Ex Parte Rech

Patent Trial and Appeal Board

May 24, 2018

14360669 (P.T.A.B. May. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/360,669 05/27/2014
147365 7590 05/29/2018
Silgan Dispensing Systems
501 South 5th Street, 3rd Floor
Richmond, VA 23219-0501
FIRST NAMED INVENTOR
Gilberto Rech
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
70489-USPCT 9660
EXAMINER
LIEUWEN, CODY J
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
05/29/2018 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):
patent@barjos.com
devin.jensen@silgandispensing.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GILBERTO RECH 1
Appeal2017-008472
Application 14/360,669
Technology Center 3700
Before MICHAEL L. HOELTER, JAMES P. CAL VE, and
ERIC C. JESCHKE, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Final Office
Action rejecting claims 1-18. Br. 1. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART and we enter a NEW GROUND OF
REJECTION pursuant to our discretionary authority under 37 C.F.R.
§ 41.50(b).
1 WestRock Dispensing Systems Vicenza S.R.L. is identified as the real
party in interest and also is the applicant pursuant to 37 C.F.R. § 1.46. Br. 3.
Appeal2017-008472
Application 14/360,669
CLAIMED SUBJECT MATTER
Appellant discloses prior art sprayers as having a one-way valve 30
with dome piece 31 to occlude inlet hole 24 and truncated cone body 32 to
occlude outlet hole 26. Spec. 4:11-5:5. Appellant adds a precompression
system to such sprayer. Id. at 5: 6-9. Claims 1, 9, and 10 are independent.
Claim 1 is reproduced below.
1. A sprayer, comprising:
a container of liquid;
a body provided with a base that can be applied to a mouth of the
container of liquid and a delivery nozzle from which the liquid
is sprayed, a pumping chamber in the body and in
communication with the interior of the container through an
inlet hole and a dipper tube and with said delivery nozzle
through an outlet hole and an outlet duct having a first section
in communication with said outlet hole of the pumping chamber
and a second section in communication with said delivery
nozzle and positioned at an angle with respect to said first
section;
a trigger lever hinged to the body and to a stem of a plunger movable
in the pumping chamber;
a one-way suction and delivery valve co-operating with said inlet hole
and said outlet hole to control, following actuation of said
trigger lever, the suction of the liquid from the container and the
delivery of the liquid towards the delivery nozzle;
a system of precompression seated in said outlet duct, suitable for
increasing the speed or the acceleration of the liquid in output
from said nozzle, the system of precompression comprising a
piston housed in a seat formed in a widening and extension of
said first section of the outlet duct and normally held in
occlusion of said first section by a spring, the force of which is
overcome by the pressure of the fluid acting on a base of the
piston via said first section following the actuation of a pump
with consequent displacement of the piston and exiting of the
fluid via said second section of the outlet duct.
2
Appeal2017-008472
Application 14/360,669
REJECTIONS
Claims 1-8 are rejected under 35 U.S.C. § I02(b) as anticipated by
Foster (US 5,622,317, iss. Apr. 22, 1997).
Claim 9 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Foster and Sweeton (US 2008/0149671 Al, pub. June 26, 2008).
Claims 10 and 12-18 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Foster and Buti (US 2006/0054642 Al, pub. Mar. 16,
2006).
Claim 11 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Foster, Buti, and Sweeton.
ANALYSIS
Claims 1---8
Rejected As Anticipated by Foster
The Examiner finds that Foster discloses a sprayer with inlet hole 40,
outlet hole 42, a one-way suction and delivery valve (ball check valve 70)
cooperating with the inlet hole and outlet hole to control the suction of liquid
from the container and the delivery of the liquid towards the delivery nozzle,
and a precompression system with piston 54 housed in seat 48 formed in a
widening extension of the outlet duct, as recited in claim 1. Final Act. 3--4.
Appellant argues that Foster's ball valve may control suction of liquid
from the container, but it does not control delivery of the liquid towards the
delivery nozzle as claimed. Br. 8. Appellant argues that claim 1 requires a
one-way suction and delivery valve "co-operating with said inlet hole and
said outlet hole to control" for the suction and delivery of liquid. Id. at 8-9.
Appellant also argues that only pressure buildup valve 54 in Foster controls
the delivery of fluid through the delivery nozzle as claimed. Id. at 9.
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Appeal2017-008472
Application 14/360,669
An ordinary meaning of "co-operating" includes "to act or work with
another or others" or "to associate with another or others for mutual benefit."
See Definition of "cooperate" by Merriam-Webster at http://www.merriam-
webster.com/ dictionary/cooperate (last viewed May 18, 2018). This term is
not used in the Specification to describe the one-way suction and delivery
valve. Instead, the Specification describes one-way suction and delivery
valve 30 including dome piece 31 and truncated cone body 32 that occlude
inlet hole 24 and outlet hole 26. Spec. 4: 19--21. As shown in Appellant's
Figure 1, which is reproduced below, one-way suction and delivery valve 30
is associated with inlet and outlet holes 24, 26 and works with inlet hole 24
to admit liquid from the container to the sprayer and with outlet hole 26 to
deliver liquid from sprayer chamber 22 to delivery nozzle 16.
::(tt>/·::>.1[
'?x..::.:-.-:.-=::.,.(,.:<:;:
Fig. 1 is a section view of sprayer 10.
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Appeal2017-008472
Application 14/360,669
In contrast to this arrangement, Foster discloses ball valve 70 as being
separate and apart from inlet port 40 and outlet port 42 as shown in Figure 1
of Foster, which is reproduced below.
FIG.1
Figure 1 is a side view of pressure buildup trigger sprayer 10.
The Examiner's finding that ball valve 70 cooperates with inlet hole
40 to control the suction of liquid from the container and outlet hole 42 to
control the delivery of liquid towards delivery nozzle 14 is an unreasonably
broad interpretation of the term "co-operating" and is inconsistent with the
Specification. The Examiner has not explained sufficiently how ball valve
70 cooperates with inlet hole 40 or outlet hole 42 when ball valve 70 sits on
valve seat 68 in liquid passage 64. See Ans. 8-9; Foster, 4: 1-12 and 39-53.
5
Appeal2017-008472
Application 14/360,669
Foster discloses that ball valve 70 moves in passage 64 between valve
seat 68 and arms 96. Foster, 4: 1-12, Fig. 1. As pump piston 118 moves to
the "charge position" ( to the left in pump chamber 34 in Fig. 1 ), a vacuum is
created in pump chamber 34 to draw liquid from the liquid container through
dip tube 72, past ball check valve 70, and through inlet port 40 into pump
chamber 34. Id. at 5:36-43, 6:41-50. Ball valve 70 does not cooperate with
inlet port 40 or outlet port 42 to permit fluid to be drawn from a container or
delivered to the nozzle. Thus, we do not sustain the rejection of claims 1-8.
Claim 9
Rejected Over Foster and Sweeton
Independent claim 9 recites a sprayer with similar features as claim 1
wherein the piston and spring of the precompression system "are a single
part made of a material selected from the group consisting of plastic, rubber,
and elastomer." Br. 15-16 (Claims App'x). The Examiner relies on Foster
to disclose the same features of the sprayer in claim 9 as for claim 1. The
Examiner relies on Sweeton to disclose a sprayer precompression system in
which piston 46 and spring 44 are a single part made of plastic material and
integrally formed by molding. Final Act. 6-7. The Examiner determines it
would have been obvious to form the piston and spring of Foster as a single,
integral plastic member to reduce the number of components required for
assembly as Sweeton teaches is advantageous. Id. ( citing Sweeton ,r 9).
Appellant argues that Foster does not disclose the claimed one-way
suction and delivery valve co-operating with the inlet hole and outlet hole to
control suction and delivery of liquid for the same reasons as claim 1, and
Sweeton does not cure this deficiency. See Br. 11. We agree for the same
reasons as claim 1. Thus, we do not sustain the rejection of claim 9.
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Appeal2017-008472
Application 14/360,669
Claims 10 and 12-18
Rejected Over Foster and Buti
Appellant argues claims 10 and 12-18 as a group. Br. 11-13. We
select claim 10 as representative, with claims 12-18 standing or falling with
claim 10. 37 C.F.R. § 4I.37(c)(l)(iv).
Independent claim 10 recites a trigger sprayer with an outlet duct
comprising a first section in communication with an outlet hole, a second
section in communication with the delivery nozzle, and a seat formed in the
first section and comprising a widening of the first section and an extension
thereof. Br. 16 (Claims App'x). The Examiner relies on Foster to disclose a
sprayer except for "an inlet valve cooperating with the inlet hole" and "an
outlet valve cooperating with the outlet hole." Final Act. 7 ("Foster does not
disclose a sprayer with an associated inlet valve for the inlet hole and an
associated outlet valve for the outlet hole."). The Examiner relies on Buti to
teach a trigger sprayer 10 having a one-way fluid and delivery valve 100 to
include inlet valve 120 cooperating with input hole 34 and outlet valve 110
cooperating with outlet hole 35.2 Id.
Appellant argues that claim 10 requires the outlet duct to have "a first
section in communication with the outlet hole" of the pumping chamber and
"a seat formed in the first section, wherein the seat comprises a widening of
the first section and extension thereof." Br. 12. Appellant argues that flow
passage 48 of Foster lacks this claimed feature because the portion that is in
communication with the outlet hole is the wider portion. Id. This argument
is not persuasive for the following reasons.
2 Buti's one-way valve 100 has the same configuration as one-way valve 30
described in the Specification as prior art (Spec. 4: 11-5: 5) and illustrated in
Appellant's Fig. 1 (above) as elements 30 31, 32.
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Appeal2017-008472
Application 14/360,669
The Examiner correctly finds that Foster's flow passage 48 has a first
section in communication with outlet hole 42 and a seat that is a widening of
flow passage 48 from a narrower portion at the top of flow passage 48, e.g.,
where valve stem 50 attaches to housing 12. Ans. 10-11; Final Act. 12. As
the Examiner correctly finds, claim 10 does not require the widening to
occur in a particular direction. Ans. 11. Foster also discloses a second
section 26 in communication with delivery nozzle 14 as claimed.
Thus, we sustain the rejection of claims 10 and 12-18.
Claim 11
Rejected Over Foster, Buti, and Sweeton
Appellant argues the patentability of claim 11 based on its dependence
from claim 10. Br. 13. Because we sustain the rejection of claim 10, this
argument is not persuasive and we also sustain the rejection of claim 11.
NEW GROUNDS OF REJECTION
In view of our affirmance of the rejection of claim 10 as unpatentable
over Foster and Buti, we enter new grounds of rejection of claims 1-8 as
unpatentable over Foster and Buti and claim 9 as unpatentable over Foster,
Buti, and Sweeton. We adopt the Examiner's findings in the Final Action as
our own, except the Examiner's reliance on Foster's ball check valve 70 as
the claimed one-way suction and delivery valve. Instead, we find that Buti
teaches such a valve (as the Examiner finds for the rejection of claim 10)
and determine it would have been obvious to modify Foster to include such a
valve based on Buti' s teaching that such valves are "extremely reliable and
able to ensure perfect operation, avoiding problems of failures, and jamming
of the valve of the pump" compared to prior art valves that are subject to
frequent breaking, jamming, and obstruction. Buti ,r,r 10, 22.
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Appeal2017-008472
Application 14/360,669
DECISION
We affirm the rejections of claims 10-18, and we reverse the
rejections of claims 1-9.
We enter new grounds of rejection of claims 1-9 discussed above.
FINALITY OF DECISION
This decision contains a new ground of rejection entered pursuant to
37 C.F.R. § 4I.50(b). Section 4I.50(b) provides that "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review." Section 41.50(b) also provides:
When the Board enters such a non-final decision, the
appellant, within two months from the date of the decision, must
exercise one of the following two options with respect to the new
ground of rejection to avoid termination of the appeal as to the
rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under§ 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
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Appeal2017-008472
Application 14/360,669
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure§ 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART; 37 C.F.R. § 4I.50(b)
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