Highland Fluid Technology, Inc.

Patent Trials and Appeals Board

Oct 1, 2021

2020006531 (P.T.A.B. Oct. 1, 2021)

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.
15/221,878 07/28/2016 Kevin W. Smith 079214-000016 8622
9961 7590 10/01/2021
Vorys, Sater, Seymour and Pease LLP
500 Grant Street
Suite 4900
PITTSBURGH, PA 15219-2502
EXAMINER
INSLER, ELIZABETH
ART UNIT PAPER NUMBER
1774
NOTIFICATION DATE DELIVERY MODE
10/01/2021 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
vorys_docketing@cardinal-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN W. SMITH
and JEFF FAIR
Appeal 2020-006531
Application 15/221,878
Technology Center 1700
Before ADRIENE LEPIANE HANLON, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s November 6, 2019 decision to finally reject claims 41–462
(“Final Act.”). We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Highland Fluid Technology, Inc.
(Appeal Br. 3).
2 Claims 21–34, 36–37 and 39 have been withdrawn from consideration.
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CLAIMED SUBJECT MATTER
Appellant’s disclosure is directed to an improved cavitation mixing
and heating device and an associated method (Abstract). The device
employs an inlet directed toward the vertex of a conical or similar flow-
directing element (id.). The flow patterns of the fluid material to be mixed
and heated are designed to preheat, spread, and create turbulent flow mixing
of the fluid before it enters the cavitation zone, using heat generated in the
cavitation zone that is conducted through the body of the cavitation rotor
(id.). Independent claims 41 and 44, reproduced below from the Claims
Appendix, are illustrative of the claimed subject matter:
41. Method of heating and mixing a fluid comprising (a)
passing said fluid onto a rotating tapered flow director, said
tapered flow director comprising a central vertex, a tapered
surface, and a generally circular peripheral base, so that said
fluid is spread from said vertex onto said tapered surface and
further spread uniformly on said tapered surface to said
peripheral base (b) passing said fluid from said peripheral base
directly and peripherally into a cavitation zone between a
rotating cylindrical surface containing cavities and an interior
surface of a housing.
44. Method of heating and mixing a fluid in a cavitation
device, said cavitation device comprising (i) a cylindrical rotor
having a cylindrical surface and a side, said cylindrical rotor
having a tapered flow director fixed on said side and a plurality
of dead-end cavities on said cylindrical surface, said tapered
flow director including a central vertex, a tapered surface
contiguous to said vertex, and a generally circular peripheral
base contiguous to said tapered surface and terminating
contiguous to or near said cylindrical surface, and (ii) a housing
including an interior cylindrical surface substantially concentric
with said cylindrical surface of said cylindrical rotor and
forming a cavitation zone therewith, said method comprising
(a) rotating said cylindrical rotor, (b) passing said fluid onto and
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in contact with said vertex of said tapered flow director, (c)
spreading said fluid from said vertex onto and in contact with
said tapered surface of said tapered flow director, (d) further
spreading said fluid on and in contact with said tapered surface
of said tapered flow director, (e) passing said fluid from said
tapered surface of said tapered flow director onto and in contact
with said generally circular peripheral base of said tapered flow
director, (f) further passing said fluid from said generally
circular peripheral base into said cavitation zone, and (g)
generating cavitation in said fluid in said cavitation zone.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Garrett, III (“Garrett”) US 6,974,305 B2 December 13, 2005
Ji KR 101237143 April 25, 2018
REJECTIONS
1. Claims 41–46 are rejected under 35 U.S.C. §112(a) as failing to
comply with the written description requirement.
2. Claims 41, 42, 44, and 45 are rejected under 35 U.S.C. § 102(a)(1)
as anticipated by Garrett.
3. Claims 43 and 46 are rejected under 35 U.S.C. § 103 as
unpatentable over Garrett in view of Ji.
OPINION
Written Description. The Examiner determines that claims 41–46 do
not comply with § 112(a)’s written description requirement because the
application does not indicate that the inventors were in possession of the
following limitation at the time the application was filed: “said fluid is . . .
further spread uniformly on said tapered surface to said peripheral base.”
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The Examiner finds that the Specification only teaches that the fluid strikes
the vertex and then is spread in all directions in distribution space 10
between disc 3 and rotor 6, as shown in FIG. 13 (Final Act. 2–3):

Figure 13 shows the combination of
the axially oriented inlet, flow director,
and shaft with the addition of an axially
oriented disc according to Appellant’s disclosure.

The Examiner further finds that the Specification does not describe
that the fluid is spread uniformly on the tapered surface of the rotor (id.).
The purpose of the written description requirement is to convey, with
reasonable clarity, to those skilled in the art that applicant was in possession
of the claimed invention as of the filing date sought. See Vas-Cath, Inc. v.
Mahurkar, 935 F.2d 1555, 1563-64 (Fed. Cir. 1991). “[T]he written
description requirement is satisfied by the patentee’s disclosure of ‘such
descriptive means as words, structures, figures, diagrams, formulas, etc., that
fully set forth the claimed invention.’” Enzo Biochem, Inc. v. Gen-Probe
Inc., 323 F.3d 956, 969 (Fed. Cir. 2002) (quoting Lockwood v. Am. Airlines,
Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997)). “In deciding the issue [of
written description], the specification as a whole must be considered.” In re
Wright, 866 F.2d 422, 425 (Fed. Cir. 1989).
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“The claimed subject matter need not be described ‘in haec verba’ in
the original specification in order to satisfy the written description
requirement.” In re Wright, 866 F.2d 422, 425 (Fed. Cir. 1989) (emphasis
added). Rather, “[t]he specification as originally filed must convey clearly
to those skilled in the art the information that the applicant has invented the
specific subject matter later claimed.” Id. at 424 (quoting In re Smith, 481
F.2d 910, 914 (CCPA 1973)).
In this instance, Appellant persuasively argues the overall disclosure
is sufficient to establish that one of skill in the art would have understood
that Appellant was in possession of the invention. In particular, as argued by
Appellant, paragraph 61 of the Specification states that in the embodiment
exemplified by Figure 8, a thin film is not formed on a spinning disk, as the
entire volume within housing 53 is filled with moving fluid:

Figure 8 is a partly sectional view of
Appellant’s cavitation device having a flow
director oriented toward the inlet.

If the “entire volume” is filled with fluid, then a person of skill in the
art would have understood that fluid is “spread uniformly” on the tapered
surface 57. That is, if the entire volume is filled, then the fluid is uniformly
on the surface. Moreover, if the entire volume is filled, then the fluid is
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necessarily on the surface 57. In addition, paragraph 67 of the Specification
states that in connection with the embodiment of Figure 12, “as with the
other shapes of flow directors illustrated and described herein…the fluid is
spread more or less evenly over the flow director,” and paragraph 61 states
“the spreading effect caused by the spinning flow director is quite uniform in
both the dispersion of the fluid to the periphery of the rotor 51…”
In addition, Figure 9 shows how the fluid spreads uniformly (evenly)
over the flow director.

Figure 9 is a frontal view of the cavitation rotor
with a flow director, showing the resulting flow
pattern of incoming fluid.

The Examiner contends that filling the entire volume is not spreading
the volume uniformly on the surface, as some of the fluid is not in contact
with the surface (Ans. 7–8). However, we disagree, as the claim language
does not require that every portion of the fluid be in contact with the surface.
Thus, we find that the preponderance of the evidence of record does
not support the Examiner’s determination that claims 41–46 do not meet
written description requirement of § 112(a).
Anticipation of claims 41, 42, 44, and 45. “A prior art reference
anticipates a patent claim under 35 U.S.C. § 102(b) if it discloses every
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claim limitation.” In re Montgomery, 677 F.3d 1375, 1379 (Fed. Cir. 2012)
(referring to prior version of statute; citing Verizon Servs. Corp. v. Cox
Fibernet Va., Inc., 602 F.3d 1325, 1336–37 (Fed. Cir. 2010)).
In this instance, we find that Garrett’s system, in which fluid flows
down the sloped sides of transducer portion 60, is divided into different
streams, and then passes through passages 36 to the periphery of rotor 14A,
as shown in Garrett’s Fig. 3A, functions differently than the system
disclosed by Appellant (where the fluid flows across the surface of the
cavitation rotor, and then over the edge to the cavitation zone). The issue for
this appeal, however, is whether those differences are reflected in the
specific language of independent claims 41 and 44.
Claim 41. Claim 41 recites that a tapered flow director includes “a
central vertex, a tapered surface and a generally circular peripheral base.”
The fluid passes “directly and peripherally” from the peripheral base “into a
cavitation zone.” The key issue, therefore, is the construction of the phrase
“passing said fluid from said peripheral base directly and peripherally into a
cavitation zone,” and whether that language requires that the fluid flow
across the surface of a cavitation rotor.
It is well established that “the PTO must give claims their broadest
reasonable construction consistent with the specification. . . . Therefore, we
look to the specification to see if it provides a definition for claim terms, but
otherwise apply a broad interpretation.” In re ICON Health & Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation omitted).
In this instance, the Specification explicitly states that the tapered
flow director is different from the cavitation rotor (Spec. ¶ 55 (“The flow
path of the materials to be mixed (or otherwise treated) is indicated by the
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arrows, beginning at inlet 55, continuing (in this view) upwardly and
downwardly as the spinning rotor 51 urges the material to the peripheries of
flow director 57 and cavitation rotor 51”); ¶ 60 (“because the flow director
57 is spinning along with the cavitation rotor 51, [fluid] is spread towards its
lower regions (that is, the flared or asymptotic base edge of the conical or
tapering shape) and onto the surface of the body of the rotor 51 before it
reaches the cavitation gap 60.”)).
Thus, the claim language does not explicitly require that the fluid flow
across the cavitation rotor. However, Appellant argues that the claim
language that the fluid passes “from [the] peripheral base directly and
peripherally into a cavitation zone” excludes the flow path described by
Garrett (Appeal Br. 11). Appellant’s argument is persuasive. In particular,
we agree with Appellant that the claim limitation that the fluid pass
“peripherally” into the cavitation zone excludes Garrett’s arrangement,
where the fluid is divided into separate streams which are individually
directed towards the cavitation zone.
The meaning of “peripherally” as used in this section of the claim is
not specifically defined in the Specification. Nevertheless, the description
makes clear that the fluid covers the tapered surface uniformly and then
passes “to the periphery of rotor 51 for entry into cavitation zone around the
entire periphery of rotor 51” (Spec. ¶ 67, emphasis added). Thus, we
determine the proper construction of the limitation that the fluid pass
“peripherally” into the cavitation zone is that the fluid must pass into the
cavitation zone around its entire perimeter. By contrast, Garrett’s system
funnels the fluid into the cavitation zone using passages 36, and thus not
around the entire perimeter of the cavitation zone.
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Accordingly, Appellant has demonstrated reversible error the
anticipation rejection of claim 44. We also reverse the anticipation rejection
of dependent claim 42, and the obviousness rejection of claim 43.3
Claim 44. Claim 44 recites, inter alia, a cavitation device which
includes a tapered flow director which has a generally circular peripheral
base which terminates “contiguous to or near [the] cylindrical surface” (i.e.
the surface of the cavitation rotor). However, Garrett’s inducer 60 is located
in center void 28 (Garrett 8:21–25), as shown in Garrett’s Figure 3A below:

FIG. 3A is a perspective view with a partial cut
away of a rotor of Garrett’s system.

Thus, as can be seen from Fig. 3A, Garrett’s inducer 60 (which
corresponds to the claimed tapered flow director) does not have a circular

3 The Examiner has not made additional findings in connection with the
rejection of claim 43 that would cure the underlying deficiencies of the
anticipation rejection of independent 41.
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peripheral base which is “contiguous to or near the cylindrical surface,”
which in Garrett’s system is exterior surface 26 as shown in Fig. 3B above.4
Therefore, we reverse the anticipation rejection of claim 44, and the
obviousness rejection of claim 46.
CONCLUSION
The Examiner’s rejections are reversed.
More specifically,
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
41–46 112(a) Written description 41–46
41, 42, 44,
45
102(a)(1) Garrett 41, 42, 44,
45
43, 46 103 Garrett, Ji 43, 46
Overall
Outcome
41–46
REVERSED

4 According to Appellant, claim 44 “stresses the continuity of the tapered
surface on the flow director 57, 90, assuring that the fluid is spread over its
entire tapered surface and is guided to the perimeter of the rotor 6, 51.”
Appeal Br. 4 (emphasis added). Against that backdrop, we find that
Garrett’s inducer 60 is not “near” Garrett’s cylindrical surface 26.