Ex Parte RechDownload PDFPatent Trial and Appeal BoardMay 24, 201814360669 (P.T.A.B. May. 24, 2018) Copy Citation 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. 3 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. 4 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. 6 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. 7 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. 8 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. 9 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) 10 Copy with citationCopy as parenthetical citation