Ex parte GARAND et al.

Board of Patent Appeals and Interferences

Mar 30, 1998

07986771 (B.P.A.I. Mar. 30, 1998)

Application for patent filed December 8, 1992. According1
to appellants, this application is a division of Application
07/777,078, filed October 16, 1991, now U.S. Patent No.
5,228,918, issued July 20, 1993, which is a continuation-in-part
of Application 07/605,235, filed October 29, 1990, now abandoned.
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was not written for publication in a law journal and (2) is not
binding precedent of the Board.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. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte ROBERT R. GARAND, JOHN L. BANDA
and CHARLES PIKE
__________
Appeal No. 95-2944
Application No. 07/986,7711
__________
ON BRIEF
__________
Before GARRIS, PAK and WEIMAR, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the final rejection of
claims 13 through 26 which are all of the claims remaining in the
application.
Appeal No. 95-2944
Application No. 07/986,771
On lines 4 and 5 from the bottom of claim 13, the phrase2
“the aqueous-based ink” lacks strict antecedent basis and should
read, for example, --an aqueous-based ink--.
2
The subject matter on appeal relates to a system for marking
a continuous substrate which includes an elongate heater disposed
within an elongate housing and an outlet tube disposed proximate
to the elongate heater and substantially parallel to the elongate
heater within the elongate housing, wherein a significant portion
of gas directed through a gas inlet into the outlet tube is
heated by the elongate heater while being conducted through the
outlet tube and is then discharged from the outlet tube toward
the continuous substrate in the housing. This appealed subject
matter is adequately illustrated by independent claim 13 , a copy2
of which taken from the appellants’ Specification is appended to
this decision.
The following references are relied upon by the examiner as
evidence of obviousness:
Stelling, Jr. (Stelling) 3,074,179 Jan. 22, 1963
Rünkel et al. (Rünkel) 4,565,524 Jan. 21, 1986
Fleissner 4,674,197 Jun. 23, 1987
Baxter et al. (Baxter) 4,708,887 Nov. 24, 1987
Claims 13 through 20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Baxter in view of Fleissner and Stelling,
Appeal No. 95-2944
Application No. 07/986,771
3
and claims 21 through 26 stand correspondingly rejected over
these references and further in view of Rünkel.
Neither of these rejections can be sustained.
We agree with the appellants that the references applied by
the examiner contain no teaching or suggestion of an outlet tube
disposed proximate and substantially parallel to an elongate
heater as required by the claims on appeal. The examiner’s view
that Fleissner and Stelling would have suggested this claim
feature is based upon clearly erroneous findings of fact.
Specifically, the examiner has made clearly erroneous findings
with respect to the disclosures of both Fleissner and Stelling,
each of which alone is fatal to the rejection before us.
Concerning Fleissner, while screen cover 10 may function as
an elongate heater, the examiner is clearly incorrect in
believing that patentee’s Figure 9 shows “unheated air is
accelerated through chamber 9 in a plane parallel to thread path
6 [and thus parallel to cover 10 which serves as an elongate
heater]” (Answer, page 6; emphasis in original). In fact, the
flow arrows near the bottom of Figure 9 unambiguously show that
the air flow is transverse, not parallel, to thread path 6 and
correspondingly “elongate heater” or cover 10. The examiner’s
confusion in this regard may have arisen by a failure to
Appeal No. 95-2944
Application No. 07/986,771
4
appreciate that Figure 9 shows a transverse view of patentee’s
radiation tunnel (e.g., see lines 12-13 in column 9) whereby the
thread path 6 and the elongate axis of cover 10 are displayed in
Figure 9 as perpendicular to the plane of the paper.
The examiner’s obviousness conclusion is also fatally
premised upon his erroneous belief that, “[a]s illustrated in
Figure 1 [of Stelling], the blast tube BT is orientated parallel
to the web travel direction” (Answer, page 7). Actually,
patentee’s blast tubes are orientated perpendicular, not
parallel, to the web travel direction as clearly shown by a
comparison of Figures 1 and 2 and expressly disclosed in claim 1
of the patent which recites “a blast tube assembly having an air
inlet end and extending into said tunnel in a direction which is
generally transverse to said web” (emphasis added).
Particularly under the circumstances discussed above, it is
clear to us that the appellants’ claim feature under
consideration would not have been suggested by the applied prior
art generally including the Fleissner and Stelling references
specifically. It follows that we cannot sustain the examiner’s
§ 103 rejection of claims 13 through 20 as being unpatentable
over Baxter in view of Fleissner and Stelling or his
Appeal No. 95-2944
Application No. 07/986,771
5
corresponding rejection of claims 21 through 26 as being
unpatentable over these references and further in view of Rünkel.
The decision of the examiner is reversed.
REVERSED
BRADLEY R. GARRIS )
Administrative Patent Judge)
)
)
)
CHUNG K. PAK ) BOARD OF PATENT
Administrative Patent Judge) APPEALS AND
) INTERFERENCES
)
)
ELIZABETH C. WEIMAR )
Administrative Patent Judge)
Appeal No. 95-2944
Application No. 07/986,771
6
David E. Brook
Hamilton, Brook, Smith & Reynolds
Two Militia Drive
Lexington, MA 02173
Appeal No. 95-2944
Application No. 07/986,771
7
APPENDIX
13. A system for marking a continuous substrate,
comprising:
a) an elongate housing, having an inlet end and an outlet
end, for housing the continuous substrate as the continuous
substrate is directed through the housing from the inlet end to
the outlet end;
b) an elongate heater disposed within the elongate housing
and extending from the inlet end to the outlet end of the
elongate housing;
c) an outlet tube disposed proximate to the elongate
heater and substantially parallel to the elongate heater within
the elongate housing, the outlet tube having a gas inlet at a
first end and defining a plurality of gas outlets disposed along
a substantial portion of the length of the outlet tube, whereby a
significant portion of gas directed through the gas inlet into
the outlet tube is heated by the elongate heater, while being
conducted through the outlet tube, and is then discharged from
the outlet tube through the gas outlets toward the continuous
substrate in the housing, thereby passing across the continuous
substrate and heating the aqueous-based ink in an amount
sufficient to cause a pigment of the aqueous-based ink to bond to
the continuous substrate and thereby mark the continuous
substrate.