Ex parte Brown

Board of Patent Appeals and Interferences

Apr 8, 1998

08288479 (B.P.A.I. Apr. 8, 1998)

Application for patent filed August 10, 1994. 1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No. 21
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte DON W. BROWN
____________
Appeal No. 97-1226
Application No. 08/288,4791
____________
ON BRIEF
____________
Before CALVERT, ABRAMS, and NASE, Administrative Patent
Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the refusal of the examiner to
allow claim 1. Claims 11 through 20 have been allowed. Claim
9 has been objected to as depending from a non allowed claim.
Appeal No. 97-1226
Application No. 08/288,479
Claims 2 through 8 and 10 have been withdrawn from
consideration under 37 CFR § 1.142(b) as being drawn to a
nonelected invention.
We AFFIRM.
Appeal No. 97-1226 Page 3
Application No. 08/288,479
BACKGROUND
The appellant's invention relates to a insulated spray
bottle. An understanding of the invention can be derived from
a reading of appealed claim 1, which appears in the appendix
to the appellant's brief.
The prior art references of record relied upon by the
examiner as evidence of obviousness under 35 U.S.C. § 103 are:
Diamond et al. 4,932,563 June
12, 1990
(Diamond)
Davis 4,972,973 Nov. 27,
1990
Claim 1 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Davis in view of Diamond.
Rather than reiterate the conflicting viewpoints advanced
by the examiner and the appellant regarding the § 103
rejection, we make reference to the examiner's answer (Paper
No. 14, mailed August 2, 1996) and the examiner's response to
the edited reply brief (Paper No. 20, mailed February 6, 1998)
Appeal No. 97-1226 Page 4
Application No. 08/288,479
for the examiner's complete reasoning in support of the
rejection, and to the appellant's brief (Paper No. 13, filed
July 15, 1996) and the edited reply brief (part of Paper No.
17, filed January 15, 1997) for the appellant's arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellant's specification and
claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the
examiner. As a consequence of our review, we will sustain the
examiner's rejection of claim 1. Our reasoning for this
determination follows.
Claim 1 recites a spray bottle comprising, inter alia,
(1) a hand operated spray mechanism including a straw and an
orifice, (2) a container having a threaded opening, and (3) an
insulator substantially conformably enclosing the container.
Davis relates to insulated containers which may be used
Appeal No. 97-1226 Page 5
Application No. 08/288,479
to keep the contents warmer or colder than the surrounding
environment. As shown in Figure 1, the insulated container 1
includes an inner vessel 2 (e.g., a high-density polyethylene
container) provided with a neck aperture 3. The inner vessel
2 is surrounded by an expanded polystyrene jacket 4 which
comprises an upper half 4a and a lower half 4b. Davis teaches
that an
appropriate cavity 5 is formed in the lower half 4b such that
the inner vessel 2 may be snugly accommodated therein with the
vertical axis of the inner vessel 2 inclined away from the
vertical towards the middle of one of the top edges of the
inner vessel 2 by about 20°. The insulated container 1 also
includes a
dispensing tube 11 and a manually-operated pump 12 which may
be used to dispense the contents of the inner vessel 2. The
pump 12 is adapted to engage the neck aperture 3 of the inner
vessel and the dispensing tube then extends down into the
inner vessel 2 to a location adjacent the bottom thereof.
Davis further teaches (column 3, lines 1-8) that when the
container 1 and its contents are being stored and one does not
wish to dispense the contents, the pump 12 and dispensing tube
Appeal No. 97-1226 Page 6
Application No. 08/288,479
11 are disengaged from the neck aperture 3 of the inner vessel
2 and a conventional sealing closure, for example a screw cap,
is then used to close the neck aperture 3 of the inner vessel
2. In an alternative embodiment (not shown), Davis discloses
(column 2, lines 38-43) that a substantially rigid inner
vessel 2 is placed within a mould cavity in the appropriate
orientation and the expanded polystyrene jacket is formed
integrally around the inner vessel 2 and therefore does not
consist of the respective upper and lower halves 4a, 4b.
Lastly, Davis teaches (column 4, lines 3-17) that the
containers of his invention may be used to store and dispense
any material which needs to be kept at a temperature other
than the ambient temperature for a given period of time. Such
materials include pharmaceuticals (including vaccines), other
chemicals, food, micro-encapsulated pesticides, and soup.
Diamond discloses a combined jug and sprayer. As shown
in Figure 2, the combined jug and sprayer includes a first
container 11, a second container 20, and a sprayer 21.
Diamond teaches (column 2, lines 38-45) that (1) the sprayer
21 is a manually actuated aspirating sprayer for delivering a
Appeal No. 97-1226 Page 7
Application No. 08/288,479
The test for obviousness is what the combined teachings2
of the references would have suggested to one of ordinary
skill in the art. See In re Young, 927 F.2d 588, 591, 18
USPQ2d 1089, 1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d
413, 425, 208 USPQ 871, 881 (CCPA 1981).
mist of liquid from the second container 20, (2) the second
container 20 has a threaded neck portion defining a filling
opening, and (3) the sprayer 21 is secured to and closes the
filling opening of the threaded neck portion of the second
container 20. The first container 11 is a double walled
container having insulation material 14 disposed between the
walls. Diamond teaches (column 2, lines 45-51) that the
liquid within the second container 20 will be maintained at
the same temperature as liquid contained within the volume 12
of the first container 11. Accordingly, the volume of liquid
12 within the first container 11 and the first container 11
together constitute an insulator substantially conformably
enclosing the second container 20 thereby reducing heat
transfer through the surface of the second container 20.
In applying the test for obviousness , the examiner2
determined (answer, p. 4) that
Appeal No. 97-1226 Page 8
Application No. 08/288,479
The appellant does not dispute the obviousness of3
combining the references as set forth by the examiner. The
appellant does argue (as set forth infra) that the combined
prior art lacks certain structure recited in claim 1.
[i]t would have been obvious to one of ordinary skill in
the art at the time of the invention was made to modify
the device of Davis to have a spray mechanism for
delivery of the product to be dispensed as taught by
Diamond et al., since this is a substitution of one
delivery means for another that would function equally as
well.

We agree.3
The arguments presented by the appellant with respect to
this ground of rejection are unpersuasive for the following
reasons.
First, the appellant argues in the edited reply brief
that the claimed orifice is absent from both Davis and
Diamond. We do not agree. In evaluating references it is
proper to take into account not only the specific teachings of
the references 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, 159 USPQ 342, 344 (CCPA 1968). In
this case, it is our opinion that both Davis and Diamond
Appeal No. 97-1226 Page 9
Application No. 08/288,479
implicitly disclose discharge orifices which enable the
contents of their containers (i.e., Davis' inner vessel 2 and
Diamond's second container 20) to be discharged. In addition,
it is our determination that Figure 1 of Diamond shows such an
orifice. Furthermore, the appellant has admitted that the
standard spray bottle (shown in the appellant's Figure 1 and
described on pages 1-2 of the appellant's specification)
includes an orifice 60 in the spray mechanism 54.

Second, the appellant argues in the brief that Davis'
insulator (i.e., jacket 4) does not substantially conformably
enclose the container (i.e., inner vessel 2 of Davis). We do
not agree. It is our determination that the jacket 4 of Davis
does substantially conformably enclose the inner vessel 2. We
reach this determination based upon (1) Davis' teaching
(column 2, lines 48-50) that it is preferred that the jacket 4
fit the inner vessel 2 snugly in the manner shown in Figure 1,
and
(2) Davis' teaching (column 2, lines 38-43) that the jacket 4
can be formed integrally around the inner vessel 2.
Appeal No. 97-1226 Page 10
Application No. 08/288,479
For the reasons provided above, we sustain the examiner's
rejection of claim 1 under 35 U.S.C. § 103.
Appeal No. 97-1226 Page 11
Application No. 08/288,479
CONCLUSION
To summarize, the decision of the examiner to reject
claim 1 under 35 U.S.C. § 103 is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
NEAL E. ABRAMS ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
Appeal No. 97-1226 Page 12
Application No. 08/288,479
MARK D. STIGNANI
STIGNANI LAW OFFICE
4900 28TH AVENUE
MINNEAPOLIS, MN 55417-1323
APPEAL NO. 97-1226 - JUDGE NASE
APPLICATION NO. 08/288,479
APJ NASE
APJ CALVERT
APJ ABRAMS
DECISION: AFFIRMED
Prepared By: Delores A. Lowe
DRAFT TYPED: 03 Apr 98
FINAL TYPED: