11122403 (P.T.A.B. Sep. 17, 2012)

Ex Parte Leer et al

Patent Trial and Appeal BoardSep 17, 2012

11122403 (P.T.A.B. Sep. 17, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/122,403 05/05/2005 Rick L. Leer 1576-0098 6824 7590 09/17/2012 Maginot, Moore & Beck LLP Chase Tower, Suite 3250 111 Monument Circle Indianapolis, IN 46204-5109 EXAMINER BOECKMANN, JASON J ART UNIT PAPER NUMBER 3752 MAIL DATE DELIVERY MODE 09/17/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte RICK L. LEER and MICHEL McCLUSKEY __________ Appeal 2010-009663 Application 11/122,403 Technology Center 3700 ___________ Before JAMESON LEE, SALLY GARDNER LANE, and SALLY C. MEDLEY, Administrative Patent Judges. LEE, Administrative Patent Judge. DECISION ON APPEAL The real parties in interest are Gilmour, Inc. and Robert Bosch GmbH, collectively “Appellant.” Appellant appeals under 35 U.S.C. § 134(a) from the final rejection of claims 1, 2, 4, 5, 7, 10-13, 16, 17, and 21-23. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal No. 2010-009663 Application 11/122,403 2 STATEMENT OF THE CASE The Applied Prior Art Kenney 5,911,520 June 15, 1999 Ballas 5,010,928 April 30, 1991 Murray 2,546,040 March 20, 1951 The Rejection on Appeal Claims 1, 2, 4, 5, 7, 10-13, 16, 17, and 21-23 were finally rejected under 35 U.S.C. § 103 as obvious over Kenney, Ballas, and Murray. The Invention The invention is directed to a pressure sprayer. Specifically, the invention is drawn to a pressure sprayer which includes a tank defining a cavity for holding fluid, an upper portion with an opening therethrough for filling the tank with fluid, and a removable hand pump for pressurizing the tank with air. (Claim 1). The hand pump includes a compression chamber and at least a portion of the compression chamber is located “external to the tank” such that “air within the compression chamber is passed into the tank through the opening.” (Claim 1). The sprayer has an upper portion in the shape of a funnel having an upper rim positioned outside of the cavity of the tank, and also a handle for carrying the pressure sprayer. (Claim 1). The handle is connected to the funnel. (Claim 1). Figure 1 of the Appellant’s specification is reproduced below: App App porti porti assem struc eal No. 20 lication 11 Figure 1 As is sho on for hol on. (Spec bly fixed ture. (Spe 10-009663 /122,403 illustrates acco wn in Fig ding fluid, . 5:10-11) ly attached c. 6:4-5). a side ele rding to A ure 1 abov and refere . Referenc to the bo 3 vational v ppellant’s e, referen nce nume e numeral dy of the s iew of a pr invention ce numera ral 14 desi 30 design prayer thr essure spr l 12 design gnates a p ates a han ough a fun ayer ates a tan ump dle nel shaped k Appeal No. 2010-009663 Application 11/122,403 4 DISCUSSION The Obviousness Rejection of Claims 1, 2, 4, 5, 7, 10-13, 16, 17, and 21-23, over Kenney, Ballas, and Murray The independent claims are claims 1, 10, and 16. Appellant has not argued the merits of claims 10 and 16 apart from that of claim 1. Appellant also has not argued the merits of any dependent claim apart from the independent claim on which it depends. We need to address only claim 1. Kenney discloses a portable shower apparatus including a pressure tank sized to hold from about 1 to 2 and ¼ gallons of water. (Abstract: 1-4). The apparatus also includes a combination handle 30 and hand pump 32, and the tank is pressurized by repeated pumping action of the handle 30. (Spec. 3:39-42). The combination handle and hand pump seals a liquid filling and emptying opening against pressure loss when the tank is pressurized. (Abstract: 5-7). Figures 1 and 3 of Kenney are reproduced below: App App F F claim locat requ funn ordin tank taugh that eal No. 20 lication 11 igure 1 il igure 3 ill The diff 1 are: (1 ed within ired by cla el shaped The Exa ary skill i to outside t by Balla connection 10-009663 /122,403 lustrates a ustrates a c erences be ) the comp the water t im 1; and structure a miner con n the art to of the tan s, so that t , the Exam perspectiv utaway pe tween Ken ression ch ank, not a (2) the han t the top o cluded tha relocate K k, and in a he tank ca iner also 5 e view of rspective ney’s sho amber of K t least part dle 30 of f the tank t it would enney’s h threadably n hold mo found that Kenney’s view of K wer appara enney’s h ially exter Kenney is as is requir have been and pump detachab re water. detachabl shower ap enney’s ap tus and A and pump nal to the not attach ed by clai obvious to 32 from w le manner (Ans. 4:12 y locating paratus paratus ppellant’s 32 is tank as is ed to a m 1. one with ithin the as is -17). In a hand App App pum 19). an ex valv with uppe 32 to pour (Ans detac Murr man (Mur struc the r splas eal No. 20 lication 11 p external Ballas dis ternal han e for screw The Exa ordinary s r portion o outside o ing and tra . 5:6-10). hably sec ay’s funn ipulating th ray 2:40-4 ture secur im on the h guard w Figure 2 10-009663 /122,403 to a liquid closes a re d pump h ing onto t miner also kill in the f Kenney f the tank, nsporting Murray di ured to the el shaped s e contain 7). Murra ed by rivet funnel. (M ith an han shows a storage ta pressurize aving an in he threads conclude art to add ’s tank as m because th of the pre scloses a f upper por plash guar er when th y’s handl s to upwar urray 2:4 dle is repro side elevat 6 nk was kn r for carbo ternally th of a bottle d that it wo Murray’s odified to e addition ssure spray unnel shap tion of con d includes e splash g e is in the dly extend 0-44). Fig duced bel ion view o own, citin nated drin readed ca neck. (A uld have splash gua relocate would all er as is ta ed splash tainers. an attach uard is sec form of a p ing lugs o ure 2 of M ow: f Murray’ g Ballas. k bottles. p with a on bstract:1-3 been obvio rd structur Kenney’s ow for eas ught by M guard tha (Murray 1 ed handle ured to the ivotable a n opposin urray illu s splash gu (Ans. 4:12 It include e-way ). us to one e to the hand pump y filling, urray. t may be :13-23). 32 for container rcuate g sides of strating the ard - s . Appeal No. 2010-009663 Application 11/122,403 7 As is shown in Figure 2, Murray’s handle 32 is pivotally mounted on the rim of the funnel shaped splash guard. Murray describes that the handle 32 may be folded down into the interior of the funnel-like structure 16. (Murray 2:48-50). Appellant advances several arguments, none of which has merit, as will be discussed below. First, Appellant states that it would not be reasonable to add Murray’s splash guard to Kenny’s tank as modified in view of Ballas because the handle in Murray in its vertical position would interfere with the externally positioned hand pump and in its laterally offset position would cause the bucket to tip when carried thereby causing its contents to spill. (Brief 18:2- 7). The argument is misplaced. As the Examiner correctly determined (Ans. 8:20-22), handle 32 is pivotable between two positions and in its reclined position it does not interfere with operation of the pump. Also as the Examiner correctly determined (Ans. 9:1-3), the external hand pump is only detachably engaged to the water tank and can be unthreaded to permit the handle to pivot to the vertical position for carrying the water tank. Even if the hand pump is not detached from the water tank, there is insufficient evidence to indicate that using the handle to lift the water tank would cause the liquid content of the tank to spill as alleged by Appellant. It does appear that the tank would be carried in a tilted disposition if the external hand pump is not removed and if the handle is used to lift the tankbut all orifices would remain sealed. Appellant argues that skilled artisans would not have turned to the soda pop bottle accessories art for solutions to their design problems. (Brief 15:5-7). The argument is misplaced. Obviousness is determined from the Appeal No. 2010-009663 Application 11/122,403 8 perspective of a hypothetical person possessing ordinary skill in the art, not any actual person or persons. If Appellant’s argument is an assertion that Ballas belongs to the category of nonanalogous art and is therefore not applicable to the claimed invention, the argument is without merit. Two separate tests define the scope of analogous prior art: (1) whether the prior art is applied from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor's endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). If the reference satisfies either test, it is not nonanalogous. Id.; see also In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986). Even assuming that a repressurizing apparatus for soda bottles is not in the same field of endeavor as Appellant’s inventors, Appellant has not established that the hand pump of Ballas is not reasonably pertinent to the problems with which Appellant’s inventors were concerned. Indeed, Appellant has provided no explanation whatsoever on that critical question – whether there is reasonably pertinence to the inventors’ problems. Moreover, we note that contamination of the water inside the tank by the internally located hand pump is one of the problems with which the Appellant’s inventors were concerned. Ballas is reasonably pertinent to that problem because its hand pump 1 is external to the soda bottle and does not contact the liquid contained within the bottle. (Ballas Figure 1). Reducing the amount of air displaced within the tank by the pump was another problem with which the inventors were concerned. (Spec. 3:6-7). We note that Ballas is reasonably pertinent to that problem because its hand pump is located external to the tank and does not displace any air within the tank. Appeal No. 2010-009663 Application 11/122,403 9 Accordingly, Appellant has not shown that Ballas belongs to the category of nonanalogous art that is inapplicable to the claimed invention. Appellant argues that it is directly contrary to the teachings of Kenney and unreasonable to propose a design change that would add more water capacity to the same size tank by relocating the internally positioned hand pump. (Brief 15:9-22). The underlying rationale is that (1) tank sprayers such as that disclosed in Kenney tend to be heavy and cumbersome to carry due in large part to the weight of the fluid contained therein; and (2) a principal objective of Kenney’s invention is to provide a portable shower device that is “light in weight.” (Brief 15:22 to 16:3). The arguments are misplaced and without merit. One with ordinary skill in the art possesses ordinary skill and creativity and is not an automaton. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Such a person would have known that water capacity and weight are trade-off factors to consider and balance against each other, and that there is no magical and precise line of demarcation above which a tank is categorically deemed no longer portable. Indeed, Kenney itself states a range for the capacity of its tank, from 1 gallon to at least about 2 and ¼ gallons. (Kenney 3:53-56). Note especially the reference to “at least” about 2 and ¼ gallons. There is substantial room for play by one with ordinary skill in the art as far as the desired water capacity is concerned. The record does not support that one with ordinary skill would have thought that the additional water capacity gained by the space vacated by the internal pump’s compression chamber would render the tank of Kenney no longer portable or cause it to exceed its useful range. Appellant has not demonstrated that the Examiner’s proposed modification would have rendered Kenney’s tank too Appeal No. 2010-009663 Application 11/122,403 10 heavy to be used as a portable shower apparatus. No declaration evidence has been submitted in that regard. Appellant argues that even if one with ordinary skill desired to increase the water storage capacity of the Kenney’s tank, one would not do so as proposed by the Examiner but would simply make a larger tank. (Brief 16: 4-7). The argument is misplaced, because the question is not which option would be the most obvious to one with ordinary skill in the art. The fact that one with ordinary skill in the art could also see that making a larger tank could satisfy the desire of providing more water capacity does not mean relocating the internal pump to the outside in light of the disclosure of Ballas would not have been obvious to one with ordinary skill in the art. Appellant argues that another principal objective of Kenney is to provide a portable shower apparatus that is “compact.” (Brief 16:11-12). In that regard, Appellant notes that relocating Kenney’s pump from within the tank to outside and on top of the tank adds to the size of the apparatus and making the reconfigured device almost twice as tall. (Brief 16:18-20). Appellant asserts that the reconfigured device is not a compact apparatus and would also be a deterrent for anyone to bring it on a camping trip or a visit to the beach. (Brief 16:20-21). Appellant’s argument has superficial merit but is misplaced. It is not the law for determining obviousness that we place the hypothetical person having ordinary skill in the art into the shoes of the inventors of the prior art reference and see how such a hypothetical person would think to best carry out the objectives and interests of those inventors. Rather, the hypothetical person having ordinary skill in the art approaches each prior art reference with an open and unbiased mind, with no particular Appeal No. 2010-009663 Application 11/122,403 11 agenda or specific objective in mind. Indeed, the use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned, as the patents are a part of the literature and are relevant for all they contain. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983). A prior art reference must be considered for everything it teaches by way of technology and is not limited to the particular invention it is describing and attempting to protect. EWP Corp. v. Reliance Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985). Certainly, one with ordinary skill in the art would have been well aware that modifying the Kenney tank so that the pump is externally positioned makes the entire apparatus less compact. But that does not undermine the merits of the rejection. As explained above, a prior art reference is not read by one with ordinary skill for the purpose of determining how best to carry out the stated objectives of the reference. So long as there is a valid purpose for one with ordinary skill in the art to relocate the pump from within the tank to outside of the tank, that the end result yields a tank that is less compact is of no moment. As discussed above, the reason for relocating the pump is that Ballas teaches that a liquid receptacle can be pressurized by an externally positioned hand pump. On that basis, one with ordinary skill in the art would have known that an externally placed hand pump is an alternative option to placing the pump within the tank, and that relocating the pump to the outside would increase the water carrying capacity of the tank. It makes no difference that in Ballas the hand pump is for use on a soda pop bottle. It reasonably conveys to one with ordinary skill that a liquid receptacle can be configured with an externally positioned hand pump connected to an upper portion of the tank. Appeal No. 2010-009663 Application 11/122,403 12 Appellant further argues that stowing the pump within the water tank is a central concept of Kenney’s invention. That argument is substantively the same and equally misplaced as the argument that Kenney’s invention is intended to be compact. We have discussed above that a prior art reference is good for everything it teaches by way of technology and is not limited to the particular invention it is describing an attempting to protect. While stowing the pump in the water tank is a central concept of Kenney’s invention, that does not mean one with ordinary skill would not have recognized that the pump could viably be positioned externally. Kenney nowhere indicates that an external pump configuration would not work. Finally, Appellant argues that modifying the Kenney tank so that its pump is located external to the tank would result in a cumbersome apparatus which deters one’s bringing the apparatus on a camping trip or a visit to the beach. The argument is misplaced, because there is no requirement in the law of obviousness that what is determined as would have been obvious must be commercially more successful than other products. Also, commercial success is actually an objective indicator of nonobviousness. In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996). For all of the foregoing reasons, we have not been persuaded of error in the obviousness rejection of claims 1, 2, 4, 5, 7, 10-13, 16, 17, and 21-23. CONCLUSION The rejection of claims 1, 2, 4, 5, 7, 10-13, 16, 17, and 21-23 under 35 U.S.C. § 103 as obvious over Kenney, Ballas, and Murray 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). Appeal No. 2010-009663 Application 11/122,403 13 AFFIRMED