Ex Parte Eydner

Patent Trial and Appeal Board

Dec 9, 2016

12881967 (P.T.A.B. Dec. 9, 2016)

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.
7863-98209 2028
EXAMINER
KIM, CHRISTOPHER S
ART UNIT PAPER NUMBER
3752
MAIL DATE DELIVERY MODE
12/881,967 09/14/2010 Reinhold EYDNER
42798 7590 12/12/2016
FITCH, EVEN, TAB IN & FLANNERY, LLP
120 South LaSalle Street, Suite 1600
Chicago, IL 60603-3406
12/12/2016 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 REINHOLD EYDNER
Appeal 2015-000756
Application 12/881,967
Technology Center 3700
Before LYNNE H. BROWNE, JILL D. HILL, and BRENT M. DOUGAL,
Administrative Patent Judges.
BROWNE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Reinhold Eydner (Appellant) appeals under 35 U.S.C. § 134 from the
rejection of claims 1—10 and 15. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm-in-part.
Appeal 2015-000756
Application 12/881,967
CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. Nozzle foil for a nozzle bar (10) of a textile processing
machine, the nozzle foil comprising:
an elongate foil body defining a plurality of nozzle
openings (16), the elongate foil body configured to be secured
between an inlet channel (13) and an outlet channel (18) of a
carrier element (11) of the nozzle bar (10) to allow pressurized
fluid introduced into the inlet channel (13) to form fluid jets (19)
extending out of the nozzle openings (16) and into the outlet
channel (18) of the carrier element (11), wherein the elongate foil
body comprises at least two foil segments (25) configured to
connect with each other, wherein the elongate foil body has a
thickness between 0.1 to 1.5 millimeters.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Casebolt US 1,020,024 Mar. 12, 1912
REJECTIONS
I. Claims 5—10 and 15 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite.
II. Claim 15 stands rejected under 35 U.S.C. § 102(b) as
anticipated by Casebolt.
III. Claims \-A stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Casebolt.
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Appeal 2015-000756
Application 12/881,967
DISCUSSION
Rejection I
Appellant does not contest the rejection of claims 5—10 and 15 under
35 U.S.C. § 112, second paragraph. See, generally, Appeal Br. In the Reply
Brief, Appellant requests “that these minor, non-substantive issues be held in
abeyance pending the resolution of the disputes addressed with this appeal
brief.” Reply Br. 3.
Our rules do not provide for the holding of a rejection in abeyance.
Rather, 37 C.F.R. 41.31(c) states “[a]n appeal, when taken, is presumed to
be taken from the rejection of all claims under rejection unless cancelled by
an amendment filed by the applicant and entered by the Office.”
Accordingly, as arguments pertaining to the rejection of claims 5—10 and 15
under 35 U.S.C. § 112, second paragraph have been filed, we summarily
sustain this rejection.
Rejection II
The Examiner finds that Casebolt discloses each and every limitation
of independent claim 15. Final Act. 5. In particular, the Examiner finds that
Casebolt discloses “an elongate foil body 10, 15 defining a plurality of
nozzle openings 12.” Id.
Appellant contends that “[njothing in Casebolt discloses an ‘elongate
foil body’ as that phrase would be understood by one of skill in the art in
view of the specif[i]cation of the pending application.” Appeal Br. 9. In
support of this contention, Appellant notes that “[]t]he Merriam-Webster
online dictionary defines the adjective ‘elongate’ as ‘stretched out’ or
‘slender’” and “‘foil’ as ‘very thin sheet metal.” Id. (citations omitted).
Based on these definitions, Appellant argues that “the phrase ‘elongate foil
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Appeal 2015-000756
Application 12/881,967
body’ would mean ... a ‘stretched out or slender very thin sheet metal
body.’” Id. Appellant further explains that the Specification supports this
definition. See id. Then, applying this definition, Appellant argues that:
Casebolt only discloses his head or burner tip 10 and steam
nozzle 15 as bulky chamber defining elements. There is no
suggestion that these elements are or could be a “stretched out or
slender very thin sheet metal body,” which is how the claim
language “elongate foil body” would be understood when read
by one of skill in the art.
Id. at 10.
Appellant is correct. Casebolt’s burner tip 10 and steam nozzle 15 do
not constitute an “elongate foil body” as required by claim 15. Accordingly,
we do not sustain the Examiner’s decision rejecting claim 15 as anticipated
by Casebolt.
Rejection III
The Examiner finds that Casebolt discloses all of the limitations of
independent claim 1 except for “the elongate foil body 10,15 having a
thickness between 0.1 to 1.5 mm.” Final Act. 6. The Examiner determines
that it would have been obvious to use such a thickness based on
optimization reasoning. See id. Thus, the Examiner’s rejection of claim 1
relies upon the same erroneous finding — that Casebolt discloses an
elongate foil body — as the rejection of claim 15.
Accordingly, we do not sustain the Examiner’s decision rejecting
claim 1, and claims 2-4 which depend therefrom, for the reason discussed
supra with respect to the rejection of claim 15.
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Appeal 2015-000756
Application 12/881,967
DECISION
The Examiner’s rejection of claims 5—10 and 15 under 35 U.S.C.
§112, second paragraph is AFFIRMED.
The Examiner’s rejection of claim 15 under 35 U.S.C § 102(b) is
REVERSED.
The Examiner’s rejection of claims 1—4 under 35 U.S.C. § 103(a) is
REVERSED.
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)(l)(iv).
AFFIRMED-IN-PART
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