Ex Parte Wegehaupt

Board of Patent Appeals and Interferences

Feb 21, 2008

10261493 (B.P.A.I. Feb. 21, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte FRANK WEGEHAUPT
____________

Appeal 2007-4232
Application 10/261,493
Technology Center 1700
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Decided: February 21, 2008
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Before EDWARD C. KIMLIN, THOMAS A. WALTZ, and LINDA M.
GAUDETTE, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal from the final rejection of claims 1-22, 49, 51 and
52.
Claims 1 and 49 are illustrative:
1. A process for spraying a moving fibrous material web with at least
one nozzle, comprising:

Appeal 2007-4232
Application 10/261,493

feeding a spray medium volume flow of the at least one nozzle via at
least one valve; and

damping or weakening pulsations occurring in the volume flow of the
spray medium with a membrane accumulator having two areas separated by
a flexible membrane, in which one area is filled with gas and the other area
is filled the spray medium.

49. A process for spraying a moving fibrous material web with a
device that includes at least one nozzle, at least one valve arranged to feed a
spray medium volume flow to said at least one nozzle, and a damping
element arranged to damp or weaken pulsations occurring in the volume
flow of the spray medium, said process comprising:

feeding an adjustable spray medium volume flow of the at least one
nozzle via the at least one valve activated at a clock frequency of less than
about 30Hz, the at least one valve comprising one of a pulsation valve or a
discontinuously activated proportional valve; and

damping or weakening pulsations occurring in the volume flow of the
spray medium.

The Examiner relies upon the following references in the rejection of
the appealed claims:
Morgart 5,171,134 Dec. 15, 1992
Wolf, as translated (DE '479) DE 199 46 479 A1 Mar. 29, 2001
Wolf 6,444,090 B1 Sep. 3, 2002

Appellant's claimed invention is directed to a process for spraying a
moving fibrous material web with at least one nozzle. The process entails
feeding a spray medium volume flow through a valve, such as a pulsation
valve, and then passing the spray medium through a damping element, such
as a membrane accumulator, in order to dampen or weaken the pulsations in
the flow of spray medium.
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Application 10/261,493

Appealed claims 1-18, 22, and 52 stand rejected under the judicially
created doctrine of obviousness-type double patenting as being unpatentable
over claims 1-18 and 40 of the patent to Wolf in view of Morgart. Claims 1-
22, 49, 51, and 52 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over DE '479 in view of Morgart.
Appellant does not set forth separate, substantive arguments for
dependent claims 2-22. Appellant's repetitive statements that the applied
references do not "positively disclose" the features of the claims do not
satisfy the requirement for a separate, substantive argument explaining why
the claimed feature would have been nonobvious to one of ordinary skill in
the art. Accordingly, claims 2-22 stand or fall together with claim 1.
We have thoroughly reviewed each of Appellant's arguments for
patentability. However, we are in complete agreement with the Examiner's
reasoned analysis and application of the cited references as well as his
cogent disposition of the arguments raised by Appellant. Accordingly, we
will sustain the Examiner's rejections for the reasons set forth in the Answer
and we add the following primarily for emphasis.
We consider first the Examiner's obviousness-type double patenting
rejection of claims 1-18, 22, and 52. The patented claims define a process,
like Appellants, for spraying a moving fibrous web with at least one nozzle
comprising feeding a controlled volume flow of sprayed medium through a
pulsing valve and a dampener. As recognized by the Examiner, the patented
claims do not recite that the dampener is a membrane accumulator having
two areas separated by a flexible membrane in which one area is filled with
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Application 10/261,493

gas and the other area is filled with the spray medium.1 However, there is
no dispute that Morgart evidences that a membrane accumulator was known
in the art for dampening pulsations in fluid flow. Accordingly, we are in full
agreement with the Examiner that it would have been obvious for one of
ordinary skill in the art to select a membrane accumulator of the type
disclosed by Morgart as the dampener in the patented process for spraying a
moving fibrous web with a pulsated liquid medium. In our view, the
combination of Morgart's membrane accumulator in the patented process
which requires a dampener is nothing more than the combination of familiar
elements in a known method that yields no more than predictable results.
KSR Int'l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1739 (2007). We note that
Appellant has proffered no objective evidence which establishes that the use
of a membrane accumulator as a dampener in the claimed process for
spraying a moving fibrous material web produces unexpected results.
Appellant points out that the patented claims recite a pulsing valve
whereas Morgart discloses a reciprocating pump, and that a careful review
of Morgart provides no teaching or suggestion for replacing the
reciprocating pump with a pulsing valve. However, the Examiner's
conclusion of obviousness does not require any such replacement of a
reciprocating pump with a pulsing valve. Rather, the Examiner's rejection is
based on the rationale that it would have been obvious for one of ordinary
skill in the art to select a known dampener, such as Morgart's membrane
accumulator, for the dampener used in the patented process which is
disclosed in only general terms. Appellants have presented no reason why

1 Independent claims 49 and 51 broadly recite damping the pulsations
without specifying a membrane accumulator.
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one of ordinary skill in the art would have been dissuaded from using the
known membrane accumulator for the dampener in the patented process.
While Appellant contends that "it would not have been obvious to utilize
damping devices especially designed for a reciprocating pump in
conjunction with a pulsing valve" (Principal Br. 12, third para.), Appellant
has presented no evidence that one of ordinary skill in the art would have
used a membrane accumulator only with a reciprocating pump.
Accordingly, Appellant's argument lacks the requisite factual support.
We also note that Appellant's Specification attaches no particular
criticality to the use of a membrane accumulator as the damping device.
After teaching the use of pulsation dampers or pulse dampers at page 3 of
the Specification, we are simply told that "the damping can also be carried
out by a membrane accumulator" (Spec. 4, para. 0016).
Concerning the § 103 rejection of claims 1-22, 49, 51, and 52 over DE
'479 in view of Morgart, the Examiner's underlying rationale is essentially
the same as that set forth with respect to the double patenting rejection.
Likewise, Appellant's arguments are essentially the same as those directed
against the double patenting rejection. Consequently, it logically follows
that we agree with the Examiner that it would have been obvious for one of
ordinary skill in the art to employ the membrane accumulator of Morgart as
the damping element in the process of DE '479 for spraying a moving
fibrous web with fluid through a nozzle.
As a final point, we note that Appellant bases no argument upon
objective evidence of nonobviousness, such as unexpected results, which
would serve to rebut the prima facie case of obviousness established by the
Examiner.
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In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner's rejection of the appealed claims is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(effective
Sept. 13, 2004).
AFFIRMED

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GREENBLUM & BERNSTEIN, PO.C.
1950 ROLAND CLARKJE PLACE
RESTON, VA 20191
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