Ex Parte Volckmann et al

Patent Trial and Appeal Board

May 15, 2015

10564247 (P.T.A.B. May. 15, 2015)

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.
10/564,247 04/24/2006 Jean-Claude Volckmann 930024-2041 8015
7590 05/18/2015
Ronald R Santucci
Frommer Lawrence & Haug
745 Fifth Avenue
New York, NY 10151
EXAMINER
SINGH, SUNIL K
ART UNIT PAPER NUMBER
3722
MAIL DATE DELIVERY MODE
05/18/2015 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 JEAN-CLAUDE VOLCKMANN and YANNICK ROSSET1
__________

Appeal 2012-010122
Application 10/564,247
Technology Center 3700
__________

Before DEMETRA J. MILLS, LORA M. GREEN, and
AMANDA F. WIEKER, Administrative Patent Judges.

WIEKER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a device
for injecting a liquid or pasty product, which have been rejected as obvious.
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 According to Appellants, the Real Party in Interest is David Weill (App.
Br. 3).
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Application 10/564,247

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STATEMENT OF THE CASE
The Specification discloses a device for ejecting a liquid or pasty
product comprising a “lever [that] is connected to the body by means of a
joint that can be dislocated. This characteristic makes it possible to ensure
ease of access for cleaning the various parts of the device” (Spec. 3).
Claims 1–10 are on appeal (App. Br. 20–21). Claim 1 is illustrative
and reads as follows:
1. A device for ejecting a liquid or pasty product, the
device comprising:
a body,
a part intended to contain the product and equipped with
an orifice for ejecting the product,
a drive cylinder equipped with teeth, moving in a bore
passing through the body and causing the volume of the part
intended to contain the product to vary and a mechanism for
displacing the drive cylinder attached to the body, comprising
an articulated lever acting on the teeth of the drive cylinder
through an articulated pawl articulated to the lever and returned
to a position of contact with the drive cylinder and a nonreturn
pawl returned to a position of contact with the drive cylinder,
wherein the lever is releasably connected to the body by means
of a joint comprising a pivot pin and a slot, the pivot pin
adapted to elastically deform to engage the slot for facilitating
attachment and disassembly of the lever with respect to the
body without requiring a tool.

(id. at 20 (emphasis added)).

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The claims stand rejected as follows:
Claims 1–4 and 10 under 35 U.S.C. § 103(a) as obvious over Jacklich2
and Kumar3 (Ans. 4–5).
Claims 1–10 under 35 U.S.C. § 103(a) as obvious over Vadas4 and
Kumar (id. at 5–7).
I.
Issue
The Examiner has rejected claims 1–4 and 10 under 35 U.S.C.
§ 103(a) as obvious over Jaklich and Kumar. Regarding claim 1, the
Examiner finds that Jacklich discloses “a lever 11 capable of being
releasably connected . . . wherein the lever 11 is connected by means of a
joint (the hinge connection at 51) with the ability to be dislocated or attached
without requiring a tool” (Ans. 5). The Examiner finds that Jacklich’s joint
comprises a pivot pin and slot and finds that Kumar teaches a pin “made of a
material that allows the pin to elastically deform when being inserted in the
slot” (id.). The Examiner concludes that it would have been obvious to one
skilled in the art to “modify Jacklich to include an elastically deformable
pin, as taught by Kumar, in order to provide [an] easier means of attaching
and removing the lever from the body that is well known in the art” (id.).
Appellants contend, inter alia, that Jacklich fails to disclose that the
lever is releasably connected to the body or that the joint facilitates
attachment and disassembly of the lever without a tool (App. Br. 13–14).

2 Jacklich, US 4,444,560, issued Apr. 24, 1984.
3 Kumar, US 5,183,388, issued Feb. 2, 1993.
4 Vadas et al., US 4,340,367, issued Jul. 20, 1982.
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The issue with respect to this rejection is whether Jacklich and Kumar
render obvious a lever that is releasably connected to the body by a pivot pin
that facilitates attachment and disassembly of the lever without a tool.
Principles of Law
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness.” In re
Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993) (citation omitted).
Analysis
We do not find that the Examiner has provided evidence to support a
prima facie case of obviousness. The claims on appeal require a lever that is
releasably connected to a device body through a pivot pin that engages a slot
in a joint, to facilitate attachment and disassembly of the lever without a
tool. We find that Jacklich discloses an articulated lever (11) connected to a
device body by a pivot pin (at 51) (Jacklich at col. 2, ll. 21–23; Figs. 1–2, 4).
Contrary to the Examiner’s finding, we do not find Jacklich to disclose or
suggest that the lever is releasable or that the pivot pin can be disengaged
from its slot without a tool, so as to allow attachment and disassembly.
Rather, Jacklich appears to disclose a static pin that is not easily removable
from the device body’s slot (for example, the pin does not appear to include
any kind of protrusion or extension that a user could grasp to facilitate
removal without a tool). Kumar, which teaches an elastically deformable
pin 23, does not remedy this deficiency (Kumar at col. 4, ll. 48–52). We
address the Examiner’s arguments below.
The Examiner states that “Jacklich/Kumar is capable of performing
the function of facilitating attachment and disassembly of the lever with
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respect to the body without requiring a tool” because “[i]f one of ordinary
skill in the art applies the appropriate amount of force to the pin of Kumar,
then that pin will be removed” (Ans. 7).
We are unpersuaded. The Examiner provides no evidence to support
this position, and we do not find any in the record. Indeed, it is unclear how
or where such force would be applied to disengage Jacklich’s small pin from
the small hole in which it is engaged, without a tool (see Jacklich Fig. 1;
App. Br. 14). That the Examiner modifies Jacklich’s pin to include Kumar’s
elastically deformable material does not alter our opinion, because the
Examiner has not demonstrated how or where force would be applied to the
modified pin so as to disengage it from its slot (see Ans. 5, 8).
Conclusion of Law
The evidence of record supports the conclusion that Jacklich and
Kumar do not render obvious a lever that is releasably connected to the body
and pivot pin that facilitates attachment and disassembly of the lever without
a tool. Therefore, the rejection of claims 1–4 and 10 is reversed.

II.
Issue
The Examiner has rejected claims 1–10 under 35 U.S.C. § 103(a) as
obvious over Vadas and Kumar. Regarding claim 1, the Examiner finds that
Vadas discloses “an articulated lever 40 . . . wherein the lever 11 is
connected by means of a joint (41, 42) that is capable of
dislocating/attaching without requiring a tool,” wherein the joint comprises a
pivot pin 42 and slot (Ans. 5–6). The Examiner finds that Kumar teaches an
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elastically deformable pin, as discussed above, and concludes that it would
have been obvious to modify Vadas to include an elastically deformable pin,
as taught by Kumar, for the reasons discussed above (id.).
Appellants contend, inter alia, that “Vadas fails to disclose or render
predictable a joint facilitating attachment and disassembly of the lever . . .
without requiring a tool” (App. Br. 17) (emphasis omitted).
The issue with respect to this rejection is whether Vadas and Kumar
render obvious a pivot pin that facilitates attachment and disassembly of the
lever without a tool.
Analysis
For substantially the same reasons discussed above, we do not find
that the Examiner has provided evidence to support a prima facie case of
obviousness. We find that Vadas discloses an articulated lever (140)
connected to a device body by a pivot pin (144) (Vadas at col. 6, ll. 34–36;
Fig. 3).5 Contrary to the Examiner’s finding, we do not find Vadas to
disclose or suggest that the pivot pin can be disengaged from its slot without
a tool, so as to allow attachment and disassembly. Rather, Vadas appears to
disclose a static pin that is not easily removable from the device body’s slot
(for example, the pin does not appear to include any kind of protrusion or
extension that a user could grasp to facilitate removal without a tool).
Kumar, which teaches an elastically deformable pin 23, does not remedy this

5 We find that lever 40, identified by the Examiner, does not act on the drive
cylinder through an articulated pawl as claimed (Ans. 6). Rather, lever 40
serves only to load amalgam into the device; it is not used for ejection from
the device (Vadas at col. 4, ll. 36–60; Fig. 1). Vadas discloses a second
lever 140, not identified by the Examiner, that is used to eject amalgam from
the device (see, e.g., id. at col. 8, ll. 24–38; Fig. 3).
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deficiency (Kumar at col. 4, ll. 48–52). In the Examiner’s Answer, the
Examiner chose not respond to Appellants’ argument on this point.
Therefore, we conclude that the Examiner has failed to make a prima facie
case of obviousness.
Conclusion of Law
The evidence of record supports the conclusion that Vadas and Kumar
do not render obvious a pivot pin that facilitates attachment and disassembly
of the lever without a tool. Therefore, the rejection of claims 1–10 is
reversed.
SUMMARY
We reverse:
the rejection of claims 1–4 and 10 under 35 U.S.C. § 103(a) as
obvious over Jacklich and Kumar; and
the rejection of claims 1–10 under 35 U.S.C. § 103(a) as obvious over
Vadas and Kumar.

REVERSED

rvb