Ex Parte KEE et al

Board of Patent Appeals and Interferences

Aug 4, 2011

11834803 (B.P.A.I. Aug. 4, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/834,803 08/07/2007 TIMOTHY A. KEE US20050514 1321
173 7590 08/04/2011
WHIRLPOOL PATENTS COMPANY - MD 0750
500 RENAISSANCE DRIVE - SUITE 102
ST. JOSEPH, MI 49085
EXAMINER
STELLING, LUCAS A
ART UNIT PAPER NUMBER
1778
MAIL DATE DELIVERY MODE
08/04/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte TIMOTHY A. KEE and
PAUL W. BARNETT
________________

Appeal 2010-004424
Application 11/834,803
Technology Center 1700
________________

Before BEVERLY A. FRANKLIN, LINDA M. GAUDETTE, and
MARK NAGUMO, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-004424
Application 11/834,803

2
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision1 finally rejecting claims15-20 under 35 U.S.C. § 103(a) as
unpatentable over Burris (US 4,019,986, issued Apr. 26, 1977) in view of
Reber (US 6,042,720, issued Mar. 28, 2000) as evidenced by Seon (US
2006/0165571 A1, published Jul. 27, 2006). (App. Br.2 5.) We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Claim15, the sole independent claim on appeal, is representative of
the invention and is reproduced below from the Claims Appendix to the
Appeal Brief:
15. A method of purifying a liquid in a portable
container comprising:
introducing an un-purified liquid into the portable
container;
closing the portable container with a treatment cap
having contained therein an electrical generating device and an
ozone generating device;
inverting the portable container causing the un-purified
liquid to come in contact with the treatment cap;
activating the electrical generating device to deliver an
electrical current to the ozone generating device and cause the
ozone generating device to produce ozone gas; and
delivering the ozone gas produced by the ozone
generating device into the container to transform the un-purified
liquid into a purified liquid.

1 Final Office Action mailed Feb. 25, 2009 (“Final”).
2 Appeal Brief filed July 21, 2009.
Appeal 2010-004424
Application 11/834,803

3
The Examiner finds Burris discloses a method as claimed in
independent claim 15 with the exception that Burris’ electrical generating
device and ozone generating device are not located in the water treatment
container’s cap. (Ans.3 3-4.) The Examiner relies on Reber for a teaching of
incorporating a water treatment device into the cap of a water treatment
container. (Id. at 4; see also, id. at 10.) The Examiner acknowledges
Reber’s device is a UV generator, but finds that such device has the
capability of producing ozone, as evidenced by Seon. (Id. at 4.) The
Examiner concludes
it would have been obvious to a person of ordinary skill in the
art at the time of invention to practice the method of Reber [sic,
Burris] with a modified device which has the ozone generating
device and a power source integrated into the treatment cap,
because this placement in the treatment cap is an obvious
improvement of Burris using techniques known in the art, and
shown in Reber.
(Id.at 5; see also, id. at 8-9 (“[A] person of ordinary skill in the art having
before him Burris and Reber as evidenced by Seon would understand that
incorporation of a power source and ozone generator treatment device into
the cap of Burris, as is shown in Reber, would produce the predictable
results of a device which no longer requires a remote power source and has
less bulky elements which facilitates transportation.”).)
Appellants raise several arguments in support of patentability. We
find it unnecessary to address all of these arguments as we decide the
following issue in favor of Appellants and, therefore, find it to be dispositive
of the appeal:

3 Examiner’s Answer mailed Sep. 29, 2009.
Appeal 2010-004424
Application 11/834,803

4
Did the Examiner fail to establish a prima facie case of obviousness
because the relied-upon evidence is insufficient to establish that one of
ordinary skill in the art would have had a reasonable expectation of success
in practicing Burris’ method with a container modified to reposition the
ozone and electrical generating devices in the treatment cap? (See App. Br.
10.)
Burris discloses a method of purifying water which utilizes a portable
ozone generator 11 and a separate, portable water container 12. (Burris, col.
1, ll. 42-43.) Ozone produced by generator 11 passes to container 12
through a flexible line 13. (Id. at col. 1, ll. 43-46.) According to the
method, the container 12 is filled with unpurified water through cap 34. (Id.
at col. 2, l. 33.) During the filling step, the container is positioned such that
cap 34 forms a top opening; the container must then be turned on its side so
that a porous bubbler 33 secured to the cap 34 is positioned near the bottom
side of the container to bubble ozone into a lower region of water in the
container 12. (Id. at col. 2, ll. 29-33.) Alternatively, the container may
include a second cap positioned on the container such that when the bubbler
is arranged near the bottom side of the container, the second cap forms a top
opening through which the container can be filled. (Id. at col. 2, ll. 46-50.)
In this arrangement, the step of turning the container on its side is
unnecessary since the bubbler is already positioned to bubble ozone into a
lower region of water in the container. (Id. at col. 2, ll. 50-51.)
Burris discloses that “[a]ll the embodiments of the invention
preferably have tube connections between generator 11 and a water
container arranged to lead above generator 11 so that water cannot run from
[the] container back to the generator” (Burris col. 3, ll. 1-5, quoted in App.
Appeal 2010-004424
Application 11/834,803

5
Br. 10). We are in agreement with Appellants that, based on this teaching,
one of ordinary skill in the art would not have had a reasonable expectation
of success in practicing Burris’ method using a container in which the ozone
generating device and a power source were integrated into the treatment cap,
since water would contact the generator when the container was laid on its
side. Additionally, we note that if one of ordinary skill in the art were to
place the ozone generator in the second cap of Burris’ alternative
arrangement (e.g., such that the generating device was at a level which was
out of contact with the water), then the step of turning the container on its
side would be unnecessary (Burris, col. 2, ll. 50-51), i.e., the resultant
method would not include the step in Burris’ method relied on by the
Examiner for a teaching of the claimed step of inverting the container (see
Ans. 3).
In sum, we are in agreement with Appellants that the evidence of
record is insufficient to support a prima facie case of obviousness.
Accordingly, we do not sustain the rejection of claims15-20 under 35 U.S.C.
§ 103(a) as unpatentable over Burris in view of Reber as evidenced by Seon.
REVERSED

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