2021000714 (P.T.A.B. Jul. 8, 2021)

APTAR FRANCE SAS

Patent Trials and Appeals BoardJul 8, 2021

2021000714 (P.T.A.B. Jul. 8, 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. 14/396,186 10/22/2014 Matthieu Baillet Q214890 6043 23373 7590 07/08/2021 SUGHRUE MION, PLLC 2000 PENNSYLVANIA AVENUE, N.W. SUITE 9000 WASHINGTON, DC 20006 EXAMINER RUDDIE, ELLIOT S ART UNIT PAPER NUMBER 3785 NOTIFICATION DATE DELIVERY MODE 07/08/2021 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): PPROCESSING@SUGHRUE.COM USPTO@sughrue.com sughrue@sughrue.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MATTHIEU BAILLET, MAXIME KIRNIAK, and ANTOINE LAUT Appeal 2021-000714 Application 14/396,186 Technology Center 3700 ____________ Before JOHN C. KERINS, JILL D. HILL, and CYNTHIA L. MURPHY, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 12 and 17–25. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 The term “Appellant” is used herein to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies APTAR FRANCE SAS, as the real party in interest. Appeal Br. 3. Appeal 2021-000714 Application 14/396,186 2 THE CLAIMED SUBJECT MATTER Appellant’s invention relates to a fluid dispenser device. Claim 12 is illustrative, and is reproduced below: 12. A dispenser device including a main body, said device including at least one individual reservoir containing a single dose of fluid or powder, opening means being provided for opening one of the at least one individual reservoir each time the device is actuated, an upper body being mounted in stationary manner on said main body, said upper body receiving a mouthpiece that defines a dispenser orifice, said device including an inhalation trigger system that comprises a deformable air chamber that co-operates with said mouthpiece, and a trigger element that co-operates with said air chamber, such that during inhalation through said mouthpiece, said air chamber is deformed and said trigger element actuates said opening means, such that during inhalation through the mouthpiece, a reservoir is opened by said opening means, wherein said mouthpiece is fastened to said upper body, said mouthpiece including a deformable peripheral lip that, after assembly, co-operates in leaktight manner with a beveled peripheral edge of said upper body; wherein said beveled peripheral edge comprises a top edge portion and a bottom edge portion; wherein the slopes of said top and bottom edge portions are different; wherein said top edge portion is radially further in and has a smaller slope compared to said bottom edge portion; and wherein, during assembly, said deformable lip co-operates initially with said top edge portion, so as to guarantee that Appeal 2021-000714 Application 14/396,186 3 said deformable lip is guided over said bottom edge portion where sealing is achieved after assembly, and wherein said deformable lip extends radially outwards when sealing is achieved with said bottom edge portion, such that the deformable lip is radial offset while in a sealing configuration to achieve said seal. THE REJECTIONS The Examiner rejects: (i) claims 12 and 20–25 under 35 U.S.C. § 103 as being unpatentable over Pardonge (WO 2010/142900 A1, published Dec. 16, 2010)2 in view of Pairis (US 2005/0103742 A1, published May 19, 2005); and (ii) claims 17–19 under 35 U.S.C. § 103 as being unpatentable over Pardonge in view of Pairis and Fuchs (US 6,179,164 B1, published Jan. 30, 2001). ANALYSIS Claims 12 and 20–25--§ 103--Pardonge/Pairis The Examiner finds that Pardonge discloses a powder inhalation device with a man body (10), a reservoir (blister strip 30), opening means (80), an upper body (702, Figure 2) mounted in a stationary manner on the main body, an inhalation trigger system (60, 61, 100, 101, and 110) with an air chamber (61) that co-operates with the mouthpiece, and a trigger element (101) that co-operates with the air chamber. Final Act. 4–5. The Examiner further finds that Pardonge discloses the mouthpiece having a peripheral lip, 2 US 2012/0048269 A1, published Mar. 1, 2012 is an English-language version of WO 2010/142900 A1, and is relied upon for translation by the Examiner. Final Act. 4. Herein, reference to the disclosure will be to the English-language document. Appeal 2021-000714 Application 14/396,186 4 the upper body having a beveled peripheral edge with a top edge portion and bottom edge portion with different slopes, and the top edge portion being further radially inward than the bottom edge portion. Id. at 5–6. Examiner- annotated versions of Figures 8 and 4 of Pardonge appear below, identifying the mouthpiece (A) and peripheral lip (B) in the annotated version of Figure 8, and the top edge (B) and bottom edge (A) in the annotated version of Figure 4. Id. Appeal 2021-000714 Application 14/396,186 5 Depicted above are Examiner-annotated versions of Figures 8 and 4 of Pardonge, Figure 8 being a diagrammatic side view of a portion of the inhaler device, and Figure 4 being an exploded diagrammatic view of a portion of the inhaler device. Pardonge ¶¶ 41, 37. Claim 12 also requires that “during assembly, said deformable lip co- operates initially with said top edge portion, so as to guarantee that said deformable lip is guided over said bottom edge portion where sealing is achieved after assembly, and wherein said deformable lip extends radially outwards when sealing is achieved with said bottom edge portion, such that the deformable lip is radial[ly] offset while in a sealing configuration to achieve said seal.” Appeal Br. 17–18 (Claims Appx.). Pairis is cited by the Appeal 2021-000714 Application 14/396,186 6 Examiner as disclosing a construction meeting this claim language. Specifically, the Examiner finds that Pairis discloses a cap (1) with a deformable lip (6) that, during assembly, co-operates with slope (8) of upper body (2), so as to guarantee that the deformable lip is guided over the slope, with sealing being achieved by the deformable lip extending radially outwardly and being radially offset while in a sealing configuration, as seen in Figures 5A and 5B. Final Act. 6. The Examiner concludes that it would have been obvious to modify Pardonge (erroneously referred to as “Pairis”) to include the deformable lip feature cooperating with a sloped surface of an upper body, “for the purpose of maintaining a seal despite relaxation.” Id. at 6–7, citing Pairis ¶ 30). Appellant argues that Pairis does not disclose a two-slope beveled edge with a deformable lip of an upper body that initially deforms when engaging a top edge and the sealing with a bottom edge, as Pairis’ lip (6) only co-operates with sloped surface (8) corresponding to the claimed bottom edge portion. Appeal Br. 11–12. As such, Appellant argues, Pairis does not provide disclosure meeting the claim language, and the required rationale for modifying Pardonge is lacking. Id. at 13. The Examiner correctly interprets the claim language to include the path that the deformable lip would take during assembly. Ans. 6. While we understand that Pairis is not relied on by the Examiner as teaching a beveled edge with a top edge portion and bottom edge portion, the Examiner’s determination that the Pardonge device as modified by Pairis would include a deformable lip initially co-operating with a top edge portion, and subsequently guided over a bottom edge portion during assembly, is not supported by a preponderance of the evidence. Neither Pardonge nor Pairis Appeal 2021-000714 Application 14/396,186 7 discloses a deformable lip contacting or cooperating with more than one surface during assembly, and the Examiner does not adequately explain how the proposed combination would meet the claim limitations calling for initial cooperation between the deformable lip and an upper edge portion, in addition to the deformable lip ultimately sealing against a bottom edge portion.3 Accordingly, the rejections of claims 12 and 20–25 as being unpatentable over Pardonge and Pairis are not sustained. Claims 17–19--§ 103--Pardonge/Pairis/Fuchs In that we find Pardonge and Pairis deficient as applied by the Examiner, for the reasons presented above, this rejection is not sustained. CONCLUSION The rejection of claims 12 and 20–25 under 35 U.S.C. § 103 as being unpatentable over Pardonge and Pairis is reversed. The rejection of claims 17–19 under 35 U.S.C. § 103 as being unpatentable over Pardonge, Pairis, and Fuchs is reversed. DECISION SUMMARY 3 The Examiner appears to regard Pardonge as disclosing a top edge portion (B, in annotated Figure 4 reproduced above) forming an angle of zero slope with a flat horizontal surface. Ans. 4–5. As best as we can determine from Figure 4, the top edge portion and the flat horizontal surface are one and the same. In any event, the Examiner has not addressed how a deformable lip would be considered to cooperate with this top edge portion during assembly, as is required by claim 12. Appeal 2021-000714 Application 14/396,186 8 In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 12, 20–25 103 Pardonge, Pairis 12, 20–25 17–19 103 Pardonge, Pairis Fuchs 17–19 Overall Outcome 12, 17–25 REVERSED