Ex Parte Garrett

Patent Trial and Appeal BoardJul 30, 2015

12387146 (P.T.A.B. Jul. 30, 2015)

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. 12/387,146 04/28/2009 Michael Ernest Garrett HG 56 5116 7590 07/30/2015 KLAUS J. BACH & ASSOCIATES PATENTS AND TRADEMARKS 4407 TWIN OAKS DRIVE MURRYSVILLE, PA 15668 EXAMINER JALLOW, EYAMINDAE CHOSSAN ART UNIT PAPER NUMBER 3721 MAIL DATE DELIVERY MODE 07/30/2015 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 MICHAEL ERNEST GARRETT ____________ Appeal 2013-009004 Application 12/387,146 Technology Center 3700 ____________ Before JENNIFER D. BAHR, LISA M. GUIJT, and MARK A. GEIER, Administrative Patent Judges. GEIER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from the Examiner’s rejection of claims 1, 2, 4–7, and 11.1 Appeal Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE CLAIMED SUBJECT MATTER The claimed subject matter relates to “systems for dispensing substances from containers and, more particularly, to a method of [] 1 Appellant cancelled claims 3, 8–10, and 12, and these claims are not before us on this Appeal. Appeal 2013-009004 Application 12/387,146 2 manufacturing canisters for such systems.” Spec., p. 1, ll. 6–8. Claim 1 is illustrative and recites: 1. A method for manufacturing a canister from which a product is to be dispensed by means of a dispensing system comprising a solid/gas arrangement in which the gas is adsorbed on the solid under pressure and desorbed therefrom when the pressure is released and in which the solid comprises an adsorbent for the gas and the gas comprises at least one of nitrogen, oxygen and mixtures thereof including air, carbon dioxide, nitrous oxide and argon, the container being adapted to be sealed and having valve means for dispensing the product by means of the pressure of the adsorbed gas, the method comprising the steps of: filling the canister with the gas to a required pressure by applying pressurized gas to the adsorbent via an aperture in the canister and sealing the canister, the size of the aperture and of the pressure applied being controlled such that sufficient gas is allowed to freely [contact2] the adsorbent and achieve said required pressure in the sealed canister the applied pressure being in excess over the required pressure by at least five percent. THE REJECTION ON APPEAL The Examiner rejected claims 1, 2, 4–7, and 11 under 35 U.S.C. § 103(a) as being unpatentable over Lo (US 4,049,158; iss. Sept. 20, 1977) in view of Kaiser (US 3,194,449; iss. July 13, 1965). ANALYSIS Claims 1, 2, 4, 5, and 7 Appellant argues the Examiner erred in determining that Lo, in view of Kaiser, discloses or suggests the limitation “the applied pressure being in excess over the required pressure by at least five percent.” Appeal Br. 5–7. 2 Appellant submitted an amendment after final to add the word “contact” to the claim to fix a typographical error, but the Examiner did not enter the Amendment. Ans. 3; Appeal Br. 2. Appeal 2013-009004 Application 12/387,146 3 In particular, Appellant argues that the Examiner has misconstrued the limitation to require pressurization of the canister over the required pressure. See id. 5–6; see also Reply Br. 1–2. As explained by Appellant: The invention is rather concerned with the filling procedure as such that is the speed and efficiency of the manufacturing process is to be optimized. To this end, during the filling procedure the pressure of the drive gas with which the canister is being filled is higher than the desired or design end pressure of the drive gas in the filled container. Reply Br. 2. Although it appears the claim may have typographical errors, we agree with Appellant’s characterization of the claim. The claimed method recites a first step of “filling the canister . . . to a required pressure by applying pressurized gas . . . .” Appeal Br., Claims App. (emphasis added). In doing so, the “the pressure applied [is] being controlled such that sufficient gas is allowed to . . . achieve said required pressure . . ..” Id. (emphasis added). This control of the “pressure applied” is such that the “applied pressure [is] in excess over the required pressure by at least five percent.” Id. (emphasis added). The claim makes clear that two pressures are at issue: the pressure of the pressurized gas used to fill the canister and the required pressure to which the canister is ultimately pressurized. The “required pressure” is the basis for determining the level of the “applied pressure” – which is the pressure of the pressurized gas. This interpretation is confirmed by the Specification, which states: “With regard to the applied pressure, this is advantageously in excess of a required pressure (P1) in the canister by an amount of at least five percent (5%), preferably at least ten Appeal 2013-009004 Application 12/387,146 4 percent (10%) and more preferably at least twenty percent (20%) of the required pressure.” Spec., p. 17, ll. 20–23.3 As noted by Appellant, the Examiner does not make any findings regarding the pressure of the pressurized gas used to charge the canister. Appeal. Br. 7 (“[N]either one of the cited references discloses, or is concerned with, the claimed method step to apply during filling . . . an excess pressure over the pressure required . . . in excess of at least five percent.”); see also Reply Br. 1–2. Instead, the Examiner’s findings relate to pressurization of the canister over the required pressure. For example, the Examiner finds that “Lo teaches applying a pressurized gas in excess to achieve a required pressure, but is silent as to whether it includes at least 5% overpressurization over the required pressure.” Final Act. 3; Ans. 3–5. The Examiner further finds that Kaiser teaches the amount of the overpressurization. Final Act. 3–4; Ans. 3–4. Based upon these two findings, the Examiner concludes that “it would have been obvious to one having ordinary skill in the art to modify the invention of Lo with the teachings of Kaiser in order to compensate for any pressure loss during an altering of temperature.” Final Act. 4. Because the Examiner does not make any findings regarding the pressure of the pressurized gas used to charge the canister, we reverse the Examiner’s rejection of claims 1, 2, 4, 5, and 7. 3 See also Spec., p. 19, ll. 10–13 (“The crux of the invention is the realization that a fast gassing of the carbon to provide pre-determined pressures is possible if the gassing pressure and the aperture size are correlated and carefully controlled in relation to each other . . . .”). Appeal 2013-009004 Application 12/387,146 5 Claim 6 Claim 6 depends from Claim 1. We therefore reverse the Examiner’s rejection of claim 6 for the same reasons stated with respect to claim 1. Claim 11 Claim 11 depends from Claim 1. We therefore reverse the Examiner’s rejection of claim 11 for the same reasons stated with respect to claim 1. CONCLUSION We reverse the Examiner’s rejection of claims 1, 2, 4–6, and 11 as unpatentable under 35 U.S.C. § 103(a). REVERSED mp