Ex Parte Lang et al

Board of Patent Appeals and Interferences

Jun 15, 2011

10487330 (B.P.A.I. Jun. 15, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DANIEL LANG and ALAIN TAILLANDIER
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Appeal 2009-009276
Application 10/487,330
Technology Center 3700
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Before STEVEN D.A. McCARTHY, STEFAN STAICOVICI, and
FRED A. SILVERBERG, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-009276
Application 10/487,330

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STATEMENT OF THE CASE
Daniel Lang and Alain Taillandier (Appellants) appeal under 35
U.S.C. § 134 from the Examiner’s decision rejecting under 35 U.S.C. §
103(a) claims 16-20, 22-30, 34-36, and 39-41 as unpatentable over Yardley
(US 1,454,367, issued May 8, 1923), Johnson (US 3,373,894, issued Mar.
19, 1968), and Arzenton (EP 0 747 796 A1, published Dec. 11, 1996) and
claims 31 and 32 as unpatentable over Yardley, Johnson, Arzenton, and
Smith (US 2,708,896, issued May 24, 1955). Claims 1-15 and 37-38 have
been canceled and claims 21 and 33 have been allowed by the Examiner.
We have jurisdiction over this appeal under 35 U.S.C. § 6.

THE INVENTION
Appellants’ invention relates to a cock for controlling the flow rate of
a pressurized fluid including a lever 2 that pivots between three angularly
offset positions and is fixed to a body of the cock. Spec. 1, ll. 4-8; Spec. 15,
ll. 17-20; and figs. 7 and 8.
Claim 16 is representative of the claimed invention and reads as
follows:
16. An apparatus for controlling the flow rate of a pressurized fluid,
comprising:
a) a body, said body comprising an internal fluid-distribution
circuit, a fluid flow control means, and a manipulating means;
b) said internal fluid-distribution circuit comprising a fluid inlet
orifice, a fluid outlet orifice and an internal fluid passage fluidically
connecting said fluid inlet orifice to said fluid outlet orifice, wherein
said fluid inlet orifice is borne by a base of said body comprising a
peripheral external screw thread having a screw thread axis and said
body extends in a longitudinal direction along said screw thread axis;
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c) said fluid flow control means acting on said internal fluid
passage to permit or prevent fluid from flowing along said passage
between said fluid inlet orifice and said fluid outlet orifice;
d) said manipulating means being actuated manually by an
operator and collaborating directly or indirectly with said fluid flow
control means to permit or to prevent said flowing of fluid along said
passage, said manipulating means comprising a lever with a first axis
pivoting about a pivot axis and able to move between at least three
stable and angularly offset positions, said positions comprising a rest
position, a liberating intermediate position, and an active position,
said lever comprising a first leg extending angularly away from a
second leg, said first leg terminating in a manipulating end and said
second leg terminating in an active end, wherein said lever is
configured such that when said lever is in said rest position said first
leg extends along said body in said longitudinal direction;
e) said rest position in which said lever is held, directly or
indirectly, fixed and secured to said body and in which said fluid flow
control means completely shut off said internal fluid passage so as to
obtain a zero fluid flow rate in said internal fluid passage;
f) said liberating intermediate position in which said first axis
of said lever is offset by a positive and non-zero first angle with
respect to said pivot axis of said lever in said rest position, in which
position said lever is detached from said body and in which position
said fluid flow control means completely shut off said internal fluid
passage so as to provide a zero fluid flow rate in said internal fluid
passage; and
g) said active position in which said first axis of said lever is
offset by a positive and non-zero second angle with respect to said
first axis of said lever in said liberating intermediate position, in
which position said lever is detached from said body and in which
position said fluid flow control means no longer shut off said internal
fluid passage so as to allow fluid to circulate at a non-zero flow rate
along said internal fluid passage.

SUMMARY OF DECISION
We REVERSE.

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ANALYSIS
The Examiner found that although Yardley discloses some of the
features of independent claims 16 and 36, Yardley fails to disclose a lever
that “is held, directly or indirectly, fixed and secured to” the valve body of
Yardley in an at rest position. Ans. 5-6. See also, Br., Claims Appendix.
The Examiner further found that Johnson discloses “a pivoting handle at 31
operating a valve element” including:
a toe 35 having edges 36 mating with an aperture
34 of the valve body which positively retains the
handle 31 in an inoperative “rest” position[,] thus
forming a detent which positively retains the handle
in a fixed and secured position for the purpose of
preventing the handle from potentially actuating the
valve.
Ans. 6.
The Examiner concluded that:
It would have been obvious at the time the
invention was made to a person having ordinary
skill in the art to employ in Yardley a handle "toe"
at stop 18 for example, having edges mating with
an aperture on the valve body at frame 11 thus
forming a detent which positively retains the
handle 13 in a fixed and secured position for the
purpose of preventing the handle from potentially
actuating the valve should the handle be jostled
and requiring positive disengagement of the
handle detent by the user of the valve prior to
actuation thus releasing the valve from its held
and fixed position prior to further actuation as
recognized by Johnson.
Id.
Although a proposed combination of teachings does not necessarily
require that the structure taught by one of the references be bodily
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incorporated into the structure of the other reference, we fail to see how or in
what manner Yardley is proposed to be modified to include the “toe” of
Johnson, a modification asserted by the Examiner as something that would
have been obvious to a person of ordinary skill in the art. In this case, we
find that body cap 22 of Johnson cannot rotate because edges 36 of toe 35
abut against ends 37, 38 of notch 16 in flange 13. Johnson, col. 3, ll. 1-14
and 22-31 and figs. 1 and 2. However, Johnson fails to disclose any
structure that restrains pivotal movement of handle 31. Br. 15-16. In fact,
Johnson specifically teaches that cap 22 can be rotated by elevating the
distal end of handle 31 to lift toe 35 above the level of flange 13. Johnson,
col. 3, ll. 24-27 and fig. 2. Hence, we agree with Appellants that because
handle 31 of Johnson is not pivotally restrained, it is not held fixedly and
securely. Br. 15-16. As such, we do not see how the handle “toe” in the
Examiner’s proposed configuration would prevent potential actuation of the
valve when the valve handle is jostled, as the Examiner opines.
Although Johnson discloses that it was known in the art to use a
detent mechanism to prevent rotation of a radiator cap, we find the
Examiner’s rejection insufficient to explain what in the prior art would have
prompted a person having ordinary skill in the art to use the handle 31 of
Johnson to fix and secure lever 13 of Yardley to the valve body. The
Examiner has not provided any findings that either Yardley or Johnson
recognized a problem with the technique used in Yardley to secure lever 13
in its inoperative position , namely, engaging lug 18 and curved portion of
bracket arm 11. See Yardley, p. 1, ll. 80-87 and sole Figure. Absent
hindsight, we fail to see why one having ordinary skill in the art would have
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been led by the teachings of Johnson’s radiator cap to modify the valve
apparatus of Yardley in the manner claimed.
Lastly, we note that the addition of Arzenton does not cure the
deficiencies of Yardley and Johnson as described above.
In conclusion, for the foregoing reasons, the rejection of independent
claims 16 and 36, and their respective dependent claims 17-20, 22-30, 34,
35, and 39-41 under 35 U.S.C. § 103(a) as unpatentable over Yardley,
Johnson, and Arzenton cannot be sustained. See In re Fine, 837 F.2d 1071,
1076 (Fed. Cir. 1988) (If an independent claim is nonobvious under 35
U.S.C. § 103, then any claim dependent therefrom is nonobvious).
With respect to the rejection of claims 31 and 32, the addition of
Smith does not remedy the deficiencies of Yardley, Johnson, and Arzenton
as described above. Therefore, the rejection of claims 31 and 32 under 35
U.S.C. § 103(a) as unpatentable over the combined teachings of Yardley,
Johnson, Arzenton, and Smith likewise cannot be sustained.

SUMMARY
The decision of the Examiner to reject claims 16-20, 22-32, 34-36,
and 39-41 is reversed.

REVERSED

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