Ex Parte Leber

Patent Trial and Appeal Board

Oct 31, 2013

11738291 (P.T.A.B. Oct. 31, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte LELAND C. LEBER
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Appeal 2011-011305
Application 11/738,291
Technology Center 3700
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Before LYNNE H. BROWNE, ANNETTE R. REIMERS and
RICHARD E. RICE, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE1,2
Leland C. Leber (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner’s decision to reject (1) claims 1, 3-12, 14, 15, 22 and 24-26
under 35 U.S.C. § 102(e) as anticipated by Ko (US 7,055,767 B1; iss. Jun. 6,
2006); (2) claims 1, 15, 18, 19, 21-24 and 26 under 35 U.S.C. § 102(b) as
anticipated by Weese (US 3,342,419; iss. Sep. 19, 1967); (3) claim 2 under
35 U.S.C. § 103(a) as unpatentable over Ko; and (4) claim 13 under
35 U.S.C. § 103(a) as unpatentable over Ko and Halsted (US 3,967,783; iss.
Jul. 6, 1976). Appellant presents additional evidence in the Declaration filed
under 37 C.F.R. § 1.132 of Leland C. Leber, filed Sep. 23, 2009.3,4,5 We
have jurisdiction over this appeal under 35 U.S.C. § 6(b). We REVERSE.
THE INVENTION
Appellant’s invention “relates to showerheads.” Spec.1, para. [0002];
fig 1.
Claim 1, the sole independent claim, is illustrative of the claimed

1 Claim 20 is objected to as being dependent upon a rejected base claim, and
the Examiner has indicated that claim 20 would be allowable if rewritten in
independent form to include all of the limitations of the base claim and any
intervening claims. Final Rej. 4; App. Br. 5.
2 Claims 16 and 17 have been cancelled.
3 Hereafter the “Leber Declaration.”
4 The Declarant, Mr. Leland C. Leber, is also the inventor in the instant
application.
5 We note that the Examiner has not addressed the objective rebuttal
evidence (i.e., the Leber Declaration) submitted by Appellant. See App. Br.
21; Reply Br. 2-3. “It is the responsibility of the primary examiner to
personally review and decide whether affidavits or declarations submitted
under 37 CFR 1.132 for the purpose of traversing grounds of rejection are
responsive to the rejection and present sufficient facts to overcome the
rejection.” See MPEP Chapter 0700, Section 716.
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invention and is reproduced below:
1. A showerhead comprising:
a water inlet;
a showerhead face;
a plurality of water channels in fluid
communication with the water inlet; and
a plurality of nozzles each of which is in
direct fluid communication with a respective one
of the plurality of water channels and operatively
associated with the showerhead face, wherein
at least two of the plurality of nozzles are
configured to direct coherent water streams exiting
the at least two of the plurality of nozzles to
converge in at least one convergence region at a
distance from the showerhead face to substantially
break apart the coherent water streams and convert
the coherent water streams into a cloud-like region
of multiple water droplets.

ANALYSIS
Anticipation by Ko - Claims 1, 3-12, 14, 15, 22 and 24-26
Independent claim 1 recites that at least two of the plurality of nozzles
are configured to direct coherent water streams exiting the at least two of the
plurality of nozzles to converge in at least one convergence region at a
distance from the showerhead face to substantially break apart the coherent
water streams. App. Br., Clms. App’x.
The Examiner finds that Ko teaches
a showerhead having a plurality of nozzles in
which the nozzles can be oriented to direct water
streams to converge at a region (the convergence
region) and collide with each other as recited in
instant invention. . . . [T]he high impact collision
will break apart the water streams as recited.

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Ans. 6. The Examiner further finds that “[t]he collisions caused by the
converging [water] streams [of Ko] would naturally cause the [water]
streams to ‘break up.’” Final Rej. 4.
Appellant contends that “Ko does not describe nor illustrate that
the individually movable nozzles direct coherent water streams that
converge to ‘substantially break apart the coherent water streams,’” as
recited by claim 1. App. Br. 12. Appellant further contends that (1) “[t]o
the extent that the Ko spray heads may be angled to have a generally
convergent spray pattern (i.e., the water streams may eventually intersect),
Ko does not describe that the water streams may break apart when they (if
ever) intersect” (App. Br. 12); and (2)“[t]he velocity of the water alone is not
enough to cause water streams to break into a cloud like region” (Reply Br.
2). Appellant also contends that
the Ko showerhead of Fig. 1 can be configured so
the water streams exit the nozzles at an angle and
eventually intersect one another, but each stream
remains substantially intact after the intersection.
. . . [T]he streams remain substantially coherent
past the intersection region. . . . [T]he water
remains substantially “contained” within its
respective stream.
App. Br. 14-15; see also Reply Br. 2-3.
Ko teaches that
the water outlet spray heads 13 can be individually
adjusted in any angles at the positioning slots 141
therein, and the showerhead 10 is capable of
delivering water from various angles for showering
purpose via the spray heads 13 simultaneously
adjusted into different angles as desired as shown
in FIG. 3.

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Ko, col. 2, ll. 37-42; see also Ko, col. 1, ll. 16-19 and 45-48. Ko further
teaches that
[e]ach of the universal connectors 12 fixed to the
water guiding conduits 115 thereof can be
individually engaged with the water outlet spray
head 13 that is equipped with a wide range of
water outlet apertures such as . . . misty water
outlet apertures 133[]. And water flow running
through the water-collecting space 112, the water
guiding conduits 115 and the universal connectors
12 thereof will come into each of the spray heads
13 and deliver outwards there-from in versatile
spray patterns depending on the various types of
water outlet apertures like . . . the misty water
outlet apertures 133, [] via which the water flow is
discharged outwards accordingly.
Ko, col. 2, ll. 45-59; fig. 4.
At the outset, we agree with Appellant that
one skilled in the art would view [the] “misty
water outlet apertures” [i.e., 133 of Ko] as
dispensing a mist of water from the aperture
outlets, and not as dispensing coherent water
streams from the outlets that converge and convert
into a cloud-like region at a convergence region at
a distance from the outlets showerhead face [, as
required by claim 1].
App. Br. 12-13. In addition, while Ko teaches that the angles of the water
outlet spray heads 13 can be individually adjusted at the positioning slots
141, Ko fails to teach that the water streams exiting at least two of the water
outlet spray heads 13 converge in at least one convergence region at a
distance from the showerhead face to substantially break apart the water
streams, as required by claim 1.
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Further, although we agree with the Examiner that the nozzles 13 of
Ko “can be oriented to direct water streams to converge at a region (the
convergence region) and collide with each other” (Ans. 6), we do not agree
with the Examiner that “[t]he collisions caused by the converging [water]
streams [of Ko] would naturally [i.e., necessarily] cause the [water] streams
to ‘break up.’” Final Rej. 4. As pointed out by Appellant, the water streams
of Ko could remain intact after converging/colliding. See App. Br. 14-15;
Reply Br. 2-3. Inherency may not be established by probabilities or
possibilities. In re Oelrich, 666 F.2d 578, 581 (CCPA 1981) (quoting
Hansgirg v. Kemmer, 102 F.2d 212, 214 (CCPA 1939). The Examiner has
failed to provide factual evidence that collision of the converging water
streams from the nozzles 13 of Ko would in fact result in the water streams
breaking apart as opposed to the water streams remaining intact after
converging/colliding, as proposed by Appellant. We agree with Appellant
that other factors such as the impingement angle of the water stream
intersection and water temperature may also affect the properties of the
water streams. Reply Br. 2-3. As such, the Examiner has not provided
sufficient evidence to support the finding that convergence/collision of the
water streams from nozzles 13 of Ko would necessarily result in the water
streams substantially breaking apart.
Accordingly, for the foregoing reasons, the Examiner’s rejection of
independent claim 1 and its respective dependent claims 3-12, 14, 15, 22 and
24-26 as anticipated by Ko cannot be sustained.6

6 Because we have determined that the Examiner failed to provide sufficient
evidence to support a prima facie case of anticipation, we do not reach the
objective rebuttal evidence of the Leber Declaration.
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Anticipation by Weese - Claims 1, 15, 18, 19, 21-24 and 26
Independent claim 1 recites that at least two of the plurality of nozzles
are configured to direct coherent water streams exiting the at least two of the
plurality of nozzles to converge in at least one convergence region at a
distance from the showerhead face to substantially break apart the coherent
water streams. App. Br., Clms. App’x.
The Examiner finds that Weese teaches
a showerhead having a plurality of nozzles in
which the nozzles can be oriented to direct water
streams to converge at a region (the convergence
region) and collide with each other as recited in
instant invention. . . . [T]he high impact collision
will break apart the water streams as recited.

Ans. 6. The Examiner further finds that “[t]he collisions caused by the
converging [water] streams [of Weese] would naturally cause the [water]
streams to ‘break up.’” Final Rej. 4.
Appellant contends that Weese fails to teach that “the [water] streams
from the nozzles ‘converge . . . to substantially break apart,’” as required in
claim 1. App. Br. 17. According to Appellant, “the [water] streams [of
Weese] do not break apart, but instead substantially maintain their coherent
shape after intersecting with other [water] streams.” Id.
Weese teaches
[t]he spray element 32 is of substantial thickness
and has a plurality of nozzle openings 50. The
length of the nozzle openings may be extended by
providing projections 52 on the outer surface of the
spray element 32. Since the nozzle openings 50 are
relatively long, the stream issuing from the nozzle

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remains in a relatively narrow stream for a
substantial distance away from the spray element
32. The direction of the stream issuing from each
nozzle 50 may be adjusted by turning the ring 26
relative to the body 16. When the ring 26 is
adjusted to the position shown in FIG. 2, the
streams issuing from the nozzles 50 form a
[converging] pattern.
Weese, col. 2, ll. 46-57; see also Weese, col. 1, ll. 41-43; col.5,
ll. 56-57.
Although we agree with the Examiner that Weese teaches a
converging spray pattern (see Ans. 6), we do not agree with the Examiner
that “[t]he collisions caused by the converging [water] streams [of Weese]
would naturally [i.e., necessarily] cause the [water] streams to ‘break up.’”
Final Rej. 4. As pointed out by Appellant, the water streams of Weese could
remain intact after converging/colliding. See App. Br. 17; Reply Br. 2-3.
As discussed above, inherency may not be established by probabilities or
possibilities. The Examiner has failed to provide factual evidence that
collision of the converging water streams from the nozzles 50, 52 of Weese
would in fact result in the water streams breaking apart as opposed to the
water streams remaining intact after converging/colliding, as proposed by
Appellant. We agree with Appellant that other factors such as the
impingement angle of the water stream intersection and water temperature
may also affect the properties of the water streams. See App. Br. 17, Reply
Br. 2-3. As such, the Examiner has not provided sufficient evidence to
support the finding that convergence/collision of the water streams from
nozzles 50, 52 of Weese would necessarily result in the water streams
substantially breaking apart.
Accordingly, for the foregoing reasons, the Examiner’s rejection of
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independent claim 1 and its respective dependent claims 15, 18, 19, 21-24
and 26 as anticipated by Weese cannot be sustained.7
Obviousness over Ko - Claim 2
The Examiner’s rejection of claim 2 over Ko (see Ans. 5) is based on
the same unsupported findings discussed supra with respect to the disclosure
of Ko. For the same reasons, we do not sustain the Examiner’s rejection of
claim 2 as unpatentable over Ko.
Obviousness over Ko and Halsted - Claim 13
The Examiner’s rejection of claim 13 over Ko and Halsted (see Ans.
5) is based on the same unsupported findings discussed supra with respect to
the disclosure of Ko. For the same reasons, we do not sustain the
Examiner’s rejection of claim 13 as unpatentable over Ko and
Halsted.
DECISION
We REVERSE the decision of the Examiner to reject claims 1-15, 18,
19 and 21-26.

REVERSED

mls

7 Because we have determined that the Examiner failed to provide sufficient
evidence to support a prima facie case of anticipation, we do not reach the
objective rebuttal evidence of the Leber Declaration.