Ex Parte Kovach

Board of Patent Appeals and Interferences

Sep 26, 2008

10602406 (B.P.A.I. Sep. 26, 2008)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JAMES A. KOVACH
____________________

Appeal 2008-1678
Application 10/602,406
Technology Center 3700
____________________

Decided: September 26, 2008
____________________

Before MURRIEL E. CRAWFORD, LINDA E. HORNER, and ANTON W.
FETTING, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 (2002) from a final rejection
of claims 10, 11 and 19-22. We have jurisdiction under 35 U.S.C. § 6(b)
(2002).
Appeal 2008-1678
Application 10/602,406

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
Appellant invented a drain spud wrench (Specification 1).
Claim 10 under appeal reads as follows:
10. A drain spud wrench, comprising:
a) a wrench body having a longitudinal axis;
b) a first end portion extending from said wrench body
having a first plurality of projections that define first and
second transverse channels for receiving a cross-shaped
portion of a drain spud;
c) a first polygonal recess sized to accept a standard sized
socket drive defined radially inward and axially spaced
from said first and second transverse channels;
d) a second polygonal recess that is smaller than said first
polygonal recess defined axially inward of said first
polygonal recess, said second recess being sized to accept
a standard sized socket drive;
e) a second end portion extending from said wrench body in
a direction opposite from said first end portion, said
second end portion includes a second plurality of
projections that define third and fourth transverse
channels for receiving a cross-shaped portion of a drain
spud of second size;
f) a third polygonal recess sized to accept a standard sized
socket drive defined axially inward of said third and
fourth generally transverse channels; and
g) a fourth polygonal recess that is smaller than said third
polygonal recess defined axially inward of said third
polygonal recess, said fourth being sized to accept a
standard sized socket drive.

The Examiner rejected claims 10, 11 and 19 to 22 under 35 U.S.C.
§ 103(a) as being unpatentable over Battrick in view of Machovsky,
Bollinger and Duke.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
2
Appeal 2008-1678
Application 10/602,406

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Battrick US 4,237,754 Dec. 09, 1980
Duke US Des. 311,315 Oct. 16, 1990
Bollinger US 6,269,717 B1 Aug. 07, 2001
Machovsky US 6,698,317 B1 Mar. 02, 2004

ISSUES
The first issue is whether the Appellant has shown that the Examiner
erred in rejecting the claims because Machovsky is a single ended tool not a
double ended tool like Battrick.
The second issue is whether the Appellant has shown that the
Examiner erred in rejecting the claims because Duke does not teach
engagement with a socket drive.
The third issue is whether the Appellant has shown that the Examiner
erred in rejecting the claims because Bollinger is not a spud wrench and is a
one ended tool.
The fourth issue is whether the Examiner erred in rejecting claims 11,
19, 21 and 22 because the Battrick tool includes a hollow tube and therefore
does not include a solid wrench body.
The fifth issue is whether the Appellant has shown that the Examiner
erred in rejecting the claims because the use of a second recess in Duke
would teach away or destroy the Duke reference.

3
Appeal 2008-1678
Application 10/602,406

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
FINDINGS OF FACT
Battrick discloses a drain spud wrench which includes a wrench body,
a first end portion and a second end portion extending from the wrench
body. Each of the first and second end portions includes a first plurality of
projections that define first and second transverse channels to receiving a
cross-shaped portion of a drain spud (col. 3, ll. 22 to 49 and ll. 55 to 61;
Figures 1A & 1B).
Machovsky discloses a plumbing tool having a first end capable of
receiving a cross shaped portion of the drain spud and a second end having a
polygonal recess 46 that is sized to accept a conventional socket drive (col.
1, ll. 5 to 12; col. 2, ll. 37 to 40; Figure 2).
Duke discloses a tub strainer wrench having a first and second end
which both include transverse channels and a socket recess (Figures 1, 2, 3
and 4).
Bollinger discloses a multi-sized tool adaptor that includes two
polygonal recesses 22, 24. The outer recess 22 has a larger diameter than
the inner cavity 24 so that a smaller drive tool that does not mount within the
outer cavity can extend into the inner cavity 24 (col. 2, ll. 61 to 64).

ANALYSIS
We agree with the rationale of the Examiner that:
. . . it further would have been obvious to one of
ordinary skill in the art at the time the invention
was made to provide the axially aligned polygonal
recesses in both ends of the Battrick spud wrench,
made obvious by Machovsky and Duke, with a
second polygonal recess that is smaller than said
4
Appeal 2008-1678
Application 10/602,406

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
first polygonal recess defined axially inward of
said first polygonal recess in view of Bollinger
which would make the tool capable of receiving
different sized socket drives and as a result, a more
universal tool that could be used with multiple
standard socket drives and eliminating the need for
a specialized tool to drive the spud wrench or a
slide bar that may not fit in specific uses of the tub
wrench (Answer 5).

As such in our view, the references are properly combinable.
The rejection in this case is based on the combined teachings of
Battrick, Machovsky, Duke and Bollinger. Appellant’s arguments largely
relate to the individual teachings of the references. An applicant cannot
show non-obviousness by attacking references individually where, as here,
the rejections are based on a combination of references. In re Keller, 642 16
F.2d 413, 426 (CCPA 1981). In this regard, we are not persuaded by
Appellant’s argument that the Examiner erred in rejecting the claims
because Machovsky is a single ended tool not a double ended tool like
Battrick. Machovsky is not relied on for teaching a double ended tool, the
Examiner relies on Duke to teach a double ended tool. In addition, we are
not persuaded by Appellant’s argument that the Examiner erred in rejecting
the claims because Duke does not teach engagement with a socket drive.
Machovsky is relied on for teaching engagement with a socket drive.
17
18
19
20
21
22
23
24
25
26
27
Further, we are not persuaded of error on the part of the Examiner by the
Appellant’s argument that the Examiner erred in rejecting the claims
because Bollinger is not a spud wrench and is a one ended tool. Battrick is
5
Appeal 2008-1678
Application 10/602,406

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
relied on for teaching a spud wrench and Duke is relied on for teaching a
double ended tool.
Lastly, we are not persuaded of error on the part of the Examiner by
Appellant’s argument that the use of a second recess in Duke would teach
away or destroy the Duke reference. The rationale of the Examiner does not
rely on modifying the Duke tool in accordance with the teachings of the
other references. Rather, the Examiner relies on modifying the Battrick tool
in accordance with the teachings of the other references.
In view of the foregoing, we will sustain the Examiner’s rejection of
claim 10. We will also sustain the rejection as it is directed to claims 19-21
because the Appellant has not argued the separate patentability of these
claims.
In regard to claim 11, we are not persuaded of error on the part of the
Examiner by Appellant’s argument that none of the cited references disclose
or suggest a solid wrench body. We agree with the Examiner that the phrase
“solid wrench body” is broad enough to cover the wrench bodies disclosed
in Battrick, Machovsky and Duke as these wrench bodies have three
dimensions that are firm, hard, or compact in substance. To the extent that
the Appellant is arguing that the recitation of a solid wrench body relates to
a wrench body without internal cavities or holes, we note that the
Appellant’s wrench body includes holes at the end thereof and a hole 32 to
accept a shaft.
In addition, the record does not demonstrate, or even allege, that the
use of a non-hollow wrench body rather than a hollow wrench body solves a
stated problem or presents new or unexpected results and therefore the use
6
Appeal 2008-1678
Application 10/602,406

1
2
3
4
5
6
of a non-hollow wrench body would have been an obvious matter of design
well within the skill of the ordinary artisan. See In re Kuhle, 526 F.2d 553
(CCPA 1975)).
As such, we will sustain the Examiner’s rejection as it is directed to
claim 11.

The decision of the Examiner is affirmed. 7
8
9
10
11
12
13
14
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

15
16
17
18
19
20
21
22
23
24
25
AFFIRMED

7
Appeal 2008-1678
Application 10/602,406

1
2
3
4
5
6
7
8
9
10

LV

JEANNE E. LONGMUIR
2836 CORYDON ROAD
CLEVELAND HEIGHTS, OH 44118

8