William J. Reilly et al.

Patent Trials and Appeals Board

Jul 29, 2019

13197125 - (D) (P.T.A.B. Jul. 29, 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.
13/197,125 08/03/2011 William J. Reilly 22150.0178U3 5136
23859 7590 07/29/2019
Ballard Spahr LLP
SUITE 1000
999 PEACHTREE STREET
ATLANTA, GA 30309-3915
EXAMINER
ZHOU, QINGZHANG
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
07/29/2019 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):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte WILLIAM J. REILLY and LAWRENCE W. THAU JR. 1
____________

Appeal 2017-007976
Application 13/197,125
Technology Center 3700
____________

Before EDWARD A. BROWN, RICHARD H. MARSCHALL, and
FREDERICK C. LANEY, Administrative Patent Judges.

LANEY, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision (dated July 28, 2016, hereinafter “Final Act.”) rejecting claims 1, 2,
7, 9–12, 18, 19, 21, and 22.2 We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
We REVERSE.

1 Victaulic Company (“Appellant”) is identified as the real party in interest.
Appeal Br. 1.
2 Claims 3, 4, 13–15, and 23–43 have been canceled. Appeal Br. 11, 14, 16
(Claims App’x). Claims 5, 6, 8, 16, 17, and 20 are objected to because they
depend on a rejected base claim, but the Examiner indicates that they would
be allowable if rewritten in independent form including all of the limitations
of the base claim and any intervening claims. Final Act. 6.
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Application 13/197,125
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INVENTION
Appellant’s invention “concerns fluid agent discharge systems using
devices configured to sequentially emit an atomized liquid-gas stream and
another fluid agent, such as a gas, a liquid spray or a foam, for various
applications such as suppressing a fire.” Spec. ¶ 2. There are two
independent claims at issue in this appeal, claims 1 and 11, and claim 1 is
reproduced below to illustrate the claimed subject matter.
1. An emitter system, comprising:
at least one emitter, said at least one emitter comprising:
a nozzle having a nozzle inlet and a nozzle outlet;
a duct, separate from said nozzle, said duct having a duct
inlet, and a duct outlet separate from and positioned adjacent to
said nozzle outlet;
a deflector having a deflector surface positioned facing
said nozzle outlet;
said emitter system further comprising:
a source of pressurized gas connected in fluid
communication with said nozzle inlet;
a source of pressurized liquid connected with both said
duct inlet and said nozzle inlet; and wherein
allowing said pressurized gas to flow through said nozzle
in combination with allowing said pressurized liquid to flow
through said duct results in discharge of an atomized liquid-gas
stream from said emitter; and wherein
allowing said pressurized liquid to flow through said
nozzle results in discharge of a liquid stream from said nozzle.

REJECTIONS
The following rejections are before us for review:
I. The Examiner rejected claims 1 and 11 under 35 U.S.C.
§ 103(a) as unpatentable over Crabtree (US 6,749,027 B1, iss.
June 15, 2004) and Reilly (US 2006/0278736 A1, pub. Dec. 14,
2006).
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Application 13/197,125
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II. The Examiner rejected claims 2 and 12 under 35 U.S.C.
§ 103(a) as unpatentable over Crabtree, Reilly, and Borisov (US
6,390,203 B1, iss. May 21, 2002).
III. The Examiner rejected claims 7, 18, and 19 under 35 U.S.C.
§ 103(a) as unpatentable over Crabtree, Reilly, Borisov, and
Brunsicke (US 4,531,588, iss. July 30, 1985).
IV. The Examiner rejected claims 9, 10, 21, and 22 under 35 U.S.C.
§ 103(a) as unpatentable over Crabtree, Reilly, and Rogers (US
2006/0113092 A1, pub. June 1, 2006).

ANALYSIS
Rejection I
The Examiner determines the recited elements of independent claims
1 and 11 are disclosed by the combination of Crabtree and Reilly and that it
would have been obvious at the time of the invention to arrange the
disclosed elements in the manner claimed. Final Act. 2–3. In particular, the
Examiner finds Crabtree discloses each claim element, except for “a source
of pressurized liquid connected with both said duct inlet and said nozzle
inlet,” which the Examiner finds Reilly discloses. Id. at 3. The Examiner
explains that “modify[ing] the device of Crabtree, by replacing the source of
foam concentrate with the source of pressurized gas (18) as taught by
Reilly” would have been an obvious alteration to a skilled artisan “for the
purpose of producing [a] gas jet to absorb heat and help mitigate [the] spread
of combustion.” Id.(citing Reilly ¶ 34).
The Examiner asserts that the modification relied upon “is merely a
substitution of gas for foam.” Final Act. 7; Ans. 7. Additionally, the
modification “would NOT require a substantial reconstruction and redesign
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Application 13/197,125
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of the elements shown in the primary reference.” Id. Appellant contends
that the Examiner’s obviousness determination is improper because it relies
on a flawed reasoning to show a skilled artisan would have modified the
device of Crabtree in the manner claimed. Appeal Br. 3–6. For the
following reason, we agree.
Reilly discloses an invention that “concerns devices for emitting
atomized liquid, the device injecting the liquid into a gas flow stream where
the liquid is atomized and projected away from the device.” Reilly ¶ 2. As
noted above, the Examiner cites paragraph 34 of Reilly to support the
finding that a skilled artisan would have had a reason to modify the device
of Crabtree to produce a gas jet to absorb heat and help mitigate the spread
of combustion. Final Act. 3. Paragraph 34 of Reilly states, in relevant part,
that:
The emitter causes a temperature drop due to the atomization of
the water into the extremely small particle sizes described
above. This absorbs heat and helps mitigate spread of
combustion. The nitrogen gas flow and the water entrained in
the flow replace the oxygen in the room with gases that cannot
support combustion. Further oxygen depleted gases in the form
of the smoke layer that is entrained in the flow also contributes
to the oxygen starvation of the fire. It is observed, however,
that the oxygen level in the room where the emitter is deployed
does not drop below about 16%. The water particles and the
entrained smoke create a fog that blocks radiative heat transfer
from the fire, thus mitigating spread of combustion by this
mode of heat transfer. Because of the extraordinary large
surface area resulting from the extremely small water particle
size, the water readily absorbs energy and forms steam which
further displaces oxygen, absorbs heat from the fire and helps
maintain a stable temperature typically associated with a phase
transition. The mixing and the turbulence created by the
emitter also helps lower the temperature in the region around
the fire.
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From the above paragraph, it is clear that the absorption of heat and
mitigation of the spread of combustion is caused by the atomization of the
water into the extremely small particle sizes.
The device that Crabtree discloses, however, is “for extinguishing
industrial scale fires including improved automatic pressure regulating
features, enhanced educting features having central . . . and peripheral
channeling . . . for foam concentrate, combined with a capacity to throw dry
chemicals.” Crabtree, Abstract. The Examiner provides no evidence or
technical reasoning to demonstrate that a skilled artisan would recognize that
the device Crabtree discloses would cause the atomization of the water into
the extremely small particle sizes after modifying the device to substitute
foam with gas. Without any factual findings by the Examiner that simply
substituting the foam input in Crabtree’s device with a gas input taught by
Reilly would have caused the atomization of the water into the extremely
small particle sizes, there is an insufficient basis to support the Examiner’s
proffered reason. Additionally, the record in this case fails to support a
finding that, in a device like the one Crabtree discloses, simply substituting
foam for gas alone (i.e., without the atomization of the water into the
extremely small particle sizes) would have improved the absorption of heat
and helped mitigate the spread of combustion. As a result, the rationale for
modifying Crabtree with the teachings of Reilly in the manner claimed lacks
a rational underpinning.
Therefore, we do not sustain the Examiner’s obviousness rejection of
claims 1 and 11.
Rejections II–IV
Because claims 2, 7, 9, 10, 12, 18, 19, 21, and 22 depend from either
claims 1 or 11, the Examiner’s obviousness rejections of these claims are
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necessarily infected by the Examiner’s determination that claims 1 and 11
are unpatentable in view of Crabtree and Reilly. See Final Act. 3–6. As a
result, the Examiner’s rejections of these dependent claims are deficient for
the same reasons discussed above (see supra Rejection I) for claims 1 and
11. Therefore, we do not sustain the rejection of claims 2, 7, 9, 10, 12, 18,
19, 21, and 22.

DECISION
We reverse the rejections of claims 1, 2, 7, 9–12, 18, 19, 21, and 22.

REVERSED