Ex Parte Talbot et al

Board of Patent Appeals and Interferences

Mar 31, 2010

10745408 (B.P.A.I. Mar. 31, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________

Ex parte TODD TALBOT,
CHARLES P. MISTOVICH, and DAVID L. PINKSTON
______________

Appeal 2009-005997
Application 10/745,408
Technology Center 1700
_______________

Decided: March 31, 2010
_______________

Before BRADLEY R. GARRIS, ADRIENE LEPIANE HANLON, and
CHARLES F. WARREN, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
Applicants appeal to the Board from the decision of the Primary
Examiner finally rejecting claims 1-19 in the Office Action mailed
December 17, 2007. 35 U.S.C. §§ 6 and 134(a) (2002); 37 C.F.R.
§ 41.31(a) (2008).
We affirm the decision of the Primary Examiner.

Appeal 2009-005997
Application 10/745,408
Claims 1, 3, 5, and 15, as they stand of record, illustrate Appellants’
invention of a wall-mounted shower assembly, and are representative of the
claims on appeal:
1. A wall-mounted shower assembly adapted to fluidly communicate
with a fluid outlet extending from the wall, said shower assembly
comprising:
a housing detachably secured to the fluid outlet, said housing seated
proximate the wall and having an outlet passageway;
filter means disposed within said housing such that fluid flowing from
the fluid outlet passes through said filter means to said outlet passageway;
and
a bathing device fluidly connected to said outlet passageway of said
housing.
3. The shower assembly as defined in claim 2 wherein said housing
includes an end cap having said outlet passageway formed therein, said end
cap selectively detachable from said housing for access and selective
removal of said filter means from said housing.
5. The shower assembly as defined in claim 4 wherein said bathing
device is a hand-held shower fluidly connected to said housing by a flexible
hose.
15. A wall-mounted assembly adapted to fluidly communicate with a
fixed fluid outlet extending from the wall and forming a portion of the
plumbing infrastructure, said shower assembly comprising:
a housing detachably secured to the fixed fluid outlet extending from
the wall, said housing engaging the wall and having an outlet passageway,
the fluid outlet in communication with an interior of said housing;
filter means disposed within said housing wherein fluid flowing from
the fluid outlet passes through said filter means to said outlet passageway;
and
a bathing device fluidly connected to said outlet passageway of said
housing.

2
Appeal 2009-005997
Application 10/745,408
The Examiner relies upon the evidence in these references (Ans. 4):
Chambers US 5,070,553 Dec. 10, 1991
Steger US 5,385,667 Jan. 31, 1995
Parise US 5,545,314 Aug. 13, 1996
Ferguson US 5,549,822 Aug. 27, 1996
Naito US 5,795,471 Aug. 18, 1998
Sabacinski US 6,186,988 B1 Feb. 13, 2001
Appellants request review of the ground of rejection under 35 U.S.C.
§ 102(b) advanced on appeal by the Examiner (Br. 4-5):
claims 1, 2, and 4 over Chambers (Ans. 5);
claims 1, 2, 4, 9, and 11 over Ferguson (Ans. 5);
claims 1-4, 6-11, and 18 over Steger (Ans. 6);
claims 15, 17, and 19 over Sabacinski (Ans. 6); and
claim 15 over Naito (Ans. 6).
Appellants request review of the ground of rejection under 35 U.S.C.
§ 103(a) advanced on appeal by the Examiner (Br. 5):
claims 3, 6-8, 10, 13, and 14 over Ferguson, as applied to claims 1 and 9, in
view of Steger (Ans. 7);1
claims 5 and 12 over Ferguson or Steger, as applied to claims 1 and 9, in
view of Parise (Ans. 7); and
claims 16 and 17 over Naito, as applied to claim 15, in view of Parise (Ans.
8).
Appellants argue the claims in each of these grounds of rejection as a
group. See generally Br. Thus, we decide this appeal based on claims 1, 3,
5, 15 and 16. 37 C.F.R. § 41.37(c)(1)(vii) (2008).
We summarily sustain the ground of rejection of claims 15-17 and 19

1 As the Examiner points out, Appellants’ listing of the claims in this
ground of rejection contains a typo. Br. 5; Ans. 3.
3
Appeal 2009-005997
Application 10/745,408
under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to
particularly point out and distinctly claim the subject matter which
Appellants regard as the invention, advanced on appeal by the Examiner.
Ans. 4. Appellants did not request review of or argue this ground. Br. 4-5;
see Ans. 3. See Manual of Patent Examining Procedure § 1205.02 (8th ed.,
Rev. 3, August 2005) (“If a ground of rejection stated by the examiner is not
addressed in the appellant’s brief, that ground of rejection will be summarily
sustained by the Board.”).
For purposes of considering the merits of the grounds of rejection of
claims 15-17 and 19 based on prior art only, we will consider these claims as
if claim 15 had the term “shower assembly” in the first line thereof because
we can do so without speculation, recognizing that our conditional
interpretation does not limit claims 15-17 and 19. Cf. In re Steele, 305 F.2d
859, 862-63 (CCPA 1962); Ex parte Saceman, 27 USPQ2d 1472, 1474
(BPAI 1993).
Opinion
We considered the totality of the record in light of Appellants’
arguments with respect to representative claims 1, 3, 5, 15 and 16 and the
grounds of rejection advanced on Appeal. See, e.g., In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992) (“After evidence or argument is submitted by
the applicant in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration to
persuasiveness of argument.” (citations omitted)); In re Spada, 911 F.2d
705, 707 n.3 (Fed. Cir. 1990) (“Upon rebuttal, the decision is made on the
entirety of the record.”).
4
Appeal 2009-005997
Application 10/745,408
We are of the opinion Appellants’ arguments do not establish that the
evidence in the totality of the record weighs in favor of the nonanticipation
and nonobviousness of the claimed wall-mounted shower assembly
encompassed by claims 1, 3, 5, 15 and 16. In this respect, we are in
agreement with the Examiner’s analysis of the evidence in the references
and the factual and legal conclusions stated in the Answer, to which we add
the following for emphasis with respect to Appellants’ arguments.
Independent Claims 1 and 15: Rejections Under § 102(b)
The issues in this appeal with respect to these grounds of rejection are
whether each of Chambers, Ferguson, Steger, Sabacinski, and Naito would
have described the claimed wall-mounted shower assembly comprising at
least the components specified in each of claims 1 and 15, including each
and every element of the claimed wall-mounted shower assembly, arranged
as required therein, either expressly or under the principles of inherency in a
manner sufficient to have placed one skilled in this art in possession thereof
within the meaning of § 102(b). See, e.g., In re Schreiber, 128 F.3d 1473,
1477 (Fed. Cir. 1997), and cases cited therein; Spada, 911 F.2d at 708, and
cases cited therein; In re Bond, 910 F.2d 831, 832-33 (Fed. Cir. 1990), and
cases cited therein; Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675,
677-78, (Fed. Cir. 1988); Lindemann Maschinenfabrik GMBH v. Am. Hoist
and Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir. 1984). Whether the
teachings and inferences that one skilled in this art would have found in each
of the references would have placed this person in possession of the claimed
wall-mounted shower assembly encompassed by each of claims
1 and 15, taking into account this person’s own knowledge of the particular
5
Appeal 2009-005997
Application 10/745,408
art, is a question of fact. See, e.g., In re Graves, 69 F.3d 1147, 1152 (Fed.
Cir. 1995) (“A reference anticipates a claim if it discloses the claimed
invention ‘such that a skilled artisan could take its teachings in combination
with his own knowledge of the particular art and be in possession of the
invention.’”) (quoting, In re LeGrice, 301 F.2d 929, 936 (CCPA 1962)); In
re Preda, 401 F.2d 825, 826 (CCPA 1968) (“[I]n considering the disclosure
of a reference, it is proper to take into account not only specific teachings of
the reference but also the inferences which one skilled in the art would
reasonably be expected to draw therefrom.” (citation omitted)).
Claim 1: Chambers
The Examiner relies on the embodiment of Chambers’ Figure 3 as
“best illustrating” the wall-mounted shower assembly described to one
skilled in this art by the reference. Ans. 5. We, like the Examiner, find that
Chambers’ Figure 3 and accompanying disclosure describes filter housing
11 connected to upper inlet conduit 15a and to shower head 14 via outlet
conduit 13. Ans. 5. See Chambers, e.g., col. 3, ll. 5-8 and 39-48, and Figs. 2
and 3; see also col. 1, ll. 50-55. We find that Chambers discloses that the
shower assembly is mounted to existing plumbing structure. Chambers, e.g.,
col. 1, ll. 34-36 and 43-45, and col. 2, ll. 49-53.
Appellants submit that Chambers’ wall-mounted shower assembly is
best shown by Chambers’ Figure 5, in which “showerhead 21 is replaced
with a lengthy and awkward array of connections and filter housings” which,
unlike the claimed shower assembly, results in “an extreme loss in
headroom.” Br. 5-6. Br. 6. Appellants argue that “[t]he claims define . . .
filter housing as being in direct fluid communications with the stubout
6
Appeal 2009-005997
Application 10/745,408
extending from the wall” with the “filter housing . . . seated against the wall
such that the stubout is in direct communication,” and that “[i]n Chambers,
the filter housing is at least a foot away from the wall.” Br. 6.
We have difficulty with Appellants’ position in two respects. First,
Appellants’ arguments do not address the embodiment described by
Chambers’ Figure 3 relied on by the Examiner. We find Chambers’ Figure
5, relied on by Appellants, describes to one skilled in the art an alternative
embodiment that attaches to existing shower head 21 via cup-shaped
connector 19, which differs significantly from the embodiment described in
Chambers’ Figure 3. Chambers, e.g., col. 3, l. 49 to col. 4, l. 1, and Figs.
4 and 5. Indeed, Chambers discloses that the embodiment of Figure 5 is “[a]
modification of the invention.” Chambers, e.g., col. 1, ll. 55-59.
Thus, the embodiment described in Chambers’ Figure 3 alone is
sufficient to establish anticipation, the differences in the embodiments
described in Chambers’ Figures 3 and 5 notwithstanding. See, e.g., Titanium
Metals Corp. of Am. v. Banner, 778 F.2d 775, 782 (Fed. Cir. 1985).
Second, we determine the embodiment of Chambers’ Figure 3 falls
within appealed claim 1. We are of the opinion the preambular language and
the language “a housing detachably secured to the fluid outlet, said housing
seated proximate the wall” in the body of claim 1 does not support
Appellants’ argument that the claimed “filter housing is seated against the
wall such that the stubout is in direct communication.” Br. 6.2 We
determine the preambular language of claim 1 specifies that the wall-

2 Appellants’ arguments are based in part on “the claims of the unentered
amendment” which claims are not of record. Br. 6.
7
Appeal 2009-005997
Application 10/745,408
mounted shower assembly is “adapted” in any manner “to fluidly
communicate” in any manner with any manner of “fluid outlet extending
from the wall.”
We further find no basis in claim 1 as a whole or in the Specification
define the term “approximate” in the claim language “seated proximate the
wall,” as “abuts,” used by Appellants in summarizing the claimed invention,
or “against,” as argued by Appellants. Br. 3:2, 3:19, and 6. We agree with
the Examiner’s finding that the term “proximate,” added by amendment to
claim 1, is not defined in the Specification, and we cannot find the term
therein. Ans. 9. Appellants disclose that “[a] filter housing . . . is threadably
mounted to the outlet pipe [which extends through the wall] such that fluid
flow from the plumbing system is directed into the housing.” Spec. 2:22-27;
see also 1:8-13. Appellants further disclose “[t]he housing flange member
facilitates adjustment of the device relative to the wall thereby ensuring
snug, flush engagement against the wall” which “accommodates outlet pipes
of different lengths since each plumbing installation will be different.”
Spec. 3:10-14. In a preferred embodiment, illustrated in part by
Specification Figures 1 and 2, “fixed shower assembly 10 mounted to a wall
12” is connected to “typical” plumbing “disposed behind the wall 12,”
wherein “the internal plumbing includes an outlet pipe 16 extending from
the wall 12.” Spec. 4:13-16 and 4:25-27.
We agree with the Examiner that the usual and customary meaning of
“proximate” is “closely related in space . . . approximate.” Ans. 9. See, e.g.,
proximate, The American Heritage Dictionary of the English Language
1412 (4th ed., Houghton Mifflin Co., 2000).
8
Appeal 2009-005997
Application 10/745,408
On this record, we interpret the preambular language and the
“housing” language, including the term “proximate” with the broadest
reasonable meaning of the terms in light of the Specification and prosecution
history. We determine this claim language encompasses a shower assembly
in which the assembly includes, among other things, a filter housing
mounted near to but off the wall secured by any manner of fluid outlet
extending from the wall to the housing, as the Examiner contends (Ans. 9),
as well as mounted directly on the wall secured thereto by a fitting over the
fluid outlet extending from the wall, as Appellants contend. In doing so, we
have reasonably considered the term “proximate” and the other claim terms
in their ordinary usage in context as they would be understood by one of
ordinary skill in the art in light of the Specification, which does not contain
the term “proximate,” and without reading into claim 1 any disclosed
limitation or particular embodiment. See, e.g., In re ICON Health and
Fitness, Inc., 496 F.3d 1374, 1378-79 (Fed. Cir. 2007); In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004), and cases cited
therein; In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997).
Accordingly, on this record, the Examiner properly found that
appealed claim 1, as we have interpreted this claim above, was anticipated
by the embodiment illustrated in Chambers’ Figure 3. Indeed, in this
embodiment, filter housing 11 is mounted near to but off the wall secured by
fluid outlet conduit 15 extending from a wall to inlet 12 of housing 11 which
is all that claim 1 requires. We further find with respect to Chambers’
Figure 3 and the disclosure that the shower assembly can be mounted to
existing plumbing, that, as a matter of fact, one skilled in the art would have
9
Appeal 2009-005997
Application 10/745,408
recognized that inlet conduit 15 would be part of existing plumbing that
extend from a wall as an outlet pipe as required by claim 1. Finally, we
agree with the Examiner that the “headroom” that Appellants ascribe to the
wall-mounted shower assembly of claim 1 is not a claim limitation therein
and thus, does not patentably distinguish over Chambers. See, e.g., In re
Self, 671 F.2d 1344, 1350-51 (CCPA 1982).
Claim 1: Ferguson
We agree with the Examiner’s findings that in the embodiment of a
wall-mounted shower assembly described to one skilled in the art in
Ferguson’s Figures 1 and 2A-B and accompanying disclosure, housing 2
(Figure 2B) is attached to shower head 8 (Figure 1) and to pipe stem 4
extending from the wall (Figure 1). Ferguson, e.g., col. 5, ll. 34-60, col. 6,
ll. 40-41 and 62-64, and Figs. 1 and 2A-B. Ans. 5.
Appellants submit that “[i]t is well known that the shower arm 4 . . . is
threadably connected to the stubout nipple (not shown in Ferguson)
extending from behind the wall,” thus extending “the natural length of the
shower assembly . . . reducing headroom,: and the “housing . . . is not
proximate the wall for connection to the stubout.” Br. 6-7. The Examiner
submits that “[a]s shown in fig. 1, the filter housing 2 [sic, 52] can
reasonably be interpreted as being ‘proximate’ the wall.” Ans. 9.
On this record, we agree with the Examiner that the embodiment
illustrated by Ferguson’s Figures 1 and 2A-B describes a wall-mounted
shower assembly in which the filter housing attached to the stem pipe 4 is
“proximate” the wall, thus describing an embodiment that anticipates claim
1. We interpreted the preambular language and “housing language,”
10
Appeal 2009-005997
Application 10/745,408
including the term “proximate,” of claim 1 to include, among other things, a
filter housing mounted near to but off the wall secured by any manner of
fluid outlet extending from the wall to the housing. See above pp. 8-9. The
arguments asserting “natural length of the shower assembly” and
“headroom” are not based on claim limitations. See above p. 10.
Claim 1: Steger
We agree with the Examiner’s findings that in the embodiment of a
wall-mounted shower assembly described to one skilled in the art in Steger’s
Figure 1 and accompanying disclosure, filter housing 10 is attached to
shower head 17 and to plumbing pipe 12 extending from the wall which,
according to the Examiner, is attached to a pipe stub. Steger, e.g., col. 2,
l. 59 to col. 3, l. 7, and Fig, 1. Ans. 6.
Appellants submit that claim 1 defines a filter housing “proximate the
wall such that the stubout is in direct fluid communication with the filter
housing,” thus distinguishing Steger’s embodiment in which the filter
housing “is attached to the shower arm, not the stubout extending from
behind the wall.” Br. 7. The Examiner submits that plumbing pipe 12 is a
“fluid outlet” extending from the wall as claimed in claim 1, which claim
does not require a “stubout.” Ans. 9-10.
On this record, we agree with the Examiner. We find the embodiment
illustrated in Steger’s Figure 1 anticipates claim 1 which we interpreted
above to encompass a filter housing mounted near to but off the wall and
secured by any manner of fluid outlet extending from the wall to the
housing. See above pp. 8-9. In this respect, we interpreted the term “fluid
outlet” to include any manner of plumbing component or components which
11
Appeal 2009-005997
Application 10/745,408
extends from the wall in any manner to “fluidly communicate” with the
shower assembly. See above p. 8. Thus, plumbing pipe 4, whether attached
to a stubout or other plumbing component, is a “fluid outlet” extending from
the wall.
Claim 15: Sabacinski
We agree with the Examiner’s findings that in the embodiments of a
wall-mounted shower assembly described to one skilled in the art in
Sabacinski’s Figures 1, 3, and 5 and accompanying disclosure, housing 32
includes filter housing 23 and is attached to the wall shower fixture 12, and
to flexible line 17 which connects to hand held sprayer 16. Sabacinski, col.
4, ll. 58-62, col. 5, ll. 1-9 and 23-39, and Figs. 1, 3, and 5. Ans. 6.
Appellants submit that Sabacinski’s shower assembly is not “an
overhead shower assembly” and is attached to shower arm 12 in an
“atypical” manner. Br. 7. Appellants argue that Sabacinski’s “shower arm
is attached to the stubout at the wall” while claim 15 requires that the shower
assembly is “secured directly to the stubout such that the housing is
proximate the wall” thus reducing the shower assembly length to that of a
typical shower assembly. Br. 7. The Examiner submits that Appellants’
arguments are not based on the limitations of claim 15. Ans. 10.
On this record, we agree with the Examiner. We interpret the plain
language of claim 15 to specify any shower assembly comprising at least,
among other things, “a housing detachably secured to the fixed fluid outlet
extending from the wall, said housing engaging the wall,” with the “fixed
fluid outlet” further “forming a portion of the plumbing infrastructure.” We
find that in the embodiment described in Sabacinski’s Figures 1, 3, and 5,
12
Appeal 2009-005997
Application 10/745,408
housing 32 engages the wall and shower fixture 12 is a part of the plumbing
infrastructure and extends from the wall, thus satisfying and, therefore,
anticipating the limitations of claim 15.
Claim 15: Naito
We, like the Examiner, find that in the embodiments of a wall
mounted shower assembly described to one skilled in the art in Naito’s
Figure 1 and accompanying disclosure, filter housing 2 is engagedly fixed to
the wall by screws 9, and is detachable secured to fixed fluid outlet fitting 10
extending from the wall. Naito col. 3, ll. 42-64, and Fig. 1. Ans. 6.
Appellants submit that Naito’s “device does not form a natural
extension of the shower arm.” Br. 8. The Examiner submits that “natural
extension of the shower arm” is not a claim limitation. Ans. 10.
On this record, we agree with the Examiner. Appellants’ argument
does address the shower arm which is a plumbing fixture. In this respect, we
further find that Naito’s fixed fluid outlet fitting 10 forms a part of the
plumbing infrastructure as required by claim 15, thus anticipating this
limitation.
Conclusion: Claims 1-4 6-11, 15, and 17-19 - § 102(b)
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of anticipation found in each of
Chambers, Ferguson, Steger, Sabacinski, and Naito with Appellants’
countervailing evidence of and argument for non-anticipation and conclude,
by a preponderance of the evidence and weight of argument, that the claimed
invention encompassed by appealed claims 1-4 6-11, 15, and 17-19
would have been anticipated as a matter of fact under 35 U.S.C. § 102(b).
13
Appeal 2009-005997
Application 10/745,408
Dependent Claims 3, 5, and 16: Rejections Under § 103(a)
The issues in this appeal with respect to these grounds of rejection are
whether the combined teachings of Ferguson and Steger alone and as
combined with Parise, and the combined teachings of Naito and Parise
would have reasonably suggested (1) the modification of Ferguson’s wall-
mounted shower assembly to provide an end cap to the filter housing as
taught by Steger with respect to claim 3, and to further provide a hand-held
shower as taught by Parise with respect to claim 5; and (2) the modification
of Naito’s wall mounted shower assembly to provide a detachable end cap
for the filter housing as taught by Parise with respect to claim 16, to one of
ordinary skill in the art in order to arrive at the claimed wall-mounted
shower assembly encompassed by claims 3, 5, and 16. See, e.g., KSR Int’l.
Co. v. Teleflex Inc., 550 U.S. 398, 415-16 (2007) (“The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.”); In re Kahn, 441 F.3d 977,
985-88 (Fed. Cir. 2006); In re Sovish, 769 F.2d 738, 742-43 (Fed. Cir. 1985)
(skill is presumed on the part of one of ordinary skill in the art); In re Keller,
642 F.2d 413, 425 (CCPA 1981) ((“The test for obviousness is . . . what the
combined teachings of the references would have suggested to those of
ordinary skill in the art.”); see also, e.g., In re O’Farrell, 853 F.2d 894, 903-
04 (Fed. Cir. 1988) (“For obviousness under § 103, all that is required is a
reasonable expectation of success.”).
Claim 3: Ferguson and Steger
We are not persuaded that Appellants have established that claim 3
14
Appeal 2009-005997
Application 10/745,408
patentably distinguishes over this combination of references in arguing that
neither Ferguson nor Steger disclose “the filter housing forming a part of the
shower arm assembly proximate the wall.” Br. 8. Indeed, we addressed this
contention in separately considering Ferguson and Steger above, and remain
of the opinion here that both references would have disclosed a wall-
mounted shower assembly “seated proximate the wall” to one of ordinary
skill in the art as specified in claim 1 on which claim 3 depends. See above
pp. 10-12. See Ans. 7 and 10.
Claim 5: Ferguson, Steger, and Parise
We, like the Examiner, find that Parise would have disclosed to one of
ordinary skill in this art in the embodiment illustrated in Figure 1, a shower
assembly attached to a conventional shower water supply via coupler 10,
wherein the shower assembly has filter housing 12 attached via hose 30 to
hand held shower head 32, 34. Parise col. 2, l. 36 to col. 3, l. 6, and Fig. 1.
In addition to our findings with respect to the disclosures of Ferguson and
Steger above, we find here that Ferguson would have disclosed to one of
ordinary skill in the art a filter housing in fluid communication with shower
head 8 and Steger would have disclosed to this person a filter housing in
fluid communication with shower head 17. Ferguson, e.g., col. 7, ll. 5-7,
and Figs. 1 and 2A; Steger, e.g., col. 2,
ll. 59-64, and Fig. 1; see above pp. 10 and 11.
For the reasons we stated above, we disagree with Appellants’
position that each of Ferguson and Steger do not disclose a “filter housing
proximate the wall” as specified by claim 1 on which claim 5 depends. See
above p. 15. Br. 8. Similarly, we also disagree with the same argument
15
Appeal 2009-005997
Application 10/745,408
raised by Appellants with respect to Parise. Br. 8. See Ans. 11. Thus, we
are of the opinion that Appellants have not established that claim 5
patentably distinguishes over the combined teachings of Ferguson, Steger,
and Parise.
Claim 16: Naito and Parise
We agree with the Examiner’s finding that Parise would have further
disclosed to one of ordinary skill in the art detachable end cap 26 for filter
housing 12. Paris col. 2, ll. 58-60, and Fig. 1; see above p. 15. Ans. 8.
We further agree with the Examiner that Appellants’ argument that
neither Naito nor Parise disclose “a filter assembly which forms a natural
portion of the shower arm to maximize head room for the user” is not
directed to any limitation specified in claim 15 on which claim 16 depends.
Br. 9; Ans. 11. We addressed Appellants’ similar argument above where we
determined that Naito’s fixed fluid outlet fitting 10 forms a part of the
plumbing infrastructure as required by claim 15, and determined here that
Parise’s shower assembly attached to a conventional shower water supply
via coupler 10 falls within that claim limitation as well. See above pp. 13-
14. Accordingly, we are of the opinion that Appellants have not established
that claim 16 patentably distinguishes over the combined teachings of Naito
and Parise.
Conclusion: Claims 3, 5, 6-8, 10, 12-14, 16, and 17 - § 103(a)
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in the
combined teachings of Ferguson and Steger alone and as combined with
Parise, and the combined teachings of Naito and Parise with Appellants’
16
Appeal 2009-005997
Application 10/745,408
countervailing evidence of and argument for non-obviousness and conclude,
by a preponderance of the evidence and weight of argument, that the claimed
invention encompassed by appealed claims 3, 5, 6-8, 10, 12-14, 16, and 17
would have been obvious as a matter of law under 35 U.S.C.
§ 103(a).
The Primary Examiner’s decision is affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED

ssl

EDGAR A. ZARINS
MASCO CORPORATION
21001 VAN BORN ROAD
TAYLOR, MI 48180
17