Ex Parte Irving et al

Patent Trial and Appeal Board

Jun 27, 2016

12728826 (P.T.A.B. Jun. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
121728,826 03/22/2010 Michael Howard IRVING
4955 7590 06/29/2016
WARE, FRESSOLA, MAGUIRE & BARBER LLP
BRADFORD GREEN, BUILDING 5
755 MAIN STREET, P 0 BOX 224
MONROE, CT 06468
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
9ll-017.016-3(09RLE001US) 6063
EXAMINER
PLAKKOOTTAM, DOMINICK L
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
06/29/2016 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):
mail@warefressola.com
uspatents@warefressola.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL HOW ARD IRVING and
JEFFREY BRIAN SCHOPPERLE
Appeal2014-005195
Application 12/728,8261
Technology Center 3700
Before ANTON W. PETTING, KENNETH G. SCHOPPER, and
AMEE A. SHAH, Administrative Patent Judges.
SCHOPPER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of claims
1-17. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
BACKGROUND
According to Appellants, "[ t ]he present invention relates to a pump
kit." Spec. 1.
1 According to Appellants, the real party in interest is Xylem IP Holdings
LLC. Appeal Br. 3.
Appeal2014-005195
Application 12/728,826
CLAHvIS
Claims 1-1 7 are on appeal. Claim 1 is illustrative of the appealed
claims and recites:
1. A portable pump kit comprising:
a pump having a fluid output port configured to pump
fluid, and having a quick disconnect power input connection
configured to couple the pump to a source of power;
a portable battery or battery pack having a quick
disconnect power connection configured to be coupled by
associated wiring to the pump;
a connector having one corresponding quick disconnect
plug or connection, including a bullet connector, configured to
couple to the quick disconnect power input connection of the
pump, and having another corresponding quick disconnect plug
configured to couple to the quick disconnect power connection
of the portable battery or battery pack;
an alligator style battery connector having one
corresponding quick disconnect plug or connection configured
to couple to the quick disconnect power input connection of the
pump, and having a pair of alligator style battery clips
configured to be coupled to terminals of a battery, including a
car or boat battery;
a cigarette lighter connector having one corresponding
quick disconnect plug or connection configured to couple to the
quick disconnect power input connection of the pump, and
having a cigarette lighter power adapter configured to be
coupled to a remote cigarette lighter in, including a boat, a car,
or some other equipment or device; and
a carrying case having a case lid hingeably coupled to a
case base,
the case base being configured with a molded
construction in the form of a bottom tray configured to receive,
frictionally engage and store an arrangement of at least two of
the pump, the portable battery or battery pack, the connector,
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Application 12/728,826
the alligator style battery connector or the cigarette lighter
connector, and
the case lid being configured with a similar molded
construction in the form of a top tray configured to receive,
frictionally engage and store a corresponding arrangement of at
least two of the pump, the portable battery or battery pack, the
connector, the alligator style battery connector or the cigarette
lighter connector not being stored in the case base,
wherein the quick disconnect power input connection of
the pump is configured to couple to any of the portable battery
or battery pack, the alligator style battery connector, and the
cigarette lighter connector in order to power the pump using
any of the portable battery or battery pack, a battery coupled to
the alligator style battery connector and the equipment or
device coupled to the cigarette lighter connector.
Appeal Br. 15-16.
REJECTIONS
1. The Examiner rejects claims 1---6 and 9-13 under 35 U.S.C.
§ 103(a) as unpatentable over Vijayakumar2 in view of Rice; 3
Forgach,4 and Thomas. 5
2. The Examiner rejects claims 7 and 14--17 under 35 U.S.C. § 103(a)
as unpatentable over Vijayakumar in view of Rice, Forgach,
Thomas, and Mullendore. 6
2 Vijayakumar, US 2009/0269217 Al, pub. Oct. 29, 2009.
3 Rice et al., US 5,975,423, iss. Nov. 2, 1999.
4 Forgach, US 6,874,332 B2, iss. Apr. 5, 2005.
5 Thomas et al., US 4,282,987, iss. Aug. 11, 1981.
6 Mullendore, US 6,146,108, iss. Nov. 14, 2000.
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3. The Examiner rejects claim 8 under 35 U.S.C. § 103(a) as
unpatentable over Vijayakumar in view of Rice, Forgach, Thomas,
and Riley.7
DISCUSSION
Appellants raise separate arguments related to independent claims 1
and 17 and indicate that claims 2-16 stand or fall with those claims. See
Appeal Br. 6-13. We address claims 1 and 17 separately below.
As an initial matter, Appellants argue that Vijayakumar is not prior
art. See Supp. Br. 2-3. Specifically, Appellants argue that although
Vijayakumar claims the benefit of U.S. Provisional Patent Application No.
61/162,859, filed on March 28, 2008, this priority claim is improper because
the sole inventor of the provisional application is not the same as the sole
inventor of the non-provisional application to Vijayakumar. Id. Thus,
Appellants assert that Vijayakumar has a priority date of March 27, 2009,
which is after Appellants' priority date of March 24, 2009. Id.
We are not persuaded and find that a preponderance of the evidence
supports the Examiner's position that Vijayakumar may be considered prior
art with respect to the rejections made here. Although the provisional
application lists Senthil Kumar as the inventor and the non-provisional lists
Senthilkumar Vijayakumar as the sole inventor, we agree with the Examiner
that this appears to be a typographical error. See Ans. 10-11. The one name
is an obvious abbreviated form of the other, signifying the so identified
persons are one and the same. Both the published application (US
2009/0269217 Al) and the issued patent (US 8,579,600 B2, iss. Nov. 12,
7 Riley et al., US 5,672,155, iss. Sept. 30, 1997.
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Application 12/728,826
2013) claim priority to the provisional application, and ivlr. Vijayakumar
signed a declaration claiming priority to the provisional application. See
Application No. 12/413,279, "Declaration and Power of Attorney for Patent
Application," filed July 13, 2009
Claim 1
With respect to claim 1, the Examiner finds that Vijayakumar teaches
a portable pump kit as claimed, except that Vijayakumar does not teach "the
type of connectors and connections used to connect the pump to external
sources of power such as a car or boat battery" or the base or lid molded to
receive and frictionally engage and store kit parts. Final Action 4--7. With
respect to the types of connectors claimed, the Examiner relies on Rice and
Forgach, and with respect to the configuration of the case base and lid, the
Examiner relies on Thomas. Id.
We agree with and adopt the Examiner's findings and conclusions
regarding the scope and content of the prior art with respect to claim 1. See
id.; see also Ans. 11-16. As discussed below, we are not persuaded of error
by Appellants' arguments.
Appellants first argue that the Examiner erred in finding that
Vijayakumar discloses a pump having a quick disconnect power input
connection as claimed. See Appeal Br. 8-9. Specifically, Appellants argue
that the Examiner relies on a connection to Vijayakumar' s control charger as
the quick disconnect connection claimed; that Vijayakumar' s control charger
and pump are distinct and separate components; and thus, a connection on
the control charger does not meet the claimed "pump having a quick
disconnect power input connection configured to couple the pump to a
power source." Id. We agree with the Examiner that under the broadest
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Application 12/728,826
reasonable interpretation of the claim the quick disconnect connection
identified by the Examiner in Vijayakumar reads on this claim requirement.
Specifically, we agree that the connection cited by the Examiner couples the
pump to a source of power as required by the claim and that the plain
language of the claim does not require that the connection be directly on the
pump body, as Appellants seem to argue. See Ans. 11-12. We also agree
that the control charger is electrically connected to the pump and may be
viewed as part of the pump. Id.
Second, Appellants argue that there would be no motivation to modify
Vijayakumar to meet the claims. See Appeal Br. 9-10. In support,
Appellants assert that Vijayakumar would be unsuitable for use in lower
power situations as intended by the claimed kit because the control charger
performs many functions that would result in unnecessary consumption of
power. Id. On this point, we agree with the Examiner that Vijayakumar
describes "that the control charger can be connected to a 12-volt car battery
which indicates that said control charger can be used in low power
situations." Ans. 13 (citing Vijayakumar i-f 27). Thus, this particular
argument is unpersuasive.
Appellants also assert that a person of ordinary skill in the art would
have no reason to modify Vijayakumar for use with alternative power
sources, such as a vehicle cigarette lighter, because it is designed as a
basement sump pump. Appeal Br. 11. However, as noted above,
Vijayakumar discloses that the pump may be used with a car battery as a
backup power source, at least suggesting that it could be attached to that
source by any suitable means, such as an alligator clip connection or
cigarette lighter connection. Further, we agree with the Examiner that
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Application 12/728,826
Appellants have not provided any reason why Vijayakumar could not be
utilized as a pump in locations other than a basement. Ans. 14--15.
Third, Appellants argue that "several of the references cited by the
Office are non-analogous to the claimed invention," and Appellants
specifically discuss Forgach and Thomas in this regard. Appeal Br. 11-12.
However, Appellants assert only that Forgach is in a "substantially different
area of technology and problem than what is presented in the present
application" and that Thomas "is also a reference that would not have been
considered by a person having ordinary skill in the art." Id. These
arguments do not adequately explain why the references are non-analogous,
and we agree with the Examiner that Forgach is relevant to the problems
related to providing alternate power connections to a motor and Thomas is
relevant to providing a case for a portable pump device. See Ans. 15-16.
Based on the foregoing, we find that the Examiner established a prima
facie showing of obviousness with respect to claim 1 without error.
Accordingly, we sustain the rejection of claim 1. Because Appellants rely
on the same arguments with respect to dependent claims 2-16, we also
sustain the rejection of those claims.
Claim 17
With respect to claim 1 7, the Examiner relies on the same findings
provided with respect to the rejection of claims 1 and 14--16. See Final
Action 10. Further, in response to Appellants' arguments, the Examiner
finds that "it is clearly obvious that Vijayakumar's pump has to be an inline
pump in order to pump liquid out of a sump or water body." Ans. 17. The
Examiner also states that "it is inherently obvious that Vijayakumar
anticipates this limitation and as such, this rejection of claim 17 would
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merely be a repetition of the rejection of claim 1 with additions from the
rejections of claim 14--16 (as stated previously)." Id.
Appellants argue that the rejection failed to address the requirement
that the pump in claim 17 is an inline pump. Appeal Br. 12. Appellants also
argue that the Examiner has not shown that it is inherent that the sump pump
of Vijayakumar must be an inline pump. Reply Br. 8.
We are not persuaded of error. Although the Examiner references
inherency, the rejection at issue is an obviousness rejection, and we find that
the Examiner's findings sufficiently show that Vijakumar teaches or
suggests the use of an inline pump. Accordingly, we sustain the rejection of
claim 17.
CONCLUSION
For the reasons set forth above, we affirm the rejections of claims 1-
17.
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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