3M INNOVATIVE PROPERTIES COMPANY

Patent Trials and Appeals Board

Jan 20, 2022

2022000759 (P.T.A.B. Jan. 20, 2022)

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. 16/603,114 10/04/2019 Karl K. Stensvad 79356US007 5766 32692 7590 01/20/2022 3M INNOVATIVE PROPERTIES COMPANY PO BOX 33427 ST. PAUL, MN 55133-3427 EXAMINER BOBISH, CHRISTOPHER S ART UNIT PAPER NUMBER 3746 NOTIFICATION DATE DELIVERY MODE 01/20/2022 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): LegalUSDocketing@mmm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KARL K. STENSVAD, ERIC A. VANDRE, and SAURABH BATRA Appeal 2022-000759 Application 16/603,114 Technology Center 3700 Before JENNIFER D. BAHR, JOHN C. KERINS, and MICHAEL L. WOODS, Administrative Patent Judges. BAHR, 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 1-7, 9, and 10. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real parties in interest as 3M Company and its affiliate 3M Innovative Properties Company. Appeal Br. 3. Appeal 2022-000759 Application 16/603,114 2 CLAIMED SUBJECT MATTER Appellant’s invention is directed to a powder jet pump for introducing fine particles into a gas stream. Spec. 1:4-5. Claim 1, reproduced below, is the only independent claim and is representative of the claimed subject matter. 1. A powder jet pump, comprising: a main body having a particle inlet at a first end and an outlet connector at a second end, the particle inlet being in fluid communication with an inlet chamber; a nozzle defining a passage in fluid communication with the chamber and outlet connector, wherein the nozzle includes a nozzle throat, wherein the nozzle throat has a minimum inner diameter in the range of 0.03 inch to 0.11 inch; at least one suction inlet in fluid communication with the chamber; an annular plenum positioned around the main body having a gas inlet; and at least two jet passages each having an inlet opening into the annular plenum and an outlet opening within the nozzle throat. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Alperin US 4,332,529 June 1, 1982 Unique2 FR 2 233 511 Jan. 10, 1975 2 There is no inventor name provided on this document. The Examiner and Appellant both refer to this document as “Unique,” and we do likewise for convenience. See Final Act. 8; Appeal Br. 4. A machine translation (hereinafter “Unique Transl.”) of this document into English is provided in the electronic record of the present application (entry date February 16, 2021). Appeal 2022-000759 Application 16/603,114 3 REJECTIONS Claims 1-6, 9, and 10 stand rejected under 35 U.S.C. § 103 as being unpatentable over Alperin. Claims 1-3 and 7 stand rejected under 35 U.S.C. § 103 as being unpatentable over Unique and Alperin. OPINION Obviousness-Alperin The Examiner finds that Alperin discloses a powder jet pump comprising all of the elements of claim 1. Final Act. 2-3 (referring to an annotated version of Alperin’s Figure 3 provided on page 3 of the Final Action). The Examiner also finds that Alperin “teaches that the relative ratios between dimensions, particularly widths/areas of the nozzle and throat should be chosen based upon pump parameters,” but “does not explicitly teach the claimed [nozzle throat minimum inner diameter range] (between 0.03 and 0.11 inches).” Final Act. 4. The Examiner determines, however, that it would have been obvious “to choose a value within the claimed ranges for the widths of the nozzle/throat of the pump taught by Alperin as [a] matter of routine experimentation, as the diameter values/ratios are recognized by Alperin as results-effective variables achieving a desired mixing and flow of fluids.” Id. (citing Alperin 2:32-35; 3:52-68). Appellant submits that “Alperin is directed at enhancing jet thrust” and “appears to [be] directed toward jet aviation.” Appeal Br. 4 (citing Alperin code [57]; 3:39-52; 4:43-47). Thus, Appellant contends that the claimed nozzle throat inner diameter range recited in claim 1 “is inconceivably small for such a use.” Id. Appellant additionally argues that Appeal 2022-000759 Application 16/603,114 4 “Alperin is utterly silent with regard [to] use of the jet diffuser ejector of Alperin with gas streams containing powders/particles.” Id. In response, the Examiner points out that Alperin is silent as to the particular size of the jet diffuser ejector and provides no teaching suggesting that Alperin’s ejector cannot operate at the dimensions claimed by Appellant. See Ans. 4. Further, although Alperin is concerned with augmenting the thrust of jet devices, Alperin is silent as to the amount of thrust or the size of the jet device providing the thrust. See id. Thus, the Examiner maintains, and we agree, that Alperin’s teaching of a jet diffuser ejector “for use in providing thrust augmentation does not preclude the device from being sized and operating at the claimed dimensions.” Id. Moreover, the Examiner correctly points out that the passage of Alperin cited by Appellant in support of the assertion that Alperin’s device is directed to jet aviation use does not explicitly disclose such a narrow use. Ans. 4. Rather, the cited passage identifies the facility and location at which various configurations of Alperin’s device were tested. Alperin 4:43-45; see Ans. 4 (making this point). With respect to Appellant’s assertion that Alperin does not mention using the disclosed jet diffuser ejector with gas streams containing powders/particles (Appeal Br. 4), the Examiner correctly points out that claim 1 mentions “powder” only in the preamble. Ans. 4. Claim 1 recites, in the body of the claim, “a main body having a particle inlet.” Appeal Br. 7 (Claims App.). The Examiner finds that Alperin’s device meets the structural limitations of claim 1 and is capable of pumping a material containing powder or particles. Ans. 4; see In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (“It is well settled that the recitation of a new intended Appeal 2022-000759 Application 16/603,114 5 use for an old product does not make a claim to that old product patentable.”); id. at 1478 (holding that, once the Examiner establishes a reasonable basis that the product is inherently capable of the claimed use, the burden shifts to the applicant to show that the prior art structure does not inherently possess the functionally claimed limitations of the claimed product). Appellant does not contest this finding. Appellant asserts that, in the context of Appellant’s invention, the “small dimension” claimed “is preferable for handling fine powders.” Appeal Br. 4 (citing Spec. 1:27-31; 3:26-28). Appellant’s Specification discloses that Appellant’s “powder jet pump may impart rotational angular momentum to the gas/particle mixture to improve the dispersion and resist agglomeration at low gas stream gauge pressures” and that, “[a]dvantageously, the powder jet pump has improved resistance to stalling at higher back pressures than prior designs.” Spec. 1:28-31. However, Appellant’s Specification does not attribute this improved resistance to stalling at higher back pressures to the inner diameter of the nozzle throat. In fact, this advantage appears to be related to the helical configuration of the outlet openings of the jet passages and the angles of the respective outlet openings relative to the nozzle throat inner wall, which result in “the gas stream caus[ing] a vortex to form in the nozzle throat, thereby reducing recirculating flow in the gas stream emerging from [the] nozzle.” Id. at 3:19-22. This helical configuration appears to be what imparts the rotational angular momentum to the gas/particle mixture, thereby resisting agglomeration at low gas stream pressures to improve resistance to stalling at higher back pressures. See id. at 1:28-31. As for the size of the inner diameter of the nozzle throat, Appellant’s Specification discloses only that, Appeal 2022-000759 Application 16/603,114 6 “[p]referably, the nozzle throat has a minimum inner diameter in the [claimed range], although this is not a requirement.” Id. at 3:26-28. In other words, Appellant’s Specification does not specifically attribute any criticality to the claimed nozzle throat minimum inner diameter range or suggest that such sizing renders the jet pump particularly well suited for use with gas streams containing powder/particles. For the above reasons, Appellant does not apprise us of error in the Examiner’s conclusion that the subject matter of claim 1 would have been obvious. Accordingly, we sustain the rejection of claim 1, and of claims 2-6, 9, and 10, for which Appellant does not present any separate arguments, as being unpatentable over Alperin. See Appeal Br. 5 (relying on the patentability of claim 1 for the dependent claims). Obviousness-Unique and Alperin The Examiner finds that Unique discloses a powder jet pump comprising all of the elements of claim 1, but “Unique does not teach a particular minimum diameter of the throat nozzle (0.3-0.11 inches).” Final Act. 8. Relying on the finding, as discussed above, that Alperin recognizes the nozzle throat inner diameter values and ratios of these values to other pump parameters, such as nozzle width, “as results-effective variables achieving a desired mixing and flow of fluids,” the Examiner determines it would have been obvious “to choose a value within the claimed ranges for the widths of the nozzle/throat of the pump taught by Unique as [a] matter of routine experimentation.” Id. at 9. Appellant argues that the claimed nozzle throat minimum inner diameter range would be “inconceivably small for the device described by Unique” because “[i]t is unclear how tubes 7 with channels 8 drilled in them Appeal 2022-000759 Application 16/603,114 7 would be arranged in such a confined space as the nozzle throat.” Appeal Br. 5. Appellant contrasts Unique’s arrangement, with tubes 7 having channels 8 penetrating radially into the throat (the portion of duct 10 with the smallest diameter), with Appellant’s arrangement, in which jet passages 52 are formed outside of the nozzle and terminate flush with the sidewalls of the nozzle throat. Id. at 5-6; see Unique Transl. 3;3 Compare Unique Figs. 1, 3 (showing the three tubes 7 joined at the center of duct 10 and extending radially outwardly as spokes toward and beyond wall 1 of duct 10), with Appellant’s Figs. 1, 2. Appellant also argues that “Unique is concerned with increasing the throughput of the fluid (powder) to be entrained in the working fluid” and that nothing in Unique “would lead one to use a very small throat diameter in the device of Unique since it would decrease the desired high throughput.” Appeal Br. 5-6; see, e.g., Unique Transl. 4 (touting increased throughput (“quantity of fluid sucked in and discharged is large compared to the quantity of working fluid injected under pressure”) as one of the advantages of Unique’s device). Appellant’s arguments are persuasive. We appreciate the Examiner’s point that Appellant has not provided evidence that Unique’s device cannot be formed with the claimed dimensions and operate as intended by Unique. Ans. 6. Nevertheless, considering both the manner in which Unique’s tubes 7 with drilled channels 8 are disposed within the throat of duct 10 and Unique’s objective of increasing throughput of the fluid (powder) sucked into and discharged from the device, we conclude, on balance, based on the 3 We designate the page of the translation with the title of the document as page 1, with the subsequent pages designated as pages 2-4. Appeal 2022-000759 Application 16/603,114 8 record before us, that a person having ordinary skill in the art would not have been prompted to form wall 1 of Unique’s duct 10 with a minimum inner diameter as small as the claimed range. Accordingly, we do not sustain the rejection of claim 1, or of claims 2, 3, and 7, which depend from claim 1, as being unpatentable over Unique and Alperin. CONCLUSION The Examiner’s rejection of claims 1-6, 9, and 10 as being unpatentable over Alperin is AFFIRMED. The Examiner’s rejection of claims 1-3 and 7 as being unpatentable over Unique and Alperin is REVERSED. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-6, 9, 10 103 Alperin 1-6, 9, 10 1-3, 7 103 Unique, Alperin 1-3, 7 Overall Outcome 1-6, 9, 10 7 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED IN PART