Ex Parte Brown

Patent Trial and Appeal Board

Nov 29, 2017

11618636 (P.T.A.B. Nov. 29, 2017)

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.
11/618,636 12/29/2006 Chad BROWN BROWN 06.01 6105
27667 7590
HAYES SOLOWAY P.C.
4640 E. Skyline Drive
TUCSON, AZ 85718
EXAMINER
CRANE, LAUREN ASHLEY
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
12/01/2017 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):
admin@hayes-soloway.com
nsoloway@hayes-soloway.com
dlandau @hayes-soloway.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHAD BROWN
Appeal 2017-002358
Application 11/618,636
Technology Center 3700
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Chad Brown (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 2—5, 7—12, 47, 48, 50, 51, and 61—65.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal 2017-002358
Application 11/618,636
THE CLAIMED SUBJECT MATTER
Claim 61, reproduced below, is illustrative of the claimed subject
matter.
61. A urinal, comprising:
a bowl for receiving a stream of an user’s urine, said bowl
having an inner back wall surface having an upwardly bowed
continuous curvilinear shape when viewed from a vertical cross-
section and an outwardly bowed continuous curvilinear shape
when viewed from a horizontal cross-section, said inner back
wall surface continuous curvilinear shape functioning to reduce
an angle of impact between the stream of urine and the inner
surface to contain urine spray in three dimensions, and carry the
urine down and away from the user;
a permanently open aperture, through which the user
deposits the urine into said bowl; and
a drain through a bottom of the bowl.
REJECTIONS
I. Claims 2, 5, 47, 48, 50, 51, and 61—65 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Robinson
(US 134,315, iss. Dec. 24, 1872), Wilkins (US 5,027,448, iss.
July 2, 1991), and Neuo (US 6,470,504 Bl, iss. Oct. 29, 2002).
II. Claims 3 and 7—12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Robinson, Wilkins, Neuo, and Kizhnerman
(US 5,822,806, iss. Oct. 20, 1998).
III. Claim 4 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Robinson, Wilkins, Neuo, Kizhnerman, and
Ware (US 6,550,072 Bl, iss. Apr. 22, 2003).
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Application 11/618,636
DISCUSSION
Rejection I
Claims 2, 5, 47, 48, 50, 51, 61, 62, and 64:
Appellant argues for patentability of independent claims 61 and 64
together as a group, and does not assert any separate arguments for
patentability of claims 2, 5, 47, 48, 50, 51, and 62 apart from their
dependence, directly or indirectly, from one of claims 61 and 64, Appeal Br.
9—14. We select claim 61 as representative, and claims 2, 5, 47, 48, 50, 51,
62, and 64 stand or fall with claim 61. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Robinson discloses a urinal, substantially as
claimed, but fails to disclose, in pertinent part, “the inner back wall curving
upwardly and outwardly.” Final Act. 2—3. However, the Examiner finds:
Neuo teaches an anti-splash urinal. The bowl has an inner back
wall surface having an upwardly bowed curvilinear shape[] when
viewed from a vertical cross-section, Fig.4. An outwardly bowed
continuously curvilinear shape[] when viewed from the
horizontal cross-section, Fig.2. The inner back wall continuous
curvilinear shape functions to reduce angle of impact between
the stream of urine and inner surface to container urine spray
(column 2 lines 15-20).
Id. at 3. The Examiner determines that it would have been obvious to
modify Robinson’s urinal “to include a[n] inner back wall that is curved as
taught by Neuo because it would reduce splashing.” Id. (citing Neuo, col. 2,
11. 15-20).
Appellant argues that “the cited references do not teach the upwardly
and outwardly bowed continuous curvilinear bowl.” Appeal Br. 9-10. In
particular, Appellant asserts that Neuo discloses a “plurality of downward,
backward sloping waves which create a generally undulating surface.” Id. at
10 (citing Neuo, col. 2,1. 65—col. 3,1. 1). Appellant asserts that “Neuo’s
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Application 11/618,636
design creates scenarios where splashing and vaporization may be
exacerbated” due to a user’s height. Id. at 11 (including annotated
reproduction of Neuo’s Figure 4). According to Appellant, the claimed
urinal “utilizes the outwardly and upwardly bowed continuous curvilinear
shape to create laminar flow of the urine, minimizing turbulent interactions
regardless of user height.” Id. at 12. This argument does not identify error
in the Examiner’s rejection.
To the extent Appellant suggests that the entire surface of the inner
back wall must be bowed and prevent splashback regardless of user height,
such an argument is not commensurate with the scope of claim 61. As stated
by our reviewing court in In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir.
1998), “the name of the game is the claim.” It is well established that
limitations not appearing in the claim cannot be relied upon for patentability.
See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Here, claim 61 recites
that the inner back wall surface has “an upwardly bowed continuous
curvilinear shape when viewed from a vertical cross-section and an
outwardly bowed continuous curvilinear shape when viewed from a
horizontal cross-section . . . functioning to reduce an angle of impact
between the stream of urine and the inner surface to contain urine spray.”
Appeal Br. 21—22 (Claims App.). However, the claim does not recite that
the entire surface of the continuous curvilinear inner back surface must be
bowed, that the shape creates laminar flow of the urine, or that the surface
reduces angle of impact and contains spray regardless of a user’s height.
As such, Appellant does not apprise us of error in the Examiner’s
determination that the subject matter of claim 61 would have been
obvious. Accordingly, we sustain the rejection of claim 61, and of claims 2,
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Application 11/618,636
5, 47, 48, 50, 51, 62, and 64 falling therewith, as unpatentable over
Robinson, Wilkins, and Neuo.
Claims 63 and 65:
Claims 63 and 65 depend from independent claims 61 and 64,
respectively, and further recite that “the inner surface has a generally
epicycloid or heart-shaped or cardioid shaped contour.” Appeal Br. 22, 23
(Claims App.). The Examiner determines that this feature would have been
obvious to one of ordinary skill in the art as a matter of design choice. See
Final Act. 3—A.
Appellant argues that “the Examiner’s conclusion ignores the
functional benefit the cardioid shape provides.” Reply Br. 5. In particular,
Appellant asserts that “[t]he cardioid shape reduces the angle of impact of
the urine stream, leading to decreased splashback and vaporization.” Id. at
5—6. According to Appellant, “the design is not simply ornamental, but
functional and effective.” Appeal Br. 13. As explained more fully below,
these contentions amount to nothing more than unsupported attorney
argument and, thus, are entitled to little, if any, weight. In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997).
Appellant’s Specification1 describes that “bowl 12 includes an inner
surface 24 which has an upwardly bowed curvilinear shape when viewed
from a vertical cross-section, and an outwardly bowed curvilinear shape
when viewed from a horizontal cross-section, designed to reduce the angle
of impact of urine flow from the user[,] i.e. [,] from the perpendicular.”
1 References to the Specification in this paragraph refer to page and line
numbers of the revised paragraph of disclosure in the Amendment to the
Specification filed September 20, 2012.
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Spec. 5,11. 2—6; see also id., 11. 8—9 (describing that “[rjeducing the angle of
impact reduces both splashback and vaporization”). According to the
Specification, “[i]n a preferred embodiment of the invention[,] the inner
surface 24 has a generally epicycloid or heart-shaped or cardioid shaped
contour.” Id., 11. 8—9. In other words, the Specification attributes the
function of reducing splashback (i.e., spray) to the curvilinear shape of the
bowl reducing the angle of impact of a urine stream. However, Appellant
has not pointed to any portion of the Specification, or provided any
evidence, to establish that epicycloid, heart, or cardioid shape provides any
particular functional advantage or distinction over the “bowed continuous
curvilinear shape” of the inner back wall surface recited in the base claims.
Namely, Appellant does not explain how or why any of the particular shapes
recited in claims 63 and 65 would function better or differently than the
bowed continuous curvilinear shape of claims 61 and 64. T hus, based on the
evidence before us, we agree with the Examiner that the selection of a
cardioid as the shape of the inner back wall surface, within the scope of the
base claims, is simply an obvious matter of design choice. See Final Act. 3—
4; Ans. 6.
For the above reasons, Appellant does not apprise us of error in the
rejection of claims 63 and 65 as unpatentable over Robinson, Wilkins, and
Neuo, which we, thus, sustain.
Rejections II and III
In rejecting dependent claims 3 and 7—12, the Examiner acknowledges
that “Robinson fails to show an air filter and an air filter exhaust system
which is connected to a fan.” Final Act. 4. However, the Examiner finds
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Application 11/618,636
that Kizhnerman discloses “a wall mounted waste receptacle that includes an
air filter (64), a fan (60), and a motion sensor (50).” Id.
Appellant argues that the Examiner erred in finding that Kizhnerman
discloses an air filter. See Appeal Br. 14. In particular, Appellant asserts
that Kizhnerman discloses “a vented cover, which is neither structurally nor
functionally similar” to an air filter. Id. (citing Kizhnerman, col. 4,11. 49—
50). According to Appellant, Kizhnerman’s vented cover is not “equivalent
to an air filter, which functions to remove substances from the air traveling
through it.” Reply Br. 6 (emphasis omitted). We agree with Appellant.
Appellant’s Specification2 describes that “filter 16 extracts moisture
from the air and returns it to the inner surface 24 of the bowl 12.” Spec. 7,
11. 13—14. In particular, the Specification describes that “vapor is filtered
from the air and returned to the bowl 12,” which “helps to reduce the amount
of moisture that may otherwise enter the ducting system, and further
eliminates condensation.” Id. at 9,11. 6—8; see also id., 11. 10-12 (describing
that filter 16 serves to prevent condensation of urine, which creates
sanitation problems).
In the portions of Kizhnerman cited by the Examiner, Kizhnerman
discloses a urinal including fan 60 within small housing 62, and small
housing 62 has an open outer end with vented cover 64. Kizhnerman, col. 4,
11. 46—50. According to the Examiner, Kizhnerman discloses “a cap (64)
with multiple holes,” which “act[s] as a filter to filter out larger particles of
waste.” Ans. 7 (citing Kizhnerman, Fig. 3). However, the Examiner does
not point to, nor do we discern, any disclosure in Kizhnerman that vented
2 References to the Specification in this paragraph refer to page and line
numbers of disclosure in the original Specification filed December 29, 2006.
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cover 64 filters the air (e.g., by extracting moisture or vapor from the air to
reduce unsanitary condensation). To the extent that vented cover 64 could
prevent large waste particles from passing through, the Examiner does not
offer any evidence or explanation regarding what waste particles would be
present in the air that are large enough such that vented cover 64 would
serve as an air filter. Thus, the Examiner’s finding that Kizhnerman’s
vented cover 64 constitutes an air filter is not supported by a preponderance
of the evidence.
The aforementioned unsupported finding pervades Rejections II and
III. In rejecting claim 4, which depends from claim 3, the Examiner relies
on Ware for teaching a removable cap, but not to cure the deficiency in the
Examiner’s finding as to the disclosure of Kizhnerman discussed above.3
See Final Act. 5. Accordingly, for the above reasons, we do not sustain the
rejection of claims 3 and 7—12 as unpatentable over Robinson, Wilkins,
Neuo, and Kizhnerman, or the rejection of claim 4 as unpatentable over
Robinson, Wilkins, Neuo, Kizhnerman, and Ware.
3 The Examiner’s reliance on Ware appears to be limited to its teaching
regarding a removable cap. See Final Act. 5 (determining it would have
been obvious to modify Wilkins by including a removable cap). We note
that Ware also discloses that “odoriferous air is recirculated back into the
room after being treated with an odor removing filter 42.” Ware, col. 4,11.
4—6. However, to the extent that this teaching in Ware might remedy the
deficiency in the Examiner’s finding as to disclosure of Kizhnerman in
Rejection II, the Examiner has not proposed a modification of Robinson’s
urinal to include Ware’s air filter, much less articulated any rationale to
explain why such a modification would have been obvious to one of
ordinary skill in the art.
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Application 11/618,636
DECISION
The Examiner’s decision rejecting claims 2, 5, 47, 48, 50, 51, and 61—
65 is affirmed.
The Examiner’s decision rejecting claims 3, 4, and 7—12 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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