Ex Parte Foret

Patent Trial and Appeal BoardMar 30, 2016

11784327 (P.T.A.B. Mar. 30, 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. 11/784,327 04/05/2007 Todd Foret FPLB:1013 4699 34725 7590 03/31/2016 CHALKER FLORES, LLP 14951 North Dallas Parkway, Suite 400 DALLAS, TX 75254 EXAMINER JENNISON, BRIAN W ART UNIT PAPER NUMBER 3742 MAIL DATE DELIVERY MODE 03/31/2016 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 TODD FORET ____________ Appeal 2014-002646 Application 11/784,327 Technology Center 3700 ____________ Before EDWARD A. BROWN, JAMES P. CALVE, and, BRANDON J. WARNER, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Todd Foret (Appellant)1 appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–7 and 9–17 under 35 U.S.C. § 103(a) as unpatentable over Applicant’s Admitted Prior Art (“AAPA”) and Couture (US 6,355,178 B1, issued Mar. 12, 2002).2 Br. 3. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 The Appeal Brief identifies the real party in interest as Foret Plasma Labs, LLC. Br. 3. 2 Claims 8, 18, and 19 have been withdrawn from consideration, and thus, are not before us as part of the present appeal. Br. 3. Appeal 2014-002646 Application 11/784,327 2 CLAIMED SUBJECT MATTER Claims 1, 4, and 9 are independent. Claim 1 is illustrative of the claimed subject matter on appeal, and recites: 1. A method for treating a liquid comprising the steps of: providing an apparatus comprising (a) a hydro cyclone having a side inlet, a lower outlet and an upper opening, (b) a throat having a first opening and a second opening, wherein the first opening is connected to the lower outlet of the hydro cyclone, (c) a vortex finder attached to the upper opening of the hydro cyclone such that the vortex finder extends into the hydro cyclone, (d) an electrical connection attached to the vortex finder such that the vortex finder is an anode, and (e) a plasma torch attached to the vortex finder such that a central axis of the plasma torch, a central axis of the vortex finder and a central axis of the lower outlet are all aligned with one another; flowing the liquid into the side inlet of the hydro cyclone and through the hydro cyclone such that the liquid cools the anode and exits through the lower outlet; and turning on the plasma torch such that a plasma arc irradiates the liquid. Br. 18 (Claims App.). ANALYSIS Figure 13 of Appellant’s application shows several prior art hydrocyclones. See Spec. 6, l. 30. The Examiner provided an annotated version of Fig. 13A (i.e., the left hydrocyclone shown in Fig. 13). Final Act. 2. The Examiner found that this hydrocyclone includes all of the limitations of claims 1, 4, and 9, except for the plasma torch. Id. at 3. The Examiner found that Figure 14 of Couture discloses a wire inside a vortex, “which is induced with a charge making it a torch or anode.” Id. (citing Couture, col. 1, ll. 15–20 and 35–40, col. 5, l. 64–col. 6, l. 2). The Examiner concluded that it would have been obvious “to adapt [AAPA] in view of Couture to Appeal 2014-002646 Application 11/784,327 3 provide the plasma torch which is powered by electrical current for creating an arc within a container and treating materials at a high temperature.” Id. (emphasis added). Figure 14 of Couture teaches a system to charge particles in a gas cyclone or liquid hydrocyclone. See Couture, col. 2, ll. 60–62. Couture explains that the term “hydrocyclones” applies to devices that separate based on liquid-density differences, and the term “cyclones” applies to devices that are used to separate particles from a gas. See id. at col. 1, ll. 16–22. The cyclone shown in Figure 14 of Couture includes a charged corona wire extending along the vertical axis of the cyclone, and having an exposed portion to charge particles that pass by the corona wire to provide particle separation. See id. at col. 5, ll. 48–56. Appellant contends that AAPA and Couture do not disclose or suggest “a plasma torch attached to the vortex finder [] aligned with one another” and that “the liquid cools the anode.” Br. 11. These limitations are recited in each independent claim. Appellant contends that Couture instead discloses an electrostatic charge generator to separate fluids and particles by adding a charge to the particles, causing them to be attracted to a lower portion of the device. Id. at 12 (citing Couture, col. 4, ll. 8–14). According to Appellant, introducing a charge with a corona wire in Couture does not transform the corona wire into a plasma torch, having a very different construction and effect from a corona wire. Id. Appellant also contends that Couture’s corona wire does not generate heat that is transferred to an anode, and so there is no need to cool the anode in Couture. Id. Appellant adds that a plasma arc from a plasma torch would burn, combust, or incinerate the particles that Couture is trying to separate. Id. Appeal 2014-002646 Application 11/784,327 4 Appellant notes correctly that Couture does not describe the term “plasma torch,” or generating a plasma arc within the hydrocyclone. Br. 14. Couture does not describe that the corona wire located within the cyclone shown in Figure 14 generates a “plasma arc.” In fact, the term “plasma” is used in Couture only in the following description pertaining to a particle “precharger”: The inventors tested the above proposition and it tested positive in field tests both with gaseous cyclones and liquid hydrocyclones. With gaseous cyclones, the use of a precharger is preferred. The precharger can be manufactured in many ways such as thin plates, a metal grid system or if it is safe and there is no danger of explosion one could have various plasma arcs putting charges on the particles. Couture, col. 5, l. 63–col. 6, l. 2 (emphasis added). This passage in Couture does not indicate that the particle precharger used to provide “various plasma arcs putting charges on the particles” in gaseous cyclones would necessarily be, or even include, a plasma torch, as claimed. Nor has the Examiner established that the particle precharger would be aligned with the vortex finder or lower outlet, as claimed. In fact, the Examiner has not made any findings in this regard. Appellant points out that Figure 15 of Couture shows a precharger located outside of the hydrocyclone. Br. 14. This figure shows a particle precharger located to one side of the cyclone, rather than in alignment with the vortex finder or lower outlet, as claimed. Couture, col. 5, ll. 59–62; Fig. 15. Based on this location of the precharger, Appellant contends that “Couture teaches against the use of plasma arcs within the hydrocyclone.” Id. (emphasis added). Appeal 2014-002646 Application 11/784,327 5 In contrast to locating the particle precharger outside the cyclone in Couture, claim 1 recites “a vortex finder [that] extends into the hydrocyclone,” “a plasma torch attached to the vortex finder such that a central axis of the plasma torch, a central axis of the vortex finder and a central axis of the lower outlet are all aligned with one another,” “flowing the liquid . . . through the hydrocyclone such that the liquid cools the anode,” and “turning on the plasma torch such that a plasma arc irradiates the liquid.” Accordingly, the method of claim 1 comprises irradiating the liquid with the plasma arc produced by the plasma torch inside the hydrocyclone. Claims 4 and 19 recite limitations similar to these in claim 1. See Br. 18–21 (Claims App.). Appellant also contends that even if Couture were interpreted to mean that plasma arcs could be used to charge particles, Couture still would merely teach locating the plasma at the inlet of the hydrocyclone, and thus, the plasma arc would only precharge the particles. Br. 14. Appellant adds that this interpretation does not teach or suggest “attaching a plasma torch to the vortex such that a plasma arc irradiates the liquid within the hydrocy[c]lone and the liquid is used to cool the anode.” Id. The Examiner responds that “[a]lthough Couture does not specifically state a plasma torch, to create a plasma arc some sort of plasma torch must be used.” Ans. 4 (emphasis added). According to the Examiner, “[t]his suggests the use of a plasma torch with a hydrocyclone.” Id. The Examiner explains that “Couture is merely relied upon to show that it is known in the art to use a plasma torch with a hydrocyclone.” Id. The Examiner’s position appears to be that Couture’s disclosure of a “plasma arc” is necessarily a disclosure of use of a “plasma torch.” Appeal 2014-002646 Application 11/784,327 6 However, Couture provides no disclosure that the corona wire located inside a cyclone produces a plasma arc. In addition, the Examiner has not established, with evidence, that a plasma arc can only be created by a plasma torch. Couture does not support this position, and the Examiner has not relied on any other evidence to show that, although Couture does not describe a “plasma torch,” Couture necessarily discloses this claimed element, just because Couture discloses the use of plasma arcs to put charges on particles as part of a precharger. See Ans. 4. The Examiner has not explained sufficiently how a plasma arc that puts charges on particles, just like the thin plates or metal grid system (Couture, col. 5, l. 65–col. 6, l. 12), necessarily discloses a plasma torch, which Appellants describe as creating an ionized gas. Spec. 9, ¶ 25. Consequently, the Examiner’s finding that Couture “show[s] that it is known in the art to use a plasma torch with a hydrocyclone” is not supported by sufficient evidence. For the above reasons, the Examiner’s rejection of claims 1–7 and 9– 17 as unpatentable over AAPA and Couture is not supported by sufficient evidence. Thus, we do not sustain the rejection. DECISION The decision of the Examiner to reject claims 1–7 and 9–17 is REVERSED. REVERSED