Ex Parte Stauder et al

Patent Trial and Appeal Board

Dec 7, 2016

13039759 (P.T.A.B. Dec. 7, 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.
13/039,759 03/03/2011 Frank A. Stauder 123-3013-U2;60137-625PUS1 1528
82074 7590 12/09/2016
Carlson, Gaskey & Olds/Masco Corporation
400 West Maple Road
Suite 350
Birmingham, MI 48009
EXAMINER
BARRY, DAPHNE MARIE
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
12/09/2016 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):
ptodocket @ cgolaw. com
cgolaw@yahoo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK A. STAUDER, XAN VY DU, and
ROBERT KROPINIEWICZ
Appeal 2015-0018891’2
Application 13/039,759
Technology Center 3700
Before PHILIP J. HOFFMANN, JAMES L. WORTH, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—12. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Claim 1 is the only independent claim. See Appeal Br., Claims App.
We reproduce claim 1, below, as representative of the appealed claims.
1 Our decision references Appellants’ Appeal Brief (“Appeal Br.,” filed
June 16, 2014) and Reply Brief (“Reply Br.,” filed Nov. 10, 2014), as well
as the Examiner’s Answer (“Answer,” mailed Oct. 1, 2014).
2 According to Appellants, Masco Canada Limited is the real party in
interest. Appeal Br. 1.
Appeal 2015-001889
Application 13/039,759
1. A flush valve, said flush valve comprising:
a valve body having an inlet and an outlet;
a piston disposed in said valve body between said inlet and
said outlet; and
a seating surface disposed in said valve body for seating
said piston, said seating surface tapering inward as it passes into
said outlet.
Id.
REJECTIONS AND PRIOR ART
The Examiner rejects claims 1,2, and 5—12 under 35 U.S.C. § 102(b)
as anticipated by Martin (US 5,970,527, iss. Oct. 26, 1999).
The Examiner rejects claims 3 and 4 under 35 U.S.C. § 103(a) as
unpatentable over Martin.
See Answer 2—6.
ANALYSIS
Independent claim 1 recites, among other features, seating surface
disposed in said valve body for seating said piston, said seating surface
tapering inward as it passes into said outlet.” Appeal Br., Claims App.
(emphasis added). Appellants argue that the rejection is in error because
Martin fails to disclose this feature. See Appeal Br. 2—3; see also Reply
Br. 1—3. Based on our review of the record, for the reasons set forth below,
we agree with Appellants. Thus, we do not sustain the rejection of claim 1.
The Examiner finds that Martin’s valve assembly 16 and valve seating
surface 108 teach the claimed valve body and seating surface, respectively.
See, e.g., Answer 2. In response to Appellants’ argument that Martin’s valve
seating surface 108 is not disposed in valve assembly 16 (see, e.g., Appeal
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Appeal 2015-001889
Application 13/039,759
Br. 2—3), the Examiner cites Martin’s Figure 3 as well as column 3, lines 51—
58, and column 5, lines 5—7, as supporting the finding (see Answer 2, 7).
We determine that Figure 3 does not show valve seating surface 108
disposed in valve assembly 16. Further, although a portion of the cited text
in Martin describes that valve cylinder 100 is included in valve assembly 16,
the text describes that “cylinder 100 terminates short of a conical valve
seating surface 108”—i.e., the seating surface is not part of or disposed in
the valve cylinder. Martin col. 5,11. 2-4 (emphasis added). This portion of
Martin does not state that seating surface 108 is disposed in or a part of
valve cylinder 100, or that seating surface 108 is otherwise disposed in valve
assembly 16. Further, to the extent that the Examiner’s statements
beginning with “[Appellant] could argue that Martin’s housing 14 is the
valve body” (Answer 8) might otherwise be understood to be an alternate
interpretation of the reference and reason for rejection, we are not willing to
characterize this statement as an alternative interpretation of the reference or
reason for rejection, inasmuch as Appellants do not, in fact, argue that
Martin’s housing is the valve body. Thus, we determine that the Examiner
does not support the finding with substantial evidence.
Based on the foregoing, we do not sustain the rejection of claim 1.
We also do not sustain the rejections of claims 2—12 that depend from
claim 1, as the Examiner does not find that any other reference remedies the
deficiency in the rejection of claim 1.
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Appeal 2015-001889
Application 13/039,759
DECISION
We REVERSE the Examiner’s anticipation and obviousness
rejections of claims 1—12.
REVERSED
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