Ex Parte Pickett

Patent Trial and Appeal Board

Dec 6, 2018

13818472 (P.T.A.B. Dec. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/818,472 02/22/2013
34082 7590 12/10/2018
ZARLEY LAW FIRM P.L.C.
CAPITAL SQUARE
400 LOCUST, SUITE 200
DES MOINES, IA 50309-2350
FIRST NAMED INVENTOR
Joseph S. Pickett
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P07349US1 9933
EXAMINER
MARKOFF, ALEXANDER
ART UNIT PAPER NUMBER
1711
NOTIFICATION DATE DELIVERY MODE
12/10/2018 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):
kconrad@zarleylaw.com
crasmussen@zarleylaw.com
emarty@zarleylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH S. PICKETT
Appeal 2018-001835
Application 13/818,4 72
Technology Center 1700
Before CATHERINE Q. TIMM, BRIAND. RANGE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
CASHION, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 1--4, 6-12, 14--16, and 21-24. We have jurisdiction under 35 U.S.C.
§ 6.
We REVERSE.
Appeal 2018-001835
Application 13/818,472
Appellant's 1 invention is directed to a method of cleaning a product
line of a fluid dispensing system by injecting a mixed phase cleaning
medium of liquid and gas into the product line, where the gas forms a
plurality of gas pockets within the injected liquid. Spec. 4. The
Specification describes that inert gas is introduced within the liquid in a
controlled flow to produce a plurality of inert gas bubbles or gas pockets
separating adjacent pockets of liquid to subsequently create tremendous wall
shear. Id. at 7-8. Controlled operation of the rate of flow of liquid into the
product line also creates pulsating2 pockets of water and gas. Id. at 7. Thus,
the invention uses a mixed phase cleaning medium that is predominantly
liquid. The Specification further describes that by controlling the liquid and
gas flow to introduce the gas bubbles within the liquid, the gas bubbles push
the liquid cleaning solution to effect the cleaning of the product line through
mechanical action as the gas bubbles force the liquid to alternately engage
the interior walls of the product line. Id. at 8. The claimed subject matter is
best illustrated by independent claim 1, reproduced below:
1 Appellant does not identify a real party in interest. See generally App. Br.
We therefore presume Appellant is the real party in interest.
2 Appellant does not define the term "pulsating" in the Specification. The
meaning of the term, according to Free Dictionary.com is "[t]o expand and
contract rhythmically." See https://www.thefreedictionary.com/pulsating
(last accessed November 3, 2018). We find Appellant's description of gas
pockets creating bubbles of gas within the liquid that collapse and reform at
choke points within the interior of the product line (App. Br. 8) is consistent
with the ordinary and customary meaning of the term "pulsating."
2
Appeal 2018-001835
Application 13/818,472
1. A method of cleaning a product line of a fluid
dispensing system steps comprising:
providing a dispensing system having a product line
extending from a first end to a second end that fluidly connects
at least one container to a dispensing station;
detaching the product line from the at least one container
and the dispensing station;
providing a cleaning system having a first container
containing a liquid and a second container containing a gas;
providing a liquid supply line that connects with the first
end of the product line to provide a fluid connection between
the first and second containers and the product line;
pumping the liquid through the liquid supply line which
pulls the gas from the second container into a flow of the liquid
within the liquid supply line such that a plurality of pulsating
gas pockets form in the liquid; and
cleaning the product line with the liquid having the
plurality of pulsating gas pockets.
Independent claims 15 and 21, like independent claim 1, also require
the formation of gas pockets.
Appellant (see generally Appeal Brief) appeals the following
rejections:
I. Claims 1--4, 6-12, 14, 21 and 24 rejected under 35 U.S.C. § 112
(pre-AIA), first paragraph, as failing to comply with the written description
requirement.
II. Claims 1, 4, 7, 8, 11, 12, 14--16 and 21-24 rejected under pre-
AIA 35 U.S.C. § I03(a) as unpatentable over Lafon (US 2008/0216876 Al,
published September 11, 2008), Bankert (US 5,699,817, issued December
23, 1997), and Labib (US 2002/0189647 Al, published December 19, 2002).
3
Appeal 2018-001835
Application 13/818,472
III. Claims 2, 3, 9, and 10 rejected under pre-AIA 35 U.S.C. §
103(a) as unpatentable over Lafon, Bankert, Labib, and Cartwright (US
5,167,126, issued December 1, 1992).
IV. Claim 6 rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Lafon, Bankert, Labib, and Karr (US 3,734,850, issued
May 22, 1973).
OPINION
Rejection under 35 USC§ 112,first paragraph (written description
requirement)
Our reviewing court stated in In re Kaslow, 707 F.2d 1366, 1375 (Fed.
Cir. 1983):
The test for determining compliance with the written description
requirement is whether the disclosure of the application as
originally filed reasonably conveys to the artisan that the
inventor had possession at that time of the later claimed subject
matter, rather than the presence or absence of literal support in
the specification for the claim language.
See also Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed.
Cir. 2010).
Id.
This inquiry ... is a question of fact. . . . [T]he level of detail
required [in the Specification as originally filed] to satisfy the
written description requirement varies depending on the nature
and scope of the claims and on the complexity and
predictability of the relevant technology.
Original claims are also part of the original disclosure. In re Gardner,
475 F.2d 1389, 1391 (CCPA 1973); In re Benno, 768 F.2d 1340, 1346 (Fed.
Cir. 1985). Whether the original disclosure complies with the written
description requirement is a question of fact, judged from the perspective of
4
Appeal 2018-001835
Application 13/818,472
one of ordinary skill in the art as of the relevant filing date. See Vas-Cath,
Inc. v. Mahurkar, 935 F.2d 1555, 1563---64 (Fed. Cir. 1991).
The Examiner finds the language "such that a plurality of pulsating
gas pockets form in the liquid" in claim 1 lacks descriptive support. Final
Act. 2-3. According to the Examiner, the original disclosure only teaches
creating pulsating pockets of water and gas by controlling the liquid and gas
flow to introduce bubbles comprising pockets of inert gas which form and
separate pockets of liquid. Ans. 15. Thus, the Examiner concludes that the
original disclosure teaches creating pulsating packets of gas and packets of
liquid, not pulsating pockets of gas in the liquid. Id.
We disagree with the Examiner's interpretation of the claims for the
reasons given by Appellant. App. Br. 3. The Examiner does not question
that there is written descriptive support for "pulsating gas pockets." Ans. 15.
Instead, the Examiner asserts that there is no written descriptive support for
the pulsating pockets of gas formed in the liquid. Id.
As we discussed above, the Specification describes the invention as
using a mixed phase cleaning medium that is predominantly liquid so that a
plurality of inert gas bubbles or gas pockets are formed when inert gas is
introduced within the liquid. Id. at 7-8. These gas pockets become
pulsating gas pockets through the controlled operation of the rate of flow of
liquid into the product line. Id. at 7. Given this description, and on this
record, the Examiner has not adequately explained why this portion of the
Specification is insufficient to provide adequate descriptive support for the
subject matter of claim 1.
5
Appeal 2018-001835
Application 13/818,472
Accordingly, we reverse the Examiner's rejection of claims 1--4, 6-
12, 14, 21 and 24 under 35 U.S.C. § 112, first paragraph, as lacking written
descriptive support for the reasons presented by Appellant and given above.
Prior Art Rejections under 35 US.C. § 103(a)
After review of the respective positions provided by Appellant and the
Examiner, we reverse the Examiner's prior art rejections of claims 1--4, 6-
12, 14--16, and 21-24 under 35 U.S.C. § 103(a) essentially for the reasons
presented by Appellant in the Appeal and Reply Briefs. We add the
following for emphasis. We limit our discussion to independent claims 1,
15, and 16.
As noted above and argued by Appellant, the independent claims are
directed to a method of cleaning of a product line of a fluid dispensing
system by injecting a mixed phase cleaning medium of liquid and gas, where
liquid is predominant, to clean the product line. Spec. 4, 7-8; App. Br. 5.
The principal prior art of Lafon and Bankert relied upon by the
Examiner are directed to methods of cleaning lines using a mixed media
cleaning fluid of liquid and gas where gas is predominant. Lafon ,r,r 24, 25
( the combined disclosure of the paragraphs describing the use of the blower
170 to provide high velocity air in combination with a small amount of water
to clean the air line 130 and the other elements); Bankert col. 2, 11. 42--49
( describing the optimum mixture of fluid and air to be predominantly air), 11.
50-55 ( describing air velocity as a key variable). Given that the cited prior
art is directed to a method of cleaning that is different from the method of
the claimed invention, we agree with Appellant that the Examiner has not
6
Appeal 2018-001835
Application 13/818,472
adequately explained why or how one skilled in the art would arrive at the
claimed invention from the disclosures of Lafon and Bankert. App. Br. 5---6.
Accordingly, we reverse the Examiner's prior art rejections of claims
1--4, 6-12, 14--16, and 21-24 under 35 U.S.C. § 103(a) for the reasons
presented by Appellant and given above.
DECISION
The Examiner's rejection under 35 U.S.C. § 112, first paragraph is
reversed.
The Examiner's prior art rejections of claims 1--4, 6-12, 14--16, and
21-24 under 35 U.S.C. § 103(a) are reversed.
REVERSED
7