10931907 (P.T.A.B. Jan. 8, 2013)

Ex Parte Swails et al

Patent Trial and Appeal BoardJan 8, 2013

10931907 (P.T.A.B. Jan. 8, 2013)

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. 10/931,907 09/01/2004 Michael R. Swails 2820-159-011 9819 7590 01/08/2013 John A. Molnar, Jr. PARKER-HANNIFIN CORPORATION 6035 Parkland Boulevard Cleveland, OH 44124-4141 EXAMINER BRINSON, PATRICK F ART UNIT PAPER NUMBER 3754 MAIL DATE DELIVERY MODE 01/08/2013 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 MICHAEL R. SWAILS, WILLIAM C. FISHER, ALBERT S. BALKO and RONALD W. DUESCHER ________________ Appeal 2010-006631 Application 10/931,907 Technology Center 3700 ________________ Before STEVEN D.A. McCARTHY, PHILLIP J. KAUFFMAN and JAMES P. CALVE, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL 1 The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s 2 final decision rejecting claims 1, 2, 6-15 and 23-30 under 35 U.S.C. 3 § 103(a) as being unpatentable over Fisher (US 6,390,141 B1, issued May 4 21, 2002); Washburn (US 6,796,547 B1, issued Sep. 28, 2004) and Ettlinger 5 (US 4,431,031, issued Feb. 14, 1984). 6 1 The Appellants identify the real party in interest as Parker-Hannifin Corporation of Cleveland, Ohio. Appeal No. 2010-006631 Application No. 10/931,907 2 We have jurisdiction under 35 U.S.C. § 6(b). 1 We REVERSE. 2 Claims 1 and 24-30 are independent. Claim 24 is illustrative: 3 24. An assembly including a flexible 4 push-on hose having a terminal end with an inner 5 diameter (Di), and a push-in fitting having and 6 elongate distal end with an outer diameter 7 marginally larger than the inner diameter (do) 8 marginally larger than the outer diameter (Di) of 9 the hose terminal end, the fitting distal end being 10 insertable under a predetermined force into the 11 hose terminal end to connect the hose to the fitting, 12 the hose comprising: 13 a core tube (12) having at least an innermost 14 layer (20) with an interior surface (16) forming the 15 inner diameter (Di) of the hose terminal end, the 16 core tube (12) being radially expandable upon the 17 insertion of the fitting distal end to accommodate 18 the outer diameter (do) thereof, and the core tube 19 (12) being radially recoverable to retain the fitting 20 distal end within the hose terminal end, the core 21 tube (12) innermost layer (20) being formed of 22 material comprising an admixture of: 23 a resin component; and 24 up to about 25%, by total 25 weight of the admixture, of an 26 incompatibilizing agent immiscible 27 with the resin component, the agent 28 being effective to reduce the force 29 necessary to insert the fitting distal 30 end into the hose terminal end 31 connecting the hose to the fitting. 32 The Specification identifies nonpolar polyolefins as suitable 33 incompatibilizing agents immiscible with a thermoplastic polyurethane 34 Appeal No. 2010-006631 Application No. 10/931,907 3 elastomer (“TPU”) resin component having hydroxyl or other polar groups. 1 (See Spec. 9, ll. 19-22) 2 Fisher describes a reinforced hose 10 including a tubular core 14 3 surrounded by first elastomeric layer 30; a tensioned, spirally-wound 4 reinforcing wire 50; and second elastomeric layer 40. (Fisher, col. 6, ll. 54-5 65). The tubular core 14 has a multi-layer construction. That is, the tubular 6 core 14 includes an innermost layer 20 of fluoropolymer and an outermost 7 layer 22 of a more flexible polymer such as polyolefin. (Fisher, col. 5, l. 62 8 – col. 6, l. 1 and col. 6, ll. 16-20). The first elastomeric layer 30 may be 9 formed of a TPU. (Fisher, col. 8, ll. 50-52). Fisher teaches that, “[i]n a 10 preferred embodiment, each of the layers 20, 22, 24, 30, and 32 are 11 integrally fus[ed] or adhesively bonded, or vulcanized, to form a structural 12 composite.” (Fisher, col. 8, l. 67 – col. 9, l. 5). 13 Washburn describes a duct 10 used in the telecommunications 14 industry for containing cables. (Washburn, col. 1, ll. 6-11). The duct 10 15 having a collapsible or flexible wall 16. The collapsible or flexible wall 16 16 includes an inner layer 18; an outer layer 20; and a reinforcement layer 22 17 between the inner and outer layers 18, 20. The inner layer 18 of the wall 16 18 is made from a low friction, abrasion resistant material. Preferred materials 19 for making the inner layer 18 include polyolefins. Preferred materials for 20 making the outer layer 20 include urethanes and thermoplastic elastomers. 21 (Washburn, col. 3, ll. 28-44). The structures described by Fisher and 22 Washburn are similar in that each structure includes a layer containing a 23 thermoplastic elastomer (in Fisher’s case, a TPU) and a separate layer 24 containing polyolefin. 25 Appeal No. 2010-006631 Application No. 10/931,907 4 Ettlinger describes a flexible hose 10 used in the food service industry 1 for pre-rinsing dishes, pots, pans and the like. (Ettlinger, col. 1, ll. 6-8). The 2 pre-rinse hose 10 includes a rubber compound core tube 12 formed from a 3 reinforcing textile braid 18 disposed between tubes 14, 16. The inner tube 4 14 appears to be made from a synthetic elastomer, namely, ethylene-5 propylene-diene monomer (“EPDM”) terpolymer. (Ettlinger, col. 2, ll. 35-6 41 and fig. 1). Ettlinger teaches using a ferrule 44 which fits over an end 24 7 of the tube 12 and a barbed hollow stem 26 which fits into the end 24 of the 8 tube 12 to secure a wrench nut 28 to the end 24 and to seal the end against 9 leakage. (Ettlinger, col. 3, ll. 42-58). 10 The Appellants correctly point out that Fisher fails to describe a hose 11 including a core tube having an innermost layer comprising an admixture of 12 a resin component and up to about 25%, by total weight of the admixture, of 13 an incompatibilizing agent immiscible with the resin component. (See App. 14 Br. 13). Although a polyolefin might serve as an incompatibilizing agent in 15 a TPU-based prepolymer (See Spec. 9, ll. 19-27), the Examiner provides no 16 sound basis for belief that Fisher’s tubular core 14 includes a layer identical 17 or substantially identical in structure to a layer formed from an admixture of 18 a TPU with polar groups and a non-polar polyolefinic incompatibilizing 19 agent. In particular, Fisher’s teaching that, “[i]n a preferred embodiment, 20 each of the layers 20, 22, 24, 30, and 32 are . . . vulcanized, to form a 21 structural composite” (Fisher, col. 8, l. 67 – col. 9, l. 5) merely implies that 22 separate layers may be cross-linked (that is, chemically bonded) at their 23 interfaces in order to form a structural material composed of bonded 24 polymeric layers. (See, e.g., Fisher, col. 7, ll. 10-18 (using the term 25 “vulcanizable” in a broad sense interchangeable with the term 26 Appeal No. 2010-006631 Application No. 10/931,907 5 “thermosetting”)). The Examiner’s finding that the fusion process of Fisher 1 inherently would admix the resin and immiscible agent (Ans. 7-8) is not 2 supported by a preponderance of the evidence, nor is it consistent with the 3 Appellants’ Specification or a commonly understood meaning of admixture 4 (see Spec. 10-11). 5 Since Washburn describes a multi-layer tube structure similar to that 6 described by Fisher, its teachings do not remedy the defects in the disclosure 7 of Fisher as applied to claim 24. The Examiner appears to rely on Ettlinger 8 primarily for Ettlinger’s description of a barbed push-in fitting. (See Ans. 9 5). This description fails to remedy the defects in the combined teachings of 10 Fisher and Washburn. We do not sustain the rejection of claim 24 under 11 § 103(a) as being unpatentable over Fisher, Washburn and Ettlinger. 12 Claims 1 and 25-30 similarly recite an assembly including a flexible 13 hose with a core tube having an innermost layer formed of material 14 comprising an admixture of a resin component and an incompatibilizing 15 agent immiscible with the resin component. For reasons similar to those 16 discussed with regard to the rejection of claim 24, we do not sustain the 17 rejections of the remaining independent claims. In short, we do not sustain 18 the rejection of claims 1, 2, 6-15 and 23-30 under § 103(a) as being 19 unpatentable over Fisher, Washburn and Ettlinger. 20 21 DECISION 22 We REVERSE the Examiner’s decision rejecting claims 1, 2, 6-15 23 and 23-30. 24 REVERSED 25 Klh 26