Ex Parte Lunder

Patent Trials and Appeals Board

Aug 28, 2013

11147719 - (D) (P.T.A.B. Aug. 28, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/147,719 06/09/2005 Dennis Lunder V-0100.45 7179
41418 7590 08/28/2013
LAW OFFICES OF CHRISTOPHER L. MAKAY
1634 MILAM BUILDING
115 EAST TRAVIS STREET
SAN ANTONIO, TX 78205-1763
EXAMINER
RIPLEY, JAY R
ART UNIT PAPER NUMBER
3679
MAIL DATE DELIVERY MODE
08/28/2013 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 DENNIS LUNDER
____________________

Appeal 2011-010907
Application 11/147,719
Technology Center 3600
____________________

Before: WILLIAM V. SAINDON, WILLIAM A. CAPP, and
SCOTT A. DANIELS, Administrative Patent Judges.

DANIELS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-010907
Application 11/147,719
2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims
15-32. Claims 1-14 are canceled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

The claims are directed to a rotatable coupling, specifically “to an
improved coupling device for connecting and separating a flexible waste
disposal hose between a recreational vehicle waste discharge outlet and the
inlet of an external waste disposal receptacle, septic or sewer system.” Spec.
1. Claim 15, reproduced below, is illustrative of the claimed subject matter:
15. A rotatable coupling assembly for facilitating the
connection and separation of a recreational vehicle waste
discharge hose, the rotatable coupling assembly comprising:
a hose member having a first end portion and second end
portion;
a first coupling assembly attached to said first end portion of
said hose member, said first coupling assembly having a fitting
member rotatable 360° about the longitudinal axis of said hose
member; and,
a second coupling assembly attached to said second end
portion of said hose member, said second coupling assembly
having a fitting member rotatable 360° about the longitudinal
axis of said hose member.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Pohlman
Johnson
US 894,900
US 5,971,438
Aug. 4, 1908
Oct. 26, 1999
Appeal 2011-010907
Application 11/147,719
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Other references relied upon by the Examiner:
Applicant’s Admitted Prior Art (AAPA) - Page 1 of Appellant’s Specification
- Description of the Prior Art.

REJECTIONS
The Examiner made the following rejections:
Claims 17, 19, 26-29, 31 and 32 stand rejected under 35 U.S.C §112
second paragraph as indefinite. Ans. 3.
Claims 30 and 31 stand rejected under 35 U.S.C §102(b) as being
anticipated by Pohlman. Ans. 4.
Claims 15-19 stands rejected under 35 U.S.C §103(a) as being
unpatentable over Pohlman. Ans. 9.
Claims 20-22 stand rejected under 35 U.S.C §103(a) as being
unpatentable over Pohlman, AAPA and Johnson. Ans. 11.
Claims 23-29 stand rejected under 35 U.S.C §103(a) as being
unpatentable over Pohlman. Ans. 15.
Claim 32 stands rejected under 35 U.S.C §103(a) as being
unpatentable over Pohlman, AAPA and Johnson. Ans. 20.

ANALYSIS
Claims 17, 19, 26-29, 31 and 32 as indefinite
The Examiner found claims 17, 19, 26-29, 31 and 32 indefinite taking
the position that elements encompassed by “hook-like projections”, as
recited in each of the claims, are not actually disclosed in the Specification,
and thus the scope of the claims cannot be determined. Ans. 3-4.
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Application 11/147,719
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Referring to Appellant’s Fig. 1, the Specification describes that the
third fitting member 80 includes “hook-like members 60”, for receiving the
radial projections 58 on the opposing second fitting member 46. Spec. 6, ll.
11-13. The “hook-like members 60”, or projections, are distinctly shown
throughout Appellant’s drawings in both close relation to, or in cooperating
engagement with the radial projections 58 to illustrate the interrelationship
of these elements. See Figs. 4-5, 9-10. Finding support and consistency in
the Specification for this element, we agree with Appellant’s contention that
this claim term is not unclear. Appellant’s claim is written broadly so that
the claimed “hook-like projections” encompasses a variety of hook shapes
and connections that might facilitate the secure coupling of the opposing
fittings. However, the fact that a claim is broad does not mean that it is
indefinite, that is, undue breadth is not indefiniteness. In re Johnson, 558
F.2d 1008, 1016 n.17 (CCPA 1977).
Accordingly, we do not sustain the Examiner’s rejection of claims 17,
19, 26-29, 31 and 32 as indefinite.

Claims 30 and 31 as anticipated by Pohlman
The Examiner found that Pohlman discloses each of the elements of
independent claims 30 and 31 including inter alia, a hose member, a ring
member, a first member having a main body, and a fitting member “rotatable
360° about said main body” as called for in both claims. Ans. 5. Based on
Pohlman’s written description and drawings, the Examiner found that the
360° rotational function of the fitting was inherent in Pohlman, and
supported a prima facie anticipation rejection, shifting the burden to
Appellant to provide evidence to the contrary. Ans. 7.
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Application 11/147,719
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Appellant contends that the novel aspect of the claimed invention is
the ability of the claimed fitting to rotate 360° about the main body, and
disagrees with the Examiner that Pohlman discloses such a feature. App. Br.
14. Appellant argues that Pohlman “plainly does not provide for the 360°
rotational capability of any of the structural elements described in the
Pohlman specification and drawings,” and that a prima facie case has not
been made out by the Examiner based on inherency. Id. Appellant insists
that the only rotation disclosed by Pohlman is the relative rotation between
the opposing interlocking members 19 and 20 securing the coupling
together. App. Br. 15.
We are not persuaded by Appellant’s argument because in addition to
discussing the interlocking rotation of the members 19 and 20, Pohlman also
discloses relative rotation between members 19 and 20 and the bearing
surface 13 of the respective tubular members 5 and 6. Pohlman describes
that “[m]ounted for rotation on the bearing surfaces 13… are mating
members 19 and 20.” Pohlman pg. 1, col. 2, ll. 87-89. Based on this
evidence, the Examiner had a reasonable belief that Pohlman discloses
relative rotation of the fittings, i.e. members 19 and 20, relative to the
supporting bearing surfaces 13 of the respective tubular members 5 and 6.
where the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the
claimed subject matter may, in fact, be an inherent characteristic
of the prior art, it possesses the authority to require the applicant
to prove that the subject matter shown to be in the prior art does
not possess the characteristic relied on.
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Application 11/147,719
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In re Swinehart, 439 F.2d 210, 213 (CCPA 1971); See also In re Spada, 911
F.2d 705, 708 (Fed. Cir. 1990) (“when the PTO shows sound basis for
believing that the products of the applicant and the prior art are the same, the
applicant has the burden of showing that they are not”).
Under applicable principles of inherency, including Swinehart, the
Examiner has set forth a prima facie case for anticipation. The Appellant
has failed to establish, with either evidence or technical reasoning, that
Pohlman does not possess the claimed rotational characteristics.
Appellant further argues that when the mating members 19 and 20 are
secured together in Pohlman, this “will prevent the entire assemblage of
elements, whether individually or in combination, from fully rotating 360° in
the manner recited in Appellant's Claims 30 and 31.” App. Br. 16. In
support of this contention Appellant points out that Pohlman’s members 19
and 20 have a depending flange 21 which prevents longitudinal movement of
the members 19 and 20. App. Br. 16 citing Pohlman, pg. 1 col. 2, ll. 87-93.
This argument however does not explain how flange 21 inhibits rotational
movement between the members 19 and 20 and the bearing surface 13.
Such a structure may prevent longitudinal movement of the members 19 and
20 on the bearing surface 13 along the axis of the tubular section, but
nothing in Pohlman’s disclosure, or any other evidence presented by
Appellant, indicates any structure or function precluding relative rotation
between the members 19 and 20 and the bearing surface 13 either in a
coupled, or uncoupled state.1

1 Appellant also argues that members 19 and 20 are coupled in a “tight fit”
which precludes the assemblage from rotating. App. Br. 15-16. We note
that neither claim 30 or 31 includes a limitation of the fitting in a coupled
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We sustain the Examiner’s anticipation rejection of claims 30 and 31.

Claims 15-19 as unpatentable over Pohlman
The Examiner found that Pohlman discloses each of the limitations of
claim 15 except for the second coupling member attached to the second end
portion of the hose member. Ans. 10. The Examiner reasoned that one of
skill in the art, familiar with fluid couplings would find it obvious to try such
an arrangement “to allow the connection of multiple hose members to one
another.” Id.
Appellant does not contest the Examiner’s stated reasoning for the
combination of references, but argues, similar to claims 30 and 31, that
Pohlman does not disclose rotation of the members 19 and 20 in a 360°
manner about the tubular supports 5 and 6 as called for in claim 15. App.
Br. 19. Claim 15 recites a first and second coupling “having a fitting
member rotatable 360° about the longitudinal axis of said hose member.”
Appellant argues that the Examiner’s finding that such rotation in Pohlman
is inherent lacks factual support, and again asserts that nothing in Pohlman
discloses that members 19 and 20 rotate on the bearing surfaces 13 about the
tubular supports 5 and 6. App. Br. 19. We are again not persuaded by this
argument for the reasons discussed above with respect to claims 30 and 31.
The Examiner’s findings based on Pohlman’s disclosure have established a
prima facie case of obviousness, and the burden has shifted to Appellant to
provide evidence or technical reasoning to the contrary.
Appellant provides no argument aside from disputing the sufficiency
of the Examiner’s prima facie case. See App. Br. 20. As such, we sustain

state. Appellant’s argument is not commensurate in scope with claims 30
and 31.
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the rejection of claim 15 as unpatentable in view of Pohlman. Appellant
offers no new arguments for the patentability of claim 16-19 and relies,
instead, on their arguments asserted in support of claim 15. See App. Br. 18-
20. Accordingly, we sustain the rejection of claims 16-19 as well.

Claims 20-22 as unpatentable over Pohlman, AAPA and Johnson
Appellant does not contest the Examiner’s stated reasoning for the
combination of Pohlman, AAPA and Johnson, but argues, similar to claims
30, 31 and 15 discussed supra, that Pohlman does not disclose rotation of
the members 19 and 20 in a 360° manner about the tubular supports 5 and 6
as called for in claim 20, and that the Examiner has not presented a prima
facie case of obviousness. App. Br. 21-23.
Different from the previous claims, claim 20 recites the connection of
the rotatable fittings in “a bayonet connection for forming a single fixed
coupling rotatable as a unit 360° about the longitudinal axis of said hose
member.” Appellant emphasizes that Pohlman teaches nothing remotely
similar to the claimed rotatable “single fixed coupling” and that “it is more
than mere allegation that the cited art is incapable of performing the claimed
function.” App. Br. 22. The Examiner has provided an articulated
reasoning with rational underpinning showing Pohlman’s written description
and drawings describing the rotation of the members 19 and 20 about the
tubular supports 5 and 6. Appellant’s argument to the contrary is
unpersuasive because Appellant provides no evidence or technical
explanation to support the conclusion that the coupled elements 19 and 20 in
Pohlman cannot rotate when coupled together. That the members 19 and 20
are longitudinally restrained does not apprise us of error in the Examiner’s
finding that whether coupled or uncoupled, the members 19 and 20 are
Appeal 2011-010907
Application 11/147,719
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rotatable on the bearing surface 13 relative to the respective tubular
members 5 and 6. The Examiner has presented a prima facie case of
obviousness.
Appellant provides no substantive argument aside from disputing the
sufficiency of the Examiner’s prima facie case. See App. Br. 20-23. As
such, we sustain the rejection of claim 20 as unpatentable in view of
Pohlman, AAPA, and Johnson. Appellant offers no new arguments for the
patentability of claims 21 and 22 and relies, instead, on their arguments
asserted in support of claim 20. See App. Br. 20-23. Accordingly, we
sustain the rejection of claims 21 and 22 as well.

Claims 23-29 as unpatentable over Pohlman
Appellant states their position with respect to claims 23-29 is
essentially the same as in the previous claims, and reasserts by incorporation
the previous arguments advanced against the rejections of claims 15-22.
App. Br. 23-24. Appellant reiterates that Pohlman neither explicitly nor
inherently discloses the 360° rotational capability of the separate coupling
assemblies as called for in claim 23. App. Br. 24. Appellant also argues that
claims 24 and 25, depending from claim 23, further recite a “single unit
coupling” where the separate fittings are coupled together, yet still permit
independent rotation relative of the coupling with respective hose members.
App. Br. 25.
For the reasons discussed supra with respect to independent claims 15
and 20 we are not apprised of error in the Examiner’s rejection of claims 23,
24 and 25. The Examiner has provided an articulated reasoning with
rational underpinning explaining that Pohlman’s written description and
drawings describe the rotation of the members 19 and 20 about the tubular
Appeal 2011-010907
Application 11/147,719
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supports 5 and 6. Appellant’s arguments to the contrary are unpersuasive
because Appellant provides no evidence or technical explanation to support
the conclusion that the coupled elements 19 and 20 in Pohlman cannot rotate
360° either separately or when coupled together, relative to their respective
hose members. We sustain the Examiner’s rejection of claims 23, 24 and 25
as unpatentable over Pohlman. Appellant offers no new arguments for the
patentability of claims 26-29 and relies, instead, on their arguments asserted
in support of claims 23, 24 and 25. See App. Br. 25. Accordingly, we
sustain the rejection of claims 26-29 as well.

Claim 32 as unpatentable over Pohlman, AAPA and Johnson
Appellant does not contest the Examiner’s combination of Pohlman, AAPA
and Johnson, but argues with respect to claim 32 that “[a]s before,
everything rests with Pohlman and its teachings, or rather what those
teachings are lacking.” App. Br. 26. As with claims 30 and 31, Appellant
realleges that Pohlman’s depending flange 21 prevents longitudinal
movement of the fittings and provides a tight, secure fitting, and proves that
the members 19 and 20 cannot rotate on the bearing surfaces of their
respective tubular members 5 and 6. App. Br. 27. As set forth above with
respect to the anticipation rejection of claims 30 and 31 in view of Pohlman,
the Examiner has set forth a prima facie case, in this case of obviousness,
that Pohlman’s members 19 and 20 are capable of rotating relative to their
respective tubular members 5 and 6, and we are not persuaded of Examiner
error by Appellant’s position that the restriction of longitudinal movement in
the fitting precludes 360° rotation of the fittings. We sustain the rejection of
claim 32 as unpatentable over Pohlman, AAPA, and Johnson.
Appeal 2011-010907
Application 11/147,719
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DECISION
For the above reasons, the Examiner’s rejection of claims 17, 19, 26-
29, 31 and 32 under 35 U.S.C §112 second paragraph as indefinite is
REVERSED.
The rejection of claims 15-32 as either anticipated by, or obvious in
view of Pohlman, or obvious in view of Pohlman, AAPA and Johnson 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)(1)(iv) (2009).

AFFIRMED

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