Ex Parte Hirtriter

Board of Patent Appeals and Interferences

May 30, 2006

10313418 (B.P.A.I. May. 30, 2006)

1
The opinion in support of the decision being entered today was not written for
publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte R. ERIC HIRTRITER
_____________

Appeal No. 2006-1172
Application No. 10/313,418
______________

ON BRIEF
_______________

Before OWENS, BAHR and NAPPI, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. § 134 of the rejection of
claims 1, 12, 13 and 16 through 20. Claims 14 and 15 are objected to and
claims 2 through 11 are withdrawn. For the reasons stated infra we reverse
the examiner’s rejection of claims 1, 12, 13 and 16 through 20.
Invention

The invention relates to an overflow alarm for a bathtub designed to be
attached in place of the tub overflow cover plate. The overflow alarm mounting
plate is designed such that it can be used on tubs with different overflow plate
mounting configurations. See page 3 of appellant’s specification.

Appeal No. 2006-1172
Application No. 10/313,418

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Claim 1 is representative of the invention and is reproduced below:
1. A bath overflow alarm for mounting to the overflow drain of a
bathtub, the overflow drain having one of at least two different
configurations to mount an overflow plate, the alarm comprising:
a single mounting unit having at least two different mounting
configurations corresponding to the at least two different overflow plate
mounting configurations of the overflow drain and having an overflow
passage, and
an alarm unit including;
a sensor for detecting the presence of water; and
an alarm output coupled to said sensor and activated when
the presence of water is detected.

References

The references relied upon by the examiner are:
Shrewsbury-Gee 5,661,462 Aug. 26, 1997
Bennett Jr. et al. (Bennett) 6,369,715 Apr. 9, 2002
Dunnett 2002/0047784A1 Apr. 25, 2002

Rejection at Issue

Claims 1 and 18 stand rejected under 35 U.S.C. § 102 as being
anticipated by Shrewsbury-Gee. Claims 12, 13, 16 and 17 stand rejected under
35 U.S.C. § 103 as being unpatentable over Shrewsbury-Gee in view of Dunnett.
Claims 19 and 20 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Shrewsbury-Gee in view of Bennett.
Opinion
We have carefully considered the subject matter on appeal, the rejections
advanced by the examiner and the evidence of anticipation and obviousness
relied upon by the examiner as support for the rejections. We have, likewise,
reviewed and taken into consideration, in reaching our decision, appellant’s

Appeal No. 2006-1172
Application No. 10/313,418

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arguments set forth in the briefs along with the examiner’s rationale in support of
the rejections and arguments in rebuttal set forth in the examiner’s answer.
With full consideration being given to the subject matter on appeal, the
examiner’s rejections and the arguments of appellant and the examiner, and for
the reasons stated infra we do not sustain the examiner’s rejection of claims 1,
12, 13 and 16 through 20.
On pages 3 through 7 of the brief, appellant argues that the preamble of
claim 1 limits the claim. Specifically, appellant argues that claim 1’s recitation of
“a single mounting unit having at least two different mounting configurations
corresponding to the at least two different overflow plate mounting configurations
of the over flow drain” clearly relates to the recitation in the preamble of “the
overflow drain having one of at least two different configurations to mount an
overflow plate.”
We concur with the appellant. The limitation in the body of claim 1 “the at
least two different overflow plate mounting configurations” has antecedent basis
in the preamble. Thus, we consider the scope of claim 1 to include a single
mounting unit having at least two different mounting configurations each of which
correspond to different overflow plate mounting configurations.
Appellant argues, on page 6 of the answer, that Shrewsbury-Gee does
not show a single mounting unit having at least two different mounting
configurations. Appellant argues that Shrewsbury-Gee teaches two different
overflow drain mounting configurations and a different housing is used for each.

Appeal No. 2006-1172
Application No. 10/313,418

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On page 6 of the answer, the examiner responds:
The Shrewsbury-Gee reference shows that the
unit (16) may have different forms of mounting configurations,
such as a single screw (if the other screw is missing or
broken or if so desired by a user) with a lever or two-screw
with a lever as shown in Fig. 6 or two screw and a center
screw (if needed in place of where lever 104 is not present)
as shown in Fig. 2.

We disagree with the examiner’s assessment of the Shrewsbury-Gee
reference. Shrewsbury-Gee teaches a bath overflow alarm and teaches two
different devices for use with two different methods of mounting the overflow
drain covers. Figures 1 and 2 depict an overflow drain alarm where the overflow
alarm mounting plate is attached by a screw through a central aperture. Figure 6
depicts an overflow alarm mounting plate for use in tubs with toggles for popup
drains, which makes use of two screws, one on either side of the toggle. We do
not find that Shrewsbury-Gee teaches that a screw can be used through the
toggle hole (of the mounting plate for a tub with a toggle) to attach the alarm to a
tub, which does not use a toggle. Nor do we find that the use of only one of the
two screws or using both of the screws in the figure 6 embodiment of an overflow
alarm mounting plate for a tub with a toggle for a popup drain meets the claim
requirement of different overflow mounting plate configurations. Rather, using
one or two screws in the figure 6 embodiment merely shows two ways of
mounting the housing to one of the at least two different overflow mounting
configurations. As we do not find that Shrewsbury-Gee discloses all of the
limitations of independent claim 1, we will not sustain the examiner’s rejection of
claims 1 and 18 under 35 U.S.C. § 102 as being anticipated by Shrewsbury-Gee.

Appeal No. 2006-1172
Application No. 10/313,418

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The examiner has not asserted, nor do we find that either Bennett or
Dunnett teach a single mounting unit having at least two different mounting
configurations corresponding to the at least two different overflow plate mounting
configurations. Accordingly, we will not sustain the examiner’s rejection of claims
12, 13, 16, 17, 19 and 20 under 35 U.S.C. § 103.
In summary, we do not sustain the examiner’s rejection of claims 1, 12, 13
and 16 through 20. The decision of the examiner is reversed.
REVERSED

TERRY J. OWENS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JENNIFER D. BAHR ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
ROBERT E. NAPPI )
Administrative Patent Judge )

Appeal No. 2006-1172
Application No. 10/313,418

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