Ex Parte DEJONG et al

Patent Trial and Appeal Board

Apr 14, 2016

13405456 (P.T.A.B. Apr. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/405,456 02/27/2012
66061 7590 04/18/2016
WESTROCK COMPANY
ATTN: IPLAWGROUP-PATENTS
501 South 5th Street, 3rd Floor
Richmond, VA 23219-0501
FIRST NAMED INVENTOR
David L. DEJONG
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.
22062-USORDP 5430
EXAMINER
WEISS, NICHOLAS J
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
04/18/2016 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):
docketadministrator@westrock.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID L. DEJONG, STEVEN L. SWEETON, and
JOSEPH K. DODD 1
Appeal2014-002596
Application 13/405,456
Technology Center 3700
Before WILLIAM A. CAPP, AMANDA F. WIEKER, and
FREDERICK C. LANEY, Administrative Patent Judges.
WIEKER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
David L. Dejong et al. ("Appellants") appeal under 35 U.S.C. § 134(a)
from the Examiner's final rejection of claims 1-12.2 We have jurisdiction
over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
1 According to Appellants, the Real Party in Interest is MeadWestvaco
Calmar, Inc. Appeal Br. 3.
2 Claims 13-1 7 have been cancelled. Id.
Appeal2014-002596
Application 13/405,456
CLiU1\1ED SUBJECT 1\1i1~ TTER
The invention concerns trigger sprayer valves. Spec. i-f 2. Claim 1,
the only independent claim, is illustrative of the subject matter on appeal,
and recites:
1. A trigger sprayer, comprising:
a valve body, comprising:
an inlet;
a discharge passageway;
a pump chamber;
a pump chamber inlet between the inlet and the pump
chamber;
a pump chamber outlet between the pump chamber and
the discharge passageway; and
a valve seat on an end of the pump chamber outlet;
an inlet valve positioned in the pump chamber, comprising an
inlet valve member seated against the pump chamber
inlet; and
a discharge valve attached to the valve body, comprising:
a valve, comprising:
a body;
at least one outer edge;
at least one valve lip; and
wherein the at least one valve lip is seated against
the valve seat and the at least one outer edge
is seated against the valve body;
a frame retaining the at least one outer edge of the valve
in a seated position against the valve body.
Appeal Br. 11, Claims App. (emphasis added).
REJECTIONS
The claims stand rejected as follows:
I. Claims 1and5-12 under 35 U.S.C. § 102(b) as anticipated by
Saito (US 4,489,861, iss. Dec. 25, 1984).
II. Claims 2--4 under 35 U.S.C. § 103(a) as unpatentable over
Saito.
2
Appeal2014-002596
Application 13/405,456
Anticipation by Saito - Claims 1 and 5-12
Claim 1
In the Final Office Action, the Examiner finds that Saito discloses a
trigger sprayer comprising valve body ( 11 ), which further comprises, inter
alia, "pump chamber (25)." Final Act. 2 (citing Saito, Figs. 3-5). In the
Final Office Action, the Examiner also finds that:
While the adapter (26) is the main guide for the piston (15), the
entire effective pump chamber is within the "cylindrical bore"
(25). Due to the hole ( 4 7) in the adaptor (26), the adaptor alone
does not physically create a pump chamber - since liquid will
be expelled through the holes to effectively increase the
pressure. It is inherent that some liquid will be expelled into
the section that the intake valve (56) blocks at the inlet of the
pump chamber.
Id. at 6 (citing Saito 5:28-51).
After the Final Office Action, Appellants submitted a Response in
which Appellants argued that the Examiner's anticipation rejection is
contradictory in identifying the structure that constitutes the claimed "pump
chamber." Apr. 9, 2013 Resp. 4--8. The Examiner responded to this
argument in an Advisory Action, and stated that the Final Office Action
identified the claimed pump chamber by reference numeral 25 "because
there is not a specific reference number in the Figures [of Saito] that denotes
the effective pump chamber." Apr. 25, 2013 Adv. Act. 2; see also Ans. 5.
The Examiner explained that "the pump chamber was denoted reference
number 25 (since the holes, 47, through the adaptor, 26, effectively made the
structure of 25 the pump chamber)." Adv. Act. 2 (also quoting the finding
made in the Final Office Action that hole ( 4 7) in adapter (26) precludes the
adaptor alone from creating the pump chamber); see also Ans. 6. The
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Appeal2014-002596
Application 13/405,456
Examiner also provided an illustration of Saito' s Figure 3, \x1ith shading
added to identify the pump chamber. Adv. Act. 3 (identifying the pump
chamber as the chamber within adapter (26), which is located within
cylindrical bore (25), and extending through hole (47)); see also Ans. 5-7.
Appellants argue that the position taken in the Examiner's Advisory
Action "retreats from the position taken in the Final Action," with respect to
the structure that constitutes the claimed pump chamber. Appeal Br. 7.
Therefore, Appellants contend:
If [Saito' s] "cylinder bore 25" anticipates the "pump chamber"
... as alleged in the Final Action's Response to Arguments,
then [Saito] fails to anticipate the "pump chamber outlet,"
"valve seat on an end of the pump chamber" and "at least one
valve lip [seated] against the valve seat" as recited in claim 1.
If, on the other hand, the rejection is based on the combination
of the "cylinder bore 25," the "adapter 26," and the "annular
thick body 55" to define the "pump chamber," then the "valve
body, comprising: ... a pump chamber" is not anticipated.
Id. at 8.
We are not persuaded by Appellants' argument that the Examiner
changed positions with respect to the structure that constitutes the claimed
pump chamber. In the Final Office Action, the Examiner finds clearly that
because Saito's adaptor (26) includes hole (47) through which pressurized
liquid will flow, adaptor (26) alone cannot constitute the pump chamber.
Final Act. 6. Rather, the effective pump chamber includes the area within
adaptor (26), extending through hole (47), all of which is located within
cylindrical bore (25). Id. (citing Saito 5:28-51); see also Adv. Act. 2-3;
Ans. 5-7.
Because we do not understand the Examiner to rely on Saito' s
cylinder bore (25) alone to constitute the pump chamber, Appellants'
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Appeal2014-002596
Application 13/405,456
argument that Saito "fails to anticipate the 'pump chamber outlet,' 'valve
seat on an end of the pump chamber' and 'at least one valve lip [seated]
against the valve seat"' is moot because it is not commensurate with the
Examiner's rejection. Appeal Br. 8.
We are also unpersuaded by Appellants' argument that Saito fails to
disclose a "valve body, comprising ... a pump chamber." The Examiner
finds that Saito's pump chamber, discussed above, "clearly extends through
the holes ( 4 7) and contacts the bore (25) - which is part of the valve body
(11 ). Figure 5 of Saito also shows an enlarged detail of the section that is
being referenced by the Examiner." Ans. 7; see also Final Act. 2 (citing
Saito, Figs. 3-5). The Examiner's finding is supported by a preponderance
of the evidence, including Saito's Figures 3-5, which show the designated
pump chamber located within valve body (11). See Saito, Figs. 3-5; Adv.
Act. 3; Ans. 5-7; see also Saito 4:67-5:7 (describing Saito's Figures 3-5,
which include a series of bores "in the same manner as the [embodiment of
Figure 1]"), 2:46-3:2 (describing that the embodiment of Figure 1 comprises
"body 11 having a pressurizing chamber or cylinder bore therein ... The
body 11 has a horizontal, vertical, and oblique portions .... The oblique
portion has a cylinder bore 25 formed to engage an adapter 26 therein. The
adapter 26 has three stepwise cylinder bore diameters as a pressurizing
chamber as will be described hereinafter in greater detail").
Therefore, we affirm the Examiner's rejection of claim 1.
Claims 5-11
Appellants do not provide separate argument regarding claims 5-11,
which depend from claim 1. Appeal Br. 8.
Therefore, we affirm the Examiner's rejection of claims 5-11.
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Appeal2014-002596
Application 13/405,456
Claim 12
The Examiner finds that Saito discloses discharge valve (54)
comprising frame (26) that retains the at least one outer edge of the valve in
a seated position against the valve body. Final Act. 2-3. The Examiner
finds that Saito' s frame (26) is a continuous circular lip, as shown in Saito' s
Figures 3 and 5, which "clearly has two opposing latches as a continuous lip
or protrusion or rim in a circle shape can have an infinite number of
opposing latches as each element/section/point of that lip or protrusion or
rim is an effective latch." Ans. 7; see also Final Act. 4, 7; Adv. Act. 4.
Appellants argue that a continuous rim does not anticipate "two
opposing latches." Appeal Br. 8-9.
We agree with Appellants. The Examiner has not shown that a
continuous rim, joined along its entire length, includes "two opposing
latches," as claimed, rather than a single continuous connection. Therefore,
we reverse the Examiner's rejection of claim 12.
Obviousness over Saito - Claims 2--4
Appellants do not provide separate argument regarding the rejection
of claims 2--4 under 35 U.S.C. § 103(a) as unpatentable over Saito. Appeal
Br. 9. Therefore, we affirm the Examiner's rejection of claims 2--4.
DECISION
The rejection of claims 1and5-11under35 U.S.C. § 102(b) as
anticipated by Saito is AFFIRMED;
the rejection of claim 12 under 35 U.S.C. § 102(b) as anticipated by
Saito is REVERSED; and
the rejection of claims 2--4 under 35 U.S.C. § 103(a) as unpatentable
over Saito is AFFIRMED.
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Appeal2014-002596
Application 13/405,456
1'-Jo time period for taking any subsequent action in connection \x1ith
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED-IN-PART
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