DETAILED ACTION
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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 12,303,926. Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims fall within the scope of and therefore anticipate the pending claims (using “at least one feeder” instead of a first and second feeder).
The examiner notes that usually double patenting of Divisional applications is prohibited MPEP 804.01. However, 804.01(B) states that there is an exception when the claims in the divisional application are not consonant with the restriction requirement made in the parent. In this instance, the parent application had a restriction requirement between method and apparatus where applicant elected the apparatus. Accordingly, a divisional application directed to the method would subsequently avoid double patenting issues. However, the current claims are directed to a broader claim of the allowed apparatus. In fact, the parent case had a broader apparatus claim that was rejected and canceled to put the application in condition for allowance.
Claim Rejections - 35 USC § 103
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claim(s) 1-5, 9 and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over TILLERY et al. (US 5,544,811) in view of ORISAKA et al. (US 2015/0255778), ARNOLDY (US 3,735,087) and BELASHCHENCKO et al. (US 5,932,293).
Regarding claims 1-3, 5, 9, and 10,
TILLERY teaches a flame spray system for spraying powder through a flame abstract. The system in Fig. 5A includes a powder barrel 112 that feeds to a metering system 140. As shown in Figs. 4A-B the metering mechanism 147 feeds powder to a tube 127 which guides the powder to be mixed in passage 143 (a mixing hopper - for mixing air and powder). In Fig. 4B the air entry hole 134 enters and mixes with the powder before going to the air/powder exit hole 135. The mixed powder is then sent to the spray gun (powder nozzle) 400.
The reference does not teach an electro-mechanical feeder having a metering wheel. However, ORISAKA teaches a rotor (wheel) for supplying a fixed amount of powder at high accuracy (metering) abstract. At the time of filing the invention it would have been prima facie obvious to one of ordinary skill in the art to use the rotor of ORISAKA to precisely control the amount of powder being fed to the mixer (hopper) and ultimately to the sprayer. ORISAKA does not expressly teach the rotor is operated by an electric motor (an electro-mechanical system). However, metering wheels are necessarily driven by a motor and ARNOLDY teaches that electric motors can be used and the speed can be easily controlled column 3 lines 5-15. At the time of filing the invention it would have been prima facie obvious to run the rotor of ORISAKA using an electric motor (electro-mechanical) because of the ease of speed control.
TILLERY teaches a flame sprayer with a combustion orifice 462 and gas mixing chamber 460. Accordingly, the combustion occurs in the same area as the powder spray. The reference does not teach providing a separate combustion chamber. However, BELASHCHENCKO teaches a configuration of nozzle in which the combustion chamber leading to a tube and orifice is provided such that the angle of powder injectors can be changed to control the dwell time of powder inside the nozzle which controls temperature column 8 lines 32-45. At the time of filing the invention it would have been prima facie obvious to one of ordinary skill in the art to use a combustion chamber and manipulate the angle of the powder nozzle and combustion port to control the temperature and dwell time of powder being sprayed. As shown in BELASHCHENCKO Fig. 1 the angle of the powder feed 48 and the angle of the combusted gases form an acute angle (juxtaposed and oblique angle).
Regarding claim 4,
The position of the combustion port and powder nozzle in BELASHCHENCKO is considered to be within a “tolerance gap” of any arbitrary size.
Claim(s) 6 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over TILLERY et al. (US 5,544,811) in view of ORISAKA et al. (US 2015/0255778), ARNOLDY (US 3,735,087) and BELASHCHENCKO et al. (US 5,932,293) further in view of BARANOVSKI et al. (US 9,845,206) and WARD et al. (US 3,007,744).
Regarding claim 6 and 11,
TILLERY teaches the air control can include a purge valve 180 that is engaged if pressure is too high column 9 lines 57 to column 10 line 3. The reference does not expressly teach using a purge valve in connection with the feeder because the air pressure is only used to mix the powder material in the mixing hopper (after the feeder). However, when providing pressurized gas to a powder delivery system, BARANOVSKI teaches including a pressure equalizing tube 62 to the powder tank to prevent backflow column 3 lines 37-54. At the time of filing the invention it would have been prima facie obvious to one of ordinary skill in the art to use the pressure equalizing tube of BARANOVSKI to prevent back flow in TILLERY. When using the equalizing tube of BARANOVSKI the pressure relief system used for the pressurized air is incorporated into the feeder system. Alternatively, WARD teaches including a pressure relief valve 62 positioned at the top of the tank (feeder) in Fig. 1. WARD teaches the pressure control can be used to help control the flow of powder column 2 line 70 to column 3 line 65.
Claim(s) 7, 8, 12 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over TILLERY et al. (US 5,544,811) in view of ORISAKA et al. (US 2015/0255778), ARNOLDY (US 3,735,087) and BELASHCHENCKO et al. (US 5,932,293) further in view of ANDERSON et al. (US 2005/0284366).
Regarding claims 7, 8, 12 and 13,
TILLERY teaches a spray gun but does not teach mounting the system to a multi-positional gantry. However, ANDERSON teaches that a spray gun mounting system 180 can be used with a spray gun system [0074] including flame-spray [0035]. When paired with a control system the spray gun can be programmed and precisely controlled [0034]-[0035]. At the time of filing the invention it would have been prima facie obvious to one of ordinary skill in the art to use a mounting system and automated control of the spray gun to obtain reproducible coatings. The spray gun is considered part of the flame spray deposition system. Therefore when the spray gun is mounted on the gantry, the flame spray deposition system is also mounted on the gantry.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AUSTIN MURATA whose telephone number is (571)270-5596. The examiner can normally be reached M-F 8:30-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, MICHAEL CLEVELAND can be reached at 571272-1418. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AUSTIN MURATA/Primary Examiner, Art Unit 1712