OFFICE ACTION
This application has been assigned or remains assigned to Technology Center 1700, Art Unit 1774 and the following will apply for this application:
Please direct all written correspondence with the correct application serial number for this application to Art Unit 1774.
Telephone inquiries regarding this application should be directed to the Electronic Business Center (EBC) at http://www.uspto.gov/ebc/index.html or 1-866-217-9197 or to the Examiner at (571) 272-1139. All official facsimiles should be transmitted to the centralized fax receiving number (571)-273-8300.
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 .
Information Disclosure Statement
Note the attached PTO-1449 forms submitted with the Information Disclosure Statements.
Drawings
The drawings are objected to under 37 CFR § 1.84 in view of the following deficiencies that require correction:
The drawings contain improper sectional views. The plane upon which a sectional view is taken should be indicated on the view from which the section is cut by a broken line. The ends of the broken line should be designated by Arabic or Roman numerals corresponding to the view number of the sectional view, and should have arrows to indicate the direction of sight (37 CFR 1.84(h)(3)). For example, Figure 3 should be a sectional view taken along line 3-3 in Figure 2 (not sectional line A-A). All sectional views should be corrected in accordance with 37 CFR 1.84(h)(3).
Applicant should review the instant specification and drawing Figures to ensure a proper one-to-one correspondence between the specification and drawings in accordance with MPEP 608.01(g) and 37 CFR 1.84(f). The brief description of the drawings and the descriptive portion of the specification will require revision in accordance with any drawing objections listed herein or those noticed by Applicant during said review (e.g., see ¶ [0023]).
From MPEP 608.01(g): The reference characters must be properly applied, no single reference character being used for two different parts or for a given part and a modification of such part. See 37 CFR 1.84(p). Every feature specified in the claims must be illustrated, but there should be no superfluous illustrations.
INFORMATION ON HOW TO EFFECT DRAWING CHANGES
Replacement Drawing Sheets
Drawing changes must be made by presenting replacement figures which incorporate the desired changes and which comply with 37 CFR 1.84. An explanation of the changes made must be presented either in the drawing amendments, or remarks, section of the amendment. Any replacement drawing sheet must be identified in the top margin as “Replacement Sheet” (37 CFR 1.121(d)) and include all of the figures appearing on the immediate prior version of the sheet, even though only one figure may be amended. The figure or figure number of the amended drawing(s) must not be labeled as “amended.” If the changes to the drawing figure(s) are not accepted by the examiner, applicant will be notified of any required corrective action in the next Office action. No further drawing submission will be required, unless applicant is notified.
Identifying indicia, if provided, should include the title of the invention, inventor’s name, and application number, or docket number (if any) if an application number has not been assigned to the application. If this information is provided, it must be placed on the front of each sheet and centered within the top margin.
Annotated Drawing Sheets
A marked-up copy of any amended drawing figure, including annotations indicating the changes made, may be submitted or required by the examiner. The annotated drawing sheets must be clearly labeled as “Annotated Marked-up Drawings” and accompany the replacement sheets.
Timing of Corrections
Applicant is required to submit acceptable corrected drawings within the time period set in the Office action. See 37 CFR 1.85(a). Failure to take corrective action within the set period will result in ABANDONMENT of the application.
If corrected drawings are required in a Notice of Allowability (PTOL-37), the new drawings MUST be filed within the THREE MONTH shortened statutory period set for reply in the “Notice of Allowability.” Extensions of time may NOT be obtained under the provisions of 37 CFR 1.136 for filing the corrected drawings after the mailing of a Notice of Allowability.
Specification
The specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant's cooperation is requested in correcting any errors of which applicant may become aware in the specification.
The Abstract of the Disclosure is objected to because:
a. the recitation of "The present invention provides” in line 1 and “provided in the present application” are improper implied phrases. The language of the abstract should be clear and concise and should not repeat information given in the title. The abstract should avoid using phrases which can be implied, such as, "This disclosure concerns," "The disclosure defined by this invention," "This disclosure describes," and the like - per MPEP 608.01(I)(C).
Correction is required. See MPEP § 608.01(b).
The title is acceptable.
Claim Rejections - 35 U.S.C. § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
The inquiry during examination is patentability of the invention as the inventor or a joint inventor regards such invention. If the claims do not particularly point out and distinctly claim that which the inventor or a joint inventor regards as his or her invention, the appropriate action by the examiner is to reject the claims under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. In re Zletz, 893 F.2d 319, 13 USPQ2d 1320 (Fed. Cir. 1989).
Claims 3, 4, and 11 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or joint inventor regards as the invention.
Claims 3 and 4: “the deflection direction” lacks antecedent basis.
Claim 11: “the distribution density” lacks antecedent basis.
Claim 11: Words of degree often cause definiteness problems. See Seatlle Box Co. v Industrial Crating & Packing, Inc., 731 F.2d 818, 826, 221 USPQ 568, 573 (Fed. Cir. 1984). Whenever a word of degree impacts the interpretation of a claim, the specification must provide some standard for measuring that degree. One of ordinary skill in the art must be able to understand what is claimed when the claim is read in light of the specification. Id. In the present case, there is no standard for measuring what is a minor or significant amount of LCTs. Therefore, one of ordinary skill in the art would be unable to determine what level of LCT is excluded by the claims.
Accordingly, the claim terms “high” and “low” in claim 11 are relative terms which render the claim wholly indefinite. The terms "high” and “low” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim Rejections - 35 USC § 102
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 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 terms used in this respect are given their broadest reasonable interpretation in their ordinary usage in context as they would be understood by one of ordinary skill in the art, in light of the written description in the specification, including the drawings, without reading into the claim any disclosed limitation or particular embodiment. See, e.g., In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000); In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989).
The Examiner interprets claims as broadly as reasonable in view of the specification, but does not read limitations from the specification into a claim. Elekta Instr. S.A.v.O.U.R. Sci. Int'l, Inc., 214 F.3d 1302, 1307 (Fed. Cir. 2000). "A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference." Verdegaal Bros. Inc. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987).
The express, implicit, and inherent disclosures of a prior art reference may be relied upon in the rejection of claims under 35 U.S.C. 102 or 103. "The inherent teaching of a prior art reference, a question of fact, arises both in the context of anticipation and obviousness." In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995) (affirmed a 35 U.S.C. 103 rejection based in part on inherent disclosure in one of the references). See also In re Grasselli, 713 F.2d 731, 739, 218 USPQ 769, 775 (Fed. Cir. 1983). See MPEP 2112.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless—
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by HAGER (US 3194540) that discloses in Figures 1-2 (reproduced below) an impeller assembly (11), comprising a stirring impeller (18), the stirring impeller (18) comprising a rotating shaft (17) and impeller blades (19) arranged around the rotating shaft along a circumferential direction; and a surrounding plate (24), the surrounding plate being arranged around an outer periphery of the stirring impeller, and the surrounding plate being provided with a plurality of discharge holes (27), the surrounding plate further including a plurality of dispersing teeth (see Figure 2), the plurality of dispersing teeth being arranged facing a rotation direction of the blades, and the plurality of dispersing teeth being distributed around a periphery of the plurality of discharge holes. The recited plurality of dispersing teeth being arranged facing a rotation direction of the blades and the plurality of dispersing teeth being distributed around a periphery of the plurality of discharge holes is to be construed in view of instant Figure 3, where it is depicted that the dispersing teeth form the discharge holes, which is also disclosed in HAGER; grid plate 23 with grid bars (Figures 1-2); the impeller blades 19 are deflected blades that have surfaces reversely directed to the rotation direction 47 of the impeller 18 (i.e., rear trailing surfaces with respect to direction 47); the recited deflection angle of claim 4 seen in Figures 1-2; the features of claims 5-8 including a fixed inner plate (24), a rotating middle plate (33) connected to the shaft, and a further static plate (28) as seen in Figures 1-2; parallel teeth (Figure 2) as per the subject matter of claim 10; and their density per the subject matter of claim 11 (Figure 2).
Claim 13: HAGER further discloses mixing and stirring equipment that comprises a mixing tank (12, 14, 15), wherein a material mixing chamber and a discharge port (45) for the mixed substances are formed inside the mixing tank; and the impeller assembly as outlined above, wherein the stirring impeller of the impeller assembly is rotatably arranged in the material mixing chamber, and the surrounding plate of the impeller assembly is arranged at the discharge port (Figure 2).
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Claim Rejections - 35 USC § 103
The terms used in this respect are given their broadest reasonable interpretation in their ordinary usage in context as they would be understood by one of ordinary skill in the art, in light of the written description in the specification, including the drawings, without reading into the claim any disclosed limitation or particular embodiment. See, e.g., In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000); In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989). The Examiner interprets claims as broadly as reasonable in view of the specification, but does not read limitations from the specification into a claim. Elekta Instr. S.A.v.O.U.R. Sci. Int'l, Inc., 214 F.3d 1302, 1307 (Fed. Cir. 2000).
To determine whether subject matter would have been obvious, "the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved .... Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented." Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966).
The Supreme Court has noted:
Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue.
KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1740-41 (2007). "Under the correct analysis, any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed." (Id. at 1742).
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
The instant office action conforms to the policies articulated in the Federal Register notice titled “Updated Guidance for Making a Proper Determination of Obviousness” at 89 Fed. Reg. 14449, February 27, 2024, wherein the Supreme Court’s directive to employ a flexible approach to understanding the scope of prior art is reflected in the frequently quoted sentence, ‘‘A person of ordinary skill is also a person of ordinary creativity, not an automaton.’’ Id. at 421, 127 S. Ct. at 1742. In this section of the KSR decision, the Supreme Court instructed the Federal Circuit that persons having ordinary skill in the art (PHOSITAs) also have common sense, which may be used to glean suggestions from the prior art that go beyond the primary purpose for which that prior art was produced. Id. at 421–22, 127 S. Ct. at 1742. Thus, the Supreme Court taught that a proper understanding of the prior art extends to all that the art reasonably suggests, and is not limited to its articulated teachings regarding how to solve the particular technological problem with which the art was primarily concerned. Id. at 418, 127 S. Ct. at 1741 (‘‘As our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.’’). ‘‘The obviousness analysis cannot be confined . . . by overemphasis on the importance of published articles and the explicit content of issued patents.’’ Id. at 419, 127 S. Ct. at 1741. Federal Circuit case law since KSR follows the mandate of the Supreme Court to understand the prior art— including combinations of the prior art—in a flexible manner that credits the common sense and common knowledge of a PHOSITA. The Federal Circuit has made it clear that a narrow or rigid reading of prior art that does not recognize reasonable inferences that a PHOSITA would have drawn is inappropriate. An argument that the prior art lacks a specific teaching will not be sufficient to overcome an obviousness rejection when the allegedly missing teaching would have been understood by a PHOSITA—by way of common sense, common knowledge generally, or common knowledge in the relevant art. For example, in Randall Mfg. v. Rea, 733 F.3d 1355 (Fed. Cir. 2013), the Federal Circuit vacated a determination of nonobviousness by the Patent Trial and Appeal Board (PTAB or Board) because it had not properly considered a PHOSITA’s perspective on the prior art. Id. at 1364. The Randall court recalled KSR’s criticism of an overly rigid approach to obviousness that has ‘‘little recourse to the knowledge, creativity, and common sense that an ordinarily skilled artisan would have brought to bear when considering combinations or modifications.’’ Id. at 1362, citing KSR, 550 U.S. at 415–22, 127 S. Ct. at 1727. In reaching its decision to vacate, the Federal Circuit stated that by ignoring evidence showing ‘‘the knowledge and perspective of one of ordinary skill in the art, the Board failed to account for critical background information that could easily explain why an ordinarily skilled artisan would have been motivated to combine or modify the cited references to arrive at the claimed inventions.’’ Id.
From Norgren Inc. v. Int’l Trade Comm’n, 699 F.3d 1317, 1322 (Fed. Cir. 2012) (‘‘A flexible teaching, suggestion, or motivation test can be useful to prevent hindsight when determining whether a combination of elements known in the art would have been obvious.’’); Outdry Techs. Corp. v. Geox S.p.A., 859 F.3d 1364, 1370–71 (Fed. Cir. 2017) (‘‘Any motivation to combine references, whether articulated in the references themselves or supported by evidence of the knowledge of a skilled artisan, is sufficient to combine those references to arrive at the claimed process.’’). In keeping with this flexible approach to providing a rationale for obviousness, the Federal Circuit has echoed KSR in identifying numerous possible sources that may, either implicitly or explicitly, provide reasons to combine or modify the prior art to determine that a claimed invention would have been obvious. These include ‘‘market forces; design incentives; the ‘interrelated teachings of multiple patents’; ‘any need or problem known in the field of endeavor at the time of invention and addressed by the patent’; and the background knowledge, creativity, and common sense of the person of ordinary skill.’’ Plantronics, Inc. v. Aliph, Inc., 724 F.3d 1343, 1354 (Fed. Cir. 2013), quoting KSR, 550 U.S. at 418–21, 127 S. Ct. at 1741–42.
The Federal Circuit has also clarified that a proposed reason to combine the teachings of prior art disclosures may be proper, even when the problem addressed by the combination might have been more advantageously addressed in another way. PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1197–98 (Fed. Cir. 2014) (‘‘Our precedent, however, does not require that the motivation be the best option, only that it be a suitable option from which the prior art did not teach away.’’) (emphasis in original). One aspect of the flexible approach to explaining a reason to modify the prior art is demonstrated in the Federal Circuit’s decision in Intel Corp. v. Qualcomm Inc., 21 F.4th 784, 796 (Fed. Cir. 2021), which confirms that a proposed reason is not insufficient simply because it has broad applicability. Patent challenger Intel had argued in an inter partes review before the Board that some of Qualcomm’s claims were unpatentable because a PHOSITA would have been able to modify the prior art, with a reasonable expectation of success, for the purpose of increasing energy efficiency. Id. at 796–97. The Federal Circuit explained that ‘‘[s]uch a rationale is not inherently suspect merely because it’s generic in the sense of having broad applicability or appeal.’’ Id. The Federal Circuit further pointed out its pre-KSR holding ‘‘that because such improvements are ‘technology independent,’ ‘universal,’ and ‘even common-sensical,’ ‘there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves.’ ’’ Id., quoting DyStar Textilfarben GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) (emphasis added by the Federal Circuit in Intel). When formulating an obviousness rejection, the PTO may use any clearly articulated line of reasoning that would have allowed a PHOSITA to draw the conclusion that a claimed invention would have been obvious in view of the facts. MPEP 2143, subsection I, and MPEP 2144. Acknowledging that, in view of KSR, there are ‘‘many potential rationales that could make a modification or combination of prior art references obvious to a skilled artisan,’’ the Federal Circuit has also pointed to MPEP 2143, which provides several examples of rationales gleaned from KSR. Unwired Planet, 841 F.3d at 1003.
When considering the prior art in its entirety, note Allied Erecting v. Genesis Attachments, 825 F.3d 1373, 1381, 119 USPQ2d 1132, 1138 (Fed. Cir. 2016) ("Although modification of the movable blades may impede the quick change functionality disclosed by Caterpillar, ‘[a] given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate motivation to combine.’" (quoting Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165, 77 USPQ2d 1865, 1870 (Fed Cir. 2006) (citation omitted))). However, "the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004).
Claims 9 is rejected under 35 U.S.C. 103 as being unpatentable over HAGER.
Claim 9: HAGER shows the recited gaps of claim 9 in Figures 1-2 but not the specific size of the gap. With respect to the limitation of the parameter regarding the size of the gap which is present in the claim at issue, the examiner has found that the specification contained no disclosure of any unexpected results arising therefrom, and that as such the parameter is arbitrary and therefore obvious. Such unsupported limitations cannot be a basis for patentability, since where patentability is said to be based upon particular chosen parameters or upon another variable recited in a claim, the applicant must show that the chosen dimensions are critical. In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990) and MPEP 2144.05(III).
With respect to the limitation of the size of the gap, it would have been obvious to one of ordinary skill in the art to have provided the apparatus defined by the disclosure of HAGER with the configurations and/or dimensions recited in the claims which are considered at most optimum choices, lacking any disclosed criticality.
Applicant has the burden of proving such criticality. In re Swenson et al., 56 USPQ 372; In re Scherl, 70 USPQ 204. However, even though applicant's modification may result in great improvement and utility over the prior art, it may still not be patentable if the modification was within the capabilities of one skilled in the art. In re Sola, 25 USPQ 433; In re Normannet et al., 66 USPQ 308; In re Irmscher, 66 USPQ 314. More particularly, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); In re Swain et al., 70 USPQ 412; Minnesota Mining and Mfg. Co. v. Coe, 38 USPQ 213; Allen et al. v. Coe, 57 USPQ 136; MPEP 2144.05(II)(A).
No probative evidence is of record to demonstrate that the dimensions and/or other variables of the invention are significant or are anything more than one of numerous dimensions a person of ordinary skill in the art would find obvious for purposes of merely changing the configurations and/or dimensions to obtain different results. Graham v. John Deere Co., 148 USPQ 459.
Accordingly, the examiner argues that these parameters are rather arbitrary and thus obvious over the prior art per MPEP 2144.05(II)(III).
Furthermore, the Federal Circuit has explained that a reason to optimize prior art parameters may be found in a PHOSITA’s desire to improve on the prior art. In re Ethicon, Inc., 844 F.3d 1344, 1351 (Fed. Cir. 2017) (‘‘The normal desire of artisans to improve upon what is already generally known can provide the motivation to optimize variables such as the percentage of a known polymer for use in a known device.’’).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over HAGER in view of GRIGGS (US 5957122).
Claim 12: HAGER does not disclose the recited aluminum alloy, however, GRIGGS discloses a mixer with an impeller 12 driven via a shaft 14 within a housing 16. The rotor 12 is fixedly attached to the shaft 14, and typically may be formed of aluminum, steel, iron or other metal or alloy as appropriate.
Thus, it would have been obvious to one having ordinary skill in the art, at the time applicant's invention was made, to have formed any of the components of the mixer of HAGER from an aluminum alloy as disclosed in GRIGGS since it has been held to be within the general skill of a worker in the art to select such a well-known and typically utilized material in mixers on the basis of its suitability for the intended use as a matter of obvious design choice, as exemplified by GRIGGS. In re Leshin, 125 USPQ 416; Sinclair & Carroll Co., Inc. v. Interchemical Corp., 65 USPQ 297 (1945).
Furthermore, in view of the fact that the use of aluminum alloy vis-`a-vis any other common construction material typically employed in mixers solves no stated problem insofar as the record is concerned and the conclusion of obviousness can be made from the common knowledge and common sense of one of ordinary skill in the art (In re Bozek, 416 F.2d 1385, 163 USPQ 545 (CCPA 1969)), it would have been obvious to one of ordinary skill in the art to have formed any of the components of the prior art mixer of HAGER from a well-known construction material such as aluminum alloy. In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975).
It is observed that artisans must be presumed to know something about the art apart from what the references disclose (see In re Jacoby, 309 F.2d 513, 135 USPQ 317 (CCPA 1962)). Moreover, skill is presumed on the part of those practicing in the art. See In re Sovish, 769 F.2d 738, 226 USPQ 771 (Fed. Cir. 1985). Therefore, it is concluded that the selection of a well-known material in the art such as aluminum alloy would have been obvious to one of ordinary skill in this art, if for no other reason than to achieve the advantage of using a more modern or stronger material or a lower cost or more easily fabricated material.
This exemplifies the Supreme Court's analysis in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 [82 USPQ2d 1385] (2007). “When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” Id. at 417. As further emphasis on the substitution of one material for another, there is the venerable case of Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248 (1851), cited approvingly in KSR Int'l Co. v. Teleflex Inc., supra, 550 U.S. at 406, 415, which denied patentability to an invention consisting of the substitution of a clay or porcelain knob for a metallic or wood knob in a doorknob (the doorknob itself, as distinct from the knob on the end of it, being an assemblage of knob, shank, and spindle). Other substitution cases in which patentability was denied on grounds of obviousness include Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535–38 [218 USPQ 871] (Fed. Cir. 1983); Brunswick Corp. v. Champion Spark Plug Co., 689 F.2d 740, 749-50 [216 USPQ 1] (7th Cir. 1982), and Lyle/Carlstrom Associates, Inc. v. Manhattan Store Interiors, Inc., 635 F.Supp. 1371, 1381-83 [230 USPQ 278] (E.D.N.Y. 1986), aff'd, 824 F.2d 977 (Fed. Cir. 1987).
Among the inventions that the law deems obvious are those modest, routine, everyday, incremental improvements of an existing product or process that confer commercial value (otherwise they would not be undertaken) but do not involve sufficient inventiveness to merit patent protection. This class of inventions is well illustrated by efforts at routine experimentation with different standard grades of a material used in a product—standard in the sense that their properties, composition, and method of creation are well known, making successful results of the experimentation predictable. Ritchie v. Vast Resources Inc., 90 USPQ2d 1668 (Fed. Cir. 2009). Accordingly, it is well settled that a predictable substitution of one material for another is well within the grasp of 35 U.S.C 103(a) and common sense. A rejection to overcome an obviousness rejection will not be withdrawn when the allegedly missing teaching of the rejection would have been understood by a PHOSITA—by way of common sense, common knowledge generally, or common knowledge in the relevant art. Randall Mfg. v. Rea, supra. Choosing an appropriate material for a specific application or structural member can unquestionably be determined by a PHOSITA by innate common sense, the common knowledge generally, or the common knowledge in the relevant art.
Allowable Subject Matter
No claims stand allowed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The cited prior art discloses rotor/stator mixers analogous to the disclosed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES COOLEY whose telephone number is (571) 272-1139. The examiner can normally be reached M-F 9:30 AM - 6:00 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. New USPTO policy limits time for interviews to one per new application or RCE (utility), when during prosecution, the examiner conducts an interview. More than one interview and additional time will only be granted if it is ensured “that the interviews are being used to advance prosecution”.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CLAIRE X. WANG can be reached at 571-272-1700. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/CHARLES COOLEY/
Examiner, Art Unit 1774
DATED: 3 AUG 2026
Prosecution Insights