Ex Parte Lang et alDownload PDFBoard of Patent Appeals and InterferencesJun 15, 201110487330 (B.P.A.I. Jun. 15, 2011) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte DANIEL LANG and ALAIN TAILLANDIER ____________ Appeal 2009-009276 Application 10/487,330 Technology Center 3700 ____________ 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 2 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; Appeal 2009-009276 Application 10/487,330 3 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. Appeal 2009-009276 Application 10/487,330 4 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 Appeal 2009-009276 Application 10/487,330 5 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 Appeal 2009-009276 Application 10/487,330 6 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 mls Copy with citationCopy as parenthetical citation