Ex Parte Murray et al

Patent Trial and Appeal Board

Jun 6, 2013

11196689 (P.T.A.B. Jun. 6, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PAT L. MURRAY and E. RICHARD HUBER
____________

Appeal 2011-004597
Application 11/196,689
Technology Center 3700
____________

Before LINDA E. HORNER, PHILLIP J. KAUFFMAN, and
BART A. GERSTENBLITH, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pat L. Murray and E. Richard Huber (Appellants) seek our review
under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 1-3, 6-10,
and 12-15. Claims 5 and 16-20 are canceled, and claims 4 and 11 are
withdrawn from consideration. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Appeal 2011-004597
Application 11/196,689

2
THE INVENTION
Appellants’ claimed invention relates to “an apparatus for mixing and
dispensing plural component foams.” Spec., para. [0004]. Claims 1 and 12
are independent. Claim 1, reproduced below, is illustrative of the subject
matter on appeal.
1. A dispensing gun assembly for mixing a first reactive
fluid component and a second reactive fluid component and
dispensing the mixed reactive components, the assembly
comprising:
a gun body;
a housing attached to said gun body, said housing
including first and second fluid passageways arranged and
designed for the first and second reactive fluid components
respectively, said fluid passageways being segregated from one
another within said housing, said segregated fluid passageways
defined by an absence of a passageway within said housing
interconnecting said first and second fluid passageways, said
housing including a trigger receptacle positioned between said
first and second fluid passageways, said trigger receptacle
having a downwardly facing opening;
a first valve operably positioned within said housing in
said first fluid passageway;
a second valve operably positioned within said housing
in said second fluid passageway;
a trigger member controllably contacting said first and
second valves within said trigger receptacle and being
proximate said gun body; and
a nozzle assembly connected to said housing.
Appeal 2011-004597
Application 11/196,689

3
THE EVIDENCE
The Examiner relies upon the following evidence:
Day US 1,172,233 Feb. 15, 1916
Bien US 6,705,539 B1 Mar. 16, 2004
THE REJECTIONS
Appellants seek review of the following rejections:
1. Claims 1, 2, 6, 7, 9, 10, 12, 14, and 15 under 35 U.S.C. § 102(b) as
anticipated by Day;
2. Claims 3 and 13 under 35 U.S.C. § 103(a) as unpatentable over Day;
and
3. Claim 8 under 35 U.S.C. § 103(a) as unpatentable over Day and Bien.
ISSUE
Appellants argue that Day does not anticipate claims 1 and 12
because, inter alia, “Day discloses an enclosed flow path or passageway in
the housing interconnecting the segregated fluid passageways.” Br. 12; id.
at 10 (identifying Day’s recess 23 in body 1 for housing operating valve 22
and the passageways for accommodating extensions 20 and 29 of valves 7
and 27 as defining a passageway or enclosed flow path interconnecting
passageways 3 and 4). Appellants argue that the Examiner erred in
“equat[ing] an existing blocked or obstructed flow path or passageway with
the absence of an enclosed flow path or passageway.” Id. at 10. Appellants
assert that “a passageway can be obstructed or unobstructed, but nonetheless
still be a passageway.” Id.
Appeal 2011-004597
Application 11/196,689

4
The Examiner determined that “with the inclusion of the critical parts
7, 22, and 27, the apparent path as point out by the Appellant’s Fig. 21 is
blocked and the fluid passageways 3 and 4 are segregated from each other
defined by an absence of a passageway interconnecting the passageways 3
and 4.” Ans. 5.
The issue before us is whether the Examiner’s interpretation of “an
absence of a passageway” in claim 1 and “an absence of an enclosed flow
path” in claim 12 as encompassing a blocked flow path is reasonable when
read in light of the Specification.
ANALYSIS
Appellants’ Specification describes that “[i]n the preferred
embodiment as shown in FIG. 4, there are no closed passageways or cavities
interconnecting the aligned pairs of fluid passages in the gun body 12 which
eliminates the possibility of the fluid components leaking past seals and
reacting with each other to cause premature operation failure.” Spec., para.
[0041]. The Specification further describes that “[a]n advantage of the
preferred embodiment of the present invention is that there is completely
separated fluid component passages through the gun body 12 which
eliminates the possibility of the chemical streams from ‘crossover’ and
reacting inside the flow control valve housing 16.” Spec., para. [0045].
Thus, the Specification describes that blocked or closed flow paths
having seals to prevent flow therein are nonetheless considered passageways

1 “Appellant’s Fig. 2” refers to an annotated Figure 2 of Day provided on
page 10 of the Appeal Brief.
Appeal 2011-004597
Application 11/196,689

5
or cavities interconnecting the fluid passages. One having ordinary skill in
the art would understand the Specification to describe that passageways or
enclosed flow paths through which flow is not intended are still considered
to be potential sources for problems should the flow somehow leak past the
seals. As such, one of ordinary skill in the art would understand the claim
language calling for an absence of passageways or enclosed flow paths,
when read in view of the Specification, to call for the housing to be devoid
of even a blocked or closed passageway or enclosed flow path between the
first and second fluid passageways to prevent the possibility of unwanted
comingling of the fluid components within the housing. See Br. 13 (“The
present invention seeks to avoid any possibility of crossover occurring
within the housing[.]”). The Examiner’s interpretation of the claim
limitations calling for the absence of a passageway or enclosed flow path as
encompassing a blocked flow path is unreasonably broad in view of the
Specification.
As such, we agree with Appellants that Day does not anticipate
independent claims 1 and 12 because Day’s recess 23 in body 1 for housing
operating valve 22 and the passageways for accommodating extensions 20
and 29 of valves 7 and 27 define a passageway or enclosed flow path, albeit
ostensibly blocked, interconnecting passageways 3 and 4. For this reason,
we cannot sustain the rejection of claims 1 and 12 or their dependent claims
2, 6, 7, 9, 10, 14, and 15 as anticipated by Day.
The rejections of dependent claims 3, 8, and 13 based on either Day
alone or in combination with Bien suffer from the same shortcomings as set
Appeal 2011-004597
Application 11/196,689

6
forth supra. Ans. 4. As such, we cannot sustain the rejection of claims 3
and 13 as unpatentable over Day or the rejection of claim 8 as unpatentable
over Day and Bien.
DECISION
We REVERSE the decision of the Examiner to reject claims 1-3, 6-
10, and 12-15.

REVERSED

mls