Before
STEVEN D.A. McCARTHY, DANIEL S. SONG and BRETT C. MARTIN
Administrative Patent Judges.
SONG
Administrative Patent Judge.
Claims
1-30 of the '157 patent are subject to reexamination and
stand rejected (Right of Appeal Notice[3] (hereinafter
"RAN") 1). The '157 patent issued with claims 1
and 2, and claims 3-30 were newly added during the
reexamination. The Patent Owner appeals under 35 U.S.C
§§ 134(b) and 315 from the Examiner's
rejections with respect to all of the rejected claims (App.
Br. 3). In addition to its Appeal Brief, the Patent Owner
relies on its Rebuttal Brief (hereinafter "Reb.
Br.") in support of patentability. The Requester relies
on its Respondent Brief (hereinafter "Resp. Br.")
in support of the Examiner's rejections. We have
jurisdiction under 35 U.S.C. §§ 134(b) and 315.
We
AFFIRM.
The
'157 patent is directed to a method for making snow
(Abstract). Independent claim 1 is illustrative and reads as
follows (App'x A):
1. (Amended) A method for making snow, the method comprising:
providing a plurality of air discharge nozzles and a
plurality of water discharge nozzles mounted on a
discharge unit of a tower snow gun; and
supplying pressurized water and pressurized air to at
least one inlet of a control mechanism through at least one
conduit extending from a bottom end of the tower snow gun and
connecting the control mechanism to a supply of the
pressurized air and a supply of the pressurized water;
controlling a ratio of water to air discharged from the
discharge unit by selectively controlling discharge [of a
supply] the of pressurized water and [a supply of]
the pressurized air from the plurality of discharge
nozzles by selecting at least one discharge nozzle from the
plurality of discharge nozzles, comprising:
opening at least one first outlet of a plurality of outlets
of [a] the control mechanism;
closing at least one second outlet of the plurality of
outlets, the at least one second outlet located between
the top end of the gun and the bottom end of the gun;
and
whereby at least one of the [supply of] pressurized water and
the [supply of] pressurized air is discharged through the at
least one discharge nozzle of the plurality of discharge
nozzles.
The Examiner rejects various claims as follows:
1. Claims 3-24 rejected as enlarging the scope of the claims
of the '157 patent.[4]
2. Claims 1, 2, 6, 7, 22 and 26 rejected under 35 U.S.C.
§ 112, second paragraph, as indefinite.
3. Claims 1 and 2 under 35 U.S.C. § 103(a) as obvious
over Kircher '061[5] in view of Tropeano[6] as taught by
Kircher 769.[7]
4. Claim 1 under 35 U.S.C. § 103(a) as obvious over
Kircher '769.
5. Claims 3-30 under 35 U.S.C. § 103(a) as obvious over
Kircher '061 in view of Tropeano as taught by Kircher
769.
6. Claims 19-30 under 35 U.S.C. § 102(e) as anticipated
by Kircher 769.
7. Claims 3-30 under 35 U.S.C. § 103(a) as obvious over
Kircher 769.
The
following issues have been raised in the present
appeal.[8]
1.
Whether the Examiner erred in finding that claims 1, 2 and 26
are indefinite.
2.
Whether the Examiner erred in concluding that the claims 1, 2
and 25-30 would have been obvious over Kircher '061 in
view of Tropeano as taught by Kircher 769.
3.
Whether the Examiner erred in concluding that claims 1 and
25-30 would have been obvious over Kircher 769.
4.
Whether the Examiner erred in finding claims 25-30 are
anticipated by Kircher 769.
The
record supports the following findings of fact (FF) by a
preponderance of the evidence. 1. Kircher'061:
A. Discloses a "method and apparatus for making and
depositing artificial snow, " the apparatus including
annular water manifold 12, which is connected via water line
12a to a source of pressurized water, and plurality of
nozzles 13 supported on water manifold 12, nozzles 13 being
adjustable by throttle valves 14 to provide water spray
(Abst.; col. 3, ll. 28-43; Fig. 2).
B. Discloses that the apparatus also includes annular
compressed-air manifold 15, which is connected via compressed
air line 15a to a source of compressed air, and plurality of
nozzles 16 mounted on and connected to compressed-air
manifold 15, nozzles 16 being adjustable by throttle valves
17 to provide high velocity air stream 19 (col. 3, ll. 44-56;
Fig. 2).
C. Teaches adjusting the ratio of compressed air to water,
stating:
Of course, when conditions are favorable for making
artificial snow, as when the temperature and the humidity are
low, and high pressure air can be shut off or cut down by
reducing the number of nozzles 16 in operation and good
quality snow will still result merely from the mixture of
water spray 18 into the high volume low pressure main air
stream. As conditions worsen for producing artificial snow,
additional air jets 13 can be cut into operation by
manipulation of handle 17' of valve 17 while the
snow-making machine continues in operation.
(Col. 6, ll. 42-53).
D. Teaches, with respect to an alternative embodiment, that:
By adjusting the ratio of the compressed air an [sic, and]
pressurized water fed to seeding and air-spray nozzle 30 and
seeding nozzle 31, optimum results may be readily obtained
under varying ambient conditions.
(Col. 5, ll. 28-31).
E. Discloses an alternative embodiment with three-way valving
arrangement to allow conversion of one or more air nozzles to
water nozzles to provide a "supercharging" feature
described as follows:
Another advantage of the paired three-way valving arrangement
of FIGS. 7-9 is that it will enable high pressure water to be
supplied to any selected number of air nozzles to convert
them to water nozzles when conditions are very favorable to
making snow; i.e., at very low temperature and humidity
conditions when snow can be made with maximum discharge of
water and a minimum amount of dispersion of water particles.
This "supercharging" feature further augments the
flexibility of the apparatus of the invention to meet a wide
variety of snow-making conditions.
This "supercharging" configuration is shown in FIG.
10 wherein water three-way valve 74 remains in the normal
operating position discussed above with reference to FIG. 7
but air three-way valve 70 is rotated 90° clockwise from
the normal operating position so that the high pressure water
in cross-over conduit 72 is fed to nozzle 16 by means of
throats 78 and 80 and so that throat 76 is blocked. In this
configuration water spray 18 exiting nozzle 12 and a
secondary water spray 90 exiting nozzle 16 intersect at a
point remote from the respective nozzles.
(Col. 8, ll. 33-54; see Figs. 7-10).
2. Tropeano:
A. Discloses a method and apparatus for making snow including
snowmaking nozzle apparatus S with plurality of snowmaking
nozzles N1-N4 mounted to manifold 40, the nozzles discharging
compressed air and water mixed together (col. 3, ll. 20-41;
col. 4, ll. 18-24, 54-64; col. 5, ll. 3-8; Figs. 1, 5).
B. Discloses that snowmaking nozzles N1-N4 are provided with
compressed air and pressurized water by compressed air pipes
A and water pipes W connected thereto via various intervening
components including inlets 16, 18, elbows 20, 22, couplings
21, 23, outlets 24, 26, conduit member 25, fitting member 12
with conduit sections 12a, 12b, extensions 40a, 40b,
couplings 43, 44, and tubular connecting parts 50, 52, 54
(col. 3, ll. 20-32; col. 3, 64-col. 4, 1. 36; Figs. 1, 3-5).
C. Discloses that snowmaking nozzle apparatus S is supported
on tower structure T (col. 3, ll. 52-56; Fig. 1).
3. Kircher769:
A. Discloses snow making tower 50 including plurality of
sub-booms 120, 122, 124 having plurality of water spray
atomizing nozzles N1-N3, and air manifold end cap 104 having
plurality of air jet orifices 140, 142, 144 (col. 14, ll.
27-34, 61-66; col. 16, ll. 5-10; Figs. 1, 3-6).
B. Discloses that the teachings in Kircher '061 have been
applied to known prior art tower snow guns, and states:
The foregoing "water supercharging" feature of the
Kircher '061 patent was also subsequently applied to a
rotatable and pivotable (universally manually adjustable)
tower-supported snow gun array in the Troepano et al [sic,
Tropeano et al] U.S. Pat. No. 3, 964, 682. Likewise, in the
Dupre U.S. Pat. No. 5, 004, 151 [, ] this water
"supercharging" principle was applied to the
earlier Dupre '825 patent['s] external mix snow tower
apparatus by providing additional water nozzles oriented to
spray convergently into the ambient plume generated by paired
air and water nozzles arrayed at the upper end of the snow
tower.
(Col. 6, ll. 37-47; see also col. 4, ll. 41-49).
"The
combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield
predictable results." KSR Int'l Co. v. Teleflex
Inc., 550 U.S. 398, 415-16 (2007). Ifatechnique 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. "A person of ordinary skill is also a person of
ordinary creativity, not an automaton." Id. at
421. In addition, in considering the scope and content of the
prior art, "it is proper to take into account not only
specific teachings of the reference but also the inferences
which one skilled in the art would reasonably be expected to
draw therefrom." In re Preda, 401 F.2d 825, 826
(CCPA 1968).
