Ex Parte Herman et al

Board of Patent Appeals and Interferences

Mar 28, 2012

11564253 (B.P.A.I. Mar. 28, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/564,253 11/28/2006 Peter K. Herman 8-02-4827 2257
26753 7590 03/29/2012
ANDRUS, SCEALES, STARKE & SAWALL, LLP
100 EAST WISCONSIN AVENUE, SUITE 1100
MILWAUKEE, WI 53202
EXAMINER
LEYSON, JOSEPH S
ART UNIT PAPER NUMBER
1744
MAIL DATE DELIVERY MODE
03/29/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
_________________

Ex parte PETER K. HERMAN, JAMES O. STUART,
and YOGESHWAR K. VELU

_________________

Appeal 2010-012167
Application 11/564,253
Technology Center 1700
_________________

Before BRADLEY R. GARRIS, KAREN M. HASTINGS, and
DEBORAH KATZ, Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-012167
Application 11/564,253

2
Appellants1 seek our review, under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 24 and 28. (App. Br. 2.) Claims 1-23
and 25-27 have been cancelled. (App. Br. 2.) We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM.
The Examiner rejected claims 24 and 28 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
(Ans. 3-4.)
The Examiner also rejected claims 24 and 28 under 35 U.S.C.
§ 103(a) over Gerking (U.S. Patent 6,800,226 B1, issued October 5, 2004).
(Ans. 4-5.)
Appellants do not provide separate arguments for the rejections of
claims 24 and 28. (See App. Br. 7 and 13.) We focus on claim 24. See
37 C.F.R. § 41.37(c)(1)(vii).
Appellants’ claims and Specification are directed to meltblown fiber
manufacture, which produces superfine fibers on the micron or sub-micron
scale, used as filter media. (Spec., ¶¶ [0002] and [0003].)
Appellants’ claim 24 recites:
A nozzle for maximizing ultrafine meltblown fiber
attenuation, comprising:
a polymer streaming channel having an inlet and an
outlet;
at least one gas delivery channel converging at a location
substantially immediately adjacent to the outlet to form a fiber
attenuation zone;

1 The real party in interest is said to be Cummins Filtration IP, Inc.. (App.
Br. 1.)
App
App

(App
Figu
boun
eal 2010-0
lication 11
th
an
th
zo
ax
fr
ta
pr
sa
to
. Br. 14, C
Figure 4
re 4 depict
ded expan
12167
/564,253
a restr
e restricted
d
a boun
roat area t
ne;
said p
is from up
said n
om said re
pered in a
tapere
oviding th
where
id restricte
said axis.

laims App
of Appell
s a nozzle
sion area
icted thro
throat are
ded expan
o stabilize
olymer str
stream to
ozzle furth
stricted thr
downstrea
d wall bei
e boundar
in said ex
d throat ar

’x.)
ants’ appli
(108) with
(408). (Sp
3
at area to r
a adapted
sion area
supersoni
eaming ch
downstrea
er compri
oat area to
m directio
ng a bound
y of said b
it of said ta
ea defines
cation is r
a restrict
ec., ¶ [004
estrict gas
to achieve
extending
c gas flow
annel exte
m;
ses a taper
an exit an
n relative
ary wall d
ounded ex
pered wal
an angle
eproduced

ed throat a
4].)
flow at th
choked s
from the r
in a fiber
nds axiall
ed wall ex
d divergin
to said axi
efining an
pansion ar
l extendin
less than 3
below.
rea (406)
e location
onic flow;
estricted
attenuation
y along an
tending
gly
s, said
d
ea;
g from
5° relative
and
,

Appeal 2010-012167
Application 11/564,253

4

35 U.S.C. § 112, first paragraph
The Examiner rejected claim 24 under 35 U.S.C. § 112, first
paragraph, finding that the phrase “an angle less than 35o relative to said
axis” is new matter not in the claims as originally filed and not supported by
the Specification. (Ans. 3-4.)
Appellants argue that the claimed angle is supported by measuring the
angle shown in the figures of the Specification. (App. Br. 6.) According to
Appellants, because the angle is relative to the aspects of the drawing, not a
specific dimension, it supports the claim. (Id.)
Appellants do not point to portions of their Specification that state the
drawings are to scale or that discuss relative proportions of the tapered wall
extending from the restricted throat area relative to the axis. Thus, we agree
with the Examiner that the phrase lacks written description support under
35 U.S.C. § 112, first paragraph. See Hockerson-Halberstadt, Inc. v. Avia
Group Int’l., Inc., 222 F.3d 951, 956 (Fed. Cir. 2000) (“The ‘792 patent is
devoid of any indication that the proportions of the groove and fins are
drawn to scale. HHI's argument thus hinges on an inference drawn from
certain figures about the quantitative relationship between the respective
widths of the groove and fins. Under our precedent, however, it is well
established that patent drawings do not define the precise proportions of the
elements and may not be relied on to show particular sizes if the
specification is completely silent on the issue.”).

App
App

35 U
Gerk

eal 2010-0
lication 11
.S.C. § 10
The Exa
ing. (Ans
Figures

12167
/564,253
3
miner reje
. 4-5.)
1 and 3 of
cted claim
Gerking a
F
F
5
24 under
re reprodu
igure 1
igure 3
35 U.S.C.
ced below
§ 103(a) o
.

ver
Appeal 2010-012167
Application 11/564,253

6
Figures 1 and 3 depict sectional views of nozzles for making microthreads
with a nozzle orifice 3, a plate 6’, a gap 6, and an area beneath (element 7 in
Figure 1), which together form a Laval nozzle. (Gerking, col. 4, l. 64,
through col. 5, l. 2.)
Citing to Figure 1, the Examiner found that Gerking teaches the
elements of the claimed nozzle and includes a tapered wall (6’) extending
from the restricted throat area (gap 6) to an exit and tapered in the
downstream direction relative to the axis from upstream to downstream.
The Examiner found that this tapered wall creates a boundary expansion area
(7). (Ans. 4-5 and 6.)
Appellants argue that area 7 of Figure 1 is not a bounded expansion
area as claimed because, according to Appellants, the wall extends laterally,
or extends “functionally laterally,” from the nozzle outlet at gap 6. (App.
Br. 7.) Appellants do not direct us to a definition of “bounded expansion
area” or to evidence of what those of skill in the art would have considered it
to be. Figure 1 of Gerking, as well as Figures 2 and 3, depict some degree of
taper, which would create an area (shown as element 7 in Figure 1). Thus,
we are not persuaded that the tapered wall extending from the restricted
throat area (gap 6) of Gerking does not define a bounded expansion area
under the broadest reasonable interpretation of the phrase.
Appellants also argue that the angle of the claimed tapered wall is not
merely a matter of design choice or of routine experimentation because it
improves the performance of the claimed nozzle. (App. Br. 7-8.) According
to Appellants, Figure 6 of their application shows that the nozzles depicted
in Figures 4 and 5 have improved velocity curves as compared to the nozzles
of the prior art depicted in Figures 2 and 3. Appellants assert that the
Appeal 2010-012167
Application 11/564,253

7
nozzles depicted in their Figures 2 and 3 are like the nozzles shown in
Gerking Figures 1-3 because the restricted throat area wall extends laterally,
or “functionally laterally” and is of an angle greater than 35o. (App. Br. 8
and 9.)
We are not persuaded that the Figure 6 of Appellants’ application
shows improved performance of the claimed nozzle over that suggested by
Gerking. As explained above, Figures 1-3 of Gerking do not provide for
walls that extend strictly laterally and so are not represented by Figures 2
and 3 of Appellants’ application, which are labeled as prior art. We agree
with the Examiner’s finding that Figures 1-3 of Gerking show convergence
and then divergence (see Ans. 7; Gerking col. 2, ll. 28-39), as shown in
Appellants’ Figures 4 and 5. Thus, we are not persuaded that Figure 6 of
Appellants’ application compares nozzles as suggested by Gerking with the
claimed nozzle. Appellants have not provided any persuasive evidence or
technical reasoning to support their contention that the performance of the
claimed nozzle is improved over that of the Gerking nozzle. (See Ans. 7-8.)
Appellants’ arguments that the Examiner based the rejection under
35 U.S.C. § 103(a) on either his own opinion of what was common
knowledge or on inherency (See App. Br. 8-12) are unpersuasive for the
reasons set forth above and by the Examiner (e.g., Ans. 8).
Appellants have failed to persuade us that the claimed subject matter
would not have been obvious.
Appeal 2010-012167
Application 11/564,253

8
ORDER
Upon consideration of the record and for the reasons given,
the rejection of claims 24 and 28 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement is
sustained, and
the rejection of claims 24 and 28 under 35 U.S.C. § 103(a) over
Gerking is sustained.
Therefore, we affirm the decision of the Examiner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED

kmm