Ex Parte VanBuren

Patent Trial and Appeal Board

Mar 28, 2018

13736112 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/736, 112 01/08/2013 Ricky VanBuren
270 7590 03/30/2018
HOWSON & HOWSON LLP
350 Sentry Parkway
Building 620, Suite 210
Blue Bell, PA 19422
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RUSlOUSA 3428
EXAMINER
CERNOCH, STEVEN MICHAEL
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
03/30/2018 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):
docketing@howsoniplaw.com
ckodroff@howsoniplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICKY V ANBUREN 1
Appeal2017-006155
Application 13/736, 112
Technology Center 3700
Before JAMES P. CAL VE, GEORGE R. HOSKINS, and
LEE L. STEPINA, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Final Action
rejecting claims 4--10 and 13-15. Appeal Br. 1. Claim 1 is withdrawn and
claims 2 and 3 are cancelled. Id. at 16 (Claims App'x). Claims 11 and 12
are allowed. Final Act. 2. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 Rusmar Incorporated is identified as the real party in interest and also is the
applicant as provided for in 37 C.F.R. § 1.46. Appeal Br. 4.
Appeal2017-006155
Application 13/736,112
CLAIMED SUBJECT MATTER
Claim 5, the sole independent claim, is reproduced below.
5. A method of applying rock dust to a mine wall
compnsmg:
entraining rock dust in air in a first flexible conduit,
thereby causing a mixture of rock dust and air to
flow through said first flexible conduit;
causing a flowable foam to flow through a second
flexible conduit;
combining said mixture of rock dust and air taken from
said first flexible conduit with said flowable foam
taken from said second flexible conduit in a
mixing chamber within a movable assembly, said
mixing chamber having inlets connected
respectively to said first and second flexible
conduits, thereby producing, in said mixing
chamber, a mixture of rock dust, air and foam;
causing said mixture of rock dust, air and foam to flow,
from said internal chamber of the movable
assembly, through a nozzle connected to said
movable assembly; and
applying the mixture of air, rock dust and foam flowing
through said nozzle to a mine wall by moving said
movable assembly relative to the mine wall while
aiming said nozzle at said mine wall;
wherein, unless said nozzle is restrained, the connection
of said nozzle to the movable assembly causes said
nozzle to move with said movable assembly
whenever said movable assembly is moved relative
to said mine wall.
Appeal Br. 16-18 (Claims App'x).
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Appeal2017-006155
Application 13/736,112
REJECTIONS
Claims 4--8 and 13-15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Gay (US 6,726,849 B2, iss. Apr. 27, 2004) and Yie (US
6,431,465 Bl, iss. Aug. 13, 2002).
Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Gay, Yie, and Fenton (US 2011/0203813 Al, pub. Aug. 25, 2011).
ANALYSIS
Claims 4-8 and 13-15
Rejected Over Gay and Yie
The dispositive issue on this appeal is whether it would have been
obvious to combine the first and second flexible conduits, mixing chamber
in a movable assembly, and nozzle of Yie with the rock dusting method of
Gay. The Examiner proposes to do so "for delivering a pulsed fluid jet that
can be used to extinguish a fire (Yie- col. 1, lines 6-8)." Final Act. 3.
We are not persuaded a skilled artisan would have been motivated to
use Yie's liquid jet in the claimed rock dusting method. Appeal Br. 13-14.
Like the claimed method, Gay teaches a method of rock dusting that forms a
foam by incorporating air into a foam mixture and combining that foam with
dust made from materials like dolomite, gypsum, and magnesite. Gay, 2:55-
65; see Final Act. 2-3 (citing id.). The claimed method further entrains rock
dust in air and combines this mixture with a foam in a chamber and flows
the resulting mixture through a nozzle. Appeal Br. 16-17 (Claims App'x).
Yie teaches a water jet nozzle for extinguishing fires. The pulsed,
high pressure jet "can be very fast and can pack considerable power which is
particularly suitable for carrying additives." Yie, 4:41--46. However, air
"cannot be used to generate a very fast pressurized jet." Id. at 4:46--48.
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Appeal2017-006155
Application 13/736,112
Selected additives are introduced into Yie's pulsed, fluid jet nozzle in
a mixing chamber using the venturi effect or by mixing the additives in the
fluid prior to pressurization of the fluid. Id. at 3:55---66; 9:34--54, Fig. 6.
Given these teachings, we are not persuaded a skilled artisan would
have been motivated to modify Gay's rock dusting method to use the pulsed,
fluid water jet nozzle of Yie. In contrast to Yie, Gay desires to coat surfaces
of a coal mine with stone dust. Gay, 1: 12-23. Gay does so by blending dry
mineral dust with foam and spraying the foamed mass to adhere to surfaces.
Id. at 2: 5-15. The low density of the foamed material can be built up to any
suitable thickness. Id. at 2: 15-17. The foamed material adheres to a surface
of the mine and loses moisture to form a porous coating. Id. at 4:3-15.
We are not persuaded a skilled artisan would have used Yie' s high
pressure, fluid jet nozzle, which is designed to extinguish fires, in Gay when
Gay's rock dusting method is designed to prevent fires from occurring by
coating mine surfaces with a foam-dust mixture. See Ans. 3--4. The dried
coating also suppresses fires resulting from coal dust or gas explosions as
the dust coating falls from mine surfaces and produces a limestone dust-air
suspension that suppresses the propagating flame. Gay, 1: 19-23. Such fire
suppression does not require the use ofYie's high pressure fluid jet nozzle.
Yie teaches to use water with fire retardants to create a slurry "that
can smear and stick to burning surfaces like a wet blanket." Yie, 2:59---63.
However, the Examiner does not explain sufficiently why a skilled artisan
would have used Yie'sfluid jet nozzle with Gay's rock dusting method to
apply a mixture of air, rock dust, and foam when Yie discourages the use of
its high pressure fluid jet nozzle with air as a pressurizing medium.
Thus, we do not sustain the rejection of claims 4--8 and 13-15.
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Appeal2017-006155
Application 13/736,112
Claims 9 and 10
Rejected Over Gay, Yie, and Fenton
The Examiner's reliance on Fenton to teach the step of varying the
aperture of a restriction through which rock dust and air flow into the mixing
chamber, as recited in claims 9 and 10 (Final Act. 5 (citing Fenton i-f 138)),
does not remedy the deficiencies of Gay and Yie noted above as to claim 5,
from which claims 9 and 10 depend. Thus, we do not sustain the rejection of
claims 9 and 1 0.
DECISION
We reverse the rejections of claims 4--10 and 13-15.
REVERSED
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