Ex Parte Lamb et al

Patent Trial and Appeal Board

Aug 4, 2016

12294321 (P.T.A.B. Aug. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/294,321 06/16/2009
23909 7590 08/08/2016
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
FIRST NAMED INVENTOR
John David Lamb
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.
7634-01-PCP 8701
EXAMINER
JACYNA, J CASIMER
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
08/08/2016 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):
Patent_Mail@colpal.com
uspto@thebellesgroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN DAVID LAMB,
MARTIN CHRISTOPHER BUNCE,
ALEXANDER JAMES PEACOP, BRUCE CUMMINGS,
WILLIAM JOHN DA VIS, and BARBARA PORTER
Appeal2014-004173
Application 12/294,321
Technology Center 3700
Before: LINDA E. HORNER, CHARLES N. GREENHUT, and
MARK A. GEIER, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
1-5, 7, 13, 14, and 16-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
Appeal2014-004173
Application 12/294,321
CLAIMED SUBJECT MATTER
The claims are directed to an aerosol dispenser. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1 An aerosol dispensing container comprising a body section and
a dispensing section, the body section comprising a container
having an aerosol valve at one end, the dispensing section
comprising an enclosing unit and an actuating unit, the actuating
unit adjacent the aerosol valve of the body section, the enclosing
unit attaching the actuating unit to the body section, the actuating
unit having a dispensing aperture and an actuating aperture, the
actuating aperture sized to receive a finger of a person, the
dispensing aperture in communication with the aerosol valve, the
actuating aperture extending through said dispensing section to
form an actuating channel, the actuating channel having
opposing open ends, at least a lower portion of said actuating
channel being flexible and in direct contact with the aerosol valve
on the body section to thereby actuate the aerosol valve when the
lower portion of said actuating channel is depressed.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Lee
Earlies
Lambert
Grant
US D486,3 87 S
us 4,277,004
US 6,905,049 B 1
US 7,637,394 B2
REJECTIONS
Feb. 10,2004
July 7, 1981
June 14, 2005
Dec. 29, 2009
Claims 1, 3, 4, 7, 13, and 16-20 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Grant in view of Lambert.
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Application 12/294,321
Claims 2 and 14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Grant in view of Lambert as applied to claim 1 above and
further in view of Lee.
Claims 1, 3-5, 7, 13, and 20 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Grant in view ofBarlics.
Claims 2 and 14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Grant in view of Earlies as applied to claim 1 above and
further in view of Lee.
OPINION
This appeal centers on two separate 35 U.S.C. § 103 rejections applied
to independent claim 1. There are no arguments presented by Appellants
regarding Grant. Appellants arguments are directed to the following
disputed limitation of claim 1 not found in the Grant reference: "at least a
lower portion of said actuating channel being flexible and in direct contact
with the aerosol valve on the body section to thereby actuate the aerosol
valve when the lower portion of said actuating channel is depressed." App.
Br. 10. We consider each rejection of claim 1, and the respective references
applied by the Examiner, separately below.
Lambert
The dispute over the Lambert reference centers on whether there is
"direct contact" between the "flexible portion" as cited by the Examiner, and
what structures from the Lambert reference can be reasonably regarded as
the "aerosol valve." App. Br. 10. The Examiner cites several different
structures including portions of a push-button 8 (e.g., base 34 and support
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Application 12/294,321
surface 35) as being part of the "generic overall valve assembly" of
Lambert's device, in order to meet the claim limitation "direct contact."
Ans. 7; Advisory Action, dated Aug. 26, 2013, at 2. The Appellants argue:
"[ o ]ne of ordinary skill in the art reading the disclosure of Lambert would
not interpret the push-button 8 to be integral with the activation rod 52, or
that the push-button 8 is a part of the aerosol valve." App. Br. 7. The
Examiner further contends:
Appellant's arguments are far narrower than the claim language
because the claims only define a generic overall aerosol valve
and do not mention an aerosol valve part such as the activation
rod as contended. The pushbutton 34 defines the upper portion
of the aerosol valve and forms the outlet channel for the aerosol
valve. Therefore, element 34 is part of the aerosol valve along
with the rod 52 and the flexible actuating channel 14 of Lambert
is in direct contact with portion 34 of the aerosol valve as
claimed .... [I]t is clear in the drawings that the pushbutton 8, 34
is the upper portion of and surrounds the valve activation rod 52
and thereby is part of the overall valve assembly as claimed and
is also in direct contact with the flexible actuating channel 14 of
Lambert as claimed.
Id. (emphasis added). However, based on Lambert's disclosure, it is unclear
which portions of Lambert can be reasonably included as the claimed
"aerosol valve" (i.e., especially since the term "valve" is not utilized by the
Lambert disclosure). Moreover, the Examiner departs from the claim
language of an "aerosol valve" when attempting to characterize the
structures of Lambert as "a generic overall aerosol valve" or "an overall
valve assembly" (Ans. 7). We agree with Appellants that the Examiner does
not provide adequate evidentiary support for the finding that push button
element 34 and support surface 35 would reasonably be regarded by one of
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Application 12/294,321
ordinary skill in the art as part of the "aerosol valve" of Lambert. The
Examiner has not demonstrated (Ans. 3 & 7) that Lambert reasonably
teaches: "at least a lower portion of said actuating channel being flexible
and in direct contact with the aerosol valve," as required by Claim 1
(emphasis added). We therefore cannot sustain the rejections on the basis
set forth by the Examiner.
Regarding the rejection of dependent claims 3, 4, 7, 13, and 16-20
over Grant in view of Lambert, as well as dependent claims 2 and 14, over
Grant in view of Lambert and further in view of Lee, the rejections cannot
be sustained based on the Examiner's reliance on Lambert.
Earlies
The dispute regarding Earlies is whether the portions of Earlies cited
by the Examiner reasonably teach a "flexible portion." Claim 1 requires "at
least a lower portion of said actuating channel being flexible." App. Br. 10
(emphasis added). The Examiner cited Earlies as teaching "an actuating unit
10 made of a flexible thermoplastic (as shown by the cross section in figures
2 and 3) with a flexible portion 42 which contacts the aerosol valve." Final
Act. 4. The Examiner further clarified in response to Appellants' arguments:
"[a]pplicant also contends that Barlics['s] channel is not flexible. However,
claim 1 specifically claims this portion [i.e., actuating unit 10 which Earlies
refers to as "cover 1 O"] of Earlies as first and second resilient members, i.e.
flexible." Final Act. 5. Appellants countered:
[b ]arlics teaches plainly that " [ t ]he cover 10 is formed of plastic
material." (Column 3, lines 41-42). Indeed, Earlies emphasizes
the need for a cover that is not "as susceptible to high temperature
conditions and the melt flow characteristics of plastic material."
(Column 1, lines 36-40). One of ordinary skills in the art would
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understand that as compared to plastic materials, flexible
materials generally would be more susceptible to high
temperature conditions ... because Earlies teaches that the cover
10 is formed of plastic material and not of a flexible material,
Earlies fails to teach or otherwise suggest the claimed flexible
lower portion of an actuating channel.
App. Br. 8. The Examiner regarded the top cover 10 as teaching the
"actuating channel" of claim 1 (Ex. Ans. 5 & 8), and more specifically the
Examiner's description of the "flexible" portions of Earlie's top cover 10
included: the top wall 42 and springs 44/44a (i.e., resilient members). Ans.
5 & 8. Both elements form integral portions of the top cover 10. The
Examiner correctly stated: "the lower portion of the Earlies actuating
channel is flexible at 44, 44a ... claim 1 of Earlies specifically claims this
portion of Earlies as first and second resilient members, i.e. flexible." Ans.
8. We agree that "resilient" is akin to "flexible" because resiliency implies
the ability to return to an original position after being flexed or bent.
Appellants' reliance on the material "melt flow characteristics" presented in
Badie' s disclosure does not apprise us of error in the Examiner's position.
First, the cited elements (i.e., at least springs 44/44a) of Earlies are not
specifically described as lacking flexibility. Second, having the desired melt
flow characteristics does not preclude also having flexibility. Third, a spring
is understood to inherently possess some ability to flex.
Therefore, we agree with the Examiner that at least a lower portion of
the top cover 10 is flexible. We are thus, not apprised of any error in the
Examiner's rejection and therefore sustain the rejection of claim 1 over
Grant in view of Earlies.
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Regarding the rejection of dependent claims 3-5, 7, 13, and 20 over
Grant in view of Earlies as well as dependent claims 2 and 14, over Grant in
view of Earlies as applied to claim 1 above and further in view of Lee,
Appellants did not separately contest these rejections or the addition of the
Lee reference (App. Br. 9), therefore these rejections are also sustained.
DECISION
The Examiner's rejection of claims 1, 3, 4, 7, 13, and 16-20 over
Grant in view of Lambert is reversed.
The Examiner's rejection of claims 2 and 14 over Grant in view of
Lambert as applied to claim 1 above and further in view of Lee is reversed.
The Examiner's rejection of claims 1, 3-5, 7, 13, and 20 over Grant in
view of Earlies is affirmed.
The Examiner's rejection of claims 2 and 14 over Grant in view of
Earlies as applied to claim 1 above and further in view of Lee is affirmed.
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)(l )(iv).
AFFIRMED-IN-PART
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