Ex Parte Du Boisbaudry et al

Patent Trials and Appeals Board

Jun 19, 2019

14349598 - (D) (P.T.A.B. Jun. 19, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/349,598 04/03/2014
23373 7590 06/21/2019
SUGHRUE MION, PLLC
2000 PENNSYLVANIA A VENUE, N.W.
SUITE 900
WASHINGTON, DC 20006
FIRST NAMED INVENTOR
Guillaume Du Boisbaudry
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.
Q211185 5540
EXAMINER
MELARAGNO, MICHAEL
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
06/21/2019 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):
PPROCESSING@SUGHRUE.COM
sughrue@sughrue.com
USPTO@sughrue.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GUILLAUME DU BOISBAUDRY and
PHILIP STEER
Appeal2017-010242
Application 14/349,598
Technology Center 3700
Before JOHN C. KERINS, STEFAN STAICOVICI, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-12. 1 An oral hearing was held in this matter on
June 13, 2019. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Aptar France SAS is the Applicant and is identified as the real party in
interest. Appeal Br. 2.
Appeal2017-010242
Application 14/349,598
THE CLAIMED SUBJECT MATTER
Appellants' invention concerns "a fluid dispenser device including a
fastener element for fastening a dispenser member on the neck of a
container." Spec. 1:2--4. Claim 1, reproduced below, is illustrative of the
claimed subject matter.
1. A fluid dispenser device comprising: a dispenser
member, such as a pump or a valve, mounted on the neck of a
container containing a fluid to be dispensed, with a neck gasket
interposed therebetween so as to provide sealing at said neck of
the container, said dispenser member being mounted on said
neck by means of a fastener element, comprising a fastener
portion for fastening to said neck of the container and a
compression portion for compressing said neck gasket against
said neck of the container, said compression portion including at
least one projecting profile adapted to exert stresses on said neck
gasket after assembly, wherein, after assembly, said neck of the
container generates first stresses in said neck gasket, and said at
least one projecting profile of the fastener element generates
second stresses in said neck gasket, said first stresses being
approximately axially opposite said second stresses, said neck of
the container including a top margin of curved shape, said neck
defining, at its end, an edge that is in contact with said neck
gasket, the device being characterized in that said at least one
projecting profile is arranged radially on the outside or on the
inside of said edge when the fastener element is assembled on
the neck of the container, said first and second stresses being
approximately axially opposite but being radially offset, such
that said first and second stresses are balanced at least in part.
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Appeal2017-010242
Application 14/349,598
REJECTION
The Examiner rejected claims 1-12 under 35 U.S.C. § I03(a) as
unpatentable over Di Giovanni (US 6,343,722 Bl, issued Feb. 5, 2002) and
Radtke (US 5,406,689, issued Apr. 18, 1995).
DISCUSSION
Claims 1-9
The Examiner found that Di Giovanni discloses most of the
limitations of independent claim 1 except a compression portion including
"at least one projecting profile adapted to exert stresses on said neck gasket
( 1) after assembly." Final Act. 2-3. The Examiner finds that Radtke
discloses "a projecting profile (39) provided on a compression portion (10)
of a fastener adapted to exert stresses on a neck gasket ( 1 7) in a direction
toward the container, said profile able to be arranged radially on either side
of a centerline." Id. at 3 (citing Radtke, 9:10-14, Fig. 11). The Examiner
concludes that it would have been obvious to one of ordinary skill in the art
to modify Di Giovanni to include Radtke's projecting profile on the
compression portion,
arranged radially on the outside or inside of the neck edge when
the fastener element is assembled on the neck of the container
to generate second balanced stresses in the neck gasket axially
opposite and radially offset to the first stresses ... to provide an
improved gasket which can be used with modified channel
mounting cups.
Id. (citing Radtke 4:13-16).
Appellants contend that even if Radtke's projecting profile were
added to Di Giovanni's device, the Examiner failed to provide adequate
evidence or reasoning why one of ordinary skill in the art would have added
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Appeal2017-010242
Application 14/349,598
a projecting profile that is "radially offset, such that said first and second
stresses are balanced at least in part" as required by claim 1. Appeal Br. 25.
The Examiner responds that "DiGiovanni discloses an upward stress on the
gasket and Radtke discloses a[] downward stress on a neck gasket, which
result in balanced stresses." Ans. 8. The Examiner further asserts that
"Radtke discloses that his projection (39) may be radially offset inboard or
'outboard of the centerline' ... positioning the projection's stress on the
gasket radially offset from Di Giovanni's stress." Id. For the following
reasons, we do not sustain the rejection of claim 1.
Radtke discloses that "[i]ndent 39 and sealing bead 42 are shown on
the inboard side of centerline 18 but it should be appreciated that it may be
placed either side of or coincident with the centerline." Radtke 9:7-10
( emphasis omitted). In this context, Radtke is referring to placing indent 39
with respect to the centerline of the opening in the container neck not
"radially on the outside or inside of' the edge of the neck that contacts a
neck gasket as required by claim 1. See Radtke Figs. 6, 11. The Examiner
does not adequately explain or point to evidence to support the conclusion
that one of ordinary skill in that art would have placed Radtke's indent 39
offset from the edge of the neck of Di Giovanni's container so that the
stresses on the neck gasket would be balanced at least in part as required by
claim 1. We, thus, do not sustain the rejection of claim 1 because the
rejection is not based on a rational underpinning. The rejections of claims
2-9 which depend from claim 1 are not sustained for the same reasons.
Claims 10-12
The Examiner rejected claim 10 based on the same proposed
combination of Di Giovanni and Radtke as for claim 1. Final Act. 2-3.
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Appeal2017-010242
Application 14/349,598
Appellants contend that combining Radtke with Di Giovanni is improper.
Appeal Br. 18-19. In support of this contention, Appellants argue that
Radtke's "sealing bead 42 lies relatively flush against a standard bead 19 of
an aerosol container" and that Radtke's "annular indentation 39 and the flush
surface of the standard bead 19 cooperate to collectively exert force on the
sealing bead 42, which is sandwiched between the indentation 39 and the
standard bead 19." Id. at 19 (citing Radtke, 7:40-45, Fig. 6). For the
following reasons, we do not sustain the rejection of claim 10.
As Appellants correctly note, Radtke's sealing bead 42 is sandwiched
between two surfaces, i.e., annular indentation 39 and the standard bead 19.
See Radtke, Figs. 6, 11. Di Giovanni's gasket 3, in contrast, is placed
between the top edge of the container neck and surface 15. See Di Giovanni,
Fig. 1. Given the different configurations of Di Giovani and Radtke, the
Examiner has not adequately explained how or why adding Radtke' s
projecting profile to Di Giovanni's apparatus would improve Di Giovanni's
gasket, nor has the Examiner adequately explained the relevance of the
"modified mounting cups" of Radtke to the device of Di Giovanni. We,
thus, do not sustain the rejection of independent claim 10 and claims 11 and
12, which depend from claim 10, for the same reasons.
DECISION
The Examiner's decision rejecting claims 1-12 is reversed.
REVERSED
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