Ex Parte Guthrie

Patent Trial and Appeal Board

Jan 27, 2017

13683149 (P.T.A.B. Jan. 27, 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.
13/683,149 11/21/2012 Kevin J. Guthrie 17761.84243 4323
7590
JOSEPH S. HEINO, ESQ.
DAVIS & KUELTHAU, S.C.
111 E. KILBOURN
SUITE 1400
MILWAUKEE, WI 53202-6613
EXAMINER
CRANE, LAUREN ASHLEY
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
01/31/2017 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):
j heino @ dkattorney s. com
jlowe@dkattorneys.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN J. GUTHRIE
Appeal 2015-0041411
Application 13/683,1492
Technology Center 3700
Before ANTON W. FETTING, MICHAEL C. ASTORINO, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 from the rejection of claims
1—10, 19, and 21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellant’s Appeal Brief (“Appeal Br.,” filed Oct.
21, 2014) and Reply Brief (“Reply Br.,” filed Feb. 19, 2015), and the
Examiner’s Answer (“Ans.,” mailed Dec. 19, 2014) and Final Office Action
(“Final Act.,” mailed June 18, 2014).
2 According to Appellant, the real party in interest is Lavelle Industries, Inc.
Appeal Br. 1.
Appeal 2015-004141
Application 13/683,149
BACKGROUND
According to Appellant, “[t]he present invention relates generally to
indoor plumbing and to gravity-operated flush toilets. More particularly, it
relates to an improved toilet plunger for removing blockages in toilets and
drain lines leading from toilets.” Spec. 12.
CLAIMS
Claims 1—10, 19, and 21 are on appeal. Claim 1 is illustrative of the
appealed claims and recites:
1. A toilet plunger comprising:
a first section, the first section comprising an attachment
point for a handle;
a second section extending downwardly from and
disposed immediately below the first section, the second section
comprising a round dome-like shape having an increasing
diameter moving downwardly from the first section;
a third section extending downwardly from and disposed
immediately below the second section, the third section
comprising a pleated bellows joint consisting of a first bellows
section having a diameter, a second bellows section having a
diameter that is larger than the diameter of the first bellows
section, a third bellows section having a diameter that is
substantially the same as that of the first bellows section and a
fourth bellows section having a diameter that is substantially the
same as that of the second bellows section;
a fourth section extending downwardly from and disposed
immediately below the third section, the fourth section of the
plunger comprising a round and inverted dome-like shape having
a decreasing diameter moving downwardly towards a fifth
section;
a fifth section extending downwardly from and disposed
immediately below the fourth section, the fifth section of the
plunger comprising a round and inverted dome-like shape having
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Application 13/683,149
a decreasing diameter moving downwardly away from the fourth
section; and
a bottom opening formed in the fifth section, the bottom
opening providing an aperture to an interior cavity.
Appeal Br. 20.
REJECTIONS
1. The Examiner rejects claims 1—10, 19, and 213 under 35 U.S.C
§ 112, second paragraph, as indefinite.
2. The Examiner rejects claims 1—6 and 8—10 under 35 U.S.C.
§ 103(a) as unpatentable over Pool4 in view of Wang.5
3. The Examiner rejects claims 7, 19, and 21 under 35 U.S.C.
§ 103(a) as unpatentable over Pool in view of Wang and Tash.6
DISCUSSION
Rejection 1
The Examiner finds that the terms “rubber-like,” “dome-like,” and
“substantially” used in the claims are indefinite. Final Act. 2. More
specifically, the Examiner finds that “[i]t is unclear what is considered to be
rubber-like” or “dome-like,” and that the Specification does not provide
standard by which one can ascertain whether two diameters are
“substantially the same” as required by the claims. Id.', Ans. 7.
3 The heading for this rejection does not include claims 19 and 21. Final
Act. 2. However, the body of the rejection refers to allegedly indefinite
language in claim 19, i.e. with respect to the term “rubber-like.” Id. Thus,
we consider claim 19, and claim 21 which depends therefrom, to be included
in this rejection.
4 Pool et al., US 6,145,135, iss. Nov. 14, 2000.
5 Wang, US D465,888 S, iss. Nov. 19, 2002.
6 Tash, US 7,013,499 B2, iss. Mar. 21, 2006.
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Application 13/683,149
We are persuaded by Appellant’s arguments with respect to these
claim terms. See Appeal Br. 4—7.
With respect to the term “rubber-like,” Appellant notes that the
Specification states that “the plunger 1 is formed of a resilient rubber-like
material that is capable of being deformed and then returning to an
un-deformed shape, the material having memory.” Id. at 4 (quoting Spec.
1 5). We find that one of ordinary skill in the art would understand the
scope of the claims with respect to the use of the term “rubber-like” when
read in combination with and in light of the Specification. In particular, we
note the description in the Specification is consistent with the definition of
rubber-like: “resembling rubber especially in physical properties (such as
elasticity and toughness).” Rubberlike, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/bellows (last visited Jan. 26,
2017). Thus, we are not persuaded that the term “rubber-like” renders the
claims indefinite.
With respect to the term “dome-like,” Appellant asserts that the
Specification identifies the second section as “essentially a dome shaped
portion having an increasing diameter moving downwardly from the first
section.” Appeal Br. 5 (quoting Spec. 116, as amended). Again, we find
that one of ordinary skill in the art would understand the scope of the claims
with respect to the use of the term “dome-like” when read in combination
with and in light of the Specification. Thus, we are not persuaded that the
term “dome-like” renders the claims indefinite.
Finally, we also agree with Appellant that the term “substantially”
does not render the claim indefinite. See Appeal Br. 5—7. One of ordinary
skill in the art would understand that use of the term substantially in these
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Application 13/683,149
claims simply allows for certain minor deviations between the diameters of
the bellows sections. Such is consistent with the Specification, which
depicts a small variation between the diameters of the first and third bellows
sections and the second and fourth bellows sections. See, e.g., Spec. Fig. 1;
Appeal Br. 6—7. Thus, we are also not persuaded that the term
“substantially” renders the claims indefinite.
Accordingly, we do not sustain the rejection of the claims under
35 U.S.C. § 112, second paragraph.
Rejection 2
With respect to claim 1, the Examiner finds that Pool discloses a
plunger as claimed except that Pool’s second section has a conical shape
rather than a round dome-like shape as claimed. Final Act. 3—5. The
Examiner relies on Wang to show a plunger with a dome shape and
concludes that “[wjhether the second section is conical or dome shaped still
ensure[s] the plunger [is] able to trap and to move air and is therefore a
design choice that fails to patently distinguish.” Id. at 5.
We agree with the Examiner’s findings regarding claim 1. See Final
Act. 3—5. For the reasons set forth below, we are not persuaded of reversible
error by Appellant’s arguments.
Appellant first argues that Pool does not disclose a bellows structure
as claimed and instead discloses a spiral pleat. Appeal Br. 14—16. Appellant
asserts that Pool teaches a single pleat that acts like a spring and is intended
to operate in a linear fashion, as opposed to the “plunger of the present
invention^ which] comprises ‘a pleated bellows structure’ that ‘flexes.’” Id.
at 14. Thus, Appellant argues that the claimed structure requires that the
bellows structure be able to flex or bend, and Appellant asserts that Pool’s
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Application 13/683,149
spiral pleat acts like a spring and does not form a bendable flexible joint. Id.
at 15. We are not persuaded by this argument at least because we agree with
the Examiner that Pool’s pleated structure is a bellows structure as claimed.
First, to the extent that Appellant argues that Pool’s third section may
not be considered a bellows generally, we disagree. See Appeal Br. 14. A
bellows may be generally described as “an instrument or machine that by
alternate expansion and contraction draws in air through a valve or orifice
and expels it through a tube.” Bellows Definition 1, Merriam-
Webster.com, https://www.merriam-webster.com/dictionary/bellows (last
visited Jan. 26, 2017). Although, Pool may only use the term bellows in
reference to the prior art, we are not persuaded by Appellant’s argument that
Pool’s third section cannot be considered a bellows under the plain meaning
of the term because Pool’s spiral pleated section encompasses an air
chamber that is intended to expand and compress to expel air. See Pool col.
5,11. 1-5.
Appellant further argues that the claimed bellows section requires a
“bendable flexible joint” that is not present in Pool’s device, which includes
only a spiral pleat that “cannot possibly be considered to be a flexible joint
since the movement intended and allowed by Pool is intended to be linear.”
Appeal Br. 15. To the extent the claim requires a pleated bellows joint that
must be a “bendable flexible joint,” we find that Pool discloses such a joint.
First, we agree with the Examiner that Pool discloses a pleated third section
31 that joins second and fourth sections as claimed. Further, Pool describes
this section as being made of a “resilient, flexible plastic material,” and Pool
further indicates only that the structure “reduces wobbling and skewing”
when compressed, without eliminating it. See Pool col. 4,11. 63—65; col. 5,
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11. 1—5. Thus, contrary to Appellant’s assertions, we find that Pool discloses
a pleated bellows joint that is flexible and is capable of bending.
Finally, Appellant argues with respect to this rejection that Wang may
not be relied upon to show a dome-like structure. Appeal Br. 16. Appellant
asserts that “Wang simply shows somewhat of an inverted pyramidal
structure that is capped off by a rounded portion,” and that Wang cannot be
assumed to include a cavity because it is a design patent and no cross-
sectional views of the device are shown. Id. at 16—17. We are not
persuaded. Wang, although a design patent, includes a plunger structure that
would at least suggest, to one of ordinary skill in the art, the use of a dome­
shaped section at the top of a plunger, which is the extent to which it is
relied upon by the Examiner.
Based on the foregoing, we are not persuaded of reversible error with
respect to this rejection. Accordingly, we sustain the rejection of
independent claim 1 as obvious, and we also sustain the rejection of claims
2—6 and 8—10, which have not been argued separately.
Rejection 3
For this rejection, the Examiner relies on findings that are the same or
substantially similar to the findings discussed above regarding Pool and
Wang with respect to claim 1. The Examiner further relies on Tash with
respect to this rejection to show that it would have been obvious to construct
Poofs plunger as modified by Wang with a resilient rubber-like material.
Final Act. 6. Appellant does not provide arguments with respect to the
rejection of claim 7, and thus, we sustain the rejection of claim 7 for the
reasons discussed above.
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Appellant does separately argue the rejection of claim 19, which is
similar to claim 1, but requires a third section that comprises “a flexible
joint.” Appellant argues that Pool does not disclose a flexible joint. Appeal
Br. 17—18. For the reasons discussed above, we are not persuaded that Pool
does not disclose a flexible joint as a third section of a plunger joining
second and fourth sections. Thus, for the reasons discussed above, we also
sustain the rejection of independent claim 19 and dependent claim 21, which
depends therefrom.
CONCLUSION
For the reasons set forth above, we reverse the rejection of claims
1—10, 19, and 21 as indefinite; and we affirm the rejections of claims 1—10,
19, and 21 as unpatentable over the art of record.
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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