FISHER CONTROLS INTERNATIONAL LLC

Patent Trials and Appeals Board

Dec 17, 2020

2019006920 (P.T.A.B. Dec. 17, 2020)

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).
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Application 15/244,828

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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
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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:
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Application 15/244,828

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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.
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• 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.

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(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
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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
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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)).