Ex Parte Winn

Patent Trial and Appeal Board

Nov 25, 2016

12649727 (P.T.A.B. Nov. 25, 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.
IIY-43 6065
EXAMINER
MAI, ANH D
ART UNIT PAPER NUMBER
2829
MAIL DATE DELIVERY MODE
12/649,727 12/30/2009
22827 7590 11/25/2016
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
Jackie Winn
11/25/2016 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 JACKIE WINN
Appeal 2015-004703
Application 12/649,727
Technology Center 2800
Before BRADLEY R. GARRIS, MICHAEL P. COLAIANNI, and
DEBRA L. DENNETT, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
1—10, 17, 18, and 20-26. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We REVERSE.
Appellant’s invention is directed to a method of gas flow control for a
plasma arc torch by modulating the pressure and flow to a plasma arc torch
Appeal 2015-004703
Application 12/649,727
through cyclic pulsing of a flow control valve between states of fully open
and fully closed (Spec. 11; Claims 1 and 17).
Claims 1 and 4 are illustrative:
1. A method for controlling gas flow to a plasma
arc torch, the method comprising the steps of:
providing a plasma gas supply in communication with
the plasma arc torch;
positioning a valve between the plasma gas supply and
the plasma arc torch so as to control the flow of plasma gas to
the torch, the valve having an inlet;
connecting the valve and the plasma arc torch with a
gas hose;
determining the pressure of plasma gas provided to the
valve inlet;
ascertaining a frequency and duty cycle at which to
cycle the valve between conditions of fully opened and fully
closed using the pressure of the plasma gas provided to the
valve inlet from said step of determining;
cycling the valve, at the frequency and duty cycle
provided by said step of ascertaining, between conditions of
fully opened and fully closed; and
using a resistance to gas flow provided by the torch to
maintain a relatively constant flow of plasma gas to the
plasma torch during said step of cycling the valve.
4. The method for controlling gas flow to a plasma
arc torch as in claim 2, further comprising the step of providing
a gas line between the valve and the plasma arc torch that does
not include a pressure regulator.
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Appeal 2015-004703
Application 12/649,727
Appellant appeals the following rejections:
1. Claim 4 is rejected under 35U.S.C. § 112, first paragraph, as failing
to comply with the written description requirement.
2. Claim 4 is rejected under 35U.S.C. § 112, second paragraph, as
failing to point out and particularly claim the invention.
3. Claims 8—10, 22, and 24 are rejected under 35 U.S.C. § 112, fourth
paragraph, as containing subject matter that fails to further limit the
claim from which it depends.
4. Claims 1—10, 17, 18, and 20-26 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Higgins et al., (US 2006/0091115
Al, published May 4, 2006) in view of Hammer (US 5,355,214, issued
Oct. 11, 1994).
FINDINGS OF FACT & ANALYSIS
REJECTIONS (1) AND (2): § 112, H 1 and 2, Claim 4
The Examiner finds that the subject matter of claim 4 directed to not
including a pressure regulator between the valve and the plasma arc torch
lacks written descriptive support under § 112,11 and concludes that the
negative limitation of claim 4 renders the claim indefinite under § 112,12
(Ans. 2-4). The Examiner’s only finding to support the conclusion that
claim 4 is indefinite under §112,12 rejection is that the claim includes a
negative limitation which discloses the invention by excluding what the
inventor did not invent rather than reciting what the inventor did invent
(Ans. 3).
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Appeal 2015-004703
Application 12/649,727
Appellant argues that there is support in the Specification for the
claim 4 limitation that the gas line between the valve and the plasma arc
torch does not include a pressure regulator (App. Br. 5—8). Appellant
contends that Figure 1 shows a gas hose 220 between valve 200 and torch
100 that does not have a pressure regulator in the gas line (App. Br. 7).
Regarding the § 112,12 rejection, Appellant argues that the negative
limitations are permitted as indicated in the Manual of Patent Examining
Procedure (MPEP) § 2173.05(i) (App. Br. 9). Therefore, the presence of a
negative limitation in a claim is not a sufficient basis alone to conclude that
the claim is indefinite. Id.
We have fully considered the Examiner’s findings and conclusions
and Appellant’s arguments there against. We find that the preponderance of
the evidence favors Appellant’s argument of written descriptive support and
definiteness for the reasons argued by Appellant on pages 5 to 10 of the
Appeal Brief.
We reverse the Examiner’s § 112, 1 rejection for lack of written
description and the Examiner’s § 112,12 rejection for indefmiteness.
REJECTION (3): § 112,14
With regard to dependent claims 8, 9, and 22, the Examiner finds
these claims fail to further limit the claim from which they depend because
independent claims 1 and 17 recite a gas hose which performs the
dampening function (Ans. 4—6). The Examiner finds that the dampening
recited in the claims is a function of the volume gas contained in the hose
and thus does not further limit the gas hose already recited in the
independent claims. Id.
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Appeal 2015-004703
Application 12/649,727
With regard to dependent claims 10 and 24, the Examiner finds that
the recitation of providing a constant pressure to the plasma torch fails to
further limit the recitation of “a constant flow of plasma gas” in independent
claims 1 and 17 (Ans. 5). The Examiner finds that “constant pressure” is the
same as “constant flow of plasma gas.” Id.
We reverse the Examiner’s § 112,14 rejections for the reasons
argued by Appellant on pages 10—15 of the Appeal Brief. As argued by
Appellant, the recitation of “gas hose” in the dependent claim is broader than
the requirements of dependent claims 8, 9, and 22, which further limit the
gas hose in terms of its dampening function. Moreover, Appellant argues
that constant flow of gas is a different measure than constant pressure (App.
Br. 13). Appellant contends that constant flow is a measure of the rate of
movement of gas entering the torch and constant pressure is a measure of the
force per unit area exerted by the gas on the container or hose which
contains it. Id. The Examiner does not respond to these arguments other
than to reiterate the position that constant flow is synonymous with constant
pressure (Ans. 16). We are unpersuaded by the Examiner’s unsupported
position.
REJECTION (4): § 103
The Examiner finds that Higgins teaches the method recited in claims
1 and 17, except for cycling the valve between the fully open and fully
closed positions (Ans. 6—7). The Examiner finds that Higgins teaches
determining the pressure of the plasma gas provided to the valve 106 inlet
using a transducer 104 or pressure regulator 102 (Ans. 6, 17). The Examiner
finds that 126 of Higgins teaches determining a duty cycle for the valve
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Appeal 2015-004703
Application 12/649,727
(Ans. 7). The Examiner finds that Hammer teaches a method of controlling
gas flow including controlling a gas valve that is cycled between fully open
and fully closed (Ans. 8). The Examiner concludes that it would have been
obvious to maintain a relatively constant flow of plasma gas to the plasma
torch of Higgins using the flow control valve of Hammer by cycling the
valve between fully open and fully closed conditions to accurately and
rapidly control the rate of fluid flow to the plasma torch (Ans. 8).
Appellant argues that neither Higgins nor Hammer teaches using an
inlet pressure to the valve 106 to determine the frequency and duty cycle at
which to cycle the valve (App. Br. 19). Appellant contends that the
Examiner’s reliance on Higgins’ mass flow transducer 104 prior to the inlet
of valve 106 to teach a sensor prior to the valve inlet is misplaced because
the mass flow transducer does not measure pressure (App. Br. 18).
Appellant argues that the Examiner’s reliance in the Response to Arguments
section of the Answer on pressure regulator 102 in Higgins as measuring the
inlet pressure to the valve 106 does not meet the claim (Reply Br. 9).
Appellant contends that “determining” the pressure at the valve inlet
requires measuring or sensing the pressure at the valve inlet. Id. Appellant
argues that Higgins does not teach ascertaining a frequency or duty cycle
because valve 106 is never cycled (Reply Br. 11). Appellant argues that
Higgins teaches adjusting the pressure of the plasma gas, not cycling the
valve (Reply Br. 12). Appellant argues that combining Hammer’s valve that
cycles without feedback control with Higgins would frustrate the purpose of
Higgins that uses feedback control to monitor the plasma torch performance
(Reply Br. 16—18, App. Br. 25—26).
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Appeal 2015-004703
Application 12/649,727
The preponderance of the evidence favors Appellant’s argument of
non-obviousness. “Duty cycle” is described in the Specification as the
quotient of time that the valve is open (topen) divided by the time for a
complete cycle of fully opening and fully closing the valve (Spec. 119). In
other words, the duty cycle requires that a valve completes a regular cycle of
opening and closing the valve.
The Examiner’s reliance in the rejection on Higgins’ mass flow
transducer 104 as measuring the inlet pressure is incorrect. The Examiner
seems to acknowledge this error in that the Examiner relies on pressure
regulator 102 in the Response to Arguments section of the Answer for the
device that measures the inlet pressure (Ans. 17). The Examiner does not,
however, explain how the pressure regulator is used to determine a duty
cycle as allegedly disclosed in Higgin’s 126. Rather, it is the mass flow
transducer 104 that communicates with controller 120 and pressure setting
device 110 to control the valve 106 (Higgins 126).
Moreover, the Examiner does not explain why the opening or closing
of the valve 106 in 126 of Higgins constitutes a duty cycle as that phrase is
described in the Specification. It appears that 126 merely describes opening
or closing valve 106 to control pressure of the plasma gas based upon the
feedback controls (i.e., pressure transducer 108 at the valve outlet, mass flow
transducer 104 and pressure setting device 110). Higgins relies on the
feedback control system to monitor the plasma torch and control valve 106
(Higgins H26, 31). As argued by Appellant, Hammer teaches that cycling
of the device 1 is very predictable and reproducible so that the flow control
devices can be run on an open loop control arrangement eliminating the need
for a flow rate sensor or feedback loop (Hammer, col. 8,11. 4—9). Hammer
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Appeal 2015-004703
Application 12/649,727
instructs that elimination of the feedback loop saves processing time (col. 8,
11. 9-13).
The Examiner does not explain sufficiently why one of ordinary skill
in the art would have substituted Hammer’s valve that operates in a cyclical
manner and can be free of feedback controls for Higgins’ valve 106 that is
responsive to feedback controls. Indeed, the Examiner’s response that the
claim does not exclude feedback control, fails to address Appellant’s
argument there is no apparent reason to combine the teachings of the
references in the manner proposed by the Examiner. As noted above, we
agree with Appellant that Higgins fails to teach determining a duty cycle for
the valve 106. Accordingly, it is not clear that the combined prior art would
have suggested all the limitations of the claim or that there is sufficient
reason for the modification proposed by the Examiner. We reverse the
Examiner’s § 103(a) rejection over Higgins and Hammer.
DECISION
The Examiner’s decision is reversed.
ORDER
REVERSED
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