Ex Parte Rahn

Patent Trial and Appeal Board

Feb 29, 2016

12181527 (P.T.A.B. Feb. 29, 2016)

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.
12/181,527 07/29/2008 Joerg Rahn 08-343 2070
34704 7590 02/29/2016
BACHMAN & LAPOINTE, P.C.
900 CHAPEL STREET
SUITE 1201
NEW HAVEN, CT 06510
EXAMINER
NGUYEN, TUAN N
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
02/29/2016 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 JOERG RAHN
____________

Appeal 2013-007083
Application 12/181,5271
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, JAMES A. WORTH, and
TARA L. HUTCHINGS, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1–14. We have jurisdiction over the appeal under
35 U.S.C. § 6(b). An oral hearing was held on February 18, 2016.
We REVERSE.

1 According to the Appellants, “[t]he real party in interest is STABILO
International GmbH.” Appeal Br. 2.
Appeal 2013-007083
Application 12/181,527

2
Claimed Subject Matter
Claim 1, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below.
1. A device for storing and applying a fluid product, comprising
a tank for storing the product in free form,
a conveyor conduit projecting into the tank,
an applicator device connected to the conveyor conduit,
and
a casing tube disposed around a portion of the conveyor
conduit defines therebetween a passage which has a first and a
second mouth opening and in which a portion of the conveyor
conduit is disposed, wherein
the first mouth opening of the passage is disposed in the
tank,
the second mouth opening is connected to the interior of
the tank only by way of the conveyor conduit, and
the conveyor conduit projects out of the passage beyond
the first mouth opening into the tank, wherein
in any position of the device with respect to the direction
of the force of gravity the volume of the tank that is beneath the
first mouth opening is greater than a nominal filling volume of
the device, and
wherein the casing tube forming said passage does not gas-
tightly embrace said conveyor conduit.

Rejections
Claims 1–11 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Kleinwaechter (DE 1904522, iss. Aug. 13, 1970).2
Claims 12–14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Kleinwaechter and Gueret (US 6,132,123, iss. Oct. 17, 2000).

2 An English translation of Kleinwaechter has not been provided by the
Examiner or the Appellant. As such, this decision does not rely on an
English translation of Kleinwaechter.
Appeal 2013-007083
Application 12/181,527

3
ANALYSIS
Independent claim 1 is directed to a device for storing and applying a
fluid product and includes, among other things, a conveyor conduit, a casing
tube, and a passage. See Appeal Br. 16, Claims App. Claim 1 requires a
relationship between the conveyor conduit, the casing tube, and the passage
by reciting, “a casing tube disposed around a portion of the conveyor conduit
defines therebetween a passage which has a first and a second mouth
opening . . . .” Id. Put simply, the claimed relationship requires a passage
between the casing tube and the conveyor conduit. But see Ans. 3.
The Examiner finds Kleinwaechter’s element 7 and element 8
corresponds to the casing tube and conveyor conduit as required by claim 1.
Final Act. 2 (citing Kleinwaechter, Fig.). The Appellant contends,
Kleinwaechter’s Figure shows that “element (7) contacts element (8) and
there is no passage.” Appeal Br. 11. The Appellant’s contention is
persuasive. Kleinwaechter’s Figure does not show a passage between
element 7 and element 8.
In response, the Examiner explains that Kleinwaechter’s element 7
forms said passage and Kleinwaechter’s element 8 is a wick material that
will let air travel through the wick material. Ans. 3. However, even if air
were to travel through element 8, the air does not travel in the claimed
passage because the air would not travel in a passage between the casing
tube and the conveyor conduit.
Thus, the Examiner’s rejection of independent claim 1, and dependent
claims 2–11, as unpatentable over Kleinwaechter is not sustained.
The remaining rejections based on Kleinwaechter in combination with
Gueret relies on the same erroneous finding discussed above. See Final
Appeal 2013-007083
Application 12/181,527

4
Act. 3. As such, we do not sustain the rejection of claims 12–14 as
unpatentable over Kleinwaechter and Gueret.

DECISION
We REVERSE the Examiner’s decision rejecting claims 1–14.

REVERSED