Ex Parte McDonald

Patent Trial and Appeal Board

Jul 25, 2013

11506196 (P.T.A.B. Jul. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte CHRISTOPHER WILLIAM McDONALD
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Appeal 2011-001590
Application 11/506,196
Technology Center 3700
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Before JAMES P. CALVE, NEIL T. POWELL, and JILL D. HILL,
Administrative Patent Judges.

HILL, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Christopher William McDonald (Appellant) appeals under 35 U.S.C.
§ 134 from a final rejection of claims 1-20. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claimed subject matter relates to “flow control assemblies for
shower heads that are to receive water from a hot water tap and water from a
cold water tap, and more particularly such assemblies that aid in regulating
water to the shower head.” Spec. 1, ll. 3-5. Claim 1 illustrates the subject
matter on appeal and is reproduced below with disputed claim limitations
emphasized.
1. In a flow control assembly for a shower
head that is to receive hot water from a hot water
inlet and cold water from a cold water inlet,
wherein said assembly comprises either a cold
water tap and a hot water tap or a mixer tap
manipulatable for turning on and off the flow of
hot and cold water from the hot and cold water
inlets to the shower head and a pipe arrangement
to receive water from the hot and cold water inlets
and to deliver the water to the shower head, the
improvement comprising:
(a) a first flow restriction device operatively
associated with the cold water inlet to restrict the
flow of water passing from the cold water inlet
through the cold water tap or mixer tap when the
cold water tap or the mixer tap is turned on to
permit the flow of cold water;
(b) a second flow restriction device, said
second device operatively associated with the hot
water inlet to restrict the flow of water passing
from the hot water inlet through the hot water tap
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or mixer tap when the hot water tap or the mixer
tap is turned on to permit the flow of hot water;
and
(c) a third flow restriction device
downstream of the first and the second flow
restriction devices to restrict the flow of water to
the shower head.

EVIDENCE
The Examiner relies on the following evidence:

Fraser US 1,330,441 Feb. 10, 1920
Merritt US 4,161,965 Jul. 24, 1979
Lin US 5,185,893 Feb. 16, 1993

REJECTIONS
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Fraser and Merritt (Ans. 3-5), and as unpatentable over Lin and Merritt
(Ans. 5-7).

ANALYSIS
Claims 1-20 Unpatentable over Fraser and Merritt
Claims 1-7, 9, and 10
Appellant argues claims 1-7, 9, and 10 as a group. App. Br. 9-13. We
select independent claim 1 as representative. Claims 2-7, 9 and 10 stand or
fall with representative claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner finds that Fraser teaches a flow control assembly for a
shower head receiving hot water from hot water inlet A and cold water from
cold water inlet B, wherein the assembly comprises a tap arrangement for
turning on and off the flow of hot and cold water. Ans. 3. The assembly
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also includes a fixed orifice first flow restriction device (about K') connected
to cold water inlet B having a tap N, and a fixed orifice second flow
restriction device (about K) connected to hot water inlet A having a tap N,
with a pipe G extending from the restriction devices to deliver water to the
shower head. Ans. 3-4. The Examiner finds that Fraser’s tap arrangement
inherently comprises a mixer tap C. Ans. 4.
The Examiner finds that Fraser does not teach a third flow restriction
device, but finds that Merritt discloses a flow control assembly for a shower
head 12, the assembly including a variable orifice restriction device 14
positioned downstream of first and second flow restriction devices (e.g., hot
and cold taps) and upstream of the shower head, the restriction device 14
reducing water consumption by restricting flow of water to the shower head.
Ans. 4. The Examiner concludes that it would have been obvious to one of
ordinary skill in the art at the time of the invention to modify Fraser’s flow
control assembly by employing a restriction device positioned downstream
of the first and second flow restriction devices, based on the teaching of
Merritt, to conserve water and thereby reduce the energy required to pump
and heat the water. Ans. 4, 7.
Appellant argues that the term “flow restriction device” as recited in
the claims does not encompass a standard tap, but does not identify how
features of a “flow restriction device” distinguish over a standard tap. App.
Br. 9. The Specification, however, merely states that Australian Patent
Application 34326/02 and Australian Patent 705264 are examples of
Appellant’s flow restriction devices. Appellant’s Specification does not
define the claim term “flow restriction device” to exclude a standard tap.

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Appellant next argues that the claims require that the claimed flow
restriction devices “restrict the flow of water through the taps when the taps
are open,” and that therefore neither Fraser nor Merritt teaches the claimed
first and second flow restriction devices operatively associated with the hot
and cold water inlets to restrict the flow of water passing through the tap(s).
App. Br. 10-11. Appellant does not, however, explain why Fraser’s flow
restrictors (about K and K’) cannot restrict the flow of water through a
respective tap when the tap is turned on. We are therefore not persuaded by
Appellant’s arguments.
Appellant further argues that the claimed flow restriction devices
“operate independently of the claimed taps and must be considered as
elements that are separate and apart from the elements of the taps,” whereas
the Examiner refers to elements of Fraser’s taps as also comprising flow
restriction devices. App. Br. 11. Appellant, however, does not point to any
language in the claims that the flow restriction devices operate
independently of the taps or are separate and apart from the elements of the
taps. Also, to the extent that Appellant’s flow restriction devices operate to
restrict flow by changing the direction of the water, Fraser’s flow restriction
devices also change the direction of the water and Appellant fails to explain
why Fraser’s device does not therefore similarly restrict flow of water by
changing its direction.
Further, page 3 of Appellant’s Specification states that “device 23
provides a seat 24 that is engaged by a tap washer 25 moved by means of a
spindle 26.” Spec. 3, ll. 16-17. Controlling flow via interaction of tap
washer 25 and restrictor seat 24 creates cooperation between the tap and the
flow restriction device 23, which would weigh against the alleged
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“independent operation” and “separate and apart” arguments made by
Appellant.
Lastly, Appellant argues that the Examiner has not articulated a
reason for combining Fraser and Merritt. The Examiner, however, stated
that reasoning as “to conserve water consumption and the energy required to
pump and heat the water” (Ans. 4), the basis for which is found at lines 49-
51 of column 1 of Merritt. Appellant has not explained why the Examiner’s
stated reasoning lacks rational underpinning. We therefore are not
persuaded by Appellant’s argument.
For the reasons set forth above, we sustain the rejection of claims 1-7,
9, and 10 under 35 U.S.C. § 103(a) as unpatentable over Fraser and Merritt.
Claim 8
Claim 8 recites that the first, second, and third flow restriction devices
are constructed and arranged such that variations in the temperature of water
delivered to the shower head as a result of fluctuations in pressure of water
delivered to the tap arrangement are diminished as compared with variations
in the temperature of the water with the flow control assembly without either
the third restriction device or the first and second restriction devices.
The Examiner finds that Fraser’s flow assembly, as modified to
include a third flow restriction device as taught by Merritt, is “obviously
constructed” such that “variations in temperature of water delivered to the
shower head as a result of fluctuation in pressure of water are diminished.”
Ans. 4-5.
Appellant argues that nothing in the record shows or suggests that the
addition of a third flow restriction device downstream of flow restriction
devices associated with the tap would aid in controlling variations in the
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temperature of water delivered to the shower head, or that such “additive
effect of the claimed flow restriction devices would be predictable.” App.
Br. 13. Appellant, however, fails to explain why arranging flow restriction
devices taught in prior art in the manner proposed by the Examiner, and as
claimed, would not aid in controlling variations in the temperature of water
delivered to the shower head. We therefore are not persuaded by
Appellant’s arguments regarding the lack of predictability of the effects of
combining the flow restriction devices. We sustain the rejection of claim 8
as unpatentable over Fraser and Merritt.
Claim 11
Claim 11 recites each of the fixed orifice water restriction devices
having an inlet passage “generally normal to” an outlet passage. Appellant
argues that none of the references disclose this feature. App. Br. 13.
The Examiner finds that each of Fraser’s fixed orifice water restriction
devices has an inlet passage (constituted by the opening to the left of K' and
to the right of K in Figure 5 of Fraser) generally normal to an outlet passage
(element F2 and E2 in Figure 5 of Fraser). Ans. 5. We agree with the
Examiner’s factual findings and therefore sustain the rejection of claim 11 as
unpatentable over Fraser and Merritt.
Claims 12-17
Appellant argues claims 12-17 as a group. App. Br. 9-13. We select
independent claim 12 as representative. Claims 13-17 stand or fall with
representative claim 12. See 37 C.F.R. § 41.37(c)(1)(vii). Regarding
independent claim 12, Appellant additionally argues that neither Fraser nor
Merritt teaches the fixed orifice water restriction devices restricting flow by
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changing the direction of water passing therethrough. App. Br. 14. For the
reasons set forth above with respect to claim 11, we are not persuaded by
this argument. We sustain the rejection of claims 12-17 as unpatentable over
Fraser and Merritt.
Claims 18-20
Appellant argues claims 18-20 as a group. App. Br. 9-13. We select
independent claim 18 as representative. Claims 19 and 20 stand or fall with
representative claim 18. See 37 C.F.R. § 41.37(c)(1)(vii). Regarding
independent claim 18, Appellant contends that the Examiner is obligated to
find prior art that performs the function specified in the claim or provide an
explanation and rationale regarding why the prior art element is equivalent,
and that the Examiner has not satisfied the burden with respect to either
because Fraser and Merritt do not perform the claimed function of “changing
the direction of water so as to restrict the flow of water passing from” a
respective inlet through the respective tap. App. Br. 14. However, as set
forth above, Appellant has not explained why the change of direction of
water in Fraser does not restrict the water flow as claimed, and we are
therefore not persuaded that the Examiner failed to find prior art that
performs the claimed function. We sustain the rejection of claims 18-20 as
unpatentable over Fraser and Merritt.

Claims 1-20 Unpatentable over Lin and Merritt
Claims 1-7, 9, and 10
Appellant argues claims 1-7, 9, and 10 as a group. App. Br. 15-19.
We select claim 1 as representative. Regarding claim 1, the Examiner finds
that Lin teaches a flow control assembly for a shower head 25 that receives
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water from a hot water inlet 13 and a cold water inlet 14 via a tap
arrangement manipulable for turning water flow on and off, and a pipe (at
67) for delivering water from the tap arrangement to the shower head 25.
Ans. 5. The Examiner finds that Lin’s assembly includes a fixed orifice first
flow restriction device (at 48 in Figure 3) for cold water, and a fixed orifice
second flow restriction device (at 47 in Figure 3) for hot water. Id. The
Examiner finds that Lin does not teach a third flow restriction device as
claimed, but finds that Merritt teaches a variable orifice restriction device 14
positioned between first and second flow restriction devices and the shower
head 12. Ans. 6 (citing Merritt, col. 1, ll. 40-55 and col. 4, ll. 42-47). The
Examiner concludes that it would have been obvious to one having ordinary
skill in the art at the time of the invention “to have modified the Lin flow
control assembly by employing a restriction device positioned downstream
of the first and second flow restriction devices, in view of the teaching of
Merritt, in order to conserve water consumption and the energy required to
pump and heat the water.” Id.
Appellant again argues that the claim term “flow restriction device” as
recited in the claims does not encompass a standard tap. App. Br. 15. We
disagree for the reasons set forth above.
Appellant also argues that the claims require that the claimed flow
restriction devices “restrict the flow of water through the taps when the taps
are open,” which is taught by neither Lin nor Merritt. App. Br. 16-17.
Appellant does not, however, explain why Lin’s assemblies comprising
elements 40-49 are not capable of restricting the flow of water through a
respective tap when the tap is turned on. We are therefore not persuaded by
Appellant’s arguments.
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Appellant further argues that the claimed flow restriction devices
“operate independently of the claimed taps and must be considered as
elements that are separate and apart from the elements of the taps,” whereas
the Examiner refers to elements of Lin’s taps as also comprising flow
restriction devices. App. Br. 17. Appellant, however, does not point to any
language in the claims that the flow restriction devices operate
independently of the taps or are separate and apart from the elements of the
taps. Also, to the extent that Appellant’s flow restriction devices operate to
restrict flow by changing the direction of the water, Lin’s device also
changes the direction of the water and Appellant fails to explain why Lin’s
device does not similarly restrict flow of water by changing its direction.
Further, as explained above, page 3 of Appellant’s Specification states
that “device 23 provides a seat 24 that is engaged by a tap washer 25 moved
by means of a spindle 26.” Spec. 3, ll. 16-17. Controlling flow via
interaction of tap washer 25 and restrictor seat 24 creates cooperation
between the tap and the flow restriction device 23, which would weigh
against the alleged “independent operation” and “separate and apart”
arguments made by Appellant.
Lastly, Appellant argues that the Examiner has not articulated a
reason for combining Lin and Merritt. The Examiner, however, stated that
reasoning as “to conserve water consumption and the energy required to
pump and heat the water” (Ans. 6), the basis for which is found at lines 49-
51 of page 1 of Merritt. Appellant has not explained why the Examiner’s
stated reasoning lacks rational underpinning. We therefore are not
persuaded by Appellant’s argument.
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For the reasons set forth above, we sustain the rejection of claims 1-7,
9, and 10 under 35 U.S.C. § 103(a) as unpatentable over Lin and Merritt.
Claim 8
Regarding claim 8, the Examiner finds that Lin’s flow assembly, as
modified by Merritt and thus having first, second, and third flow restriction
devices, is “obviously constructed” to diminish variations in water
temperature and pressure delivered to the shower head. Ans. 6-7.
Appellant argues that nothing in the record shows or suggests that the
addition of a third flow restriction device downstream of flow restriction
devices associated with the tap would aid in controlling variations in the
temperature of water delivered to the shower head, or that such “additive
effect of the claimed flow restriction devices would be predictable.” App.
Br. 19. Appellant, however, fails to explain why arranging the flow
restriction devices taught in the prior art in the manner proposed by the
Examiner and as claimed would not aid in controlling variations in the
temperature of water delivered to the shower head. We therefore are not
persuaded by Appellant’s arguments regarding the lack of predictability of
the effects of combining the flow restriction devices, and we therefore
sustain the rejection of claim 8 as unpatentable over Lin and Merritt.
Claim 11
Regarding claim 11, Appellant argues that Lin and Merritt do not
teach an inlet passage “generally normal to” an outlet passage. App. Br. 19.
The Examiner finds that Lin teaches the first and second fixed orifice flow
restriction devices being disposed in the tap arrangement and having an inlet
passage “(constituted by the passage after the opening closed by element 48
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or element 47 in Fig. 4 of Lin)” that is normal to an outlet passage
“(constituted by the passage leading to element 17 in Fig. 4).” Ans. 7. We
agree with the Examiner’s factual findings and sustain the rejection of claim
11 as unpatentable over Lin and Merritt.
Claims 12-17
Appellant argues claims 12-17 as a group. App. Br. 15-19. We select
independent claim 12 as representative. Claims 13-17 stand or fall with
representative claim 12. See 37 C.F.R. § 41.37(c)(1)(vii). Regarding claims
12-17, the Examiner refers back to the rejection of claims 1-11. Ans. 7.
Appellant argues that neither Lin nor Merritt teaches the fixed orifice water
restriction devices restricting flow by changing the direction of water
passing therethrough. App. Br. 20. For the reasons set forth above with
respect to claim 1, we are not persuaded by this argument. We sustain the
rejection of claims 12-17 as unpatentable over Lin and Merritt.
Claims 18-20
Appellant argues claims 18-20 as a group. App. Br. 15-19. We select
independent claim 18 as representative. Claims 19 and 20 stand or fall with
representative claim 18. See 37 C.F.R. § 41.37(c)(1)(vii). Regarding claims
18-20, the Examiner refers back to the rejection of claims 1-11. Ans. 7.
Regarding independent claim 18, Appellant contends that the Examiner is
obligated to find prior art that performs the function specified in the claim or
provide an explanation and rationale regarding why the prior art element is
equivalent, and that the Examiner has not satisfied the burden with respect to
either because Lin and Merritt do not perform the claimed function of
“changing the direction of water so as to restrict the flow of water passing
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from” a respective inlet through the respective tap. Id. However, as set
forth above, Appellant has not explained why the change of direction of
water in Lin does not restrict the water flow as claimed, and we are therefore
not persuaded that the Examiner failed to find prior art that performs the
claimed function. We sustain the rejection of claims 18-20 as unpatentable
over Lin and Merritt.
DECISION
We AFFIRM the rejection of claims 1-20 under 35 U.S.C. § 103(a) as
unpatentable over Fraser and Merritt.
We AFFIRM the rejection of claims 1-20 under 35 U.S.C. § 103(a) as
unpatentable over Lin and Merritt.

AFFIRMED

mls