Ex Parte She et al

Patent Trial and Appeal Board

Oct 5, 2018

14615733 (P.T.A.B. Oct. 5, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/615,733 02/06/2015
54549 7590 10/10/2018
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 West Maple Road
Suite 350
Birmingham, MI 48009
Ying She
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.
PA35190US;
67097-3167PUS1
CONFIRMATION NO.
2492
EXAMINER
RODRIGUEZ, JOSEPH C
ART UNIT PAPER NUMBER
3655
NOTIFICATION DATE DELIVERY MODE
10/10/2018 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):
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YING SHE and ZISSIS A. DARDAS
Appeal2017-009440
Application 14/615, 733
Technology Center 3600
Before CHARLES N. GREENHUT, MICHELLE R. OSINSKI, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner's
Decision rejecting claims 1, 3-7, and 21-23. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal2017-009440
Application 14/615, 733
CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim, with claims 3-7 and 21-23
depending therefrom. Claims 1 and 7 are reproduced below, with portions
emphasized:
1. A powder processing apparatus comprising:
a vessel including,
an interior chamber having top and bottom regions, and a
gas outlet to the exterior of the vessel,
a wall dividing the bottom region into first and second sub-
regions, with the top region extending above the wall, wherein
the interior chamber diverges from the first and second sub-
regions of the bottom region to the top region such that the top
region above the first and second sub-regions is wider than the
first and second sub-regions of the bottom region, and wherein
the wall is solid with respect to powder movement through the
wall, and
first and second porous plates dividing the first and second
sub-regions such that there are first and second gas manifold
regions below the first and second porous plates, the first and
second gas manifold regions including first and second gas inlets
from the exterior of the vessel.
7. The apparatus as recited in claim 1, wherein the first and
second sub-regions are equal in size.
REJECTIONS 1,2
1. Claims 1, 3-7, and 21-23 are rejected under 35 U.S.C. § 102 as being
anticipated by Nielsen (US 9,370,756 B2, issued June 21, 2016).
1 The Advisory Action mailed September 15, 2016 withdrew the rejection
of claims 1, 3-7, and 21-23 under 35 U.S.C. § 112(b) from the Final Action.
2 Even though the Examiner failed to include reference to claim 4 in the
headings for the rejections (see Final Act. 3, 5; Ans. 2), the Examiner
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Application 14/615, 733
2. Claims 1, 3-7, and 21-23 are rejected under 35 U.S.C. § 103 as being
unpatentable over Nielsen, Harms (US 2,586,818, issued Feb. 26, 1952), and
Alliston (US 5,184,671, issued Feb. 9, 1993).
OPINION
Anticipation
The Examiner finds that Nielsen discloses each feature recited in
claims 1, 3-7, and 21-23. Final Act. 3-5. Appellant does not dispute the
Examiner's findings, other than that related to Nielsen's disclosure of an
"interior chamber [that] diverges from the first and second sub-regions."
Appeal Br. 3--4.
Nielsen "relates to an agglomeration apparatus" (Nielsen, 1: 16-17),
such as that shown in Figure 1, reproduced below.
addresses claim 4 within the body of the rejections by finding that "Nielsen
(fig. 1-2) teaches a powder processing apparatus comprising:
(re: claims 1, 4, 22 and 23) ... such that the top region above the first and
second sub-regions is wider than the first and second sub-regions of the
bottom region ... (fig. 1, 2 showing frusto-conical shape above bottom
region near 8 connected to cylindrical sections; col. 6, ln. 30+ teaching the
respective regions are cylindrical" (id. at 4). We consider the Examiner's
oversight in the headings to be a typographical error, and therefore, we list
claim 4 as being subject to both grounds of rejection.
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Appeal2017-009440
Application 14/615, 733
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Fig. 1
Nielsen's Figure 1 illustrates "an agglomeration apparatus in which a fluid
bed is positioned in the lower part of a spray drying chamber." Nielsen,
6: 7-9. The Examiner finds that
a wall (near 8 at bottom) divid[es] the bottom region into first
and second sub-regions, with the top region extending above the
wall, wherein the interior chamber diverges from the first and
second sub-regions of the bottom region to the top region such
that the top region above the first and second sub-regions is wider
than the first and second sub-regions of the bottom region.
Final Act. 3--4. The Examiner explains that "it is important to note that the
claims do not firmly define where a bottom region of the interior chamber
ends and where a top region begins as claim 1 merely requires that the
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Appeal2017-009440
Application 14/615, 733
bottom region is divided by a wall and that the top region extends above the
wall." Ans. 3. The Examiner determines, therefore, that "it is reasonable to
interpret any area within the lower sub-regions divided by the wall (near 8)
as part of the bottom region and any area above the wall (e.g., the frusto-
conical area defined near 3 or the cylindrical area near 2 in figure 1) as a top
region." Id. at 4. The Examiner further explains that "any portion of the
expanding frusto-conical section of the vessel can be regarded as starting or
diverging from the bottom region." Id.
There is no dispute that Nielsen's agglomeration apparatus has "an
interior chamber having top and bottom regions" or that its "interior
chamber diverges from ... the bottom region to the top region," as recited in
claim 1. Appellant argues that Nielsen's interior chamber does not diverge
specifically from the first and second sub-regions of the bottom region
because (i) "the first and second sub-regions are those portions of the bottom
region that are divided by the wall"; (ii) any "remaining portion [ of the
bottom region above the wall] cannot be considered to be the first and
second sub-regions because [it] is not divided by the wall"; and (iii)
"Nielsen's chamber begins to diverge at a location that is above the top of
the wall(s)." Reply Br. 2. Appellant's argument regarding claim 1 is based
on a requirement that the "wall" extends the entire height of the "sub-
regions." See, e.g., Appeal Br. 3 ("rather than divergingfrom the first and
second sub-regions, the frusto-conical part 3 in Nielson diverges from some
other origin"). We see no reason, nor does Appellant offer any explanation,
as to why the "sub-regions" recited in claim 1 require that the "wall dividing
the bottom region into first and second sub-regions" extends along the entire
vertical extent of each "sub-region." Consequently, Appellant does not
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Appeal2017-009440
Application 14/615, 733
refute persuasively the Examiner's finding that Neilsen discloses that "the
interior chamber diverges from the first and second sub-regions of the
bottom region to the top region" (Final Act. 3), which is supported by a
preponderance of the evidence. Accordingly, we are not apprised of
Examiner error in the rejection of claims 1, 3---6, and 21-23.
Claim 7 depends from claim 1, and recites that "the first and second
sub-regions are equal in size." The Examiner cites Figures 1 and 2 of
Nielsen, without further explanation, as disclosing that feature. Final Act. 4.
In the Answer, the Examiner concludes that "it is reasonable to regard the
sub-regions shown ... in figure 1 [ofNielsen] as equally sized as each sub-
region is shown as having the same cross-sectional area." Ans. 5.
Appellant responds that "Figs. 1 and 2 ofNiels[e]n are insufficient to
show whether the alleged sub-regions (regions of fluid bed 8) are of equal
size or not." Appeal Br. 4. Appellant notes that "the views do not depict
where the wall(s) extend within the fluid bed 8" and "to see the shape of the
walls, one would need to look at a top view ofNiels[e]n's apparatus, as in
Figs. 3, 4, and 6, or at a perspective view as in Fig. 5." Id. at 4--5. Appellant
contends that "the depiction in Fig. 5 ofNiels[e]n [suggests that] the
partitioned regions are quite different from each other and are certainly not
equal in size." Id. at 5.
The Examiner has provided no reason for us to believe that Nielsen's
drawings are to scale. See In re Olson, 212 F .2d 590, 592 (CCP A 1954)
("Ordinarily drawings which accompany an application for a patent are
merely illustrative of the principles embodied in the alleged invention
claimed therein and do not define the precise proportions of elements relied
upon to endow the claims with patentability."). Nevertheless, we agree with
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Appeal2017-009440
Application 14/615, 733
Appellant's position that the additional figures from Nielsen show the "sub-
regions" as different volumes.
The Examiner asserts that "it is reasonable to regard the sub-regions
shown above in figure 1 as equally sized as each sub-region is shown as
having the same cross-sectional area." Ans. 5. Appellant responds, for
example, that "reference to the elements 'the first and second sub-regions' is
reference to the whole first sub-region and the whole second sub-region."
Reply Br. 3. We agree with Appellant. The "size" of the "sub-region" is the
volume, which is consistent with the description provided in Appellant's
Specification. See Spec. ,r 31 ("the wall 32 equally divides the bottom
region 28 such that the sub-regions 28a/28b are of equal size (volume)").
Accordingly, we do not sustain the Examiner's decision to reject
claim 7 as anticipated by Nielsen.
Obviousness
The Examiner additionally rejects claims 1, 3-7, and 21-23 under
35 U.S.C. § 103 as unpatentable over the combination of Nielsen, Harms,
and Alliston. Final Act. 5-6. Appellant does not present separate arguments
for this rejection, relying, instead, on the arguments discussed above related
to the rejection of those claims as anticipated by Nielsen. Appeal Br. 5. For
the reasons set forth above, we also are not apprised of Examiner error in the
rejection of claims 1, 3---6, and 21-23 as unpatentable over Nielsen, Harms,
and Alliston.
With respect to claim 7, the stated basis for the rejection of that claim
as unpatentable over the combination of Nielsen, Harms, and Alliston does
not cure the deficiency noted above regarding the anticipation rejection.
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Application 14/615, 733
Accordingly, we do not sustain the Examiner's decision to reject that claim
as unpatentable over Nielsen, Harms, and Alliston.
DECISION
We AFFIRM the Examiner's decision to reject claims 1, 3-6, and 21-
23 under 35 U.S.C. § 102 as anticipated by Nielsen.
We REVERSE the Examiner's decision to reject claim 7 under
35 U.S.C. § 102 as anticipated by Nielsen.
We AFFIRM the Examiner's decision to reject claims 1, 3-6, and 21-
23 under 35 U.S.C. § 103 as being unpatentable over Nielsen, Harms, and
Alliston.
We REVERSE the Examiner's decision to reject claim 7 under
35 U.S.C. § 103 as being unpatentable over Nielsen, Harms, and Alliston.
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-IN-PART
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