Ex Parte Mann

Board of Patent Appeals and Interferences

Jul 17, 2009

10653404 (B.P.A.I. Jul. 17, 2009)

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.
10/653,404 09/02/2003 Charles D. Mann M86.12-0007 3083
27367 7590 07/17/2009
WESTMAN CHAMPLIN & KELLY, P.A.
SUITE 1400
900 SECOND AVENUE SOUTH
MINNEAPOLIS, MN 55402
EXAMINER
PRICE, RICHARD THOMAS JR
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
07/17/2009 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte CHARLES D. MANN
__________

Appeal 2009-000887
Application 10/653,404
Technology Center 3600
__________

Decided:1 July 17, 2009
__________

Before TONI R. SCHEINER, RICHARD M. LEBOVITZ, and
MELANIE L. McCOLLUM, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a pet toy.
The Examiner has rejected the claims as anticipated or obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-000887
Application 10/653,404

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STATEMENT OF THE CASE
Claims 1-17 are on appeal. Claims 18-21 are also pending but have
been withdrawn from consideration by the Examiner. (App. Br. 3.) We will
focus on claims 1 and 10, which read as follows:
1. A non-consumable pet toy comprising:
a body having a first treat-retaining cavity;
a first opening that extends between the first treat-retaining cavity and
outer surface of the body; and
a first metering device in the first opening that dispenses treats from
the first treat-retaining cavity through the first opening at a metered rate, and
being refillable through the metering device, the first metering device
extending into the treat retaining cavity from the first opening.
10. A non consumable pet toy comprising:
a molded body that defines at least one treat-retaining cavity;
an opening that extends between the treat-retaining cavity and an
outer surface of the body; and
a metering device that dispenses treats from the treat-retaining cavity
and including a plurality of elongated members extending into the treat-
retaining cavity from the opening.
Claims 1-10 and 12-17 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Rucker (US 6,634,318 B1, Oct. 21, 2003) (Ans. 3).
Claim 11 stands rejected under 35 U.S.C. § 103(a) as obvious over
Rucker (id. at 4).
ANTICIPATION
The Examiner finds that Rucker discloses a pet feeding toy “having a
body including a first treat retaining cavity [and] a first opening that extends
between the first treat retaining cavity and outer surface of the body” (id. at
3). The Examiner also finds that Rucker discloses a “first metering
device 700 positioned in the first opening and the first treat retaining cavity
being refillable through the metering device” (id.). In addition, the
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Application 10/653,404

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Examiner finds that “element 730 is considered a plurality of elongated
members extending into the first treat[] retaining cavity from the first
opening” (id. at 4).
Appellant argues that “Rucker fails to teach or suggest ‘a first
metering device in the first opening that dispenses treats from the first treat
retaining cavity through the first opening at a metered rate’ as recited in
claim 1” (App. Br. 6). Appellant also argues that Rucker “fails to teach or
suggest ‘the first treat-retaining cavity being refillable through the metering
device, the first treat metering device extending into the treat retaining
cavity from the first opening’ as recited in claim 1” (id. at 8).
In addition, Appellant argues that “Rucker fails to anticipate ‘a
metering device that dispenses treats from the treat-retaining cavity and
including a plurality of elongated members extending into the treat-retaining
cavity from the opening’ as recited in claim 10” (id. at 9).
Issues
Has Appellant shown that the Examiner erred in concluding that
Rucker discloses the metering device of claims 1 and 10?
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Application 10/653,404

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Findings of Fact
1. Appellant’s Specification Figure 1 is reproduced below:

Specification Figure 1 depicts an exploded view of a treat dispensing pet
toy 100 including “first hollow body 102, which forms a treat-retaining
cavity, having first opening 108[,] . . . second hollow body 104, which forms
a treat-retaining cavity, having second opening 110,” and “first metering
device 112 and second metering device 114 in respective first opening 108
and second opening 110” (Spec. 4: 14-28).
2. The Specification discloses that, “[a]s an animal chews, rolls
and/or tosses pet toy 100, first meter 112 and second meter 114 dispense
treats out of first hollow body 102 and second hollow body 104 at a metered
rate” (id. at 6: 6-9).
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3. Rucker discloses “an edible seal plug . . . [that] securely closes
the entrance to the toy, preventing spillage of its contents,” but “does not
block the main orifice in the toy when it is sheared or fractured at the toy’s
entrance” (Rucker, col. 2, ll. 55-60).
4. Rucker Figure 7D is reproduced below:

Rucker Figure 7D is a view of a “closure [700] showing multiple sections
that lie inside the toy, beneath the shear plane” (id. at col. 3, ll. 11-14, &
col. 4, ll. 58-60).
5. Rucker discloses that closure “700 contains plural cut-out
reliefs 720 which extend from the bottom . . . of the closure 700 upward to a
location . . . near top 710, above shear plane 170,” and “result in plural
sections 730” (id. at col. 4, l. 65, to col. 5, l. 2).
6. Rucker also discloses:
The bottom sections 730 of closure 700 are wedged into
opening 110 of toy 100 (FIG. 1). Top 710 remains outside
toy 100 (FIG. 1) since it is larger in diameter than hole 110. . . .
When a dog’s bite shears closure 700 at plane 170, sections 730
will separate from top 710. Sections 730 are smaller than
hole 110 (FIG. 1) and will not block hole 110 when separated
from the remainder of closure 700. . . .
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Closure 700 securely seals toy 100 (FIG. 1) yet no matter how
it is sheared or fractured, will not occlude opening 110 of
toy 100.
(Id. at col. 5, ll. 9-27.)
7. In addition, Rucker discloses closure 200, depicted in Figures 2
and 3, that does not have one or more cut-out reliefs (id. at col. 3, ll. 52-67).
8. In this embodiment, Rucker discloses:
When closure 200 is . . . chewed by a dog . . . , it will likely be
extracted in whole and consumed safely by the dog. If instead
closure 200 is sheared or fractured by dog’s bite at plane 170
(FIG. 3), portion 210 of closure 220 [sic, 200] will be safely
consumed. Portion 220 of closure 200, remaining lodged in
hole 110 of toy 100, will be softened by dog’s salvia . . . as it is
licked causing the remaining portion 220 of closure 200 to
disintegrate, enabling the dog to eventually reach food 130 in
toy 100.
(Id. at col. 3, ll. 59-67.)
9. Rucker Figure 3 is reproduced below:

Rucker Figure 3 “is a cross-sectional view of the closure of FIG. 2 after
shearing” (id. at col. 3, ll. 1-2).
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Application 10/653,404

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Principles of Law
“It is axiomatic that, in proceedings before the PTO, claims in an
application are to be given their broadest reasonable interpretation consistent
with the specification.” In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983).
“A claim is anticipated only if each and every element as set forth in the
claim is found, either expressly or inherently described, in a single prior art
reference.” Verdegaal Bros., Inc. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987).
Analysis
Rucker discloses a seal plug 700 (Findings of Fact (FF) 3-5). We
agree with Appellant that the Examiner has not adequately explained how
this component fulfills the requirements of the metering device of claims 1
and 10. In particular, prior to being sheared or fractured, the seal plug
“securely closes the entrance of the toy, preventing spillage of its contents”
(FF 3), and therefore does not dispense treats, as required by both of
claims 1 and 10. In addition, after it is sheared or fractured, “sections 730
will separate from top 710 . . . and will not block hole 110” (FF 6). Once
this occurs, treats can of course be dispensed. However, the treats are not
being dispensed by seal plug 700. Furthermore, even if seal plug 700 is
considered a metering device, it is not understood how the Examiner finds
that the toy is “refillable through the metering device,” as recited in claim 1.
The Examiner argues, however, that “the claim phrase ‘that dispenses
from the first treat retaining cavity’ can broadly read on the first opening not
necessarily the ‘first metering device’” (Ans. 5). We do not agree.
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We note initially that this argument does not apply to claim 10, which
clearly recites “a metering device that dispensing treats . . .” rather than a
“metering device in a first opening that dispenses treats.” In addition, giving
claim 1 its broadest reasonable interpretation consistent with the
specification, we interpret claim 1 to require that the metering device
“dispenses treats from the first treat-retaining cavity through the first
opening at a metered rate.” In particular, the Specification clearly recites
that the metering device dispenses treats at a metered rate (FF 2). In
addition, the language in claim 1 stating that the treats are dispensed
“through the first opening” is more consistent with this phrase modifying the
metering device rather than the first opening.
The Examiner also disagrees with Appellant’s argument that “the
remaining portion 220 could not meter the flow of food from the interior of
the toy” (Ans. 5). In particular, the Examiner finds:
[U]nless all of the treat come out at once, then the remaining
portion will in fact meter the flow of treats. Further, even if the
assertions are correct about the metered flow being “random
and temporary”, it still broadly reads on the term “metered”.
Despite that, as the device of Rucker is used, a portion of the
first metering device will break apart, yet the remaining portion
of the first metering device will stay positioned in the first
opening. Thus, the remaining portion can act as a metering
device to limit or meter the flow of food from the interior of the
toy through the first opening.
(Id.) We do not agree.
Rucker discloses a dog bite shearing closure 200 at plane 170,
resulting in portion 220 being lodged in the hole (FF 8-9). However, the
Examiner has not adequately explained how portion 220 could then meter
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Application 10/653,404

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the flow of treats. Rucker does not disclose that closure 200 has one or more
cut-out reliefs (FF 5-6). Thus, we agree with Appellant that, like
closure 200, portion 220, while it is still lodged in the hole, would seal the
hole, preventing the dispensing of treats (App. Br. 7).
Conclusion
Appellant has shown that the Examiner erred in concluding that
Rucker discloses the metering device of claims 1 and 10. We therefore
reverse the anticipation rejection of claims 1 and 10 and of claims 2-9 and
12-17, which depend from either claim 1 or claim 10.
OBVIOUSNESS
Claim 11 depends from claim 10. The Examiner relies on Rucker as
discussed above and argues that the additional feature of claim 11 would
have been obvious (Ans. 4). However, as discussed above, the Examiner
erred in concluding that Rucker discloses the metering device of claim 10.
In addition, the Examiner has not shown that this metering device would
have been obvious. Thus, we agree with Appellant that the Examiner has
not set forth a prima facie case that claim 11 would have been obvious. We
therefore reverse the obviousness rejection of claim 11.
REVERSED
lp
WESTMAN CHAMPLIN & KELLY, P.A.
SUITE 1400
900 SECOND AVENUE SOUTH
MINNEAPOLIS MN 55402