Ex Parte Dorsch

Patent Trial and Appeal Board

Sep 25, 2017

14669080 (P.T.A.B. Sep. 25, 2017)

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.
14/669,080 03/26/2015 Glenn R. Dorsch 003006 P0045 1661
09/27/201777093 7590
Bishop Diehl & Lee, Ltd.
1475 East Woodfield Road, Suite 800
Schaumburg, IL 60173
EXAMINER
SORKIN, DAVID L
ART UNIT PAPER NUMBER
1774
NOTIFICATION DATE DELIVERY MODE
09/27/2017 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):
cmarcello@bishoppatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GLENN R. DORSCH
(Applicant: Vaughan Company, Inc.)1
Appeal 2017-001413
Application 14/669,080
Technology Center 1700
Before GRACE K. OBERMANN, CHRISTOPHER C. KENNEDY, and
MONTE T. SQUIRE, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL2
Appellant appeals the Examiner’s decision to finally reject claims 1,
4—7, and 10—12, which constitute all the claims pending in this application.
35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies Vaughan Company, Inc. as the real party in interest.
App. Br. 1.
2 In our Decision, we refer to the Specification filed March 26, 2015
(“Spec.”); Final Office Action dated June 22, 2015 (“Final Act.”); Advisory
Action dated July 15, 2015 (“Adv. Act.”); Appeal Brief dated March 21,
2016 (“App. Br.”); Examiner’s Answer to the Appeal Brief dated September
19, 2016 (“Ans.”); and Reply Brief dated November 1, 2016.
Appeal 2017-001413
Application 14/669,080
The Claimed Invention
Appellant’s disclosure relates to a nozzle system and method for
mixing contents in a tank and scouring surfaces of debris and sediment.
Abstract; Spec. 12. Claim 1 is illustrative of the claimed subject matter on
appeal and is reproduced below from the Claims Appendix to the Appeal
Brief (App. Br. 16) (key disputed claim language italicized and bolded and
indentation added):
1. A method for removing sediment deposited onto a
surface using tank mixing nozzles, the method
comprising the steps of:
securing a liquid dispensing nozzle coupled to a
liquid source above an area of a surface upon which
solids accumulate over time, the nozzle having an outlet
and a splash plate fixed proximate the outlet;
aiming the outlet of the liquid dispensing nozzle
toward the surface;
pumping liquid at a sufficient pressure from the
liquid source to discharge from the outlet of the nozzle
initially as a concentrated stream along a path directed
substantially at the surface; and
positioning the splash plate above and into the
path of the liquid stream at an angle of inclination
relative to the path so as to immediately deflect the
stream as it is discharged from the outlet downward and
spread over at least a portion of the area to thereby
move or prevent accumulated solids.
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
The References
McCue
Dorsch et al.,
(hereinafter “Dorsch”)
US 1,536,230 May 5, 1925
US 7,628,183 B2 Dec. 8, 2009
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Application 14/669,080
The Rejection
On appeal, the Examiner maintains the following rejection: claims 1,
4—7, and 10—12 are rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Dorsch in view of McCue. Ans. 2; Final Act. 2.
OPINION
Having considered the respective positions advanced by the Examiner
and Appellant in light of this appeal record, we affirm the Examiner’s
rejections for the reasons set forth in the Answer to the Appeal Brief and
Final Office Action, which we adopt as our own. We highlight and address
specific findings and arguments below for emphasis.
Appellant argues independent claims 1 and 7 as a group and does not
present separate argument for the patentability of dependent claims 4—6 and
10—12. App. Br. 6. We select claim 1 as representative and the remaining
claims subject to this rejection stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner determines that the combination of Dorsch and McCue
suggests a method satisfying all of the steps of claim 1 and thus, would have
rendered claim 1 obvious. Ans. 2—3.
The Examiner finds that Dorsch teaches the majority of the limitations
of claim 1, but that the reference does not teach positioning the splash plate
above and into the path of the liquid stream, as recited in the claim. Ans. 2
(citing Dorsch, col. 2,11. 10-32, Fig. 1). The Examiner, however, relies on
McCue for teaching or suggesting this missing limitation. Id. at 2.
In particular, the Examiner finds that McCue teaches placing a
deflector (i.e., splash plate) above and in the path of a fluid stream at an
angle of inclination relative to the path so as to immediately deflect the
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Application 14/669,080
stream as it is discharged from the outlet downward and spread over at least
a portion of an area. Ans. 2; see also McCue, p. 1, col. 2,11. 74—80, Figs. 1—
5 (item 14).
Based on the above findings, the Examiner concludes that:
It would have been obvious to one of ordinary skill in the art to
have utilized the orientation of the splash plate taught by
McCue in the method of Dorsch on the basis that is applying a
known technique in a highly analogous method to the known
method of Dorsch.
Ans. 2—3.
Appellant argues that the Examiner’s rejection should be reversed
because McCue is non-analogous art. App. Br. 6, 10. In particular,
Appellant contends that McCue is directed to the field of nozzles used for
smoke abators and is not in the same field of endeavor as the claimed
method, which is directed to preventing and removing sediment and debris
deposit on a surface. Id. at 11. Appellant further contends that McCue is
not reasonably pertinent to the problem addressed by the claimed invention
because the purpose of McCue’s device is to “prevent smoke formation by
increasing combustion” and “McCue says nothing on the problem of moving
or preventing the accumulation of solids.” Id. at 11, 12. Appellant also
contends that neither Dorsch nor McCue is intended to move or prevent the
accumulation of solids on a surface. Id. at 9; see also Reply Br. 7.
Appellant further argues that Dorsch and McCue teach away from the
claimed invention because: (1) Dorsch teaches the attachment of a deflector
below the liquid stream to create a dispersion of water droplets aimed away
from a surface and (2) McCue teaches the use of a nozzle to create a steam
curtain above the surface of the combustion materials, not into the
combustion materials. App. Br. 12; see also Reply Br. 3^4.
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Application 14/669,080
Appellant also argues that, although Dorsch discloses a method for
diffusing foam which forms on a surface, the reference does not disclose a
method for removing sediment deposited onto a surface because “foam is
not ‘sediment.’” App. Br. 7; see also Reply Br. 6.
We do not find Appellant’s arguments persuasive of reversible error
in the Examiner’s rejection. On the record before us, we find that a
preponderance of the evidence and sound technical reasoning support the
Examiner’s analysis and determination that the combination of Dorsch and
McCue suggests all of the steps of claim 1 and would have rendered the
claimed method obvious. Dorsch, Abstract, col. 2,11. 10-32, Fig. 1; McCue,
p. 1, col. 2,11. 74—80, Figs. 1—5 (item 14).
Appellant’s argument that McCue is non-analogous art (App. Br. 6,
10) is not persuasive because it too narrowly construes the scope of
McCue’s disclosure, particularly the applicable field of endeavor and
relevance to the problem in which the claimed invention is involved. See In
re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). As the Examiner finds
(Ans. 5), McCue, Dorsch, and Appellant’s claimed invention are, indeed,
analogous because they all concern using plates to deflect a horizontal fluid
stream emanating from a nozzle. In particular, we concur with the
Examiner’s finding (Ans. 2) that McCue teaches placing a deflector (i.e.,
splash plate) above and in the path of a fluid stream at an angle in order to
deflect the stream as it is discharged from the nozzle, which is directly
pertinent to the “positioning the splash plate above” step of and problem
addressed by claim 1.
The Examiner also provides a reasonable basis and identifies a
preponderance of the evidence in the record to evince why one of ordinary
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Application 14/669,080
skill would have combined the teachings of the references to arrive at
Appellant’s claimed invention. Ans. 2—3; see also KSR Int’l Co. v. Teleflex,
Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.”).
Appellant fails to direct us to sufficient evidence or provide an
adequate technical explanation to establish why the Examiner’s articulated
reasoning for combining the teachings of the prior art to arrive at the claimed
invention lacks a rational underpinning or is otherwise based on some other
reversible error. KSR, 550 U.S. at 420 (explaining that any need or problem
known in the art can provide a reason for combining the elements in the
manner claimed).
We do not find Appellant’s teaching away argument (App. Br. 12)
persuasive because Appellant does not identify sufficient evidence to
support it, and we will not read into the references a teaching away where no
such language exists. Cf. DyStar Textilfarben GmbHv. C.H. Patrick Co.,
464 F.3d 1356, 1364 (Fed. Cir. 2006). In particular, Appellant does not
identify any teaching in Dorsch or McCue which discourages one of
ordinary skill in the art from positioning a splash plate above and into the
path of the liquid stream emanating from a nozzle in the manner claimed. In
re Fulton, 391 F.3d 1195, 1201 (finding that there is no teaching away
where the prior art’s disclosure “does not criticize, discredit, or otherwise
discourage the solution claimed”).
The mere fact that Dorsch uses a nozzle with a splash plate positioned
below the stream (Dorsch, Fig. 3, col. 2,11. 40-47) and McCue is directed to
a nozzle for directing fluid over a hot bed of coals (McCue, p. 1, col. 1,11.
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Application 14/669,080
10—11), without more, are insufficient to establish that the references teach
away from the claimed invention or adequately rebut or show reversible
error in the Examiner’s analysis and factual findings. Moreover, as the
Examiner correctly points out (App. Br. 5), the McCue reference simply
illustrates that using a deflector plate to deflect fluid from a nozzle
downward from above has been long known in the art.
We do not find Appellant’s argument that Dorsch does not disclose a
method for removing sediment deposited onto a surface (App. Br. 7; Reply
Br. 6) persuasive of reversible error in the Examiner’s rejection for the well-
stated reasons provided by the Examiner at page 4 of the Answer. In
particular, we concur with the Examiner’s finding that, contrary to what
Appellant argues, Dorsch concerns sewage treatment and, therefore, does, at
minimum, suggest a method for removing sediment (i.e., solids) onto a
surface. See Dorsch, col. 1,11. 11—20, 30-42, col. 2,11. 4—6.
Appellant’s repeated assertions that neither Dorsch nor McCue is
intended to move or prevent the accumulation of solids on a surface are not
persuasive of reversible error because they are conclusory and Appellant
does not provide an adequate technical explanation or direct us to sufficient
evidence in the record to support them. Attorney argument is not evidence.
In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Accordingly, we affirm the Examiner’s rejection of claims 1, 4—7, and
10-12 under 35 U.S.C. § 103(a) as obvious over the combination of Dorsch
and McCue.
DECISION/ORDER
The Examiner’s rejection of claims 1, 4—7, and 10—12 is affirmed.
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It is ordered that the Examiner’s decision is affirmed.
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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