Claims 22‒25, 32, 40, and 41 are rejected under 35 U.S.C. § 103(a) as unpatentable over Arita. Final Act. 4. 3. Claim 29 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Arita and Parker.3 Final Act. 5. 2 US 4,104,041, issued August 1, 1978. Appeal 2013-007844 Application 12/095,534 3 4. Claim 31 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Arita and Spink.4 Final Act. 6. DISCUSSION Rejection 1. The Examiner rejected claims 20, 21, 26‒28, 30, and 42 as anticipated by Arita. Final Act. 2. Appellants argue for reversal of this rejection based upon the limitations of claim 20 and does not present separate arguments with respect to any of the dependent claims subject to this rejection. We, therefore, limit our discussion to representative claim 20. See 37 C.F.R. § 41.37(c)(1)(iv) (2012). Appellants argue that this rejection should be reversed because Arita does not describe its apparatus as performing the claimed step of mixing the gaseous effluent stream with the wash liquid as the gaseous stream passes over the mesh under conditions that promote turbulence and contact between the gaseous effluent and the wash liquid. Br. 3‒5. The Examiner found that Arita’s apparatus inherently performs the claimed step of promoting turbulence and mixing. Final Act. 3; see also Ans. 2‒3. Appellants argue that this finding is erroneous because Arita’s structure does not necessarily result in turbulence. Br. 3‒5. In making an anticipation rejection, elements found to be inherently present must necessarily be present in or result from the prior art. In re Montgomery, 677 F.3d 1375, 1379–80 (Fed. Cir. 2012). “Inherency . . . may 3 US 7,276,366 B2, issued October 2, 2007. 4 US 6,579,506 B2, issued June 17, 2003. Appeal 2013-007844 Application 12/095,534 4 not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.” In re Olerich, 666 F.2d 578, 581 (CCPA 1981) (quoting Hansgirg v. Kemmer, 102 F.2d 212, 214 (CCPA 1939)). Here, the Examiner found that “[s]ome turbulence will always exist as the gaseous flow contacts the mesh strands during passage through the mesh, even with uniform distribution of the gas.” Ans. 2. Because this finding is erroneous, we reverse the rejection. Basic fluid dynamics teaches that when a moving fluid encounters a body, the resulting fluid behavior can be characterized by the applicable Reynolds number (Re). Assuming that screens described in Arita are made from fibers with a circular cross section, where ρ is the fluid density, v is the fluid velocity, D is the diameter of fiber filament, and µ is the dynamic viscosity of the fluid. At sufficiently low values of Re the fluid flows smoothly around the circumference of the mesh does not create either turbulence or vortices. As Re increases, the mesh filament creates a wake comprising vortices. At high Re values, a turbulent wake is created. For the purpose of this opinion, we need not and do not decide the minimum value of Re at which Arita’s device would mix the gaseous effluent stream with the wash liquid under conditions that promote turbulence and contact between the gaseous effluent and the wash liquid.5 5 We specifically do not decide whether operation in a regime in which fluid flow around the mesh filaments creates vortices but not turbulent flow (Cont’d) Appeal 2013-007844 Application 12/095,534 5 Neither Appellants nor the Examiner have calculated Re under the conditions described in Arita,6 and we shall not do so in the first instance. Furthermore, because the Examiner did not include an alternative rejection of claim 20 under § 103, we express no opinion regarding whether Arita would have suggested performance of the claimed step to a person of ordinary skill in the art at the time of the invention. On the record before us, it suffices to note that the Examiner did not provide adequate evidence and argument that Arita’s apparatus necessarily operates in a regime where smooth flow of the gaseous stream around the mesh filaments is precluded. We, therefore, reverse the rejection of claims 20, 21, 26‒28, 30, and 42 as anticipated by Arita. Rejections 2‒4. The Examiner rejected claims 22‒25, 29, 31, 32, 40, and 41 as obvious over Arita, either alone or in combination with an additional reference. In making these rejections, the Examiner relied upon the finding that Arita inherently describes the step of mixing the gaseous effluent stream with the wash liquid under conditions that promote turbulence and contact between the gaseous effluent and the wash liquid. Because we have determined that this finding is erroneous, we are constrained to reverse Rejections 2‒4. describes the claimed function of “promotes turbulence and contact between the gaseous stream and the wash solution.” 6 It seems that the various data needed for this calculation are available. See, e.g., Gas Viscosity Calculator, http://bit.ly/1Goyst9; The Engineering Toolbox, http://www.engineeringtoolbox.com/air-density-specific-weight- d_600.html; Dry Filter | PVDC Fiber “SaranTM” | Asahi Kasei Home Products Corporation, http://www.asahi-kasei.co.jp/sarannet/en/net.html. Appeal 2013-007844 Application 12/095,534 6 CONCLUSION For the reasons set forth above, we reverse the rejection of claims 20, 21, 26‒28, 30, and 42 as anticipated and of claims 22‒25, 29, 31, 32, 40, and 41 as obvious. REVERSED rvb Copy with citationCopy as parenthetical citation