Ex parte Elliott

Board of Patent Appeals and Interferences

Jun 11, 1999

08314146 (B.P.A.I. Jun. 11, 1999)

Application for patent filed September 28, 1994.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for
publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 23
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte DENNIS K. ELLIOTT, SR.
_____________
Appeal No. 97-2907
Application 08/314,1461
______________
ON BRIEF
_______________
Before COHEN, CRAWFORD and GONZALES, Administrative Patent
Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1,
3, 4, and 7 through 10 and from the refusal of the examiner to
allow claims 2, 5, and 6, 12, and 15 through 27, as amended
subsequent
Appeal No. 97-2907
Application 08/314,146
An amendment after final rejection (Paper No. 6) was not entered (Paper No. 8),2
while a later amendment (Paper No. 12) was entered, as apparently acknowledged in
paragraph 2 of the answer (Paper 14).
Our understanding of this document is derived from a reading of a translation3
thereof prepared in the United States Patent and Trademark Office. A copy of the
translation is appended to this opinion. It is noted that the examiner has referred to
this document by the name “Handels”. However, as the translation reveals, the named
inventor is Olsson. Simply for consistency with the usage in the record, we shall
continue reference to this document by the name Handels.
2
to the final rejection. These claims constitute all of the2
claims remaining in the application.

Appellant’s invention pertains to a food dispenser gun
and to a method of dispensing an extrudable food product. An
understanding of the invention can be derived from a reading
of exemplary claims 1 and 26, copies of which appear in
EXHIBIT “A1" appended to the RESPONSE TO ORDER REMANDING TO
EXAMINER (Paper No. 19).
As evidence of obviousness, the examiner has applied the
documents listed below:
Hutton 1,886,022 Nov. 1, 1932
Loucony 2,928,533 Mar. 15, 1960
Chang 4,081,112 Mar. 28, 1978
Summons et al 4,899,909 Feb. 13, 1990
(Summons)
Olsson 156,022 Sep. 11, 19563
Appeal No. 97-2907
Application 08/314,146
A final rejection under 35 U.S.C. § 112, second paragraph, argued in the brief4
(page 7), was not included in the answer, obviously in light of the entry of the
amendment after final rejection (Paper No. 12).
3
(Sweden)
The following rejections are before us for review.4
Claims 1, 3 through 10, 12, and 24 stand rejected under
35 U.S.C. § 103 as being unpatentable over Chang in view of
Handels.
Claim 2 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Chang in view of Handels, as applied to
claim 1 above, further in view of Summons.
Claims 15 through 21 stand rejected under 35 U.S.C. § 103
as being unpatentable over Chang in view of Handels and
Loucony.
Claims 22 and 23 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Chang in view of Handels, as applied
to claims 1 and 9 above, further in view of Hutton.
Appeal No. 97-2907
Application 08/314,146
4
Claim 25 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Chang in view of Handels, as applied to
claim 9 above, further in view of Loucony.
Claim 26 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Chang.
Claim 27 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Chang in view of Hutton.
The full text of the examiner's rejections and response
to the argument presented by appellant appears in the answer
(Paper No. 14 ), while the complete statement of appellant’s
argument can be found in the main and reply briefs (Paper Nos.
13 and 15).

OPINION
In reaching our conclusion on the obviousness issues
raised in this appeal, this panel of the board has carefully
Appeal No. 97-2907
Application 08/314,146
Claim 1 sets forth a housing (line 2) and an incremental dispenser (line 7),5
but fails to recite that the housing is part of the dispenser unit, as disclosed
(specification, page 9) and claimed (“said housing of said incremental dispenser” on
line 14). We understand claim 1, when read in light of the disclosure. However, the
claim language problem raised, supra, should be resolved during any further prosecution
before the examiner.
In our evaluation of the applied teachings, we have considered all of the6
disclosure of each teaching for what it would have fairly taught one of ordinary skill
in the art. See In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966).
Additionally, this panel of the board has taken into account not only the specific
teachings, but also the inferences which one skilled in the art would reasonably have
been expected to draw from the disclosure. See In re Preda 401 F.2d 825, 826, 159 USPQ
342, 344 (CCPA 1968).
5
considered appellant’s specification and claims, the applied 5
teachings, and the respective viewpoints of appellant and the6
examiner. As a consequence of our review, we make the
determinations which follow.
Initially, it is noted that an obviousness question
cannot be approached on the basis that an artisan having
ordinary skill would have known only what they read in
references, because such artisan must be presumed to know
something about the art apart from what the references
disclose. See In re Jacoby, 309 F.2d 513, 516, 135 USPQ 317,
319 (CCPA 1962). Further, a conclusion of obviousness may be
Appeal No. 97-2907
Application 08/314,146
6
made from common knowledge and common sense of the person of
ordinary skill in the art without any specific hint or
suggestion in a particular reference. See In re Bozek, 416
F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969).
With the above in mind, we appreciate from a reading of
the “BACKGROUND OF THE INVENTION” section of appellant’s
specification (page 2) that, when the present invention was
made a dispensing gun supporting a cartridge holding food was
known. The gun was provided with a lever actuated plunger to
move a cartridge piston for displacing a food paste
formulation through a discharge spout.
According to appellant (specification, page 3), prior art
trigger operated dispensing guns were not feasible in a
nursing home environment because of the extremely strict
health standards maintained there regarding food preparation
and serving. This was because all such trigger operated guns
included drive mechanisms exposed to the environment of use,
tended to trap food particles during use, and were extremely
hard to keep clean. As explained by appellant, there is a
Appeal No. 97-2907
Application 08/314,146
7
need in the prior art for a device having all non-smooth
portions of the drive mechanism located within a dispenser
housing so that the dispenser gun may be kept clean and free
of food debris at all times.
We turn now to the rejections, and address the claims as
argued by appellant.

Claims 1 through 8 and claim 2
We reverse the rejection of these claims.
Claim 1 is drawn to a food dispenser gun comprising,
inter alia, a housing and an incremental dispenser comprising
a manual activator, a member operable to move a rod
(advancement means) and a retrograde lock, wherein the
advancement means and retrograde lock are “completely
enclosed” by the housing.

Appeal No. 97-2907
Application 08/314,146
8
The Chang patent is drawn to a manually powered caulking
gun that includes a pistol-type handle open at the top and
bottom (column 1, lines 42 through 45). All mechanism of the
gun (including first grip 34) is located inside the handle
except the protruding ends of the trigger, release portion,
and plunger (column 2, lines 2 through 4). As explained by
the patentee (column 2, lines 42 through 44), the operative
contact of the trigger with the first grip should be kept
lubricated and this is “highly visible and readily accessible
for inspection and oiling.”
The Handels document (Figs. 1 through 4) teaches a
cylinder 1 that is provided, on the end surrounding the
clamping washers 19 and 27, with an end gable 2, a hanging
floor 3, and an arcuate plate (not numbered) overlying a top
end of the cylinder. A lever 12 passes through an opening 14
in cylinder 1.
Appellant points out (main brief, pages 8 through 10)
that Chang teaches away by disclosing an operating mechanism
Appeal No. 97-2907
Application 08/314,146
Appellant is claiming structure that is “completely enclosed” by a housing. 7
However, notwithstanding appellant’s statement in the specification (page 12) that the
“only protrusion” are the very small rod release button 28 and the proximal end of the
rod 16, akin to the teaching of Handels, we find that appellant’s trigger 16 likewise
protrudes from the housing. Thus, we understand the recitation of “completely enclosed”
in claim 1, consistent with appellant’s disclosure, to clearly permit the inclusion of
protrusions through the housing. Like appellant (reply brief, page 2),we appreciate
that, in accordance with the “completely enclosed” requirement of the claims, the
trigger interface with the housing as depicted in Fig. 5 would fill an opening in the
housing, akin to the release button, for consistency with the aforementioned requirement
of the claims.
9
that is “open”, while the Handels device includes an opening
14 where trigger 12 enters the housing effecting a partially
enclosed housing. 7
From our perspective, one having ordinary skill in the
art would not have been motivated to modify the gun of Chang,
as proposed by the examiner, since complete enclosure of the
housing would have defeated the express intent of the patentee
of an open housing to achieve the stated objective of having
the internal mechanism highly visible and readily accessible
for inspection and oiling. For this reason, the rejection of
claim 1 on the evidence of obviousness before us is not well
founded and must be reversed. It follows that the rejection
of dependent claims 3 through 8 is likewise reversed.
Appeal No. 97-2907
Application 08/314,146
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The rejection of claim 2, a claim dependent from claim 1,
further includes the teaching of Summons. The teaching of
Summons, however, does not overcome the deficiency of the
Chang and Handels documents discussed above. Thus, the
rejection of claim 2 must also be reversed.
Claims 9, 10, 12, 24, 25, claims 15 through 21
and claims 22 and 23
We reverse the respective rejections of claims 9, 10, 12,
24, claims 15 through 21, claims 22 and 23, and claim 25.
Appellant argues these rejections on the basis of the
failure of the combined teachings of Chang and Handels to be
suggestive of modifying the device of Chang as proposed by the
examiner. Since we agreed earlier that the Chang and Handels
documents would not have been suggestive of their combination
according to the examiner’s rationale, and further find that
the additional teachings of Lucony and Hutton do not overcome
the earlier noted deficiency of Chang and Handels, the
respective rejections of the specified claims must be
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Application 08/314,146
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reversed.
Claims 26 and 27
We reverse the rejections of claims 26 and 27,
respectively.
As pointed out by appellant (brief, page 11), these
claims are drawn to a method of dispensing an extrudable food
product comprising, inter alia, the step of providing a
reusable tube to hold “said extrudable food product”. Simply
stated, the patents to Chang and Hutton are not concerned at
all with a method of dispensing an extrudable food product.
Since the applied evidence of obviousness does not address the
specific content of the claimed subject matter, we are
constrained to reverse the respective rejections of claims 26
and 27. We do note, however, that a conventional cylindrical
container supported by the hemi-
cylinder 20 of Chang (column 1, lines 52 through 54) would
fairly be denoted a removable and reusable container.
Appeal No. 97-2907
Application 08/314,146
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REMAND TO THE EXAMINER
In light of the reversal , supra, we remand this
application to the examiner to assess the patentability of the
claimed food dispenser gun (with “completely enclosed”
limitation) and method of dispensing an extrudable food
product (with NO “completely enclosed” limitation) based upon
the acknowledged prior art trigger operated food dispensing
guns including a food cartridge (appellant’s specification,
pages 2 and 3) and other known relevant prior art. It is
recognized that a trigger operated caulking gun may be
reasonably pertinent to the problems encountered with trigger
operated guns for dispensing an extrudable food product.
In summary, this panel of the board has:
reversed the rejection of claims 1, 3 through 10, 12, and
24 under 35 U.S.C. § 103 as being unpatentable over Chang in
view of Handels;
reversed the rejection of claim 2 under 35 U.S.C. § 103
as being unpatentable over Chang in view of Handels and
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Application 08/314,146
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Summons;
reversed the rejection of claims 15 through 21 under
35 U.S.C. § 103 as being unpatentable over Chang in view of
Handels and Loucony;
reversed the rejection of claims 22 and 23 under 35
U.S.C.
§ 103 as being unpatentable over Chang in view of Handels and
Hutton;
reversed the rejection of claim 25 under 35 U.S.C. § 103
as being unpatentable over Chang in view of Handels and
Loucony;
reversed the rejection of claim 26 under 35 U.S.C. § 103
as being unpatentable over Chang; and
reversed the rejection of claim 27 under 35 U.S.C. § 103
as being unpatentable over Chang in view of Hutton.
Appeal No. 97-2907
Application 08/314,146
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Additionally, we have remanded the application to the
examiner for the reason delineated, supra.
The decision of the examiner is reversed.
REVERSED AND REMANDED
)
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MURRIEL E. CRAWFORD )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JOHN F. GONZALES )
Administrative Patent Judge )
Appeal No. 97-2907
Application 08/314,146
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ICC/kis
LOCKE, PURNELL, RAIN, HARRELL
DOROTHY & HARRIS
2200 Ross Avenue
Suite 2200
Dallas, TX 75201-6776
Appeal No. 97-2907
Application 08/314,146
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