Ex parte SAUER

Board of Patent Appeals and Interferences

Mar 16, 1998

08377720 (B.P.A.I. Mar. 16, 1998)

Application for patent filed January 24, 1995.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 15
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JOCHEM SAUER
_____________
Appeal No. 97-2821
Application 08/377,7201
______________
ON BRIEF
_______________
Before CALVERT, COHEN, and McQUADE, Administrative Patent Judges.
McQUADE, Administrative Patent Judge.
DECISION ON APPEAL
This appeal is from the final rejection of claims 1 through 13, all of the claims pending in the
Appeal No. 97-2821
Application 08/377,720
Our understanding of the German language Herold reference is based on U.S. Patent No.2
5,332,122, its English language equivalent. The U.S. patent is of record in the instant application and is
prior art with respect to the subject matter on appeal in its own right.
2
application.
The invention relates to dispensing gun structure which is designed to facilitate the handling of
"sausage pack" component packages. A copy of the appealed claims appears in the appendix to the
appellant’s brief (Paper No. 13).
The references relied upon by the examiner as evidence of anticipation and obviousness are:
Yoon 3,946,908 Mar. 30, 1976
Pedersen et al. (Pedersen) 4,072,250 Feb. 7, 1978
Giannuzzi 5,161,715 Nov. 10, 1992
Herold et al. (Herold) 541,972 May 19, 19932
European Patent Document
The appealed claims stand rejected as follows:
a) claims 1, 4, 6, 8 through 10, 12 and 13 under 35 U.S.C. § 102(b) as being anticipated by
Herold;
b) claims 2 and 3 under 35 U.S.C. § 103 as being unpatentable over Herold in view of
Giannuzzi;
c) claim 5 under 35 U.S.C. § 103 as being unpatentable over Herold in view of Pedersen; and
Appeal No. 97-2821
Application 08/377,720
3
d) claims 7 and 11 under 35 U.S.C. § 103 as being unpatentable over Herold in view of Yoon.
Reference is made to the appellant’s brief (Paper No. 13) and to the examiner’s answer (Paper
No. 14) for the respective positions of the appellant and the examiner with regard to the merits of these
rejections.
Turning first to the standing 35 U.S.C. § 102(b) rejection of claims 1, 4, 6, 8 through 10, 12
and 13, it is well settled that anticipation is established when a single prior art reference discloses,
expressly or under principles of inherency, each and every element of a claimed invention. RCA Corp.
v. Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir. 1984). It is
not necessary that the reference teach what the subject application teaches, but only that the claim read
on something disclosed in the reference, i.e., that all of the limitations in the claim be found in or fully
met by the reference. Kalman v. Kimberly Clark Corp., 713 F.2d 760, 771, 218 USPQ 781, 789
(Fed. Cir. 1983), cert. denied, 465 U.S. 1026 (1984).
Herold discloses a two-component dispensing gun which includes a housing 41 embodying two
cylindrical chambers or barrels 47, 48, a sausage pack film tube 11 filled with a component disposed in
each of the barrels, a cap 43 mounted at the discharge end of the barrel housing and having outlet
passages 44, 45 in communication with the respective barrels, a nozzle 50 mounted on the cap by a
bayonet connection 51, 46 for receiving the components discharged through the cap, a piston 42
mounted within each barrel for forcing the components from the barrels through the cap and into the
Appeal No. 97-2821
Application 08/377,720
4
mixing nozzle, and a U-shaped piston rod 62 for actuating the pistons.
With regard to the 35 U.S.C. § 102 rejection of independent claim 1, the appellant contends
that Herold “neither discloses nor suggests a disposable manifold unit adapted to receive and retain
expended sausage packages” (brief, page 5). As correctly pointed out by the examiner, however,
claim 1 reads on the combination of Herold’s double barrel housing 41 and cap 43 (see pages 3 and 5
in the answer). More specifically, these two elements define a housing having two parallel cylinders
(Herold’s chambers or barrels 47, 48 and the extensions thereof in the cap 43), each having an open
end and a closed end (Herold’s chambers are open at one end to receive the pistons 42 and closed at
the other end by the end wall of the cap 43), with each closed end having a passage therethrough
(Herold’s passages 44, 45), and fixing means on the outer side of the closed ends for affixing a mixing
nozzle thereto (Herold’s nozzle fixing means 46), wherein each cylinder is of such length and diameter
to receive and retain a discharged sausage pack (Herold’s Figure 4 shows chambers 47, 48 receiving
and retaining the sausage packs 11). Although Herold may not expressly disclose the housing 41 and
cap 43 to be disposable, it is not apparent, nor has the appellant explained, why these elements are not
inherently disposable.
Moreover, claim 1 is so broad that it also reads on Herold’s cap 43 alone. Here again, it is not
apparent, nor has the appellant explained, why the cap is not inherently disposable or why the cylinders
defined thereby are not of such length and diameter that they are inherently capable of receiving and
Appeal No. 97-2821
Application 08/377,720
5
retaining discharged sausages.
Thus, to the extent that it has been argued by the appellant, we shall sustain the standing 35
U.S.C. § 102(b) rejection of claim 1 as being anticipated by Herold.
We also shall sustain the standing 35 U.S.C. § 102(b) rejection of dependent claims 4, 6 and 8
as being anticipated by Herold since the appellant has not argued such with any reasonable specificity,
thereby allowing these claims to fall with independent claim 1 (see In re Nielson, 816 F.2d 1567, 1572,
2 USPQ2d 1525, 1528 (Fed. Cir. 1987)).
As for the standing 35 U.S.C. § 102 (b) rejection of claims 9, 10, 12 and 13, the appellant’s
sole arguments are that the examiner has not identified the elements disclosed by Herold that allegedly
correspond to the claimed conversion kit and, with specific regard to claim 12, that the examiner has
failed to identify in Herold a disposable manifold unit (see pages 5 and 6 in the brief). The examiner,
however, has in fact identified the elements disclosed by Herold which are considered to correspond to
the claimed conversion kit (see pages 3 and 5 in the answer). Moreover, the disposable manifold unit
limitations in claim 12 are virtually identical to those recited in claim 1 and are met by Herold for the
same reasons.
Accordingly and to the extent that it has been argued by the appellant, we shall sustain the
standing 35 U.S.C. § 102(b) rejection of claims 9, 10, 12 and 13 as being anticipated by Herold.
Finally, we shall sustain the standing 35 U.S.C. § 103 rejections of dependent claims 2, 3, 5, 7
Appeal No. 97-2821
Application 08/377,720
6
and 11 since the appellant has not argued such with any reasonable specificity, thereby allowing these
claims to fall with their respective independent claims (see In re Nielson, supra).
The decision of the examiner is affirmed.
No time period for taking any subsequent action in connection with this appeal may be
extended under 37 CFR 1.136(a).
AFFIRMED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
)
IRWIN CHARLES COHEN ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
JOHN P. McQUADE )
Administrative Patent Judge )

Appeal No. 97-2821
Application 08/377,720
7
MICHAEL W. GLYNN
PATENT DEPT.
CIBA-GEIGY CORP.
520 WHITE PLAINS RD.
P.O. BOX 2005
TARRYTOWN, N.Y. 10591-9005