Ex Parte Hahnen

Board of Patent Appeals and Interferences

Apr 16, 2009

10333169 (B.P.A.I. Apr. 16, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KEVIN HAHNEN
____________

Appeal 2009-0313
Application 10/333,169
Technology Center 3700
____________

Decided: 1 April 17, 2009
____________

Before JENNIFER D. BAHR, MICHAEL W. O’NEILL, and
STEFAN STAICOVICI Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

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Application 10/333,169

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STATEMENT OF THE CASE

Kevin Hahnen (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 1-6, 13, and 15-19. Claims 7-12 and
14 have been withdrawn. We have jurisdiction over this appeal under 35
U.S.C. § 6 (2002).

THE INVENTION
The Appellant’s invention is drawn towards a spray head for
delivering a plurality of separate fluid medications as an admixed product.
Specification 3, ll. 8-10. Claim 1 is representative of the claimed invention
and reads as follows:

1. An apparatus for delivering fluid components for medical
use comprising a one-piece construction spray head
having a connector end, a delivery end having an exit
opening, the delivery end opposite the connector end, a
gas supply line connector, component conduits, a mixing
chamber having a side wall and an end wall opposite the
exit opening, and a gas channel;

the connector end for connecting to a supply of
components to be mixed;

the delivery end for delivering mixed components;

the gas supply line connector for connecting to a
pressurized gas supply;

the component conduits for conveying the components to
the mixing chamber, each conduit having an exit port
into the mixing chamber, and wherein the exit ports are
arranged such that the components delivered by the
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conduits are directed towards each other in a convergent
fashion in the mixing chamber;

the gas channel operatively connected to the gas
connector and the mixing chamber through an exit port in
the side wall of the mixing chamber, for conveying a gas
to the mixing chamber, wherein the gas channel is
connected to the mixing chamber upstream of the exit
ports of the component conduits, and wherein the gas
channel is configured to be at an acute angle to the side
wall of the mixing chamber, such that the gas delivered
by the gas channel is delivered at an acute angle to the
side wall of the mixing chamber;

the mixing chamber being proximate the delivery end, for
receiving and mixing the components and for receiving
the gas to discharge the mixed components out through
the exit opening.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Kay US 2,967,112 Jan. 3, 1961

The following rejections are before us for review:
The Examiner rejected claims 1-6, 13, and 16-18 under 35 U.S.C.
§ 102(b) as anticipated by Kay, or in the alternative, under 35 U.S.C.
§ 103(a) as unpatentable over Kay.
The Examiner rejected claims 15 and 19 under 35 U.S.C. § 103(a) as
unpatentable over Kay.

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THE ISSUE
Has the Appellant demonstrated that the Examiner erred in
determining that Kay teaches a device having a gas channel connected to a
mixing chamber (common portion)2 through an exit port in a side wall of the
mixing chamber (common portion)?

SUMMARY OF DECISION
We REVERSE.
FINDINGS OF FACT
The following enumerated findings of facts (FF) are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F. 2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office):
1. The Appellant’s Modified Figure 1 of Kay is reproduced below:

2 The structural limitation of a “mixing chamber” appearing in
independent claims 1 and 18 is equivalent to the claimed structure of a
“common portion” in independent claim 13.
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The Appellant’s Modified Figure 1 of Kay depicts a mixing
chamber having a front portion (beginning of the stainless steel
wad 4), a side wall, and a rear wall including an exit port of a
gas channel. App. Br. 12.
2. The Examiner’s Modified Figure 2 of Kay is reproduced below:

The Examiner’s Modified Figure 2 of Kay depicts a “side wall”
and an “end wall.” Ans. 7.
3. A Modified Figure 1 of Kay is reproduced below:
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The Modified Figure 1 of Kay depicts a front wall, an end wall,
a side wall, and an exit port D. The front wall is defined by the
nozzle 14. The side wall constitutes the inclined body wall 5,
the cylindrical wall A, and the inclined wall B of the bushing
15. Finally, the end (rear) wall is determined by the bottom C of
the union 16.
4. An ordinary and customary meaning of the term “chamber” is
“a natural or artificial enclosed space or cavity.” MERRIAM
WEBSTER’S COLLEGIATE DICTIONARY 190 (Tenth Ed. 1997).
5. Kay discloses a device for mixing two solutions, including a
pair of branch feeding pipes 2, and a mixing chamber 1 closed
at the top by a bushing 15. Within bushing 15 is secured a
union 16 (gas connector) having an internal channel (gas
channel). Over the outer surface 17 of the union 16 a hose 18 is
A
D
B
C
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fitted for supplying the mixing chamber 1 with compressed air
through an exit port (labeled as D in FF 3) located in the bottom
C of the union 16 (end wall). Kay, col. 2, ll. 17-20 and 53-57
and fig. 1.

PRINCIPLES OF LAW
Claim Construction
When construing claim terminology in the United States Patent and
Trademark Office, claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004).
Anticipation
"A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference." Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (1987).
Obviousness
It is elementary that to support an obviousness rejection all words in a
claim must be considered in judging the patentability of that claim against
the prior art. In re Wilson, 424 F.2d 1382, 1385 (CCPA 1970).

OPINION
The crux of the disagreement between the Appellant and the Examiner
in the instant appeal lies in the interpretation of the claimed terms “end wall”
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and “side wall” as applied to the mixing chamber of Kay. The Appellant
argues that claim 1 requires the “mixing chamber of the spray head [to have]
an end wall distinct from a side wall” such that “the gas channel has an exit
opening in the side wall.” The Appellant also argues that ‘the gas channel is
configured to be at an acute angle to the side wall of the mixing chamber,
such that the gas delivered by the gas channel is delivered at an acute angle
to the side wall of the mixing chamber.’” App. Br. 11. Emphasis in original.
According to the Appellant, the mixing chamber 1 of Kay includes a
front portion (beginning of the stainless steel wad 4), a rear wall including
an exit port of a gas channel, and a side wall (FF 1). As such, because “the
gas channel has an exit port in the rear wall of the mixing chamber…and not
the side wall,” in contrast to the claimed invention, the gas in Kay’s device
is delivered parallel to the side wall of the mixing chamber and not at an
angle to the side wall of the mixing chamber, as required by claims 1 and 18.
App. Br. 12. Emphasis in original. Finally, the Appellant argues that the
“exit port of the union 16 into the mixing chamber 1 is through the rear wall
of the chamber and not the side wall of the chamber.” App. Br. 13 and FF 1.
Emphasis in original.
In response, the Examiner takes the position that the mixing chamber
of Kay includes the bushing 15. Hence, according to the Examiner, the
“side wall” of the mixing chamber includes the inclined body wall 5, the
conical portion of the bushing 15, and the horizontal surface of bushing 15
to which hose 18 is connected. Ans. 3. The Examiner further contends that
the claimed “end wall” corresponds in Kay to the “left vertical surface of
bushing 15 facing nozzle 14” because “it intersects the longitudinal axis 3
and the rear end of mixing chamber 1.” Ans. 3, 4, and 7 and FF 2.
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Emphasis added. Hence, under the Examiner’s reading of the teachings of
Kay, the gas channel is connected to the mixing chamber 1 of Kay through
an exit port 17 in the “side wall” of the mixing chamber. Ans. 3.
Although we appreciate both the Appellant’s and the Examiner’s
interpretations of the teachings of Kay, we nonetheless find that both
interpretations are deficient in some respect. First, we disagree with the
Examiner’s contention that the claimed “end wall” corresponds to the “left
vertical surface of bushing 15 facing nozzle 14” 3 in Kay. See Ans. 3.
Although the left vertical surface of bushing 15 of Kay is at an opposite end
to the front nozzle 14, we do not find that it intersects the longitudinal axis 3
of the mixing chamber, but rather that it is parallel (vertical) to the
longitudinal axis 3. Moreover, the left vertical surface of bushing 15 of Kay
does not even contact the mixing chamber 1 nor does it close off the mixing
chamber in order to be considered an “end wall.” Second, we disagree with
the Appellant’s position that the “side wall” in Kay is solely formed by the
cylindrical portion of the mixing chamber 1 (FF 1).
As noted above, an ordinary and customary meaning of the term
“chamber” is “a natural or artificial enclosed space or cavity” (FF 4). In this
case, we find that the mixing chamber 1 of Kay is an enclosed space defined
by a front wall, an end wall, and a side wall. Specifically, the front wall is
defined by the flange portion of the nozzle 14. The side wall constitutes the
inclined wall 5, the cylindrical wall A, and the internally inclined wall B of
the bushing 15. Finally, the end (rear) wall is determined by the bottom C of

3 Although some ambiguity exists as to which portion of Kay’s mixing
chamber the Examiner considers to form an “end wall,” we note that from
the Examiner’s modified Figure 2, it appears that the Examiner is pointing to
the outer vertical wall of the flange of the bushing 15.
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the union 16 (FF 3). Kay further discloses a hose 18 connected to the outer
surface 17 of the union 16 (gas connector), having an internal channel (gas
channel) which supplies the mixing chamber 1 with compressed air through
an exit port D in the bottom C of the union 16 (end wall) (FF 3 and 5).
Hence, in contrast to the Appellant’s claimed invention, we find that the gas
channel in Kay is connected to the mixing chamber through an exit port in
the “end wall” rather than the “side wall.”
Inasmuch as we found that Kay does not disclose a mixing device
having a gas channel connected to a mixing chamber (common portion)
through an exit port in a side wall of the mixing chamber (common portion)
as required by each of independent claims 1, 13, and 18, Kay does not
disclose all of the elements of independent claims 1, 13, and 18.
Accordingly, the rejection of claims 1-6, 13, and 16-18 under 35 U.S.C. §
102(b) as anticipated by Kay, or in the alternative, under 35 U.S.C. § 103(a)
as unpatentable over Kay cannot be sustained. Similarly, the rejection of
claims 15 and 19 under 35 U.S.C. § 103(a) as unpatentable over Kay
likewise cannot be sustained.

CONCLUSION
The Appellants have demonstrated that the Examiner erred in
determining that Kay teaches a mixing device having a gas channel
connected to a mixing chamber (common portion) through an exit port in a
side wall of the mixing chamber (common portion).

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DECISION
The decision of the Examiner to reject claims 1-6, 13, and 15-19 is
reversed.

REVERSED

mls

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