Ex Parte Ginter

Patent Trial and Appeal Board

Jun 30, 2017

13754391 (P.T.A.B. Jun. 30, 2017)

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.
13/754,391 01/30/2013 Herbert Ginter 5068.1123 1439
23280 7590 07/05/2017
Davidson, Davidson & Kappel, LLC
589 8th Avenue
16th Floor
New York, NY 10018
EXAMINER
WEISS, NICHOLAS J
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
07/05/2017 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):
ddk @ ddkpatent .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HERBERT GINTER1
Appeal 2016-001566
Application 13/754,391
Technology Center 3700
Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
BRENT M. DOUGAL, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Herbert Ginter (Appellant) appeals under 35 U.S.C. § 134(a) from the
Examiner’s decision to reject claims 1—8 under 35 U.S.C. § 102(b) as
anticipated by Finnegan (US 4,461,407, iss. July 24, 1984). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 In the Appeal Brief, the real party in interest is indicated to be Hilti
Aktiengesellschaft. Appeal Br. 2.
Appeal 2016-001566
Application 13/754,391
CLAIMED SUBJECT MATTER
The claimed subject matter “relates to a dispenser.” Spec. 12, Fig. 1.
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
1. A dispenser for at least one pack containing a
single-component or multi-component compound,
the dispenser comprising:
a receptacle for the pack;
at least one piston rod; and
an advancing mechanism for moving the at
least one piston rod in a direction of the receptacle
so as to define an advancing direction, the
advancing mechanism having at least one clamping
element engageable with the piston rod and
detachably clampable to the at least one piston rod
in order to move the at least one piston rod, the
advancing mechanism with the piston rod being
movably joined to the receptacle for the pack in
such a way that the advancing mechanism with the
piston rod can be moved along an advancing axis
out of a first position into a second position relative
to the receptacle, the advancing mechanism first
dispensing the compound when the advancing
mechanism reaches the second position.
ANALYSIS
Appellant does not offer arguments in favor of dependent claims 3—8
separate from those presented for independent claim 1. Appeal Br. 4. We
select claim 1 as the representative claim, and claims 3—8 stand or fall with
claim 1. 37 C.F.R. § 41.37(c)(l)(iv). Appellant presents additional
arguments for claim 2. Appeal Br. 4—5. We address claim 2 separately
below.
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Appeal 2016-001566
Application 13/754,391
Claims 1 and 3—8
Independent claim 1 is directed to a dispenser including a single­
component or multi-component compound, an advancing mechanism, and a
piston rod, “the advancing mechanism with the piston rod can be moved . . .
out of a first position into a second position,” “the advancing mechanism
first dispensing the compound when the advancing mechanism reaches the
second position.'''’ Appeal Br. 7, App. A (emphasis added). The Examiner
finds that Finnegan discloses “a dispenser (Fig. 7), comprising; ... at least
one piston rod (124); and an advancing mechanism (130, 134, 135)” and that
“the advancing mechanism first dispenses] the compound when the
advancing mechanism reaches the second position.” Final Act. 2—3 (citing
Finnegan 4:44-48). According to the Examiner, “when the rod moves, the
device 43 compresses slightly - therefore, the second position will be after
the device is compressed, and, clearly, no substance will be dispensed until
after the device is compressed since only then can the rod substantially move
toward the outlet[].” Id. at 3.
Appellant contends that “the limitation of ‘first dispensing the
compound when the advancing mechanism reaches the second position’ is
neither explicitly nor inherently disclosed [in Finnegan.]” Reply Br. 2; see
also Appeal Br. 4. According to Appellant, “[t]here is simply no disclosure
or teaching in Finnegan that the trigger 130 and grip 134 of the embodiment
of Figs. 6 and 7 ‘first dispenses] the compound when the advancing
mechanism reaches the second position’ as claimed” and “it appears that
Finnegan begins dispensing well before any possible asserted second
position is reached: at col. 4, line 65 to col 5, line 3 it appears the rod 8 or
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Appeal 2016-001566
Application 13/754,391
124 still is moving forwardly and dispenses material as the release device 42
compresses.” See Appeal Br. 4; Reply Br. 2.
In this case, according to the Examiner, the “second position” is after
item 43 is compressed (reference numeral 43 refers to a solid section of
rubber pusher 42). Final Act 3; see also Ans. 5. When 43 is compressed,
caulk is caused to flow, but when 43 is no longer compressed (i.e., upon
return from trigger compression) then the return of the elastic memory of
item 43 “causes the rod 8 to retract slightly” thereby stopping the flow of
caulk. Finnegan 4:44—53; see also Final Act. 3; Ans. 4. In other words,
when 43 is compressed (“second position”) caulk flows, but when the
compression forces on item 43 disappear and item 43 returns to its normal
state (i.e., uncompressed) caulk stops flowing. See Final Act. 3; see also
Ans. 4—5. Finnegan re-affirms this position by stating that when the return
of the elastic memory of item 43 urges “the rod rightwardly,” (i.e. into an
uncompressed state), “the flow of caulk is terminated.” See Finnegan 5:36—
41; see also id. at 5:25—31; 6:6—13. As such, based on Finnegan’s
disclosure, caulk does not flow in Finnegan until item 43 is compressed
(“second position”), which is consistent with the limitation “the advancing
mechanism first dispensing the compound when the advancing mechanism
reaches the second position.” See Final Act. 3; see also Ans. 4—5.
In summary, and based on the record presented, we are not persuaded
the Examiner erred in rejecting independent claim 1 as anticipated by
Finnegan. Accordingly, we sustain the Examiner’s rejection of claim 1 as
anticipated by Finnegan. We further sustain the Examiner’s rejection of
claims 3—8, which fall with claim 1.
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Appeal 2016-001566
Application 13/754,391
Claim 2
Appellant contend
[t]he asserted advancing mechanism in Finnegan clearly never
moves “together with the at least one piston rod” opposite the
advancing direction as claimed, and the section of Finnegan cited
actually appears to teach the opposite since ring 42 tightly
encircles rod 8. There is no indication any asserted advancing
mechanism moves back as claimed, and in fact just the separately
claimed piston rod does.
Appeal Br. 5.
In response to Appellant’s argument, the Examiner states:
First, it is clear that the moment after the trigger 130 of the
advancing mechanism is released, both the piston rod 124 and
the plate 135 of the advancing mechanism move together in the
direction opposite the advancing direction (the plate 135 does not
release the piston rod until it is perpendicular to the rod - which
does not happen instantaneously). Secondly, the claim merely
states that “the advancing mechanism is joined to the receptacle
... in such a way that the advancing mechanism, together with
the at least one piston rod, is movable opposite to the advancing
direction”. Emphasis is added to the limitation “movable”. This
limitation merely limits the advancing mechanism to be joined
such that it is able to move, together with the piston rod in an
opposite direction. Therefore, even if the advancing mechanism
and piston rod didn't move together, which the Office does not
concede to, the advancing mechanism merely needs to be joined
to the receptacle to be able to move, together with the piston rod,
in the opposite direction. Clearly the advancing mechanism is
pivotally joined (@132 in Fig. 6) to the receptacle, and,
therefore, able to move in the opposite direction, together with
the piston rod.
Ans. 5.
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Appeal 2016-001566
Application 13/754,391
The Examiner’s findings are sound and supported by a preponderance of the
evidence, and the Examiner’s conclusion therefrom is based on rational
underpinnings. Appellant does not apprise us of Examiner error.
Accordingly, we sustain the Examiner’s rejection of claim 2 as
anticipated by Finnegan.
DECISION
We AFFIRM the decision of the Examiner to reject claims 1—8 as
anticipated by Finnegan.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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