Ex Parte Azizi et al

Patent Trial and Appeal Board

Sep 21, 2018

14422856 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/422,856 02/20/2015 Haithem Azizi
40582 7590 09/25/2018
American Air Liquide, Inc.
Intellectual Property Department
9811 Katy Freeway
Suite 100
Houston, TX 77024
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.
Serie 9310 2405
EXAMINER
CASTRIOTTA, JENNIFER
ART UNIT PAPER NUMBER
3781
NOTIFICATION DATE DELIVERY MODE
09/25/2018 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):
IP-USOffice@airliquide.com
Neva.Dare-c@airliquide.com
J us tin.Murray@airliquide.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HAITHEM AZIZI, HERVE BARTHELEMY,
and EMMANUEL BAUNE
Appeal2018-001403 1
Application 14/422,8562
Technology Center 3700
Before MICHAEL C. ASTORINO, KENNETH G. SCHOPPER, and
BRADLEY B. BAY AT, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
14--17, 20-22, and 25. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references the Appeal Brief ("Appeal Br.," filed Aug. 18,
2017), the Reply Brief ("Reply Br.," filed Nov. 27, 2017), the Examiner's
Answer ("Ans.," mailed Sept. 27, 2017), and the Final Office Action ("Final
Act.," mailed Mar. 17, 2017).
2 According to Appellants, the real party in interest is L' Air Liquide, S. A.
Appeal Br. 3.
Appeal2018-001403
Application 14/422,856
BACKGROUND
According to Appellants, "[t]he present invention relates to a
pressurized fluid container and the process for the fabrication thereof."
Spec. 1.
CLAIMS
Claims 14 and 25 are the independent claims on appeal. Claim 14 is
illustrative of the appealed claims and recites:
14. A pressurized fluid container, comprising a body forming
a leak-tight storage volume for fluid, a first end of the body
comprising an orifice, a second end of the body comprising a
foot attached to the body, the body being composed of a
metallic material, of a metal alloy or of aluminum, the foot
comprising a metallic material, a metal alloy or an aluminum
alloy having an electro-negativity according to the Pauling scale
greater than the electro-negativity of the material making up the
body, thereby providing galvanic protection to the body,
wherein the foot is attached to the body magnetically.
Appeal Br. 10.
REJECTI0N3
The Examiner rejects claims 14--17, 20-22, and 25 under 35 U.S.C.
§ 103(a) as unpatentable over Emestus4 in view of Guyomard5 and Lebel. 6
3 The rejections of claims 19, 24, and 26 are moot in light of Appellants'
cancellation of those claims. See Appeal Br. 5.
4 Ernestus et al., US 2,489,766, iss. Nov. 29, 1949.
5 Guyomard, US 4,316,939, iss. Feb. 23, 1982.
6 Lebel et al., US 3,885, 698, iss. May 27, 1975.
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Application 14/422,856
DISCUSSION
Appellants group all of claims 14--17, 20-22, and 25 together. We
select claim 14 as representative of this group, and claims 15-17, 20-22, and
25 fall with claim 14. See 37 C.F.R. § 4I.37(c)(l)(iv).
With respect to claim 14, the Examiner finds that Ernestus teaches a
pressurized fluid container including a metallic body with a storage volume
and an orifice, as well as a metallic foot attached to the body. Final Act. 3
(citing Ernestus Fig. 2; col. 1, 11. 1--4, 42--46; col. 2, 11. 3-8, 54--55). The
Examiner acknowledges that Ernestus does not disclose that the foot is
attached to the body magnetically, or that the metallic properties of the body
and foot provide galvanic protection to the body as recited in the claim. Id.
at 4. However, the Examiner finds that Lebel teaches a fluid container
including a body, orifice, and foot, "wherein the foot is attached to the body
magnetically." Id. ( citing Lebel Figs. 1, 6; col. 3, 11. 26-33). The Examiner
also finds that "Guyomard teaches using a combination of metals having
different electronegativities as a form of protect[ing]" a container from
corroding. Id. at 5 ( citing Guyomard col. 2, 11. 15-28). The Examiner
determines:
It would have been obvious to one skilled in the art at the time
[ of] invention to modify the attachment of the base of Ernestus
et al. with the teachings of Lebel et al. as the two are functional
equivalents and the use of magnets would allow for easy
attachment and removal of the container body from the foot
(Col. 3, Ln. 26-30). Further, regarding the electronegativity of
the body vs. the foot, it would have been an obvious matter of
design choice to make the foot have a greater electronegativity
than that of the body, as taught by Guyomard. Applicant's
statement of benefit for using the greater electronegative metal
for the foot is considered simple substitution of one known
element for another to obtain predictable results. As such the
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Application 14/422,856
Id.
claim of the foot being made of a metal having a greater
electronegativity than that of the body does not provide
patentable distinction over the prior art of record. It would have
further been obvious to one skilled in the art at the time of
invention to further modify the container of modified Ernestus
et al. with the teachings of Guyomard in order to increase the
anti-corrosive properties of the container (Col. 1, Ln. 9-11).
As discussed below, we are not persuaded of reversible error in the
rejection of claim 14 by Appellants' arguments.
Appellants first argue with respect to Guyomard that the "instant
invention does not involve 'shot cleaning"' or "applying 'an external layer
of polymerized powdered resin,"' which are required in Guyomard "to
properly provide protection." Appeal Br. 7. Thus, Appellants argue that
"[i]t is not clear what, other than impermissible hindsight, would lead a
person of ordinary skill in the art ... to have looked to Guyomard [] as
inspiration for a dissimilar metal boot alone to provide galvanic protection."
Id. We disagree. In the Answer, the Examiner clarifies that Guyomard is
not relied upon for its teaching of a specific process for applying anti-
corrosive coatings, but rather, Guyomard is relied upon "for its teaching that
when you have two metals of different electronegativities attached to one
another, that the metal with the lower electronegativity will be cathodically
protected by the metal with the greater electronegativity." Ans. 6 ( citing
Guyomard col. 2, 11. 15-21 ). Guyomard does teach that it is well known in
the art that a more electronegative metal such as zinc will cathodically
protect a less electronegative metal such as iron. Guyomard col. 2, 11. 15-
21. Thus, Guyomard is relied upon only to the extent it provides evidence of
a well-known scientific principle. Based on this principle, the Examiner
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Application 14/422,856
concludes that it would have been a matter of design choice and a simple
substitution to use a foot with greater electronegativity. Appellants'
argument does not persuade us of error in this conclusion.
Similarly, in the Reply Brief, Appellants argue that one of ordinary
skill in the art would have "no impetus ... to consider adding a component
made of sacrificial metal to a beer keg, which will likely never be exposed to
potentially corrosive conditions." Reply Br. 2. We are not persuaded by
this argument. First, we note that Ernestus generally discloses "chimes for
barrels," which are not necessarily limited to beer barrels. Further,
Appellants only surmise that beer barrels are not exposed to corrosive
conditions, without providing evidence. Ultimately, Appellants do not
persuade us of error in the Examiner's determination that one of ordinary
skill in the art would have recognized the potential benefit to employing
materials that cathodically protect the barrel, regardless of the barrel's
intended use.
Next, with respect to Lebel, Appellants argue that the instant
invention requires that the base member is flat and enables stable vertical
support of the device, which is in contrast to Lebel' s device that is designed
to tip over when the contents of the container reach a certain level. Appeal
Br. 7. Thus, Appellants argue that "in the absence of impermissible
hindsight, it is not clear what would lead a person of ordinary skill in the art
... to have looked to Lebel[] as inspiration." Id. We are not persuaded of
error for the reasons provided by the Examiner. See Ans. 7-8. In particular,
the Examiner notes that Lebel is only relied upon "to teach equivalent
methods for attaching a base/foot to a container/body" and that Lebel
specifically teaches that welding and magnetic attachment are effective
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Application 14/422,856
methods for attaching body to a base/foot. Id. at 7. Thus, the rejection does
not rely on the specific structure of Lebel's device or require that any
specific structure from Lebel be incorporated into Ernestus's device.
Appellants' argument does not apprise us of error in the rejection to the
extent Lebel is relied upon by the Examiner.
Further, Appellants generally contend that the rejection is based on
hindsight because there is no reason to combine the elements of the
references in the manner claimed, and because "the problem to be solved
must be gleaned from the prior art, and not from the applicant's[]
specification." Appeal Br. 7-8. To the extent Appellants are arguing the
rejection is based on impermissible hindsight in light of the arguments
addressed above, we disagree for the reasons set forth above. Further, the
rejection provides reasons for the proposed combination based on the
teachings of the references and Appellants do not point to any information
used in rejecting the claims that is found solely in Appellants' disclosure.
See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Finally, in the Reply Brief, Appellants argue that Ernestus is non-
analogous art. Reply Br. 2. In support, Appellants assert that "one of
ordinary skill in the art would not look to an almost 80-year-old beer barrel
patent as rendering the instant pressurized metal fluid container obvious."
Id. We are not persuaded of error because Appellants do not adequately
explain why the age of the reference or its disclosure of beer barrels
demonstrates that Ernestus is not in the same field of endeavor or reasonably
pertinent to the problems being addressed by Appellants' invention such that
it is directed to non-analogous art. See In re Klein, 647 F.3d 1343 (Fed. Cir.
2011).
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CONCLUSION
We AFFIRM the rejection of claims 14--17, 20-22, and 25.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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