Ex Parte Patrick et al

Patent Trial and Appeal Board

Jul 6, 2016

13452969 (P.T.A.B. Jul. 6, 2016)

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,
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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.
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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
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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
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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.
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CONCLUSION
For the reasons provided above, we reverse the rejection of claims 1,
3, 4, and 7-10 of the '969 Application.
REVERSED
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