FISHER CONTROLS INTERNATIONAL LLCDownload PDFPatent Trials and Appeals BoardDec 17, 20202019006920 (P.T.A.B. Dec. 17, 2020) 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. 15/244,828 08/23/2016 Yan Qiu 06005/563575 9140 45372 7590 12/17/2020 Marshall, Gerstein & Borun LLP (Emerson) 233 South Wacker Drive 6300 Willis Tower Chicago, IL 60606 EXAMINER HOBSON, STEPHEN ART UNIT PAPER NUMBER 1776 NOTIFICATION DATE DELIVERY MODE 12/17/2020 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): mgbdocket@marshallip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YAN QIU and JUSTIN PAUL GOODWIN Appeal 2019-006920 Application 15/244,828 Technology Center 1700 Before JEFFREY B. ROBERTSON, N. WHITNEY WILSON, and MONTÉ T. SQUIRE, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s June 25, 2018 final decision to reject claims 1–3, 5, 7–14, 16, and 18–22 (“Final Act.”). We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Fisher Controls International LLC (Appeal Br. 3). Appeal 2019-006920 Application 15/244,828 2 CLAIMED SUBJECT MATTER Appellant’s disclosure is directed to a multi-cone, multi-stage spray nozzle intended to be used to cool superheated steam (Abstract, Spec. ¶ 1). The claimed nozzle is said to be more effective than prior art devices when operating at both high and low pressure conditions (Spec. ¶¶ 1, 18). The claimed nozzle includes a nozzle body, a valve stem with a first valve head, and a second valve head attached to the first valve head (Abstract). The first valve stem is biased into a closed position against a valve seat of the nozzle body by a bias device, which is opened when a threshold fluid pressure is exceeded (id.). The second valve head is continuously open (id.). Thus, at low pressure, fluid is only emitted out of the second valve head, but at high pressure, fluid is emitted out of both the first and second valve heads. Claim 1, which is reproduced below from the Claims Appendix, is illustrative of the claimed subject matter: 1. A spray nozzle, comprising: a nozzle body having a proximal end, a distal end, a first through bore extending between the proximal and distal ends of the nozzle body, and a valve seat disposed at the distal end of the nozzle body, the proximal end of the nozzle body defining a shoulder surface; a valve stem slidably disposed in the first through bore of the nozzle body and including a proximal end, a distal end, and a first valve head, the first valve head defining a seating surface adapted to engage the valve seat when the valve stem is in a closed position and adapted to be spaced away from the valve seat when the valve stem is in an open position; a fluid conduit disposed in the valve stem and defining a fluid outlet in the first valve head at the distal end of the valve stem; and a second valve head attached to the fluid outlet at the valve head of the valve stem, the second valve head defining a Appeal 2019-006920 Application 15/244,828 3 nozzle opening that is continuously open in fluid communication with the fluid conduit in the valve stem; and a bias device generating a force biasing the first valve head of the valve stem toward the valve seat of the nozzle body, the bias device comprising a nut attached to the proximal end of the valve stem and a spring disposed between the nut and the proximal end of the nozzle body, wherein the nut comprises a hollow tubular member including a collar portion defining an annular recess to at least partially accommodate the spring, wherein upon application of a first fluid pressure, which is less than a threshold fluid pressure, on the seating surface of the first valve head, the bias device maintains the valve stem in the closed position while the second valve head is continuously open, upon application of a second fluid pressure, which is at least as great as the threshold fluid pressure, on the seating surface of the first valve head, the valve stem moves from the closed position to the open position while the second valve head remains continuously open, and when the valve stem is in the closed position, the collar portion of the nut is spaced away from the shoulder surface of the proximal end of the nozzle body, and when the valve stem is in the open position, the collar portion of the nut is in contact with the shoulder surface of the proximal end of the nozzle body. REFERENCES The prior art relied upon by the Examiner is: Appeal 2019-006920 Application 15/244,828 4 Name Reference Date Freitas et al. US 7,654,509 B2 February 2, 2010 Mastrovito US 2014/0252125 A1 September 11, 2014 Watson et al. US 8,955,773 B2 February 17, 2015 Löhrke2 DE 10 2007 054 673 A1 May 28, 2009 REJECTIONS 1. Claims 1–3, 5, and 7–11 are rejected under 35 U.S.C. § 103 as unpatentable over Freitas in view of Löhrke and Watson. 2. Claims 12–14, 16, and 18–22 are rejected under 35 U.S.C. § 103 as unpatentable over Freitas in view of Löhrke, Watson, and Mastrovito. OPINION Appellant does not argue any claims separately (see Appeal Br. 8–12). Accordingly, we select claim 1 as representative. All of the claims on appeal will stand or fall together. The Examiner’s findings underlying the obviousness rejection are set forth at pages 4–8 of the Final Action. We will not repeat all of them here. Because Appellant’s arguments are (1) the combination of Freitas and Löhrke would render Freitas unsuitable for its intended purpose, and (2) Freitas teaches away from including the continuously open first outlet configuration in Löhrke (Appeal Br. 10–11), we highlight the Examiner’s findings as they relate to those arguments. The Examiner finds that Freitas discloses a nozzle, but that the nozzle does not have, inter alia, the following claimed features: 2 Löhrke is a German-language reference. Appellant and the Examiner make reference to an English translation of record, which we will also rely on herein. Appeal 2019-006920 Application 15/244,828 5 • a second valve head attached to the fluid outlet at the valve head of the valve stem, the second valve head defining a nozzle opening that is continuously open in fluid communication with the fluid conduit in the valve stem; • upon application of a first fluid pressure, which is less than a threshold fluid pressure, on the seating surface of the first valve head, the bias device maintains the valve stem in the closed position while the second valve head is continuously open; and • upon application of a second fluid pressure, which is at least as great as the threshold fluid pressure, on the seating surface of the first valve head, the valve stem moves from the closed position to the open position while the second valve head remains continuously open. (Final Act. 7–8). The Examiner further finds that these features are taught by Löhrke, and determines that it would have been obvious “to modify the nozzle of Freitas (Fig 2A) by incorporating the continuously open second valve head with the fluid conduit disposed in the valve stem of [Löhrke] (Fig 2) in order to allow selective flow operation based upon applied pressure ([Löhrke]: ¶ 6–7)” (id. at 8). Appellant argues that the specific geometry of the nozzle of Freitas is critical to its operation: Freitas teaches a specific conical configuration for the nozzle cone 86 that, combined with the sharp edge of the fracture ring 98, provides multiple stages of atomization to result in a substantially uniformly distributed spray pattern and a geometrically uniform flow pattern for more even mixing through the flow of superheated steam. Freitas further teaches that the functionality of the fracture ring 98 is based on the Lefavre principle which holds that the droplet size of the cooling water is proportional to the sheet thickness of the cooling water after it passes over the valve body 80. Appeal 2019-006920 Application 15/244,828 6 (Appeal Br. 10, internal citations omitted). Appellant argues that the proposed modification including first fluid outlet 10 of Löhrke and its associated structure would result in a continuously open outlet producing a stream of water without either stage of atomization contemplated by Freitas (id.). Therefore, according to Appellant, the combination would render the resulting nozzle unsatisfactory for the purpose of Freitas, as well as changing its principal of operation (id.). Appellant’s argument is not persuasive. As found by the Examiner, Löhrke teaches a nozzle apparatus with one nozzle continuously open, and another which opens in response to a sufficiently high fluid pressure (Löhrke, ¶¶ 6, 7). Löhrke further teaches that each of its nozzles can have any known geometry (Löhrke, ¶¶ 14, 15). Therefore, as explained by the Examiner (Ans. 20), a person of skill in the art would have sought to incorporate Löhrke’s two-nozzle system, by adapting the geometry of the nozzles so as to adequately atomize the fluid as required by the system of Freitas. “The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981); see also In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) (“[I]t is not necessary that the inventions of the references be physically combinable to render obvious the invention under review.”); In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does not involve an ability to combine their specific structures.”). In this instance, a person of skill in the art combining the Appeal 2019-006920 Application 15/244,828 7 teachings of Freitas and Löhrke would have done so without rendering the Freitas nozzle apparatus unsuitable for its intended use. Appellant also argues that Freitas teaches away from the proposed modification, in particular the continuously open first outlet configuration of Löhrke (Appeal Br. 11–12). Specifically, Appellant contends that Freitas teaches against a nozzle configuration that results in water buildup on the steam pipe (Appeal Br. 11, citing Freitas, 1:50–52). Additionally, Appellant contends that Freitas specifically teaches that its nozzle can be closed, so that fluid does not go through it when flow is not desired (Appeal Br. 11– 12). Thus, according to Appellant, a person of skill in the art would not have sought to modify Freitas so as to permit a continuous flow, as permitted in the claimed nozzle system. This latter argument is persuasive of reversible error. Whether a reference teaches away from a claimed invention is a question of fact. See In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005). “The prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed . . . .” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). In this instance, Freitas is explicit in stating that its nozzle can be closed (see Freitas, 8:49–52 (“As indicated above, the valve stem 82 is slidably advanced through the valve stem bore 42 and operatively coupled to the nozzle housing 22 so as to allow the valve element 78 to be reciprocally moveable between its open and closed positions.”)). While, as noted by the Examiner (Ans. 22), Freitas does describe a particular preferred embodiment as having a closed position (Freitas, 8:59–64), earlier in the paragraph, as Appeal 2019-006920 Application 15/244,828 8 quoted above, Freitas specifically describes that its nozzle can be closed.3 This requirement is consistent with the discussion in Freitas (1:47–52) of avoiding excessive water in contact with the steam pipe. Thus, we determine that the preponderance of the evidence shows that the disclosure of Freitas does discourage a modification which would result in a nozzle which would continuously send water into the steam pipe. Accordingly, we agree with Appellant that Freitas teaches away from the proposed combination. Thus, we reverse the rejections. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 5, 7–11 103 Freitas, Löhrke, Watson 1–3, 5, 7–11 12–14, 16, 18–22 103 Freitas, Löhrke, Watson, Mastrovito 12–14, 16, 18–22 Overall Outcome 1–3, 5, 7–14, 16, 18–22 REVERSED 3 See also Freitas, 2:56–61 (“The valve stem extends axially from the valve body and is advanced through the valve stem bore of the nozzle housing and is sized and configured to provide an axially sliding fit within the valve stem bore such that the valve element may be reciprocated between the open and closed positions.” (Emphasis added)). Copy with citationCopy as parenthetical citation