Ex Parte Pohlmann et al

Patent Trial and Appeal Board

Nov 22, 2016

11887392 (P.T.A.B. Nov. 22, 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.
11/887,392 11/08/2007 Gerhard Pohlmann 28638U 4613
34375 7590 11/25/2016
NATH, GOLDBERG & MEYER
Joshua Goldberg
112 South West Street
Alexandria, VA 22314
EXAMINER
WOODWARD, VALERIE LYNN
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
11/25/2016 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):
USPTO@nathlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GERHARD POHLMANN, HORST WINDT,
OLIVER NOLTE, and WOLFGANG KOCH
Appeal 2014-006267
Application 11/887,392
Technology Center 3700
Before JOHN C. KERINS, ANNETTE R. REIMERS, and
JAMES J. MAYBERRY, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Gerhard Pohlmann et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner’s decision to reject under 35 U.S.C. § 103(a): (1) claims
1, 2, 4, 6, 7, 13—16, and 37 as unpatentable over Wiking (GB 24,848; pub.
Mar. 26, 1914), Patton (US 6,681,767 Bl; iss. Jan. 27, 2004), and Odessa
(US 2002/0158090 Al; pub. Oct. 31, 2002); (2) claims 8—12 as unpatentable
over Wiking, Patton, Odessa, and Haveri (US 6,978,779 B2; iss. Dec. 27,
2005); and (3) claims 27—29 as unpatentable over Wiking, Patton, Odessa,
and Hafner (US 2004/0254112 Al; pub. Dec. 16, 2004). Claims 3, 5, 17—
Appeal 2014-006267
Application 11/887,392
26, and 30-36 have been canceled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to devices “for dosing and dry
nebulization of nebulizable material.” Spec. 1, Figs. 3, 4.1 Claims 1 and 37
are independent.
Claim 1 is illustrative of the claimed subject matter and recites:
A device for dosing and dry nebulization of
nebulizable material, comprising:
a nebulization channel connected to a source of
compressed carrier gas;
a valve configured to send a carrier gas pressure
pulse into the nebulization channel;
a reservoir above and open only towards the
nebulization channel, the reservoir configured for
receiving the nebulizable material and connected to the
nebulization channel such that the reservoir is gas-tight
with respect to an external environment;
a conical dosing chamber separate from and
connecting to the reservoir; and
a capillary tube connecting the valve to the
nebulization channel, the capillary tube having an outlet in
the nebulization channel in an area under the connection
between the reservoir and the nebulization channel,
wherein
an inner diameter of the capillary tube is smaller
than an inner diameter of the nebulization channel, such
that
1 Appellants’ Specification does not provide line or paragraph numbering, and
accordingly, reference will only be made to the page number.
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Application 11/887,392
upon release of the carrier gas pressure pulse the
capillary tube and the nebulization channel form a jet
pump flowing the carrier gas past the connection between
the reservoir and the nebulization channel and generate an
underpressure in the reservoir, and wherein
when the valve is closed, a pressure compensation
takes place by carrier gas flowing back to the reservoir.
ANALYSIS
Obviousness over Wiking, Patton, and Odessa
Claims 1, 2, 4, 6, 7, 13 16, and 37
Independent claim 1 recites, in relevant part, a device including a
reservoir and a valve “configured to send a carrier gas pressure pulse into [a]
nebulization channel,” “wherein when the valve is closed, a pressure
compensation takes place by carrier gas flowing back to the reservoir.” Br.
19, Claims App. The Examiner finds:
The modified device of Wiking discloses that when the valve e
(Wiking, Fig. 1) is closed, a pressure compensation takes place
by carrier gas flowing back to the reservoir g (The device is
structurally equivalent to the claimed invention and is capable of
performing this function as there appears to be no structure
present which would prevent this action from taking place. For
example, if the pressure outside the device is greater than the
pressure inside the device, a pressure compensation will
inherently take place causing gas to flow back into the channel
and into the reservoir).
Final Act. 4; see also Ans. 5—6.
Appellants contend:
[T]he structure of the device as recited in the present claims leads
to an effect (which is recited in claims 1 and 37) that is not shown
or inferred in either Wiking or Patton, namely “when the valve
is closed, a pressure compensation takes place by carrier gas
flowing back to the reservoir.” On page 4 of the Office Action,
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Application 11/887,392
the Examiner states that “(The device [of Wiking] is structurally
equivalent to the claimed invention and is capable of performing
this function [the pressure compensation] as there appears to be
no structure present which would prevent this from taking place
... ).” Appellants] strenuously disagree[] with this
characterization of Wiking ... the jet pump [of the subject
invention] forms an underpressure in the reservoir, while Wiking
relies on an overpressure in the reservoir.
Br. 14—15; see also id. at 9—10, 12. Appellants further contend that Wiking
discloses pressure compensation by “[g]as flowing out of the reservoir,”
which is in contrast to the subject invention’s recitation of pressure
compensation by “[g]as flowing into of the reservoir.” Id. at 12; see also id.
at 19, Claims App.
Wiking discloses:
On the compression stroke of the piston b[,] the air is pressed
through the valve e into the chamber h and the nozzle d and on
account of the constricted orifice of same, the air is compressed
to a suitable pressure, thus causing a portion of the air to be
injected into the receptacle g through the mass of the powder and
to give the same a whirling action (see the arrows in the Fig. 1).
Thus a pressure is created also in the receptacle. When the piston
b has reached the end of its compression stroke [i.e., at the
beginning of the suction stroke] the flow of air from the pump is
interrupted and a quantity of powder is carried out of the
receptacle g into the chamber h by means of the higher pressure
left in the receptacle.
Wiking, 1:44 — 2:9, Fig. 1; see also id. at 1:20—23, Fig. 2. Wiking further
discloses: (1) “Between the pump barrel a and the nozzle d a valve e is
arranged which during the compression stroke automatically opens towards
the nozzle but during the suction stroke closes under the influence of the
spring/” (Wiking, 1:34—36 (emphasis added), Figs. 1, 2); (2) “During the
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Application 11/887,392
whole suction stroke of the piston b, the valve e remains closed under the
influence of the spring/and the vacuum created in the pump barrel” (id. at
2:10-12 (emphasis added)); and (3) “During the suction stroke of the piston
[i.e., when valve e is closed] the air pressure left in the receptacle is adapted
to eject a portion of the powder into a chamber outside the pump cylinder
from whence it is expelled through the nozzle by the next compression
stroke” (id. at 1:20-23 (emphasis added), Fig. 2).
In other words, Wiking discloses that during the compression stroke
(i.e., when valve e is open) a portion of the carrier gas pressure pulse is
injected into receptacle g and creates a positive pressure within the
receptacle. Further, the positive pressure generated within receptacle g (i.e.,
the higher pressure left in the receptacle) forces powder out of the receptacle
upon completion of the compression stroke (i.e., at the beginning of the
suction stroke when valve e is closed). See Br. 10. As such, based on the
foregoing, we agree with Appellants, “Wiking teaches the use of an
overpressure to move the powder and there is no teaching of a pressure
compensation taking place by carrier gas flowing back to the reservoir when
the valve is closed.” See id. Accordingly, the Examiner fails to establish by
a preponderance of the evidence that the combined teachings of Wiking,
Patton, and Odessa disclose the device of claim 1. Independent claim 37
calls for a device including a similar limitation as discussed above for claim
1. See Br. 22—23, Claims App. The Examiner relies on the same
unsupported findings and conclusions for claim 37 as for claim 1. See Final
Act. 2-4, 6. Thus, the Examiner’s findings and conclusions with respect to
Wiking are deficient for claim 37 as well.
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Accordingly, we do not sustain the Examiner’s rejection of
independent claim 1 and its dependent claims 2, 4, 6, 7, and 13—16, and
independent claim 37 as unpatentable over Wiking, Patton, and Odessa.
Obviousness over Wiking, Patton, Odessa and
either Haveri or Hafner
Claims 8—12 and 27—29
Claims 8—12 and 27—29 depend either directly or indirectly from
claim 1. See Br. 20—22, Claims App. The Examiner relies on the same
unsupported findings and conclusions for claims 8—12 and 27—29 as
discussed above for claim 1. See Final Act. 6—8. The Examiner does not
rely on Haveri or Hafner to remedy these deficiencies. Thus, the Examiner’s
findings and conclusions with respect to Wiking are deficient for claims
8—12 and 27—29 as well.
Accordingly, for reasons similar to those discussed above for claim 1,
we do not sustain the Examiner’s rejections of dependent claims 8—12 as
unpatentable over Wiking, Patton, Odessa, and Haveri or dependent claims
27—29 as unpatentable over Wiking, Patton, Odessa, and Hafner.
DECISION
We REVERSE the decision of the Examiner to reject claims 1, 2, 4,
6-16, 27-29, and 37.
REVERSED
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