Ex parte DELCOURT et al.

Board of Patent Appeals and Interferences

Mar 27, 1998

08164889 (B.P.A.I. Mar. 27, 1998)

Application for patent filed December 10, 1993.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 21
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte THOMAS R. DELCOURT,
JOHAN GULLICHSEN, RONALD G. BAIN
and
C. BERTIL STROMBERG
_____________
Appeal No. 96-3376
Application 08/164,8891
______________
ON BRIEF
_______________
Before MEISTER, FRANKFORT and McQUADE, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
Appeal No. 96-3376
Application 08/164,889
Minor amendments to independent claims 30 and 31 on appeal2
were made in a paper filed subsequent to the final rejection on
July 31, 1995 (Paper No. 14).
2
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 25, 27 through 32, 34, 36 and 38. Claims 82
through 10, 13, 14, 21 through 24, 26, 33, 35 and 37, the only
other claims remaining in the application, stand allowed.
Claims 1 through 7, 11, 12 and 15 through 20 have been canceled.
Appellants' invention is directed to a mixer which, as
disclosed, is used in the bleaching of cellulose pulp (paper
pulp). Claims 30 and 31 are illustrative of the subject matter
on appeal and a copy of those claims, as they appear in the
Appendix to appellants' brief, is attached to this decision.
The prior art references of record relied upon by the
examiner as evidence of obviousness under 35 U.S.C. § 103 are:
Forbes 2,645,464 July 14, 1953
Ahs 4,339,206 July 13, 1982
Gullichsen et al. (Gullichsen) 4,410,337 Oct. 18, 1983
Carre et al. (Carre) 4,416,548 Nov. 22, 1983
Appeal No. 96-3376
Application 08/164,889
The rejection of claims 25, 27 through 32, 34, 36 and 383
under 35 U.S.C. § 112, second paragraph, as found in the final
rejection (Paper No. 13), has been withdrawn in view of the
amendment filed July 31, 1995 (Paper No. 14). See the advisory
action (Paper No. 15) mailed August 3, 1995.
3
Claims 28, 31 and 32 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Carre.
Claim 27 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Carre in view of Gullichsen.
Claims 29 and 34 stand rejected under 35 U.S.C. § 103
as being unpatentable over Carre in view of Ahs.
Claims 25, 30, 36 and 38 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Carre in view of Forbes.3
The full text of the examiner's rejections with regard
to the appealed claims and rebuttal to the arguments presented by
Appeal No. 96-3376
Application 08/164,889
4
appellants appears in the examiner's answer (Paper No. 18, mailed
March 11, 1996) and supplemental examiner's answer (Paper No. 20,
mailed May 15, 1996). Rather that reiterate appellants' position
on the obviousness issues raised in this appeal, we make
reference to the main and reply briefs (Paper Nos. 17 and 19) for
the complete statement of appellants' arguments.
OPINION
Having carefully considered appellants' specification
and claims, the applied references, and the respective viewpoints
of appellants and the examiner, we have reached the conclusions
which follow.
Turning first to the examiner's rejection of claims 28,
31 and 32 under 35 U.S.C. § 103 based on Carre, appellants have
argued (brief, page 9) that since independent claim 31 calls for
the ring to extend outwardly from the base "at least about three
inches," and since this feature is admittedly not even remotely
suggested in Carre, neither claim 31 nor claims 28 and 32 which
depend therefrom, are even remotely suggested by the applied
Appeal No. 96-3376
Application 08/164,889
5
prior art. We find this argument to be unpersuasive, because
the embodiment of the mixer seen in Figures 7 and 8 of Carre is
clearly suggestive of the claimed subject matter as broadly
defined in claims 28, 31 and 32 on appeal.
In particular, we point to the ring (2) located
intermediate the stator members (8) in Figures 7 and 8 of Carre,
noting that it is substantially concentric with the base of the
rotor and extends outwardly, in the axial flow direction, from
the base. The ring (2) is disclosed as being spaced from the
stator members by a distance (h) that is in the range of 1 to 30
millimeters, preferably between 2 and 10 millimeters (Carre,
col. 3, lines 56-58). Since 1 inch equals 25 mm, it is apparent
that this spacing range encompasses both the "0.5 inches or
less" range of claim 31 and the "0.25 inches or less" range of
claim 28. With regard to the length of the ring (2), seen best
in Figure 8 of Carre, it is stated in column 3, lines 59-63, that
the length of the gap, and thus the length of the ring in the
mixer of Figure 8, should exceed (h) by several times "suitably
between 3 and 25 times, preferably between 5 and 20 times."
Accordingly, the length of the ring (2) in Figure 8 of Carre may
be between 3 and 750 mm, or up to 30 inches (750 mm divided by
Appeal No. 96-3376
Application 08/164,889
6
25mm per inch), and preferably is between 10mm and 200mm, or up
to 4 inches in length.
Since Carre clearly discloses embodiments of the mixer
therein which have a ring sized and positioned like that broadly
set forth in appellants' claims 28, 31 and 32 on appeal, we are
of the opinion that Carre (Figures 7 and 8) actually anticipates
the subject matter of appellants' claims. As has been made clear
on numerous occasions, anticipation or lack of novelty is the
ultimate or epitome of obviousness. See, in this regard, In re
Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982);
In re Pearson, 494 F.2d 1399, 1402, 181 USPQ 641, 644 (CCPA
1974). Accordingly, we will sustain the examiner's rejection
of claims 28, 31 and 32 under 35 U.S.C. § 103 based on Carre.
As for the examiner's rejections of dependent
claims 27, 29 and 34 under 35 U.S.C. § 103, we will sustain
these rejections also. In our opinion, one of ordinary skill
in the art would have realized from the collective teachings of
Carre and Gullichsen that under certain conditions it is
desirable to remove gas from the fiber suspension during the
Appeal No. 96-3376
Application 08/164,889
7
mixing process, and that degassing means for this purpose may be
provided in the rotor base for removing gas "from adjacent said
axis of rotation within said housing to the exterior of said
housing," as in appellants' claim 27 on appeal. We also agree
with the examiner that the disclosure of Ahs, at column 4, lines
12-23, considered together with the teachings of Carre, would
have
provided ample suggestion to one of ordinary skill in the art
to put a means for introducing a treatment fluid at a location
remote from the inlet of the mixer of Carre, in addition to the
means (6) therein for introducing a treatment fluid adjacent the
inlet of the mixer.
The next rejection for our consideration is that of
claims 25, 30, 36 and 38 under 35 U.S.C. § 103 based on Carre in
view of Forbes. Independent claim 30 sets forth a mixer wherein
the rotor comprises
a substantially disc-shaped base having a
center about which said rotor can rotate, and
a diameter; a hub at said center of said base
for connecting said base to said rotary drive
mechanism; and a first ring substantially
concentric with said base and extending out-
wardly from said base, said first ring having
Appeal No. 96-3376
Application 08/164,889
8
a cross-sectional shape corresponding to that
of a truncated right circular cone frustum.
In this particular case, we look to the embodiment
of the mixer seen in Figures 4 and 6 of Carre, noting that the
rings (13) therein are substantially concentric with the base
of the rotor (2) and extend outwardly in a radial direction
from the base. However, as recognized by the examiner, the
cross sectional shape of the rings in Carre Figures 4 and 6 is
rectangular, not that of a "truncated right circular cone
frustum," as in appellants' claim 30 on appeal. The examiner
turns to Forbes for the teachings of this feature in a mixing
device, noting that the rings (90) of the rotor flange (54) and
the rings (94) of the stator plate (75) therein have
complementary shaped cooperating surfaces spaced to define
annular mixing volumes and cross sectional configurations in the
form of a truncated right circular cone frustum. In column 5,
line 65, through column 6, line 10, Forbes notes that the
complementary surfaces of the rings/ridges (90, 94) force the
materials being mixed to pass therebetween in the form of a thin
undulating stream and create a shear field to further reduce the
particle size of the dispersed phase of the dispersion. The
Appeal No. 96-3376
Application 08/164,889
9
examiner concludes from the collective teachings of the applied
references that
[i]t would have been obvious to one having
ordinary skill in the art, at the time
applicants’ invention was made, to have
substituted the rings of rectangular cross-
section in Carre et al. with rings having a
cross sectional shape of a truncated right
circular cone frustum as disclosed by Forbes
for the purpose of creating a shear field to
enhance the shearing of the material being
processed (answer, page 5).
In the paragraph bridging pages 12 and 13 of the
answer, the examiner further urges that one of ordinary skill in
the art would have recognized that a ring of rectangular cross
section and a ring having a cross section of a truncated right
circular cone frustum are each
well known types of rotor and stator pro-
jections used in the mixing art (as evidenced
by the prior art of record), and that such
projections are generally alternative
mechanical structures used for establishing
turbulence and creating shear fields in the
prior art to Carre et al. and Forbes and as
claimed by applicant [sic].
With this as background, the examiner concludes that the
selection of either the rectangular cross section ring or the
ring having a cross section of a truncated right circular cone
Appeal No. 96-3376
Application 08/164,889
10
frustum would have been a matter of design choice to one of
ordinary skill in the art and thus does not serve to patentably
distinguish the claimed invention over the prior art. In further
support of this position, the examiner notes that appellants'
own specification (page 3, lines 16-18) establishes that one of
ordinary skill in the art would have understood rings of such
cross sectional shapes to be of interchangeable character, since
the specification notes that the rings "may have" a cross
sectional shape corresponding to that of a truncated right
circular cone frustum, or "may have a rectangular cross-sectional
shape."

We agree with the examiner's view that it would have
been obvious to one of ordinary skill in the art to make the
cross sectional shape of the rings (13) in Carre Figures 4 and 6
that of a truncated right circular cone frustum as seen in Forbes
and as a known alternative to the rectangular cross sectional
shape seen in Carre so as to ensure a turbulent mixing and
shearing action as recognized in both Carre and Forbes, and to
achieve the increase in mixing capacity noted in Carre column 4,
Appeal No. 96-3376
Application 08/164,889
11
lines 47-58. The fact that Forbes may refer to the zone
including the rings (90, 94) as a "refining zone" is, in our
opinion, of no moment, since one of ordinary skill in the art
would have recognized that such a zone would still provide the
increased shearing and mixing of the material passing through
this zone as desired in both Carre and Forbes. While appellants
have argued in their brief (page 10) that the truncated elements
of their invention "are not provided in any way, shape or form to
pro- vide a refining zone as is the purpose in Forbes," we find
such argument to be unpersuasive. One of ordinary skill in the
art would certainly view the zone in appellants' mixing device
which includes the truncated ring elements to be broadly a
"refining zone" where the coarse pulp entering through the inlet
(32) is subjected to fluidization and disruption of fiber flocks
so as
to expose individual fibers and to thereby maximize the direct
gas to fiber contact needed when using ozone as the bleaching
agent.
Regarding appellants' argument that there is no
suggestion of providing an increased pathway length in Carre
Appeal No. 96-3376
Application 08/164,889
12
(brief, pages 10-11), we observe that if the height of the rings
(13) of Carre remains the same as in Carre Figure 6, but the
cross section is altered as noted above to be that of a truncated
right circular cone frustum, then the length of the pathway
through the rings seen in Figure 6 of Carre would of necessity be
longer, since the lengths of each of the sides of the rings would
be slightly longer.
In light of the foregoing, we will sustain the
examiner's rejection of independent claim 30 under 35 U.S.C. §
103 based on the collective teachings of Carre and Forbes.
Following appellants' indication on page 4 of the brief, we
consider that claim 36 will fall with claim 30.
We will not sustain the examiner's rejection of
claims 25 and 38 under 35 U.S.C. § 103 based on Carre and Forbes.
We find no teaching, suggestion, or incentive in the applied
references which would have made it obvious to one of ordinary
skill in the art to make the rings (13) seen in the mixer of
Figures 4 and 6 of Carre of a length to extend outwardly from the
base "at least about three inches," as required in appellants'
Appeal No. 96-3376
Application 08/164,889
13
claims 25 and 38 on appeal. Given the express limitation on the
height of the gap (h) in Carre column 3, lines 56-59, and the
showing in Figure 6 of Carre, it appears that the height of the
rings seen therein would be only slightly greater than 30
millimeters (i.e., about 1.2 inches), the maximum gap height.
Moreover, we find nothing in Carre to indicate that the height of
the rings therein would be considered by one of ordinary skill in
the art to have been a result effective variable. Accordingly,
we cannot agree with the examiner's position that the height of
the rings as expressed in appellants' claims 25 and 38 on appeal
would be considered by one of ordinary skill in the art to have
been merely an "optimum" choice arrived at through routine
experimentation.
To summarize, the decision of the examiner rejecting
claims 25, 27 through 32, 34, 36 and 38 under 35 U.S.C. § 103 is
affirmed as to claims 27 through 32, 34 and 36, but is reversed
as to claims 25 and 38. Accordingly, the decision of the
examiner is affirmed-in-part.
No time period for taking any subsequent action in con-
nection with this appeal may be extended under 37 CFR § 1.136(a).
Appeal No. 96-3376
Application 08/164,889
14
AFFIRMED-IN-PART
JAMES M. MEISTER )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
JOHN P. McQUADE )
Administrative Patent Judge )
Appeal No. 96-3376
Application 08/164,889
15
Nixon & Vanderhye
1100 North Glebe Road
8th Floor
Arlington, VA 22201-4714
Appeal No. 96-3376
Application 08/164,889
- A1 -
APPENDIX
30. A mixer comprising:
a rotor and a stator disposed in said housing, said
stator and rotor having complimentary [sic] shaped cooperating
surfaces spaced to define annular mixing volumes;
a rotor drive mechanism having a drive shaft, for
rotating said drive shaft at a speed of at least 1000 rpm
said rotor connected to said drive mechanism drive
shaft, said drive mechanism rotating said rotor about an axis of
rotation;
means for mounting said stator with respect to said
rotor so that the spacing between said cooperating surfaces is
0.5 inches or less substantially throughout said annular mixing
volumes; and
said rotor comprising: a substantially disc-shaped
base having a center about which said rotor can rotate, and a
diameter; a hub at said center of said base for connecting said
base to said rotary drive mechanism; and a first ring
substantially concentric with said base and extending outwardly
from said base, said first ring having a cross-sectional shape
corresponding to that of a truncated right circular cone frustum.
31. A mixer comprising:
a housing having an inlet for pulp and an outlet;
a rotor and a stator disposed in said housing said
stator and rotor having complimentary [sic] shaped cooperating
surfaces spaced to define annular mixing volumes;
a rotary drive mechanism having a drive shaft;
said rotor connected to said drive mechanism drive
shaft, said drive mechanism rotating said rotor about an axis of
rotation;
Appeal No. 96-3376
Application 08/164,889
- A2 -
means for mounting said stator with respect to said
rotor so that the spacing between said cooperating surfaces is
0.5 inches or less substantially throughout said annular mixing
volumes; and
said rotor having a substantially disc shaped base
having a center about which said rotor can rotate, and a first
ring substantially concentric with said base and extending
outwardly from said base at least about three inches.