Ex Parte Din

Patent Trial and Appeal Board

Jan 2, 2013

11582446 (P.T.A.B. Jan. 2, 2013)

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.
11/582,446 10/18/2006 Michael W. Din 050488A 9115
23850 7590 01/02/2013
KRATZ, QUINTOS & HANSON, LLP
1420 K Street, N.W.
4th Floor
WASHINGTON, DC 20005
EXAMINER
WUJCIAK, ALFRED J
ART UNIT PAPER NUMBER
3632
MAIL DATE DELIVERY MODE
01/02/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL W. DIN
____________

Appeal 2010-011727
Application 11/582,446
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, ANTON W. FETTING
and PHILIP J. HOFFMANN, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-011727
Application 11/582,446
2

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from rejections of claims 1-
181. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The rejected claims are directed to a liquid dispersing system (Spec.
2-3). Claim 1, reproduced below, is the sole independent claim on appeal:
1. A liquid dispersing system disposed
along a side wall of a structure, comprising:
a source of liquid flowing downward from
an upper end of said wall,
a plurality of brackets mounted at spaced
intervals along said wall below said upper end,
said brackets including vertical portions secured to
said wall and lateral portions extending outwardly
from said wall, and
a thin relatively rigid perforated plate having
a plurality of closely spaced minute holes
extending in rows along and across said plate and
passing through said plate, the centers of all of the
holes along adjacent rows being offset with-respect
to each alternate row along and across said plate,
said plate being secured to said outwardly
extending bracket portions and extending
outwardly from said wall in the path of said liquid
flowing downward from said upper wall end,
said holes being substantially smaller than
substantially larger drops of said liquid impinging
on said plate,

1 Our decision will refer to Appellant’s Specification (“Spec.,” filed Oct. 18,
2006), and Appeal Brief (“App. Br.,” filed Mar. 24, 2010), as well as the
Examiner’s Answer (“Ans.,” mailed May 25, 2010).
Appeal 2010-011727
Application 11/582,446

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said holes passing said liquid therethrough
and dividing and dispersing said liquid drops into
smaller droplets,
said plate and brackets extending outwardly
from said wall at an angle and said holes passing
through said plate at an angle with respect to said
plate,
wherein the angle of said plate and the angle
of said holes therethrough determine the direction
in which said droplets are dispersed, and
the dimensions of each of said holes along
and across said plate are of substantially the same
order of magnitude as the thickness of said plate.

REJECTIONS
The Examiner rejects claims 1-18 under the judicially-created doctrine
of obviousness-type double patenting as being unpatentable over claims 1-14
of Din ‘864 (US 7,155,864 B1, iss. Jan. 2, 2007), rejects claims 1-17 under
35 U.S.C. § 103(a) as unpatentable over Din ‘865 (US 6,128,865, iss. Oct.
10, 2000) in view of Schapker (US 3,939,616, iss. Feb. 24, 1976), and
rejects claim 18 under 35 U.S.C. § 103(a) as unpatentable over Din ‘865 in
view of Schapker and further in view of O’Brien (US 4,389,351, iss. Jun. 21,
1983)2.

ANALYSIS
The Obviousness-Type Double Patenting Rejection
Claims 1-18 are rejected under the judicially-created doctrine of
obviousness-type double patenting as being unpatentable over claims 1-14 of

2 The Examiner’s Answer indicates that the rejection of claim 16 under 35
U.S.C. § 112, second paragraph, is withdrawn (Ans. 3).
Appeal 2010-011727
Application 11/582,446

4
Din ‘864. During prosecution of the application, Appellant filed a Terminal
Disclaimer on January 9, 2009. The Examiner’s Answer indicates the
Terminal Disclaimer is not accepted (Ans. 3). Rather than argue the merits
of the Examiner’s rejection, Appellant argues that the Terminal Disclaimer
should be accepted (App. Br. 11).
Under 35 U.S.C. § 134, we review rejections of claims for propriety.
The propriety of the obviousness-type double patenting rejection in this case
is not contested. Therefore, we affirm the Examiner’s rejection pro forma.
Whether it is proper for the Examiner to refuse acceptance of the Terminal
Disclaimer is a petitionable matter for the Commissioner to resolve. See In
re Hengehold, 440 F.2d 1395 (1971).

The Rejections under 35 U.S.C. § 103(a)
We are persuaded the Examiner erred in asserting that a combination
of Din ‘865 and Schapker renders obvious independent claim 1 (App. Br.
12-20), and thus this rejection is reversed for the reasons discussed below.
The Examiner cites Din ‘865 as disclosing
a thin relatively rigid perforated plate (34) having a
plurality of closely spaced minute holes extending
along and across the plate surface and passing
through the plate . . . . [where] [t]he centers of
holes along adjacent rows are being offset with
respect to each alternate row along and across the
plate (see drawing, figure 3, below, of Din[])
(Ans. 5-6). We agree with Appellant, however, that
[t]he Examiner has relied primarily on . . . [Din
‘865], which used a mesh screen, . . . . [while] [i]n
the present claimed liquid dispensing system, a
perforated plate is required, not a mesh screen
Appeal 2010-011727
Application 11/582,446

5
(App. Br. 13). We also agree with Appellant that
FIG. 3 of . . . [Din ‘865] does not support the
rejection. In the present invention, the centers of
all of the holes along adjacent rows of holes are
offset. The sketch in the [final] Office Action
[mailed May 15, 2009] shows some of the centers
of holes offset, but not all as required in the
present claims
(App. Br. 14). The Examiner does not establish that Schapker shows or
suggests these claimed features. Accordingly, we reverse the rejection of
independent claim 1 as well as claims 2-17 that depend from claim 1.
We also reverse the rejection of claim 18 under 35 U.S.C. § 103
because this claim depends from independent claim 1, and the Examiner
does not establish that O’Brien shows or suggests the above- discussed
claimed features.

DECISION
The Examiner’s rejection of claims 1-18 under the judicially-created
doctrine of obviousness-type double patenting is AFFIRMED pro forma.
The Examiner’s rejections of claims 1-18 under 35 U.S.C. § 103(a) are
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)(1)(iv).

AFFIRMED

JRG