Ex Parte Sugimoto et alDownload PDFPatent Trial and Appeal BoardJan 9, 201813716757 (P.T.A.B. Jan. 9, 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. 13/716,757 12/17/2012 Masanobu SUGIMOTO 20125411A 4551 513 7590 01/11/2018 WENDEROTH, LIND & PONACK, L.L.P. 1030 15th Street, N.W., Suite 400 East Washington, DC 20005-1503 EXAMINER LAFLAME JR, MICHAEL A ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 01/11/2018 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): ddalecki@wenderoth.com eoa@ wenderoth. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MASANOBU SUGIMOTO, KENICHI YAMADA, and MASANOBU IRIE Appeal 2017-001745 Application 13/716,7571 Technology Center 3700 Before LINDA E. HORNER, LISA M. GUIJT, and BRENT M. DOUGAL, 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 1-13. Final Office Action (September 1 Fuji Engineering Co., Ltd., Fujigiken Co., Ltd., and West Nippon Expressway Company Limited (collectively “Appellants”) are the applicants as provided in 37 C.F.R. § 1.46 and are identified as the real parties in interest. Appeal Brief 2 (March 15, 2016, hereinafter “Appeal Br.”). Appeal 2017-001745 Application 13/716,757 10, 2015, hereinafter “Final Act.”). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER Appellants’ claimed subject matter relates to “a plasma spraying apparatus” and “a method of forming a sprayed coating onto a target.” Specification 1,11. 5, 8 (filed December 17, 2012, hereinafter “Spec.”). Claims 1 and 8 are the independent claims. Claim 1 is reproduced below. 1. A plasma spraying apparatus comprising: a cathode; a first gas nozzle surrounding a head of said cathode therewith to form a first gas path between said cathode and said first gas nozzle; a second gas nozzle surrounding said first gas nozzle therewith to form a second gas path between said first gas nozzle and said second gas nozzle; and a third gas nozzle disposed between said first gas nozzle and said second gas nozzle to define a third gas path between said first gas path and said second gas path, wherein a first gas sprayed through said first gas nozzle is turned into plasma flame by arc generated between said cathode and a wire disposed in front of a nozzle opening of said second gas nozzle, said wire is molten at a distal end thereof into droplets by said plasma flame, and said droplets are sprayed onto a target by means of both said plasma flame and a second gas sprayed through said second gas nozzle, and a third gas sprayed through said third gas nozzle absorbs heat from said plasma flame to thereby turn into a high- temperature gas flow externally of said plasma flame. Appeal Br. 10 (Claims Appendix). 2 Appeal 2017-001745 Application 13/716,757 EVIDENCE The Examiner’s decision relies upon the following evidence: Stand US 3,676,638 July 22, 1972 Browning US 4,762,977 Aug. 9, 1988 Kley US 6,680,085 B2 Jan. 20, 2004 Johnson US 6,744,006 B2 June 1,2004 Shimazu JP 09-308970 A Dec. 2, 1997 REJECTIONS The Final Office Action includes the following rejections: 1. Claims 1, 2, 4, 8, and 10 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Browning and Shimazu. 2. Claims 3 and 9 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Browning, Shimazu, and Johnson. 3. Claims 5,6, 11, and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Browning, Shimazu, and Stand. 4. Claims 7 and 13 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Browning, Shimazu, and Kley. ANALYSIS First Ground of Rejection: Obviousness over Browning and Shimazu Claims 1, 2, and 4 The Examiner found that Browning discloses a first nozzle (30) and a second nozzle (40), as well as, the use of a first gas (plasma gas), a second gas (secondary gas), and a third gas (compressed air). Final Act. 2 (citing Browning, Fig. 2). The Examiner found that Browning does not disclose the claimed third nozzle between the first and second nozzles. Id. The 3 Appeal 2017-001745 Application 13/716,757 Examiner found that Shimazu discloses a second nozzle (10) outside of a first nozzle (30) with a third nozzle (40) between the first and second nozzles. Id. (citing Shimazu, Fig. 1). The Examiner determined it would have been obvious to “utilize the third nozzle of Shimazu with the wire and third gas of Browning in order to guide the wire to a desired location.” Id. at 3. Specifically, the Examiner proposed to modify Browning to place the wire and compressed air of Browning in Shimazu’s third gas nozzle 40. Id. at 4. The Examiner explains that in the modified apparatus, Browning’s compressed air would flow between the plasma gas and secondary gas. Id.', see also Ans. 4 (“The third nozzle (40) in Shimazu is shown inside of nozzle (10) and outside of nozzle (30) at least circumferentially, and therefore between two nozzles as claimed.”). Appellants argue that the rejection of claim 1 should not be sustained because nozzles 30 and 40 of Shimazu define only two gas paths, and the claim requires that a third gas nozzle be disposed between the first and second gas nozzles to define a third gas path between the first and second gas paths. Appeal Br. 5. Appellants argue that Shimazu’s nozzle 40 is not between two nozzles as claimed, and that “[a] person of ordinary skill in the art would clearly understand Shimazu to disclose only two nozzles.” Id.', see also Reply Br. 2 (“A person of ordinary skill in the art would clearly understand Shimazu to disclose only two nozzles - especially since Shimazu teaches only two gas inlets 11, 12.”). We agree with Appellants that Shimazu does not disclose a third gas nozzle disposed between a first gas nozzle and a second gas nozzle. In particular, we do not find adequate support for the Examiner’s finding that 4 Appeal 2017-001745 Application 13/716,757 Shimazu’s torch body 10 is a nozzle. An anode 22 is mounted in an insulative state in Shimazu’s torch body 10 and gas passages are provided therethrough. Shimazu 131, Fig. 1. Specifically, Shimazu discloses torch body 10 contains a primary gas passage 11 and a secondary gas passage 12. Id., Abst. A first gas nozzle 30 surrounds the tip of anode 20 and is connected to torch body 10. Id., Fig. 1. First gas nozzle 30 receives primary gas from primary gas passage 11 and directs the gas through a nozzle outlet adjacent the tip of anode 20 to create a plasma flame. Id. 115. A second gas nozzle 40 surrounds first gas nozzle 30 and also is connected to torch body 10. Id., Fig. 1. Second gas nozzle receives secondary gas from secondary gas passage 12 and directs the gas through a gas path formed between first and second gas nozzles 30, 40 to accelerate the droplets and prevent diffusion of the primary gas. Id. 116. Thus, Shimazu discloses only two nozzles 30, 40 and two gas paths, i.e., a primary gas path and a secondary gas path. Shimazu’s torch body 10 is not a nozzle; rather, it is similar to Browning’s electrically insulating piece 10. Compare Shimazu, Fig. 1, with Browning, Figs. 1A, IB, and 2. Specifically, an electrode 11 is mounted in Browning’s piece 10 and a tube 13 and a formed passage 14 are provided in piece 10, through which plasma forming gas is introduced to a chamber 15. Browning, col. 1,11. 29-30, 35- 37, Figs. 1 A, IB, and 2. Notably, Browning does not refer to electrically insulating piece 10 as a nozzle. See Browning, col. 1,11. 37-38 (describing that plasma forming gas passes into chamber 15 and through nozzle 30). The Examiner’s interpretation of “nozzle” as encompassing any passageway is unreasonably broad. See Ans. 3 (“[A]t least parts of 5 Appeal 2017-001745 Application 13/716,757 Shimazu’s element 10 are used for distributing gases” and thus “element 10 at least has the function of a nozzle and can reasonably be interpreted to be a nozzle”). An ordinary meaning of “nozzle” includes “a short tube with a taper or constriction used (as on a hose) to speed up or direct a flow of fluid.” Merriam-Webster on-line dictionary, definition lb (www.merriam- webster.com/dictionary/nozzle) last accessed January 3, 2018. The term nozzle is used consistently in Appellants’ Specification and the prior art to refer to such a tapered element. See, e.g., Spec. 7,11. 9-28, Fig. 3 (describing first gas nozzle 10, second gas nozzle 20, and third gas nozzle 30, each of which has an inner diameter that tapers from an inlet to an outlet); Browning, Fig. 2 (nozzle 30); and Shimazu, Fig. 1 (nozzle 30 and nozzle 40). One having ordinary skill in the art would not understand nozzle, when read in light of Appellants’ Specification, to encompass Shimazu’s torch body 10 including gas passages 11 and 12. The Examiner’s determination of obviousness of claim 1 is based on a proposed modification of Browning’s apparatus to add the asserted third nozzle of Shimazu. Because we find that Shimazu discloses only two nozzles, we do not sustain the rejection of claim 1, and of dependent claims 2 and 4, as unpatentable over Browning and Shimazu. Claims 8 and 10 Independent method claim 8 recites “causing a third gas to flow between said first gas and said second gas to absorb heat from said plasma flame to thereby turn into a high-temperature gas flow externally of said plasma flame.” Appeal Br. 11 (Claims Appendix). The Examiner’s rejection of claim 8, similar to claim 1, relies on a proposed modification of 6 Appeal 2017-001745 Application 13/716,757 Browning with the alleged third nozzle of Shimazu in order to dispose the identified third gas of Browning “between said first gas and said second gas.” Appeal Br. 11 (Claims Appendix); see also Final Act. 2-3; Ans. 5-6. For the reasons discussed above, for example, because we find that Shimazu discloses only two nozzles, we do not sustain the rejection of claim 8, and of dependent claim 10, as unpatentable over Browning and Shimazu. Remaining Grounds of Rejection The remaining grounds of rejection of dependent claims 3, 5-7, 9, and 11-13 are based on the same deficient finding that Shimazu discloses three nozzles and the same proposed modification of Browning with the alleged third nozzle of Shimazu. Final Act. 3^4. The Examiner does not rely on either Johnson, or Stand, or Kley to cure the above-noted deficiency in Shimazu. Id. Accordingly, for the reasons discussed above, we do not sustain the rejections under § 103(a) of claims 3, 5-7, 9, and 11-13. DECISION The decision of the Examiner rejecting claims 1-13 is reversed. REVERSED 7 Copy with citationCopy as parenthetical citation