Ex Parte Peel

Patent Trial and Appeal Board

Aug 18, 2017

13841086 (P.T.A.B. Aug. 18, 2017)

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.
13/841,086 03/15/2013 Kevin T. Peel 046150-1780 9706
12572 7590
Foley & Lardner LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
SANCHEZ-MEDINA, REINALDO
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
08/22/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipdocketing @ foley. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN T. PEEL
Appeal 2016-005702
Application 13/841,086
Technology Center 3700
Before: JILL D. HILL, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Kevin T. Peel (Appellant) appeals under 35 U.S.C. § 134 from a
rejection of claims 1—21. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
The claims are directed to a mixing valve. Claim 1, reproduced below
with emphasis added, is illustrative of the claimed subject matter:
1. A mixing valve comprising:
a mixing chamber;
Appeal 2016-005702
Application 13/841,086
a first flow control valve having a first flow control
opening; and
a second flow control valve having a second flow control
opening;
wherein the first and second flow control openings each
have a diameter of approximately six millimeters and the mixing
valve has a flow coefficient of approximately 2.5 when both flow
control valves are in a mid-open position.
REFERENCE
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Brown US 2,449,766 Sept. 21, 1948
REJECTION
Claims 1—21 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Brown.
OPINION
The Examiner finds that Brown discloses most of the limitations of
claim 1, but does not discloses the size of the flow control openings, and the
flow coefficient of the mixing valve when both flow control valves are in a
mid-open position. Final Act. 3. Nonetheless, based on what is shown in
Figure 3 of Brown, the Examiner finds that Brown has “a certain albeit
unknown ... control openings diameter and a flow coefficient.” Id. at 4.
The Examiner concludes that, because the claimed value “does not produce
an unpredicted result,” and because Brown shows “the general sizes,” it
would have been obvious to optimize the diameter to be approximately six
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Appeal 2016-005702
Application 13/841,086
millimeters and to optimize the flow coefficient to be approximately 2.5. Id.
at 3^4 (citing In re Alter, 220 F.2d 454, 456 (CCPA 1955)).
Appellant argues that the Examiner has not provided evidence that
Brown “recognized that both the size of the flow control openings and the
flow coefficient when the flow control valves are in a mid-open position to
be result effective variables,” which is required “when relying on the
‘optimum or workable ranges’ rationale.” Appeal Br. 7. According to
Appellant, the drawings of Brown are not sufficient to establish the recited
parameters, because “neither a specific size of the alleged flow control
openings [n]or a flow coefficient of the valve of Brown can be determined
from the drawings.” Id.
The Examiner responds that each flow control opening in Brown has
“a diameter with a dimension that it is not disclosed,” but that the specific
size claimed is the “best size of the openings,” which can be discovered
using “only routine skill in the art.” Ans. 8. According to the Examiner,
because flow coefficient “is a relative measure of the efficiency of the valve
at allowing a fluid flow,” Brown’s disclosure of “a flow of hot and cold
water flowing through the valve,” is a recognition of flow coefficient. Id.
(citing, Brown, col. 6,11. 44—57).
Appellant replies that the passage of Brown cited by the Examiner to
support the relevant findings is not “directed to either the size of each flow
control opening or to the flow coefficient of the mixing valve when both
flow control valves are in a mid-open position.” Reply Br. 5. Appellant
argues that the Examiner offers no evidence from Brown of a flow control
valve in a mid-open position, “let alone what kind of ‘relative efficiency’ the
valve may have in that position.” Id. at 6.
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Appeal 2016-005702
Application 13/841,086
We agree with Appellant on this point. Claim 1 requires that the
mixing valve has a flow coefficient of approximately 2.5 when both flow
control valves are in a mid-open position. Thus, claim 1 not only requires a
particular flow coefficient, but also requires that the particular flow
coefficient is achieved when both flow control valves are in a mid-open
position. Appellant’s Specification discloses that the mid-open position is
“50% actuator travel” as shown in Figure 4. Spec. 1195; Figure 4. We see
no finding in the Examiner’s discussion of Brown regarding the mid-open
position, or percent of travel of Brown’s flow control valves. All words in a
claim must be considered in judging the patentability of a claim against the
prior art. In re Wilson, 424 F.2d 1382 (CCPA 1970). Although the Examiner
determined that the flow control valves of Brown could have been optimized
to have a flow coefficient of approximately 2.5, the addition of “when both
flow control valves are in a mid-open position” after the claimed flow
coefficient in claim 1 indicates that more is required of the valves than only
that they be optimized to have a flow coefficient of approximately 2.5.
Accordingly, as the Examiner’s rejection has not addressed all the
limitations recited in independent claim 1, we reverse the obviousness
rejection of claim 1 and claims 2—11 depending therefrom based on Brown.
Independent claim 12 requires that the mixing valve has a flow rate of up to
approximately 25 liters per minute at approximately 1 bar “when both flow
control valves are in a mid-open position.” For the same reason, we reverse
the rejection of claim 12 and claims 13—21 depending therefrom as
unpatentable over Brown.
DECISION
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Appeal 2016-005702
Application 13/841,086
The Examiner’s rejection of claims 1—21 is reversed.
REVERSED
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