Ex Parte Patrick et alDownload PDFPatent Trial and Appeal BoardJul 6, 201613452969 (P.T.A.B. Jul. 6, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/452,969 04/23/2012 28289 7590 07/08/2016 THE WEBB LAW FIRM, P,C ONE GATEWAY CENTER 420 FT. DUQUESNE BL VD, SUITE 1200 PITTSBURGH, PA 15222 FIRST NAMED INVENTOR Lee Patrick 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. 6125-121190 9331 EXAMINER GAMINO, CARLOS J ART UNIT PAPER NUMBER 1735 NOTIFICATION DATE DELIVERY MODE 07/08/2016 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): patents@webblaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte LEE PATRICK, DAVID BRAYSHAW, SCOTT WITTKOP, JAMES BARRETT, and TING-KWO LEI Appeal2014-007828 Application 13/452,969 Technology Center 1700 Before GEORGE C. BEST, WESLEY B. DERRICK, and BRIAND. RANGE, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 1, 3, 4, and 7-10 of Application 13/452,969 under 35 U.S.C. § 103(a) as obvious. Final Act. (July 30, 2013). Appellants 1 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 PCC Structurals Inc. is identified as the real party in interest. Appeal Br. 2. Appeal2014-007828 Application 13/452,969 BACKGROUND The '969 Application describes apparatus and methods for purging atmospheric air from an enclosed chamber and replacing the air with an inert gas. Spec. i-f 2. In particular, the '969 Application describes introducing the purge gas into the enclosed chamber using a low turbulence, high flow system. Id. i-f 7. This system creates a laminar flow front which displaces the air in the chamber with very little mixing of the error and the purge gas. Id. Claim 1 is representative of the '969 Application's claims and is reproduced below: 1. A welding chamber, comprising: a housing defining an interior space; an apparatus for purging atmospheric air from the interior space with a gas, the apparatus comprising a perforated plate system configured for generating a substantially low-turbulent, laminar flow front of gas into the interior space with low turbulence to displace the atmospheric air in the interior space, wherein the flow front of the gas creates a purge flow front that minimizes mixing of the gas with the atmospheric air within the interior space, and an exhaust outlet in communication with the interior space to permit the displaced atmospheric air to exit the interior space, wherein the perforated plate system comprises: a perforated plate positioned within the chamber and defining a bottom of the interior space, the perforated plate having a plurality of spaced-apart holes formed therethrough, a purge support plate positioned in a spaced relation beneath the perforated plate, said purge support plate having a plurality of spaced-apart diffusers affixed thereto, and a manifold means communicating with the diffusers and adapted to supply the gas to the diffusers, 2 Appeal2014-007828 Application 13/452,969 whereby the gas is emitted to the diffusers to enter the space between the purge support plate and the perforated plate to pass through the holes in the perforated plate creating a low[ - ]turbulent, laminar flow front of gas extending across the bottom of the interior space and flowing upward from the bottom of the interior space toward a ceiling of the housing to displace the atmospheric air in the interior space. Appeal Br. 15-16 (Claims App.). REJECTIONS On appeal, the Examiner maintains the following rejections: 1. Claims 1, 3, 4, and 8-10 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Kelly2 and Jankus.3 Final Act. 2. 2. Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Kelly, Jankus, and Petersen.4 Final Act. 6. DISCUSSION Rejection 1. Appellants argue that the rejection of claims 1, 3, 4, and 8-10 as unpatentable over the combination of Kelly in Jankus should be reversed. Appeal Br. 9-13. Appellants argue for the reversal of this rejection based upon the limitations of claim 1. See id. Accordingly, we limit our discussion to claim 1. Dependent claims 3, 4, 8, and 9 stand or fall with claim 1, from which they depend. Appellants do not present specific arguments directed to the rejection of claim 10. See id. We, therefore, 2 US 6,583,387 B2, issued June 24, 2003. 3 US 5,235,152, issued August 10, 1993. 4 US 5,730,777, issued March 24, 1998. 3 Appeal2014-007828 Application 13/452,969 assume that Appellants assert that the rejection of claim 10 should be reversed for the same reasons they have offered in arguing for reversal of the rejection of claim 1. Appellants argue that the rejection of claim 1 should be reversed because the Examiner erred in finding that the combination of Kelly and Jankus establishes a prima facie case of obviousness. Appeal Br. 10-13. In particular, Appellants argue that the Examiner has not established a prima facie case "because there is no reason to combine the teaching of [Kelly and J ankus] at all, and even if there were, the combination proposed by the Examiner would not result in the claimed invention." Id. at 12. In the Final Action, the Examiner provided three reasons why a person having ordinary skill in the art at the time of the invention would have incorporated Jankus's gas delivery system into Kelly's glovebox: It would have been obvious to one of ordinary skill in the art at the time of the invention to only adapt the gas delivering system of Jankus; i.e. pipe, fittings, lower wall, shell and partitions, to replace the single inlet of Kelly in order to be able [1] to maintain a uniform gas coverage, [2] to effectively cover the chamber floor, or [3] to speed up the purging rate. It is the examiner's position that since the prior art apparatus and the claimed apparatus are structurally identical then the prior art apparatus is capable of performing the claimed functions with the claimed material. Final Act. 3. As discussed below, we are not persuaded by any of the Examiner's proposed reasons to modify Kelly. We, therefore, reverse the rejection of claim 1. First, the Examiner argues that a person of ordinary skill would modify Kelly "to maintain a uniform gas coverage." Id. We do not find this 4 Appeal2014-007828 Application 13/452,969 proffered reason persuasive because Kelly describes its apparatus as maintaining a more uniform gas coverage than the prior art. In particular, Kelly explains [I]ntense heating of the superalloy article by induction is believed to create sufficient thermal gradient immediately around the heated portion of the article, that the resulting turbulence draws erred downwardly into the enclosure through the opening in the enclosure, even though inert gases continuously flowing upward through the enclosure and out through the top into an overhead exhaust would. The enclosure of this invention is equipped with a valve that permits gases within the enclosure to escape, but is otherwise sealed to prevent air from being drawn into the enclosure. Kelly col. 2, 11. 36-45. Kelly teaches that the combination of its one-way valve and the upward flow of an inert gas from the inlet in the bottom of the chamber maintains a uniform inert atmosphere around the workpiece. The present record lacks evidence Kelly's apparatus would be further improved by modifying it in accordance with Jankus' teachings. A person having ordinary skill in the art, therefore, would have no reason to modify Kelly's apparatus with Jankus's teaching to achieve uniform gas coverage. Second, the Examiner argues that a person of ordinary skill would modify Kelly to effectively cover the chamber floor. Final Act. 3. We do not find this proffered reason persuasive because Kelly is not concerned with effectively covering the chamber floor. As discussed above, Kelly is concerned with maintaining an inert atmosphere around the workpiece. The Examiner has not pointed to any place in Kelly or provided any other reason why a person having ordinary skill in the art at the time of the invention would have been concerned with effectively covering the chamber floor with 5 Appeal2014-007828 Application 13/452,969 the inert gas when Kelly describes its apparatus as effectively covering the thing that matters-the workpiece-in an inert gas atmosphere. Third, the Examiner argues that a person of ordinary skill in the art would modify Kelly in view of Jankus to speed up the purging rate. Id. at 3. To the best of our knowledge, the only discussion of the purge rate for a welding chamber is contained in Appellants' Specification. While Kelly does describe purging its chamber before beginning work on the workpiece, see Kelly claim 1, Kelly does not evidence any concern with the speed with which the chamber can be purged. Nor does the Examiner direct our attention to any place in the record that suggests that the speed of the purge step is of concern to those of ordinary skill in the art. We, therefore, are forced to conclude that this reason results from the improper use of hindsight. As discussed above, we reverse the rejection of claims 3, 4, and 8-10 for the same reasons given for reversing the rejection of claim 1. Rejection 2. The Examiner rejected claim 7-which depends from claim 1-as unpatentable over the combination of Kelly, Jankus, and Petersen. Final Act. 6. Appellants argue that the rejection of claim 7 should be reversed because Petersen does not cure the alleged deficiencies in the combination of Kelly and Jankus with respect to claim 1. Appeal Br. 14. Because we have reversed the rejection of claim 1, we also reverse the rejection of claim 7. 6 Appeal2014-007828 Application 13/452,969 CONCLUSION For the reasons provided above, we reverse the rejection of claims 1, 3, 4, and 7-10 of the '969 Application. REVERSED 7 Copy with citationCopy as parenthetical citation