PETROSKY, LYMAN J. et al.

Patent Trials and Appeals Board

Dec 31, 2019

15150672 - (D) (P.T.A.B. Dec. 31, 2019)

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.
15/150,672 05/10/2016 LYMAN J. PETROSKY RTU 2015-001R 9503
26353 7590 12/31/2019
WESTINGHOUSE ELECTRIC COMPANY, LLC
1000 Westinghouse Drive
Suite 141
Cranberry Township, PA 16066
EXAMINER
LAFLAME JR, MICHAEL A
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
12/31/2019 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):
guerral@westinghouse.com
spadacjc@westinghouse.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LYMAN J. PETROSKY and PHILLIP J. HAWKINS
Appeal 2019-004584
Application 15/150,672
Technology Center 3700
Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, and
PHILIP J. HOFFMANN, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–5 and 16–19. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
According to Appellant, the invention “relates generally to a laser
peening operation and, more particularly, to a method of delivering a beam

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
Westinghouse Electric Company LLC. Appeal Br. 1.
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of electromagnetic energy such as a laser beam onto a workpiece.”
Spec. ¶ 2. Claim 1 is the sole independent claim on appeal. Below, we
reproduce claim 1 as representative of the appealed claims:
1. A delivery device comprising:
a housing having a hollow cavity formed therein;
an inlet in fluid communication with the cavity and
structured to deliver a stream of a fluid to the cavity;
an outlet in fluid communication with the cavity and
structured to deliver a flow of the fluid out of the cavity, the
outlet comprising a straight section and further comprising at
least one of a curved entryway and a tapered region situated
upstream of the straight section; and
a delivery mechanism structured to deliver a beam of
electromagnetic energy out of the outlet and within the flow, the
delivery mechanism comprising a lens and a laser, the lens being
structured to receive the beam from the laser and to direct the
beam to a focal point.

REJECTION AND PRIOR ART
The Examiner rejects claims 1–5 and 16–19 under 35 U.S.C. § 103 as
unpatentable over Richerzhagen et al. (EP 0 515 983 A1, pub. Dec. 2, 1992)
(“Richerzhagen”)2 and Danzer (US 2008/0257976 A1, pub. Oct. 23, 2008).

ANALYSIS
As set forth above, independent claim 1 recites, in relevant part, “an
outlet in fluid communication with the cavity and structured to deliver a
flow of the fluid out of the cavity, the outlet comprising a straight section

2 Inasmuch as Richerzhagen is published in German, the Examiner relies on
an English-language translation of Richerzhagen.
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and further comprising at least one of a curved entryway and a tapered
region situated upstream of the straight section.” Appeal Br., Claims App.
(emphases added); see also, e.g., Spec. Fig. 2 (illustrating both curved
entryway 50 and tapered region 54 upstream of straight section 58).
The Examiner relies on Richerzhagen to disclose much of what
claim 1 recites, and specifically relies on Richerzhagen’s cylindrical
channel 44 to disclose an outlet comprising a straight section, as claimed.
Answer 3; Final Action 2. Although the Examiner initially states that
“Richerzhagen does not disclose a curved entryway or tapered region
upstream of the straight section of the outlet” (Answer 3; Final Action 2),
the Examiner later states, for the first time in the Answer, that “the outlet in
Richerzhagen arguably discloses a curved entryway to the outlet at the top of
the outlet ([i.e.,] upstream) as the outlet is cylindrical and therefore curved at
the entryway, albeit in the horizontal plane” (Answer 4 (citation omitted)).
Based on our review of the record, however, the Examiner does not support
adequately that the entry to Richerzhagen’s cylindrical channel 44 discloses
the claimed curved entryway. See Reply Br. 1–2. Thus, the foregoing does
not provide a basis upon which we may sustain the rejection.
Regardless, the Examiner finds that “Danzer discloses an initially
curved and then tapered (decreasing radius) nozzle used with laser and fluid
processing.” Answer 3. That is, the Examiner relies on Danzer to disclose
both a curved entryway and a tapered region.
According to the Examiner,
[t]he advantage of utilizing a curved and then tapered
nozzle with a laser and fluid is to feed the fluid free of turbulence
in a laminar manner. Therefore, it would have been obvious . . .
to modify Richerzhagen by adding the curve and tapering of
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Danzer to the end of the inlet and outlet of Richerzhagen in order
to feed the fluid free of turbulence in a laminar manner.
Id. However, we determine that the Examiner does not support adequately
that the claimed channel would have been obvious based on the disclosures
of Richerzhagen and Danzer.
As discussed above, Richerzhagen discloses cylindrical channel 44.
We do not discern, and the Examiner does not provide a citation to any
portion of Richerzhagen illustrating or explaining, that Richerzhagen’s
cylindrical channel is anything other than a constant-diameter cylinder—i.e.,
a straight section. See Appeal Br. 3–4.
In contrast, Danzer discloses that channel 10 is not cylindrical, but
instead has a specific contour; i.e., “the radius . . . of . . . channel 10 . . . can
be calculated by means of the so-called Witoszynski formula.” Danzer ¶ 43;
id. at Fig. 2; see Appeal Br. 3–4. Consequently, Danzer discloses that
channel 10’s radius decreases from upstream to downstream. Danzer ¶¶ 44–
52; Fig. 2.
Thus, Danzer does not disclose a straight section. Accordingly, the
Examiner does not support adequately (see Answer 5, 6) that because
Danzer discloses that channel 10’s radius r6 “is approximately 20.066 [mm]”
and radius r7 “is approximately twenty [millimeters]” (Danzer ¶¶ 51, 52) that
this portion of Danzer discloses a straight section, as claimed (see Reply
Br. 2). Further, although Danzer refers five times to an “intermediate
straight” (Danzer Abstract; ¶¶ 1, 11; claims 1, 12), Danzer does not
otherwise show or describe what an “intermediate straight” is, and the
Examiner does not support adequately that the “intermediate straight” is a
straight section, as claimed (see Answer 6; see Reply Br. 2).
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Still further, it is conjecture on the Examiner’s part that “to modify
Richerzhagen by adding the curve and tapering of Danzer to the end of the
inlet and outlet of Richerzhagen . . . [while retaining Danzer’s straight
section] feed[s] the fluid free of turbulence in a laminar manner.” Answer 4.
Instead, we agree with Appellant that it seems more likely that
[i]f the Examiner is correct . . . that an “advantage of utilizing a
curved and then tapered nozzle with a laser and fluid is to feed
the fluid free of turbulence in a laminar manner,” then this at
most would indicate that the straight flow channel of
Richerzhagen should be replaced with the curved and then
tapered nozzle of Danzer.
Appeal Br. 3 (emphasis omitted). Regardless, based on our review of the
record, the Examiner does not support adequately that there is any
articulated reason with rational underpinnings either to modify Richerzhagen
based on Danzer, or to otherwise combine portions of Richerzhagen and
Danzer, to obtain an outlet with either a curved or tapered section upstream
of a straight section. For similar reasons (i.e., because the Examiner does
not support adequately that Danzer’s channel 10 includes a straight section),
the Examiner does not support adequately that replacing Richerzhagen’s
channel 44 with Danzer’s channel 10 would result in a device with an outlet
with either a curved or tapered section upstream of a straight section, as
claimed. See Answer 6.
Thus, based on the foregoing, we do not sustain the Examiner’s
obviousness rejection of independent claim 1. Accordingly, we also do not
sustain the obviousness rejection of claims 2–5 and 16–19 that depend from
claim 1.
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CONCLUSION
We REVERSE the Examiner’s obviousness rejection of claims 1–5
and 16–19.
In summary:
Claims
Rejected
35 U.S.C. § Basis/Reference(s) Affirmed Reversed
1–5, 16–19 103 Richerzhagen, Danzer 1–5, 16–19

REVERSED