Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Interpretation
Claim 1 requires, “the channel being configured to be adjustable in a direction perpendicular to a free surface of the molten glass to position the at least one orifice positioned adjacent the free surface of the molten glass”
the channel being configured to be adjustable is discussed in the specification as originally filed in
¶[0038] Channel 134 can be secured in mixing vessel 36 with support structures 136, such as wires, as well as with clamping structures 138, such as nuts, which can be loosened or tightened, allowing adjustment of position of channel 134 within mixing vessel 36 (e.g., to move channel 134 to a relatively higher or lower position within mixing vessel 36)
Thus for the purpose of this examination the broadest reasonable interpretation of “the channel being configured to be adjustable” is that it may be secured in different locations relative to the free surface of the molten glass. There is no automatic adjustment means or structure described in the claims or specification.
Claim 1 also defines the position of the channel relative to the free surface of the glass being worked upon. A claimed structure is not limited to the material worked upon. For clarity and the purpose of this examination the “free surface of the molten glass” is interpreted to be completely perpendicular to the conduit walls and any portion of the channel may be looked at as parallel or perpendicular.
Claim 2 recites, “wherein the channel is configured to be adjustable to vary the position of the at least one orifice from about 5 millimeters to about 75 millimeters of the free surface of the molten glass.”
¶[0020] As used herein, the term “proximate” refers to a distance of less than or equal to about 75 millimeters.
And
¶[0046] In certain exemplary embodiments, such as the embodiments illustrated in FIGS. 2-7, one or more orifices configured to be positioned proximate a free surface of the molten glass 28 and to flow the defect inhibiting fluid out of the channel (e.g., channel 134, 134’, etc.). For example, one or more orifices can be positioned from about 5 millimeters to about 75 millimeters, such as from about 10 millimeters to about 50 millimeters, of the free surface of the molten glass 28. In addition, in certain exemplary embodiments, one or more orifices can be positioned from about 5 millimeters to about 75 millimeters, such as from about 10 millimeters to about 50 millimeters, of the wall 140.
There is no automatic adjustment means or structure described in the claims or specification that the orifices can be positioned 5-75 millimeters from the free surface of the molten glass.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-2, 5-6, is/are rejected under 35 U.S.C. 103 as being unpatentable over Burdette et al. (US 20060042318).
Regarding claim 1, Burdette discloses a glass manufacturing apparatus comprising:
a conduit (18) comprising a precious metal or precious metal alloy of Platinum or a platinum alloy [0017].
As depicted in Fig 1 and 3 the conduit (18) of Burdette is configured to flow molten glass therethrough
a channel (60) positioned proximate the conduit (See Fig 3) and configured to flow fluid therethrough [0030], considered a defect inhibiting fluid given the broadest reasonable interpretation.
Burdette discloses the channel (60) comprising at least one orifice (58) (Fig 3-4)
Burdette discloses the channel (60) and gas flow passages can be mounted in the cover itself or within an upper portion of the chamber wall and that variations can be made [0032]-[0033] this means the channel is “configured to be adjustable in a direction perpendicular to a free surface of the molten glass to position the at least one orifice positioned adjacent the free surface of the molten glass to flow the defect inhibiting fluid out of the channel.”
The channel including a first portion parallel to the free surface of glass and second portion parallel to the free surface of the glass given the broadest reasonable interpretation as depicted by the arrows below:
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Regarding claim 2, Regarding claim 2, MPEP 2114 states
"[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)
Even if the prior art device performs all the functions recited in the claim, the prior art cannot anticipate the claim if there is any structural difference. It should be noted, however, that means-plus-function limitations are met by structures which are equivalent to the corresponding structures recited in the specification. In re Donaldson, 16 F.3d 1189, 1193, 29 USPQ2d 1845, 1848 (Fed. Cir. 1994). See also In re Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1951 (Fed. Cir. 1999)
The device of Burdette discloses all the structural features and equivalents as recited in claim 2 given the broadest reasonable interpretation. The amount of glass being worked upon within a given moment within the conduit structure defines the height of “the free surface of the molten glass”
Thus the orifice is considered configured to be adjustable from about 5 millimeters to about 75 millimeters of the free surface of the molten glass.
Alternatively, it would be obvious to one skilled in the art to place orifices at a desired location relative to the conduit as motivated to control the atmosphere within the conduit and replacement is adjustable given the broadest reasonable interpretation.
Regarding claim 5, the inlet pipe (12) is a connecting conduit.
Regarding claim 6, "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)
the defect inhibiting fluid is selected from at least one of nitrogen, argon, helium, neon, krypton, xenon, radon, hydrogen, chlorine, or mixtures thereof do not further limit the structure of the apparatus.
Claim(s) 3-4, 9-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burdette et al. (US 20060042318) as applied above and further in view of De Angelis (US 8978419)
Regarding claims 3-4, Burdette discloses the conduit being a mixer however does not depict the conduit comprising a vessel that circumferentially surrounds the channel.
In an analogous art of a glass De Angelis discloses the stirring device withing a chamber (80) to provide a controlled environment around the stir chamber (Col 2; lines 40-45)
Regarding claim 7, Burdette depicts the orifice orientation such that the fluid exiting enters the atmosphere above the free surface of the glass.
Both the reversal of parts and rearrangement of parts is made obvious to a skilled artisan. It would be obvious to a skilled artisan to rearrange the fluid exiting at least one orifice in a portion of the channel that faces a wall, or runs parallel to the wall of the vessel as an obvious matter of design choice within the skill of the art to provide the predictable result of introducing gas into the environment. See Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); In re Gazda, 219 F.2d 449, 42 CCPA 770 (1955).
Regarding claims 9-10, It would be obvious to change the direction of the inlet orifice (24) without departing from the scope of the invention of Burdette and MPEP 2144.04 states:
In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice
In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant
In the present instance the placement or direction of the conduit and thus the inlet orifice (50/58) would have been an obvious design choice that would not be considered to modify the operation of the device because the gas would still be delivered to the atmosphere.
Response to Arguments
Applicant's arguments filed 01/26/2026 have been fully considered but they are not persuasive. Applicant argues that prior art Burdette discloses conduits that extend through the sidewalls and are not adjustable. Examiner has given the claimed term adjustable the broadest reasonable interpretation in view of the specification.
Examiner has addressed the new claim limitations given the broadest reasonable interpretation. See above rejection.
It does not appear there are unexpected results related to the direction of the portions of the channel to the glass.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JODI COHEN FRANKLIN whose telephone number is (571)270-3966. The examiner can normally be reached Monday-Friday 8 am-4 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alison Hindelang can be reached at (571) 270-7001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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JODI COHEN FRANKLIN
Primary Examiner
Art Unit 1741
/JODI C FRANKLIN/Primary Examiner, Art Unit 1741