Ex Parte Turner

Patent Trial and Appeal Board

May 31, 2017

14432644 (P.T.A.B. May. 31, 2017)

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.
14/432,644 03/31/2015 Jeremy Turner DC 15.12 9603
26812 7590 06/02/2017
HAYES SOLOWAY P.C.
175 CANAL STREET
MANCHESTER, NH 03101
EXAMINER
LETTMAN, BRYAN MATTHEW
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
06/02/2017 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):
TSULLIVAN@HAYES-SOLOWAY.COM
dbrancheau@hayes-soloway.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEREMY TURNER1
Appeal 2017-007525
Application 14/432,644
Technology Center 3700
Before ANNETTE R. REIMERS, JEFFREY A. STEPHENS, and
BRENT M. DOUGAL, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE2
Jeremy Turner (Appellant) appeals under 35 U.S.C. § 134(a) from the
Examiner’s decision to reject under 35 U.S.C. § 103(a): (1) claims 1, 2, 5,
11, 12, 14, and 15 as unpatentable over Austin (US 4,070,725, iss. Jan. 31,
1978) and Baker (US 2,275,937, iss. Mar. 10, 1942); (2) claims 3, 4, and 6
1 The real party of interest is Tristel PLC. Appeal Br. 4 (filed Nov. 4, 2016).
2 The Examiner “objected to” claims 8, 9, and 13 because of informalities.
See Final Act. 2 (mailed June 22, 2016); Ans. 2 (mailed Feb. 24, 2017). A
claim objection is not an appealable matter, but rather is a petitionable matter,
and thus is not within the jurisdiction of the Board. See In re Berger, 279 F.3d
975, 984 (Fed. Cir. 2002); In reMindick, 371 F.2d 892, 894 (CCPA 1967).
Appeal 2017-007525
Application 14/432,644
as unpatentable over Austin, Baker, and Reese (US 4,892,526, iss. Jan.9,
1989); (3) claim 8 as unpatentable over Austin, Baker, and Baron (US
2008/0118378 Al, pub. May 22, 2008); (4) claim 9 as unpatentable over
Austin, Baker, and Breault (US 2010/0313996 Al, pub. Dec. 16, 2010); and
(5) claim 13 as unpatentable over Austin, Baker, and Ortiz (US
2009/0204132 Al, pub. Aug. 13, 2009). Claim 7 and 10 have been
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to “a pump apparatus and a
container for a pump apparatus.” Spec. 2:24, Figs. 4, 9-11. Claims 1 and 15
are independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A pump apparatus comprising a pump head and a
container for a liquid to be dispensed;
the pump head having a flexible dispensing tube in a fluid
connection with an inside of the container;
the fluid connection between the dispensing tube and the
inside of the container being provided by a supply tube which
directly connects to the dispensing tube, wherein the supply tube
connected to the dispensing tube also provides a non-return valve
function in a relief flow path, which communicates the inside of
the dispensing tube and the supply tube to a space external to the
tubes;
wherein an open end of the supply tube is disposed within
an end of the dispensing tube to provide the fluid connection and
wherein the non-return valve function is provided by a hole
through a side wall of the supply tube in a region where the
dispensing tube overlaps the supply tube, whereby the dispensing
tube provides a seal over the hole to prevent an ingress of fluid
into the dispensing tube and the supply tube from the space
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Application 14/432,644
external to the dispensing tube and the supply tube when an
internal pressure in the dispensing tube and the supply tube in the
region is lower than an external pressure on the dispensing tube
and the supply tube in the region and wherein the dispensing tube
allows for an egress of fluid from the dispensing tube and the
supply tube through the hole in the sidewall and between the
dispensing tube and the supply tube to the space external to the
dispensing tube and the supply tube when the internal pressure is
higher than the external pressure on the dispensing tube and the
supply tube in the region.
ANALYSIS
Obviousness over Austin and Baker
Claims 1, 2, 5, 11, 12, 14, and 15
The Examiner finds Austin discloses “a peristaltic pump member (14,
16),” “a flexible dispensing tube (13),” and “a supply tube (26, 30)”
“wherein an open end of the supply tube (26, 30) is disposed within an end
of the dispensing tube (13) upstream of the peristaltic pump member (14, 16)
to provide the fluid connection (shown in Fig. 3).” Final Act. 3; Ans. 3.
Appellant contends that
as can be seen in Fig[ure] 3 of Austin . . . supply tube 30 is not
located within dispensing tube 13. Fitting 26, which is used in
Austin to connect dispensing tube 13 and supply tube 30 is
characterized by the Examiner as part of the supply tube. A
fitting is not a tube and referencing fitting 26 as part of the
claimed supply tube requires a definition of supply tube that is
broader than reasonable interpretation consistent with the
specification. One having ordinary skill in the art would not read
[Appellant’s] disclosure and define the broadest reasonable
interpretation of the supply tube to include a fitting. The
reasonable interpretation of the claim term ‘supply tube’ requires
a finding that the supply tube of Austin is not within the
dispensing tube 13 of Austin.
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Application 14/432,644
Appeal Br. 16—17; see also Reply Br. 5—6.
In response to Appellant’s argument, the Examiner states that
the tubular fitting 26 [of Austin] performs the function of a tube
by supplying fluid to the dispensing tube and is in the shape of a
tube. Furthermore, there is no structure of the supply tube, as
claimed, which prevents the fitting from being reasonably
considered part of the supply tube.
Ans. 9.
Austin discloses that “[i]n the uses thus far described, the liquid had
been discharged from the outlet fitting 27 through the hose 29.” Austin
4:37—39 (emphasis omitted), Fig. 3. From this statement, it stands to reason
that liquid would be discharged into resilient tube 13 through inlet fitting 26
from plain tubing/inlet hose 30. See id. 2:28—38, Fig. 3. Based on the
foregoing, under the broadest reasonable interpretation, the Examiner’s
finding that “tubular fitting 26 [of Austin] is part of the supply tube” (Ans.
9) is sound and based on rational underpinnings. Appellant does not provide
persuasive evidence or argument apprising us of Examiner error.
Additionally, the Examiner finds that Austin discloses the pump
apparatus of claim 1 except “Austin is silent as [to] a relief valve.” Final
Act. 3; Ans. 3. The Examiner relies on Baker for disclosing “a non-return
valve.” Final Act. 3; Ans. 3. The Examiner concludes that it would have
been obvious to “add[] the relief device of Baker to the pump of Austin . . .
to control the egress of fluid from the tubes, thereby preventing an unwanted
buildup of pressure therein.” Ans. 10; see also id. at 4; Final Act. 4
Appellant contends that
Austin does not disclose any pressurized enclosure that would
require pressure relief. Col[umn] 4, lines 5-13 suggest the pump
can be turned clockwise or counterclockwise, so fittings 26 and
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Application 14/432,644
27 will permit the bi-direction flow of fluid. Any build-up of
pressure in pump 11 will be released into tube 30 and the
container at the opposite end of tube 30 ... . A hole in the
sidewall of fitting 26 (and, presumably, a hole in the casing of
pump 11 to allow the hole to find relief) is unnecessary.
Appeal Br. 18; see also Reply Br. 8—10. According to Appellant, “Austin
controls the egress of fluids fine without the teaching of Baker. Applying
the non-return valve structure in the identified location of Austin would not
control the egress of fluid from the tubes in any form that is necessary,
useful, or beneficial based on the understanding of Austin.” Appeal Br. 19;
see also Reply Br. 8—10.
Austin discloses that
[t]he pump 11 is self-priming and if the level of liquid in the
source is higher than the level is to which liquid is being
transferred, a reverse movement of the rotating means for 90°
effects radial shifting of the rollers 14 in an inward direction to
the other end of the slots 33. Under this condition, no further
cranking is necessary because the liquid will flow utilizing the
principles of a siphon. To stop the flow, the crank is turned in a
forward direction for 90° and the condition or relative position
of the parts will be restored as shown in F1G[URE] 3.
Austin 4:3—13 (emphasis omitted); see also Appeal Br. 18.
We agree with Appellant that “a siphon and/or siphon pump does not
feature pressurized enclosures” and that “if positive pressure were . . .
created at fitting 26 [of Austin], the positive pressure would simply return
the fluid to its source” “without any added pressure-relieving structure.”
Reply Br. 9. As such, we agree with Appellant that “[bjuilding a siphon
pump with a release valve at the pump serves no useful purpose” and that
“[ajpplying the non-return valve structure [of Baker] in the identified
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Application 14/432,644
location of Austin would not control the egress of fluid from the tubes in any
form that is necessary, useful, or beneficial [to Austin].” See Appeal Br. 18—
19; see also Reply Br. 8—10. Consequently, we agree with Appellant that
the Examiner fails to provide an articulated reason supported by rational
underpinnings to combine the teachings of Austin and Baker to arrive at the
pump apparatus of claim 1. See Appeal Br. 18—19; see also Reply Br. 8—10.
Independent 15 is directed to a peristaltic pump apparatus and the
Examiner applies the same rationale to combine the teachings of Austin and
Baker as applied to independent claim 1. See Final Act. 3—\\ Ans. 2-4; see
also Appeal Br. 27—28, Claims App. Thus, the Examiner’s reason for
combining Austin and Baker is deficient for claim 15 as well.
Accordingly, for the foregoing reasons, we do not sustain the
Examiner’s rejection of claims 1, 2, 5, 11, 12, 14, and 15 as unpatentable
over Austin and Baker.
Obviousness over Austin, Baker, and any of Reese, Baron, Breault, or Ortiz
Claims 3, 4, 6, 8, 9, and 13
The Examiner’s obviousness rejections of claims 3, 4, 6, 8, 9, and 13
are each based on the same unsupported findings and conclusions discussed
above with respect to independent claim 1. See Final Act. 5—7; Ans. 5—7.
The Examiner does not rely on Reese, Baron, Breault, or Ortiz to remedy the
deficiencies of Austin and Baker. Accordingly, for reasons similar to those
discussed above for claim 1, we do not sustain the Examiner’s obviousness
rejections of claims 3, 4, 6, 8, 9, and 13.
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Application 14/432,644
DECISION
We REVERSE the decision of the Examiner to reject claims 1—6, 8, 9,
and 11—15.
REVERSED
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