Ex Parte Gauthier

Patent Trial and Appeal Board

Sep 12, 2013

11198744 (P.T.A.B. Sep. 12, 2013)

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.
11/198,744 08/08/2005 Darrell Gauthier 07055 1631
24386 7590 09/13/2013
Robert W. Pitts
101B Westgate Circle
Winston-Salem, NC 27106
EXAMINER
DESAI, HEMANT
ART UNIT PAPER NUMBER
3721
MAIL DATE DELIVERY MODE
09/13/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte DARRELL GAUTHIER
________________

Appeal 2011-010119
Application 11/198,744
Technology Center 3700
________________

Before STEVEN D.A. McCARTHY, CHARLES M. GREENHUT and
MICHAEL C. ASTORINO, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE 1
The Appellant1 appeals under 35 U.S.C. § 134 (2010) from the 2
Examiner’s decision rejecting claims 1-15 and 20-32. The Examiner rejects 3
claims 1-15, 20 and 22-32 under 35 U.S.C. § 103(a) (2010) as being 4
unpatentable over Ansaloni (US 5,743,069, issued Apr. 28, 1998) and Rutz5

1 The Appellant is the real party in interest.
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(JP H08-47678 A, publ. Feb. 20, 1996);2 and claim 21 under § 103(a) as 1
being unpatentable over Ansaloni, Rutz and Runft (US 2007/0044433 A1, 2
publ. Mar. 1, 2007). Claims 16-19 are cancelled. We have jurisdiction 3
under 35 U.S.C. § 6(b) (2010). 4
We AFFIRM. 5
Claims 1, 10 and 25 are independent. Claim 1 recites: 6
1. In a machine for filling and closing two-7
piece capsules, wherein a plurality of separate 8
segment blocks are secured to a movable table and 9
are circumferentially movable to different stations, 10
each of the segment blocks including a plurality of 11
receptacles for receiving and supporting capsule 12
bottoms and caps, means for filling the capsule 13
bottoms with a chosen product, means for joining 14
the capsule bottoms and caps to form finished 15
product-filled capsules, and means for discharging 16
the finished product-filled capsules from the 17
segment blocks, 18
the combination with the machine of a cleaning 19
apparatus for removing product residue deposited 20
on receptacle walls from the receptacles after the 21
filled capsules have been discharged including 22
brushes movable in the receptacles to clean 23
the interiors of the receptacles, 24
means for directing compressed air into the 25
receptacles to sweep residue removed by the 26
brushes, the means for directing compressed 27
air further comprising nozzles insertable into 28
the receptacles so that compressed air is 29
injected into the receptacles while the 30
nozzles are located within respective 31

2 References to “Rutz” will be to the official translation prepared by
Schreiber Translations, Inc. in or about May 2010. This reference was
referred to as “Guido” prior to this appeal.
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receptacles to peel away product residue 1
from the interiors of the receptacles, the 2
nozzles being angled to direct compressed 3
air toward the brushes and toward the 4
receptacle walls during insertion of the 5
brushes into the receptacles so that the 6
compressed air cooperates with the brushes 7
to peel away product residue, and 8
vacuum means for removing any remaining 9
product residue proximate the receptacle 10
locations, 11
the brushes, the means for directing 12
compressed air into the receptacles and the 13
vacuum means being operable together to 14
clean individual receptacles. 15
16
ISSUES 17
The Appellant states that claim 1 is representative of the grouping of 18
claims 1-15, 20 and 22-24. (Br. 7). The Appellant fails to present a separate 19
argument for independent claim 25 or for dependent claims 26-32. 20
Therefore, these claims may be grouped with claims 1-15, 20 and 22-24 for 21
purposes of this appeal. The Appellant argues the patentability of claim 21 22
solely on the basis that Runft fails to remedy perceived deficiencies in the 23
combined teachings of Ansaloni and Rutz. (See Br. 16). Only issues and 24
findings of fact contested by the Appellant have been considered. See id.; In 25
re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011); Ex parte Frye, 94 USPQ2d 26
1072, 1075-76 (BPAI 2010). 27
Two issues are dispositive of this appeal: 28
First, has the Examiner articulated persuasive reasoning 29
with some rational underpinning to explain why one of ordinary 30
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skill in the art might have had reason to combine, in a cleaning 1
apparatus, brushes movable in receptacles to clean the interiors 2
of the receptacles; and means for directing compressed air into 3
the receptacles to sweep residue removed by the brushes as 4
recited in representative claim 1? (See Br. 10-15). 5
Second, has the Examiner articulated persuasive 6
reasoning with some rational underpinning to explain why one 7
of ordinary skill in the art might have had reason to include, in 8
a cleaning apparatus, nozzles angled to direct compressed air 9
toward the brushes and toward the receptacle walls during 10
insertion of the brushes into the receptacles so that the 11
compressed air cooperates with the brushes to peel away 12
product residue as recited in claim 1? (See Br. 15-16). 13
14
FINDINGS OF FACT 15
The record supports the following findings of fact (“FF”) by a 16
preponderance of the evidence. 17
1. We adopt the following findings of the Examiner: 18
Ansaloni discloses a machine for filling and 19
closing two-piece capsules in which a plurality of 20
segment blocks are secured to a movable table and 21
are circumferentially movable to different stations 22
(see fig. 1), the segment blocks including a 23
plurality of receptacles (19, 28, fig. 2) for 24
receiving and supporting capsule bottoms and 25
caps, means for filling the capsule bottoms with a 26
chosen product (62, 64, fig. 1), means for joining 27
the capsule bottoms and caps or equivalent thereof 28
(46, fig. 1) to form finished product-filled 29
capsules, and means for discharging the finished 30
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product-filled capsules from the segment blocks or 1
equivalent thereof (see col. 3, lines 1-3), a cleaning 2
apparatus (insertable brush, 49-53, fig. 5) for 3
removing product residue from the receptacles 4
after the filled capsules have been discharged 5
including brush (53, fig. 5) for cleaning the 6
interiors of the receptacles. 7
(Ans. 3-4; see also Ansaloni, col. 2, ll. 50-65; col. 2, l. 66 – col. 3, l. 4; col. 8
3, ll. 30-49; col. 4, ll. 57-62 (means for joining the capsule bottoms and 9
caps); col. 5, ll. 5- 20 (cleaning apparatus including a brush) and 32-43 10
(means for filling the capsule bottoms)).3 The Appellant does not contest 11
these findings. (See generally Br. 10-15). 12
2. We adopt the Examiner’s finding that “Ansaloni fails to 13
disclose air nozzles to divert the air towards the brush and towards the 14
receptacle wall[;] and vacuum means for removing any remaining product 15
residue.” (Ans. 4). 16
3. Rutz describes a method for cleaning a powder conduit 34 of an 17
electrostatic powder spray coating apparatus. (Rutz, para. [0004]). The 18
powder conduit is in the form of a hose or pipe. (Rutz, para. [0010]). 19
4. The powder conduit 34 includes a suction nozzle 7 and a 20
conduit 7.1. The suction nozzle 7 serves to recover excess coating powder 21
from the floor of a powder spray coating booth 1. The conduit 7.1 conducts 22
the excess coating powder through filtering equipment to a powder vessel 5 23
for reuse. (Rutz, para. 11 and fig. 4). The powder conduit 34 must be 24

3 Several of the limitations of claim 1 are recited in terms including the
words “means for . . . .” Since the Appellant does not contest the
Examiner’s interpretation of these terms, we need not address the sixth
paragraph of 35 U.S.C. § 112.
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cleaned at times to remove powder adhered to the walls of the conduit. 1
(Rutz, para. [0002]). 2
5. Rutz’ method for cleaning the powder conduit 34 uses a hose 3
brush 22. The hose brush 22 includes a brush head 24 having radially 4
extending bristles 30 movable in the powder conduit 34 to clean the interior 5
of the conduit. (Rutz, para. [0006] and fig. 1). 6
6. Rutz’ brush head 24 also includes a compressed air hose 26 and 7
a compressed air nozzle device 36 for directing compressed air from a 8
compressed air source 54 into the powder conduit 34 in an approximately 9
radial direction. (Id.) 10
7. Rutz teaches drawing the brush head 24 through the powder 11
conduit 34 by means of suction provided through the suction nozzle 7. 12
(Rutz, paras. [0007] and [0012]). 13
8. Rutz teaches that: 14
The suction device is preferably left ON both 15
while the hose brush 22 is drawn in the direction of 16
suction through the powder conduit 34, and while 17
subsequently drawing the hose brush 22 back from 18
the powder conduit 34. By turning the suction 19
device ON in advance, an advantage is obtained 20
that the suction device draws in powder particles 21
that peel off from the inner perimeter surface 32 of 22
the powder conduit 34. 23
(Rutz, para. [0007]; see also id., para. [0012]). In other words, the suction 24
nozzle 7 is vacuum means for removing any remaining product residue left 25
in the powder conduit 34 after the brush head 24 passes through the conduit. 26
9. Rutz would have suggested that the compressed air directed 27
against the inner perimeter surface 32 of the powder conduit 34 was capable 28
of peeling away powder residue from the conduit. 29
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9a. Rutz taught directing the compressed air toward 1
the inner perimeter surface 32 of the powder conduit 34. (See, 2
e.g., Rutz, para. [0004] (teaching that “a compressed air nozzle 3
device for discharging compressed air in the lateral direction 4
with respect to the longitudinal axis of the brush toward the 5
inner perimeter surface of the powder conduit to be cleaned is 6
provided on the brush head”)). 7
9b. Furthermore, Rutz described the gap 64 between 8
the outer perimeter of the compressed air nozzle device 36 and 9
the inner perimeter surface 32 of the powder conduit 34 as 10
being sufficiently narrow to impede the flow of air through the 11
gap 64. (Rutz, para. [0008]). Consequently, the pressure drop 12
between outer perimeter of the compressed air nozzle device 36 13
and the inner perimeter surface 32 likely would not have been 14
so significant as to prevent the compressed air from peeling at 15
least some powder from the surface. No contrary inference can 16
be drawn from the relative dimensions of components as 17
depicted in Figure 1 of Rutz, since Rutz does not state that the 18
components were drawn to scale. 19
9c. Rutz teaches that “[n]egative pressure that impedes 20
or makes difficult drawing-back of the brush head 24 is 21
generated in the case when the suction device is turned off and 22
the downstream-side end part of the powder conduit 34 is 23
stopped.” (Rutz, para. [0009]). 24
9d. The Appellant argues that “[i]t is clear from [Rutz] 25
that the main purpose of the brush head configuration is to 26
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reduce this pressure differential so that the air brush can be 1
inserted and withdrawn in the presence of suction without 2
exertion of an extreme force.” (Br. 13). This argument is not 3
persuasive. Rutz provides means other than the compressed air 4
flowing through the compressed air nozzle device 36 or 5
controlling this negative pressure differential, namely, the gap 6
64 between the outer perimeter of the compressed air nozzle 7
device 36 and the inner perimeter surface 32 of the powder 8
conduit 34; and holes or passages 66 through the brush heed 24. 9
(Rutz, para. [0009]). 10
11
ANALYSIS 12
First Issue 13
The Appellant argues that (1) “the scope and content of the prior art is 14
not accurately identified or reflected in the rationale supporting the 15
invention;”4 and (2) “there is no suggestion to combine the references relied 16
upon.” (Br. 10). The Examiner properly characterized the teachings of 17
Ansaloni and Rutz. In particular, the Examiner properly characterized Rutz 18
as teaching a cleaning apparatus including a brush (that is, bristles 30) 19
movable in a powder conduit to clean the interior of the conduit (FF 5); 20
nozzles (that is, the compressed air nozzle device 36) insertable into the 21
powder conduit so that compressed air is injected into the conduit to peel 22

4 The Appellant appears to argue that the Examiner misconstrued the
teachings of Rutz, not that Rutz as a whole might be non-analogous art. (See
Br. 11 (“Even if portions of the disclosure of the two references might be
considered to be [analogous] art, more is necessary to reject the claims as
being obvious.”)).
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away product residue from the interior of the conduit (FF 6 and 9); and 1
vacuum means (that is, the suction nozzle 7) for removing any remaining 2
product residue (FF 8). 3
The Examiner concludes that it would have been obvious: 4
to provide the combination of compressed air and 5
vacuum in addition of the cleaning brush 6
[described by Rutz] because the combination of 7
brush and the force of compressed air will result in 8
more efficient, effective removal of the 9
residue/leftover substance/matter [from] the 10
interior of the wall of the receptacle and the 11
vacuum will provide more efficient, effective 12
cleaning of the removed residue/leftover 13
substance/matter [from] the interior of the wall of 14
the receptacle to a fixed location/container. 15
(Ans. 8-9). 16
Even taking into account that Rutz describes a method for cleaning a 17
powder conduit 34 of an electrostatic powder spray coating apparatus rather 18
than a method of cleaning receptacles in a capsule filling and closing 19
machine, the Examiner’s reasoning is persuasive. The tasks of cleaning 20
powder from the inner perimeter surface of a powder conduit and of 21
cleaning powder from the inner surface of a receptacle for a capsule bottom 22
or cap are similar. One of ordinary skill in the pertinent art would have had 23
reason to incorporate the action of both bristles and compressed air into the 24
latter task to provide more efficient and effective cleaning. Given the 25
similarity of the tasks, one of ordinary skill in the art would have had a 26
reasonable expectation of success in incorporating the action of both bristles 27
and compressed air into the task of cleaning receptacles in a capsule filling 28
and closing machine. 29
30
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Second Issue 1
Rutz teaches directing the compressed air approximately radially 2
toward the inner perimeter surface to be cleaned. (FF 6). The Examiner 3
concludes that it would have been “an obvious matter of design choice” to 4
angle the compressed air nozzle devices 36 toward the bristles 30 and 5
toward the inner perimeter surfaces 32 during insertion of the brushes so that 6
the compressed air cooperated with the brushes to peel away product 7
residue. (Ans. 11). Despite the Appellant’s assertion to the contrary (see Br. 8
15), the Appellant has not demonstrated by evidence or persuasive technical 9
argument that angling the nozzles toward the brushes and toward the 10
interiors of the receptacles produces an unexpected or synergistic 11
cooperation between the compressed air and the brushes. Furthermore, the 12
Appellant has not demonstrated by evidence or persuasive technical 13
argument that angling the compressed air nozzle device 36 toward the 14
bristles 30 and toward the inner perimeter surface 32 would produce 15
significant thrust during insertion. 16
We adopt the Examiner’s finding that the Appellant “has not disclosed 17
that by diverting the compressed air towards the interior of the wall and the 18
brush provides an advantage, is used for a particular purpose, or solves a 19
stated problem.” (Ans. 11). We therefore conclude with the Examiner that 20
“it would have been an obvious design choice to a person of ordinary skill in 21
the art to angle the nozzle towards the wall and brush.” (Id.) See In re 22
Kuhle, 526 F.2d 553, 555 (CCPA 1975). We sustain the rejection of claims 23
1-15, 20 and 22-32 under § 103(a) as being unpatentable over Ansaloni and 24
Rutz. Since the Appellant contests the rejection of claim 21 solely on the 25
basis that Runft fails to remedy perceived deficiencies in the teachings of 26
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Ansaloni and Rutz as applied to parent claim 10, we also sustain the 1
rejection of claim 21 under § 103(a) as being unpatentable over Ansaloni, 2
Rutz and Runft. 3
4
DECISION 5
We AFFIRM the Examiner’s decision rejecting claims 1-15 and 20-6
32. 7
No time period for taking any subsequent action in connection with 8
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2010). 9
10
AFFIRMED 11
12
13
14
15
16
Klh 17