Refractory Intellectual Property GmbH & Co. KG

Patent Trials and Appeals Board

Mar 8, 2022

2021005320 (P.T.A.B. Mar. 8, 2022)

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. 16/313,386 12/26/2018 Matthäus Haider RHIP-0003 3596 16375 7590 03/08/2022 Medley, Behrens & Lewis, LLC 6100 Rockside Woods Blvd. Suite 440 Independence, OH 44131 EXAMINER LIEUWEN, CODY J ART UNIT PAPER NUMBER 3752 NOTIFICATION DATE DELIVERY MODE 03/08/2022 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): admin-docketing@medleybehrens.com nlewis@medleybehrens.com tbehrens@medleybehrens.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHÄUS HAIDER and CHRISTIAN MANHART Appeal 2021-005320 Application 16/313,386 Technology Center 3700 Before WILLIAM A. CAPP, MICHAEL L. WOODS, and BARRY L. GROSSMAN, Administrative Patent Judges. WOODS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-8. See Appeal Br. 13. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 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 Refractory Intellectual Property GmbH & Co. KG. Appeal Br. 2. Appeal 2021-005320 Application 16/313,386 2 CLAIMED SUBJECT MATTER The application is titled “System with a Spraying Nozzle Unit and Method for Spraying an Inorganic Mass.” Spec. 1 (capitalization omitted). Of the pending claims, claim 1 is independent. See Appeal Br. 14-15 (“Claims App.”). We reproduce claim 1, below: 1. System for applying an inorganic coating material to a surface (110) comprising: a spray nozzle unit (50), comprising the following features: a first end portion (51), wherein a first connection (11) for a first supply hose (10) is coupled to the first end portion of the spray nozzle, the first supply hose is for supplying a first component of the coating material, a second end portion (52) for discharging the coating material from the spray nozzle unit (50), a connection unit (60) for mixing and transporting components of the coating material from the first end portion (51) to the second end portion (52), the connection unit positioned in the spray nozzle unit (50) between the first end portion and the second end portion of the spray nozzle unit (50), wherein the connection unit (60) comprises a mixing chamber (61), wherein the mixing chamber has at least one further connection (21, 31) for supplying a second component of the coating material to the mixing chamber (61), and wherein at least one electronic sensor (70) is mounted on the connection unit (60) to detect an oscillation amplitude (81) arising at the connection unit (60), a data processing unit (80) for acquiring the oscillation amplitude (81) detected by the electronic sensor (70) of the spray nozzle unit (50) and for calculating an actual frequency spectrum (82) or target frequency spectrum (82) from the oscillation amplitudes (81) detected, a comparison unit (90) for comparing an actual frequency spectrum (82) with a target frequency spectrum (82) and generating control data (91), Appeal 2021-005320 Application 16/313,386 3 a control unit (100), wherein the control unit (100) generates a warning signal (101) when the control data (91) lie outside a defined range, and/or varies the volume flow (102) of at least one of the components of the coating material depending on the control data (91) generated by the comparison unit (90). Claims App. 14-15 (emphasis added). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Baker US 5,004,152 Apr. 2, 1991 Giles ’106 US 2006/0265106 A1 Nov. 23, 2006 Giles ’439 US 2010/0132439 A1 June 3, 2010 Reichler US 2018/0141070 A1 May 24, 2018 Michael Borenstein et al. Introduction to Meta-Analysis, www.Meta-Analysis.com July 1, 2007 REJECTIONS The following rejections are before us on appeal: Claims Rejected 35 U.S.C. § Reference(s)/Basis 4 112(b) Indefiniteness 1, 2, 5, 8 102 Baker 3 103 Baker, Borenstein 4 103 Baker, Reichler 6 103 Baker, Giles ’439 7 103 Baker, Giles ’106 Final Act. 4-10. Appeal 2021-005320 Application 16/313,386 4 ANALYSIS I. Claim 4 as Indefinite The Examiner rejects claim 4 as indefinite under 35 U.S.C. § 112(b). Final Act. 4-5; see also Ans. 3 (maintaining the rejection). Appellant does not argue this rejection. See generally Appeal Br. Accordingly, we summarily affirm the rejection. See 37 C.F.R. § 41.37(c)(iv) (“[A]ny arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal”). II. Claims 1, 2, 5, and 8 Anticipated by Baker The issue is whether the Examiner’s interpretation of “spray nozzle unit” is unreasonably broad. We give claim terms the broadest reasonable interpretation consistent with the Specification as it would be interpreted by one of ordinary skill in the art. In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (“[During prosecution,] the PTO must give claims their broadest reasonable construction consistent with the specification. Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation.”) (internal citations omitted). Further, we do not import limitations from the Specification into the claim where we do not see a clear definition or exposition in the Specification to so limit the meaning of the claim. See, e.g., SuperGuide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). Appeal 2021-005320 Application 16/313,386 5 Appellant argues claims 1, 2, 5, and 8 as a group. See Appeal Br. 7- 12. We treat claim 1 as the representative claim, with claims 2, 5, and 8 standing or falling with claim 1. 37 C.F.R. § 41.37(c)(1)(iv). In rejecting claim 1, the Examiner finds that Baker discloses the claimed “[s]ystem for applying an inorganic coating material” including “a spray nozzle unit,” citing in part Baker’s Figure 1. Final Act. 6. We reproduce Baker’s Figure 1, below: Appeal 2021-005320 Application 16/313,386 6 Figure 1 “shows a schematic diagram of the system according to the method of the claimed invention.” Baker, 4:54-55. In particular, Figure 1 depicts coker feed nozzle 4 inserted through coker wall 7. Id. at 5:34-35. The Examiner finds that Baker’s “spray nozzle unit” comprises a first end portion with a “first connection” (10) for a first supply hose. See Final Act. 5-6. The Examiner submits an annotated version of Baker’s Figure 1 to further illustrate how the claimed components correspond to Baker’s structure (id. at 7), a copy of which we reproduce, below: Appeal 2021-005320 Application 16/313,386 7 Annotated Figure 1 includes the Examiner’s identification of the claimed “first connection,” “first end portion,” “mixing chamber,” “pipe,” and “connection unit.” Id. (capitalization omitted). The Examiner explains that “the spray nozzle unit of Baker is interpreted to include that conduit connecting the nozzle 4 to the separate steam and oil supply lines.” Adv. Act. 2 (dated Feb. 16, 2021). Appellant contends that the Examiner’s interpretation of “spray nozzle unit” is inconsistent with the Specification and conflicts with the ordinary and customary meaning of the term. Appeal Br. 7. Specifically, Appellant refers to Figure 1 of the Specification and asserts that the Examiner has “overbroadly interpreted the claimed spray nozzle unit as encompassing the supply hoses (or feed lines into the spray nozzle unit), despite the specification and claims unambiguously differentiating the spray nozzle unit from the supply hoses.” Appeal Br. 9 (emphasis replaced). Appellant argues that “the specification differentiates the spray nozzle unit (50) from the supply hoses (feed lines) (10, 20, and 30) that supply material to the spray nozzle unit (50).” Reply Br. 3. Appellant further argues that “the ordinary and customary meaning of ‘spray nozzle’ does not include the feed lines that supply materials to the spray nozzle[, which is] evidenced in Baker itself, which differentiates between a feed nozzle (4) and supply lines (a steam header 14 and an oil header 16).” Appeal Br. 9. Appellant’s arguments are not persuasive. As to the ordinary and customary meaning of “spray nozzle unit,” Appellant’s use of the term “unit” undermines Appellant’s argument. Even if we agree with Appellant’s argument that “‘spray nozzle’ does not include the feed lines that supply Appeal 2021-005320 Application 16/313,386 8 materials to the spray nozzle” (see Appeal Br. 9), which we do not, claim 1 does not merely recite “spray nozzle,” but recites “spray nozzle unit” (Claims App. 14). By inserting the word “unit,” we agree with the Examiner that it is reasonable to construe Baker’s assembly, including steam and supply lines, as the claimed “spray nozzle unit.” The Examiner submits a definition of “unit” to be “a piece or complex of apparatus serving to perform one particular function” and finds that the spray nozzle unit “is not interpreted to require only a nozzle structure, but to also include the associated supply lines that provide the material being mixed and sprayed.” Ans. 3 (citing American Heritage Dictionary). We agree with the Examiner’s construction that “[t]he plain and ordinary meaning of the phrase ‘spray nozzle unit’ is interpreted to be a group of structures forming the spray nozzle of the system.” Adv. Act. 2. As to Appellant’s argument that the Examiner’s interpretation is inconsistent with the Specification, we disagree. We disagree with Appellant’s assertion that “the specification differentiates the spray nozzle unit (50) from the supply hoses (feed lines) (10, 20, and 30).” Reply Br. 3. We find nothing in the Specification that clearly describes feed lines 20, 30 as being separate from spray nozzle unit 50. SuperGuide, 358 F.3d at 875. Appellant’s Specification merely describes, for example, that a “component of the coating material is transported by a suitable pump through the second supply hose to the second connection of the spray nozzle unit.” Spec. 20. The Specification does not contain a lexicographic definition of “spray nozzle unit” or otherwise disavow or disclaim supply hoses 20, 30 from being part of the “spray nozzle unit.” To further illustrate, we reproduce Appellant’s Figure 1, below: Appeal 2021-005320 Application 16/313,386 9 Figure 1 depicts an exemplary embodiment of Appellant’s invention, including spray nozzle unit 50. Spec. 21. As shown above, spray nozzle unit 50 appears to encompass everything underneath its horizontal lead line, including nozzle head 63, pipe 62, mixing chamber 61, supply hoses 20, 30, piezoelectric sensor 70, data processing unit 80, comparison unit 90, and controllable electrical valves 100b, 100c. See id. at 21-22. We find Appellant’s own Figure 1 depicts spray nozzle unit 50 to broadly include supply hoses 20, 30, piezoelectric sensor 70, data processing unit 80, comparison unit 90, and controllable electrical valves 100b, 100c. As such, Figure 1 undermines Appellant’s argument that the Examiner’s interpretation is inconsistent with the Specification. See Ans. 4 (“[Examiner’s] interpretation appears to be consistent with the invention described in Appellant’s disclosure [as] Appellant’s drawings show the first connection (11) and the further connections (21, 31) as supply lines Appeal 2021-005320 Application 16/313,386 10 protruding from, or appended to, the spray nozzle (Fig. 1) and still considers these to be part of the spray nozzle unit.”). Having established that the Examiner’s interpretation of “spray nozzle unit” is reasonable, we agree with the Examiner’s finding that Baker discloses this structure. Final Act. 5, 6, 7; Adv. Act. 2; Ans. 3-4. As shown in the annotated version of Baker’s Figure 1, reproduced above, we agree with the Examiner’s finding that Baker discloses a “spray nozzle unit” and “a connection unit [] for mixing and transporting components of the coating material from the first end portion [] to the second end portion,” as recited in claim 1. See Final Act. 7; Claims App. 14. We further agree with the Examiner that Baker’s “connection unit [is] positioned in the spray nozzle unit [] between the first end portion and the second end portion,” as shown in the annotated Figure, and that the “connection unit [] comprises a mixing chamber,” as further called for in claim 1. See Final Act. 7. Because the “spray nozzle unit” is broadly interpreted so that it may include Baker’s steam and oil lines, Baker’s “mixing chamber” is also within the claimed “spray nozzle unit,” despite Appellant’s argument otherwise. See Appeal Br. 12 (“In Baker, the [mixing] portion pointed to by the Examiner is external to the spray nozzle (4).”). For the foregoing reasons, Appellant does not identify error in the Examiner’s rejection. We affirm the rejection of claim 1, and of claims 2, 5, and 8, which fall therewith, as anticipated by Baker. Appeal 2021-005320 Application 16/313,386 11 III. Claims 3, 4, 6, and 7 as Unpatentable Over Baker in view of Borenstein, Reichler, Giles ’439, or Giles ’106 Appellant does not present separate arguments contesting the rejections of claims 3, 4, 6, and 7 as unpatentable over Baker in view of Borenstein, Reichler, Giles ’439, or Giles ’106. See Appeal Br. 12. For the same reasons we affirm the rejection of claim 1 as anticipated by Baker, we affirm the rejections of claims 3, 4, 6, and 7 as unpatentable. IV. Conclusion We affirm the rejections of claims 1-8. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 4 112(b) Indefiniteness 4 1, 2, 5, 8 102 Baker 1, 2, 5, 8 3 103 Baker, Borenstein 3 4 103 Baker, Reichler 4 6 103 Baker, Giles ’439 6 7 103 Baker, Giles ’106 7 Overall Outcome 1-8 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED