Ex Parte ClarkeDownload PDFPatent Trial and Appeal BoardMay 29, 201814474941 (P.T.A.B. May. 29, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/474,941 09/02/2014 77269 7590 Oppenhuizen Law PLC 146 Monroe Center NW McKay Tower, Suite 730 Grand Rapids, MI 49503 05/31/2018 FIRST NAMED INVENTOR Michael T. Clarke 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 ATTORNEY DOCKET NO. CONFIRMATION NO. ROL-102-U3 3203 EXAMINER REIS,RYAN ALEXANDER ART UNIT PAPER NUMBER 3649 NOTIFICATION DATE DELIVERY MODE 05/31/2018 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): docket@oppenhuizen.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte MICHAEL T. CLARKE Appeal2017-000864 Application 14/474,941 Technology Center 3600 Before STEVEN D.A. McCARTHY, LISA M. GUIJT, and PAUL J. KORNICZKY, Administrative Patent Judges. KORNICZKY, Administrative Patent Judge. DECISION ON APPEAL Appeal2017-000864 Application 14/474,941 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § I34(a), Appellant Michael T. Clarke 1 appeals from the Examiner's decision, as set forth in the Final Office Action dated July 9, 2015 ("Final Act."), rejecting claims 1-13 under 35 U.S.C. § I03(a) as being unpatentable over Hauger (US 4,475,689, issued October 9, 1984) and Delong (US 6,415,937 Bl, issued July 9, 2002). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. THE CLAIMED SUBJECT MATTER The claims are directed to a hose end sprayer with multi-size bottle connectors. Claim 1, the only independent claim on appeal, is reproduced below: 1. A hose end sprayer with multi-size bottle connectors compnsmg: a lid including: a cap having a top and two or more annular bottle connectors with different diameters positioned on an underside of the top; a liquid conduit extending across the top, the conduit having an inlet at one end that is attachable to a hose and an outlet nozzle at an opposite end for discharging liquid; and a siphon tube having an upper end connected to and in fluid communication with an interior of the conduit at a point inside of the periphery of the smallest bottle connector, the siphon tube extending downwardly from the upper end to a lower end positioned below the upper end, the siphon tube being formed such that liquid in Appellant identifies Root-Lowell Manufacturing Company as the real party in interest. Appeal Brief, dated December 2, 2015 ("Br."), at 1. 2 Appeal2017-000864 Application 14/474,941 Claim 1 communication with the lower end of the siphon tube is urged upwardly from the lower end through the upper end into the liquid conduit as a result of liquid flowing through the liquid conduit causing the admixture of liquid in the inlet conduit with liquid drawn through the siphon tube, with the admixed liquids being discharged from the outlet nozzle; and at least one liquid container adapted to hold a liquid chemical, the liquid container having an open mouth of a size and shape that mates with and is releasably attachable to one of the bottle connectors on the underside of the top, such that when the lid is mounted on the container and the container is filled with a sufficient quantity of liquid chemical that the liquid chemical is in communication with the lower end of the siphon tube, the liquid chemical is siphoned into liquid that is transmitted through the sprayer from the hose inlet to the nozzle, thereby causing admixed liquids to be discharged from the nozzle. DISCUSSION The Rejection of Claims 1-13 as Unpatentable Over Hauger and De.Jong The Examiner finds that the combination of Hauger and Delong disclose all of the limitations of independent claim 1. Final Act. 2-3. Appellant asserts that the Examiner's rejection is erroneous because Delong is non-analogous art and does not qualify as prior art under 35 U.S.C. § 103(a). Appellant does not contest the Examiner's other findings and reasoning. "To qualify as prior art for an obviousness analysis, a reference must qualify as 'analogous art,' i.e., it must satisfy one of the following conditions: (1) the reference must be from the same field of endeavor; or (2) the reference must be reasonably pertinent to the particular problem with 3 Appeal2017-000864 Application 14/474,941 which the inventor is involved." K-TEC, Inc. v. Vita-Mix Corp., 696 F.3d 1364, 1375 (Fed. Cir. 2012). Here, the Examiner asserts that Delong's cap "is analogous art which solves the same problem presented by" Appellant. Final Act. 7. According to the Examiner, Delong "discloses a cap having multiple connectors for securing bottles having different sized openings. The cap of Delong et al. solves the same problem as ... [Appellant's] cap of being able to connect to containers having different sized openings." Id. Appellant asserts that the "purpose of the invention in Delong is to provide a baby bottle adapter which allows the nipples and bottles from a traditional baby bottle and a bottle with a disposable liner to be used interchangeably." Br. 6 (citing Delong 2:45-51). Appellant asserts that, in contrast to Delong, "the purpose of [Appellant's] invention is to permit the user to keep the concentrated liquid chemical in its original container to eliminate contamination, spills, and labeling problems that come with pouring liquid chemicals from their original container packaging into the hose end sprayer's generic container, and then (possibly) back into the original container packaging if all of the chemical is not used up." Br. 6-7 (citing Spec. ,r 8). Appellant further asserts that "the Applicant's invention pertains to accommodating different containers that concentrated chemicals are sold in so that the hose end sprayer's generic container does not always need to be used. This alleviates the possible problems of spilling, labeling, and contamination with other chemicals." Id. We find that the Examiner's position is more persuasive than Appellant's position. Appellant narrowly focuses on the differences between the Specification and the Delong reference, but none of those differences are recited in claim 1. We discern no error in the Examiner's 4 Appeal2017-000864 Application 14/474,941 finding that both the Specification and Delong seek to secure caps to bottles having different sized openings. "[F]amiliar items may have obvious uses beyond their primary purposes." KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007). The decision in In re Paulsen, 30 F.3d 1475 (Fed. Cir. 1994) is instructive. In Paulsen, the Federal Circuit found that an inventor considering a latch mechanism for portable computers would naturally look to references employing other "housings, hinges, latches, springs, etc.," which came from areas such as "a desktop telephone directory, a piano lid, a kitchen cabinet, a washing machine cabinet, a wooden furniture cabinet, or a two-part housing for storing audio cassettes." Id. at 1481-82. Here, the problem encountered by the inventor-the need to connect a cap to bottles having different openings-is not unique to spray bottles for a hose. Delong is broadly directed to "a bottle adapter for securing an attachment to a bottle" (Delong Abstract), and the "field of bottles and attachments therefor" (id. at 1 :4---6). The fact that Delong's specific attachment is a baby nipple does not detract from its usefulness for other bottle applications. The rejection of claim 1 is sustained. Claims 2-9 and 11-13 According to Appellant, "[c]laims 2-9 and 11-13 are argued as being patentable over the cited prior art for the same reasoning provided for [ c] laim 1." Br. 10-11. Because the rejection of claim 1 is sustained, Appellant's argument is not persuasive. The rejection of claims 2-9 and 11-13 is sustained. 5 Appeal2017-000864 Application 14/474,941 Claim 10 Claim 10 recites, in part, "the siphon tube is flexible." The Examiner finds that Hauger's tube is "flexible" and "bendable so it ... extends to the bottom of shorter containers." Final Act. 5---6 (citing Hauger 6:37--40). Appellant asserts that the Examiner's finding is erroneous because Hauger merely states that, "'inner surface 96 of holding means 93 is tapered to accommodate [siphon] tube 97 which compressively fits within and extends into container 18.' The fact that the tube compressively fits in the holding means does not mean that the tube is flexible." Br. 11. According to Appellant, "[i]t is well known that rigid materials, such as metal and hard plastics, can be compressively fit into other objects." Id. We agree. The rejection of claim 10 is not sustained. DECISION For the above reasons, the Examiner's rejection of claims 1-9 and 11-13 is AFFIRMED The Examiner's rejection of claim 10 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). 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED-IN-PART 6 Copy with citationCopy as parenthetical citation