NETZSCH-Feinmahltechnik GmbH

Patent Trials and Appeals Board

Jun 2, 2020

2019005202 (P.T.A.B. Jun. 2, 2020)

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.
15/093,050 04/07/2016 Michael Degel 03738-P0037A 4871
131672 7590 06/02/2020
Whitmyer IP Group LLC
600 Summer Street
3rd Floor
Stamford, CT 06901
EXAMINER
BHATIA, ANSHU
ART UNIT PAPER NUMBER
1774
MAIL DATE DELIVERY MODE
06/02/2020 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 MICHAEL DEGEL, PETER HOFMANN, and
UDO ENDERLE

____________

Appeal 2019-005202
Application 15/093,050
Technology Center 1700
____________

Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision rejecting claims 1–18 under 35 U.S.C. § 103 as
unpatentable over the combined prior art of Brown (US 2014/0169120 Al,
published June 19, 2014) and Falster-Hansen (US 2014/0137897 Al,

1 We use the word “Appellant” to refer to the “Applicant” as defined in 37
C.F.R. § 1.42(a). “NETZSCH-Feinmahltechnik GmbH” is identified as the
real party in interest (Appeal Br. 2).

Appeal 2019-005202
Application 15/093,050

2
published May 22, 2014 (hereinafter “Hansen”)). An oral hearing was held
on May 19, 2020.
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the subject matter on appeal (emphasis added
to highlight key disputed limitations):

1. A cleaning system for a mixing container with at least one
stirring element inside a working chamber, the cleaning system
comprising:
a stationary spraying device; and
a mobile spraying device;
wherein the stationary spraying device is disposed and
orientated such that cleaning jets of the stationary spraying
device cover a spray shadow of the mobile spraying device.
(Appeal Br., Claims Appendix 2.)

Independent claim 9 is directed to a “dissolver with a cleaning
system” identical to the cleaning system of claim 1 (Claims Appendix 3).
Appellant relies upon the same arguments for all of the claims
(Appeal Br. 3–14), except it is also further contended that the Examiner
failed to identify where the applied prior art disclose the limitation of
dependent claim 6 (Appeal Br. 14).

OPINION
Upon consideration of the evidence of record and each of Appellant’s
contentions as set forth in the Appeal Brief, as well as the Reply Brief, we
determine that Appellant has not identified reversible error in the
Appeal 2019-005202
Application 15/093,050

3
Examiner’s rejections (e.g., generally Ans.). In re Jung, 637 F.3d 1356,
1365–66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of
requiring Appellant(s) to identify the alleged error in the Examiner’s
rejection). We sustain the rejections for the reasons expressed by the
Examiner in the Final Office Action and the Answer.
We add the following primarily for emphasis.
It has been established that “the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007); see also In re Fritch, 972 F.2d 1260, 1264–
65 (Fed. Cir. 1992) (a reference stands for all of the specific teachings
thereof as well as the inferences one of ordinary skill in the art would have
reasonably been expected to draw therefrom).
Appellant argues that the claim phrase “mobile spraying device” does
not encompass Hansen’s spray device as relied upon by the Examiner,
because its spray head does not move along an axis as described in
Appellant’s Specification (e.g., Appeal Br. 6; Reply Br. 2). Appellant also
argues that Hansen’s left-most spray head does not cover a spray shadow of
the second left-most spray head (Appeal Br. 7, 8; Reply Br. 3). Appellant
contends that the Examiner relies upon prohibited conclusory reasoning
(Appeal Br. 8, 9). Finally, Appellant contends there is no reason to combine
the disparate systems of Brown and Hansen, as it would result in redundant
components, that Brown teaches away from the proposed modification, and
that the proposed modification would have made Brown inoperable for its
Appeal 2019-005202
Application 15/093,050

4
intended purpose (Appeal Br. 10–14). These arguments are reiterated in the
Reply Brief.
These arguments are not persuasive of reversible error (Ans. 6–9).
It is well established that “the PTO must give claims their broadest
reasonable construction consistent with the specification. . . . Therefore, we
look to the specification to see if it provides a definition for claim terms, but
otherwise apply a broad interpretation.” In re ICON Health & Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007) (“[A]s applicants may amend claims
to narrow their scope, a broad construction during prosecution creates no
unfairness to the applicant or patentee.”)
Here, the plain language of claim 1 clearly encompasses the moveable
spray head of Hansen (e.g., Ans. 6). Contrary to Appellant’s argument,
Appellant’s Specification lacks any limiting definition. The Specification
describes that a “mobile spraying device is understood to mean a cleaning
lance or for example a generic spraying device, the spray head whereof is
moved along an axis inside the mixing container during a cleaning process”
(Spec. ¶ 12 (emphasis added)). Notably, the Specification does not appear
to describe any specific axis that the spray head is moved along. While
Appellant contends that Hansen’s spray head does not appear to move from
one point to another point along a single straight line of movement, nothing
in the claim language requires such movement. Indeed, Appellant has not
provided persuasive evidence that the Specification’s description of “moved
along an axis” requires such movement. See In re Self, 671 F.2d 1344, 1348
(CCPA 1982) (the absence in the prior art of subject matter that is not
included in the claims does not preclude unpatentability of the claimed
subject matter).
Appeal 2019-005202
Application 15/093,050

5
The Examiner correctly determined that the disputed claim recitation
reasonably encompasses the moveable spray head of Hansen which
moves/rotates along either of two axes A1 and A2 of Hansen (Ans. 6; see the
Examiner’s annotated Figure 1 of Hansen; Hansen ¶¶ 33, 342). In any event,
Appellant admits that cleaning lances (that move along an axis in the manner
Appellant urges the claim should be limited to) are known (Spec. ¶¶ 5, 7).3
Appellant’s contention that the Examiner did not reasonably interpret
the recited spray shadow (Appeal Br. 7) is likewise not persuasive of
reversible error. The plain language of the claim encompasses any spray
shadow of the mobile spraying device, and it is reasonable that a lower
nozzle would spray into a spray shadow, e.g., located under a nozzle located
relatively higher and to the side of the lower nozzle (e.g., Ans. 7). While the
Appellant urges us to limit the spray shadow to one as depicted in
Appellant’s Figure 4, Appellant does not direct us to any limiting definition
in the Specification (noting that paragraph 30 states “in this embodiment”
the spray shadow is “essentially due to a stirrer shaft 16”). There is also no

2 Indeed, the movement of the spray nozzle from the rotation about the first
bearing 108 to result in R1 to rotation about bearing 111 to result in rotation
R2 as may also be reasonably viewed as movement along an axis (Hansen
33, 34).
3 An applicant cannot defeat an obviousness rejection by asserting that the
cited references fail to teach or suggest elements which the applicant has
acknowledged are taught by the prior art. Constant v. Advanced Micro-
Devices, Inc., 848 F. 2d 1560, 1570 (Fed. Cir. 1988) (“A statement in a
patent that something is in the prior art is binding on the applicant and
patentee for determinations of anticipation and obviousness.”); In re
Nomiya, 509 F.2d 566, 571n.5 (CCPA 1975) (a statement by an applicant
that certain matter is prior art is an admission that the matter is prior art for
all purposes).
Appeal 2019-005202
Application 15/093,050

6
persuasive merit to Appellant’s contention that the Examiner is
impermissibly assuming Brown’s drawings are drawn to scale (Appeal Br.
8), since the Examiner is merely relying upon the relative locations of the
spray nozzles depicted therein.
Appellant’s remaining arguments fail to consider the breadth of the
claim language (which, for example, encompasses spray nozzles that
perform any cleaning in any location within the mixing tank), the applied
prior art as a whole, and the inferences that one of ordinary skill would have
made. As the Examiner point out, both references are directed to cleaning
mixing tanks and combining a known movable spray head with a stationary
spray head would merely be combining two known types of cleaning nozzles
(stationary and mobile) for predictable results (generally Ans.). Appellant
has not sufficiently explained why the claimed subject matter is “more than
the predictable use of prior art elements according to their established
functions.” KSR, 550 U.S. at 417; cf. In re Kerkhoven, 626 F.2d 846, 850
(CCPA 1980) (“It is [generally considered] prima facie obvious to combine
two compositions each of which is taught by the prior art to be useful for the
same purpose, in order to form a third composition which is to be used for
the very same purpose.”)
Appellant’s argument that the Examiner has failed to sufficiently
explain how the applied prior art rendered dependent claim 6 obvious is also
not persuasive of error as failing to consider the applied prior art as a whole
and the inferences that one of ordinary skill would have made. Under the
flexible inquiry set forth by the Supreme Court, the PTO must take account
of the “inferences and creative steps,” or even routine steps, that an ordinary
artisan would employ. Ball Aerosol and Specialty Container, Inc. v. Limited
Appeal 2019-005202
Application 15/093,050

7
Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009) (citation omitted). The use
of a control device for the cleaning nozzles as exemplified in Hansen for the
modified Brown/Hansen combination of cleaning nozzles would have been
within the skill and creativity of one of ordinary skill in the art (e.g., Hansen
¶¶ 21, 22; Final Action 3, 4).
Accordingly, we sustain the Examiner’s rejection of independent
claims 1 and 9, as well as all claims dependent thereon, noting that
Appellant relies upon the arguments made for claim 1 for all the other claims
except with respect to claim 6, addressed above (generally Appeal Br.).

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–18 103 Brown, Hansen 1–18

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED