Ex Parte Vorosmarti et al

Patent Trial and Appeal Board

Mar 27, 2018

14474668 (P.T.A.B. Mar. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/474,668
27569 7590
PAUL AND PAUL
FILING DATE
09/02/2014
03/29/2018
1717 Arch Street Three Logan Square
SUITE 3740
PHILADELPHIA, PA 19103
FIRST NAMED INVENTOR
James Vorosmarti III
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2013-164 1948
EXAMINER
CAHILL, JESSICA MARIE
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
03/29/2018 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):
INFO@PAULANDPAUL.COM
claire@paulandpaul.com
fpanna@paulandpaul.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES VOROSMARTI III and
STEPHEN E. ROTTLOFF
Appeal2017-007687
Application 14/474,668 1
Technology Center 3700
Before BRANDON J. WARNER, LEE L. STEPINA, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
MARSCHALL, Administrative Patent Judge.
DECISION ON APPEAL
James Vorosmarti III and Stephen E. Rottloff (Appellants) seek our
review under 35 U.S.C. § 134 of the Examiner's decision rejecting claims
1-13. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify Follett Corporation as the real party in interest. Appeal
Br. 1.
Appeal2017-007687
Application 14/474,668
THE CLAIMED SUBJECT MATTER
Appellants' claimed subject matter relates to a drain cup assembly for
a water or beverage dispenser. Spec. 1. Claim 1, reproduced below, is the
only independent claim on appeal and is representative of the claimed
subject matter.
1. In an ice, water or beverage dispenser system, wherein
water is discharged therefrom, from any of an ice making
apparatus, a water delivery apparatus, an ice storage bin, a tray
under an ice or water dispenser and/ or from condensation, via at
least one water discharge conduit:
(a) a drain cup assembly for receiving discharged water
from the at least one water discharge conduit;
(b) the drain cup assembly comprising a drain cup and a
drain cup cap;
( c) the drain cup having an upper end and a lower end
and sidewall( s ); the upper end of the drain cup having a
periphery adapted for mating engagement with a lower
periphery of the drain cup cap; the lower end of the drain cup
having a water drain line;
( d) the periphery of the drain cup cap being adapted for
making engagement with the drain cup and having a top wall
and sidewall(s);
( e) at least one access port in the top wall of the drain cup
cap; said at least one access port extending into the cap and
connected to a water discharge conduit of the system; and
(t) with the sidewall(s) of any of the drain cup and drain
cup cap comprising means whereby water from the at least one
water discharge conduit having a lateral component of direction
can impinge upon any said sidewall( s) for deflection toward a
center of the drain cup;
the drain cup and drain cup cap being readily separable at
their respective peripheries for easy cleaning.
Appeal Br. 11 (Claims App.).
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Application 14/474,668
THE REJECTIONS 2
Appellants seek review of the following rejections:
1. Claims 1-3, 5, 6, and 8-11under35 U.S.C. § 103 as unpatentable
over Nkwantabisa (US 2015/0136274 Al, pub. May 21, 2015) and
Carr (US 3,643,704, iss. Feb. 22, 1972).
2. Claims 4 and 7 under 35 U.S.C. § 103 as unpatentable over
Nkwantabisa, Carr, and Kurtz (US 2008/0169293 Al, pub. July 17,
2008).
Claims 12 and 13 under 35 U.S.C. § 103 as unpatentable over
Nkwantabisa, Carr, and Truitt (US 2006/0027270 Al, pub. Feb. 9,
2006).
ANALYSIS
Claims 1-3, 5, 6, and 8-13
Independent claim 1 requires, among other things, "the upper end of
the drain cup [having] a periphery adapted for mating engagement with a
lower periphery of the drain cup cap." Appeal Br. 11 (Claims App.). The
Examiner construed the phrase "a lower periphery" of the drain cup cap as
including "any lower/underside periphery of the cap (12)." Ans. 9-10. The
Examiner found that "Carr teaches that the upper end of the cup (11) has a
periphery for mating with the cap (12)." Id. at 9. The Examiner also found
that Nkwantabisa and Carr disclose all of the limitations of claim 1, and
determined that it would have been obvious "to make the drain cup cap of
2 The Examiner rejected claims 1-13 under 35 U.S.C. § l 12(b) as indefinite,
but withdrew that rejection prior to appeal. See Final Act. 3--4; Adv. Act. 1
(mailed Dec. 2, 2016); Ans. 9.
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Application 14/474,668
Nkwantabisa separable from the drain cup, such as taught by Carr, for
storage purposes." Final Act. 7.
Appellants argue that Carr does not disclose the limitation requiring
the upper end of the drain cup mating with a lower periphery of the drain
cup cap. Appeal Br. 7. According to Appellants, "[i]n Carr the upper end of
the receptacle 11 engages the upper end of the bottle holder 12, and not the
lower periphery of the bottle holder, which extends into the bottle holder
12." Id.; see also Reply Br. 2-3. Appellants also argue that one of skill in
the art would have no reason to raise Carr's receptacle 11 or Nkwantabisa's
receiving platform because doing so "would tend to mechanically destabilize
the collection device." Appeal Br. 7; see also Reply Br. 3.
Appellants' arguments do not apprise us of error in the Examiner's
findings regarding Carr and Nkwantabisa, or the Examiner's determination
that it would have been obvious to combine the references. As an initial
matter, we agree with the Examiner's construction of "a lower periphery of
the drain cup cap" as including "any lower/underside periphery of the cap."
See Ans. 9-10. Appellants' specification supports this construction by
depicting the upper end of cup 51 engaging with the underside of cap 52,
with a portion of cap 52 extending below the uppermost surface of cup 51.
Spec. Fig. 3 (area near numeral 62). Appellants do not explain how the
Examiner erred in the construction, or offer a competing construction. See
Reply Br. 2-3. Appellants also do not argue that Carr fails to disclose
engagement between a periphery of the upper end of the drain cup and the
underside of the drain cup cap. Id. We have not been apprised of error in
the Examiner's finding that Carr discloses the claimed "mating engagement"
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Application 14/474,668
between the periphery of the upper end of the drain cup and the lower
periphery of the drain cup cap.
The only other argument Appellants raise with respect to claim 1
involves a modification of Carr or Nkwantabisa to create the required
contact with the lower periphery of the drain cup cap. See Appeal Br. 7; see
also Reply Br. 3. Appellants premise those arguments on a need to modify
those structures to meet that limitation, and appear to assume that Appellants
prevailed regarding its primary argument that neither reference discloses the
claimed mating engagement with the lower periphery of the drain cup cap.
See id. Because the Examiner's proposed modification does not require
changing the location of the mating arrangement as Appellants suggest,
Appellants have not established error in the Examiner's finding that the
combination ofNkwantabisa with Carr already discloses this limitation.
Based on the foregoing, we sustain the rejection of claim 1. We also
sustain the rejections of claims 2, 3, 5, 6, and 8-13 because Appellants do
not raise any arguments regarding those claims that are distinct from the
arguments made with respect to claim 1. See Appeal Br. 3-8, 10.
Claims 4 and 7
With respect to dependent claims 4 and 7, the Examiner found that
"Nkwantabisa (as modified by Carr) discloses all the claimed features with
the exception of disclosing three access ports for three conduits." Final Act.
10. The Examiner also found that Kurtz discloses "that it is known in the art
to modify a drain assembly to include three access ports ... for the purpose
of connecting to multiple discharge conduits." Id.; see also Ans. 10.
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Application 14/474,668
Appellants argue that "Kurtz does not disclose a plurality of access
ports for the purpose of connecting to multiple discharge [ports]." Appeal
Br. 9. According to Appellants, "Kurtz disclose[s] an oil filter drain pan for
draining oil from a plurality of oil filters," and that "[t]here is no disclosure
that the top and the body of Kurtz's device can or should be separable for
cleaning." Id. Appellants also argue that Kurtz's openings for oil filters
"are not suitable for connection [to] conduits." Reply Br. 4--5.
Appellants' arguments do not apprise us of error in the Examiner's
findings related to claims 4 and 7. The Examiner supported the finding that
Kurtz discloses a plurality of access ports for connecting to multiple
discharge ports by citing to Kurtz's Figures 4, 5, and 6, which disclose a
number of openings, or ports, that receive oil filters. Final Act. 10-11; Ans.
1 O; Kurtz, Figs. 4--6. The finding also identifies oil filters 50/52 and used
filters 56/58 that show Kurtz's ports are capable of connecting to additional
conduits. See Final Act. 10-11; Ans. 10. Appellants do not directly address
or establish error in the Examiner's implicit finding that Kurtz's oil filters
include a conduit for conveying oil out of the filter. Appeal Br. 9; Ans. 10;
Kurtz i-f 19 (describing "open end of the filter exposed downwardly for
draining into the pan"). Appellants also do not establish error in the
Examiner's finding that the purpose of Kurtz's access ports is to allow
connection to multiple discharge conduits to pass fluids into the oil pan via
the openings. See Final Act. 10-11; Ans. 10; Kurtz i-fi-118-19. Appellants'
argument that Kurtz's openings "are not suitable for connection to conduits"
because the oil filters are held upright for prefilling does not address
adequately Kurtz's disclosure of emptying oil, through an opening in the oil
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filter (i.e., "conduit"), and into the pan via the openings in the pan. See
Kurtz i-f 19; Ans. 10 (relying on conduits in used oil filters 56/58, described
in Kurtz i-f 19); Reply Br. 5. 3 Finally, Appellants' argument regarding
Kurtz's failure to disclose a body separable for cleaning does not undermine
the rejection of claims 4 and 7 because the Examiner did not rely on Kurtz as
disclosing a body separable for cleaning. See Final Act. 10-11; Ans. 10. 4
Based on the foregoing, we sustain the rejection of claims 4 and 7.
DECISION
We affirm the decision of the Examiner to reject claims 1-13.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
3 To the extent that Appellants presume a narrow requirement for
"connected" in claim 4, requiring a tighter connection than the openings in
Kurtz's oil pan and oil filters, Appellants have not raised and supported that
argument with adequate evidence or argument.
4 Appellants raise a number of new arguments in the Reply Brief that
Appellants did not raise in the opening Appeal Brief and are not responsive
to an argument raised in the Examiner's Answer. See Reply Br. 3-5. These
new arguments are untimely. Because Appellants did not establish good
cause for raising the arguments for the first time in Reply, the arguments are
waived. See 37 C.F.R. § 41.41(b )(2) (requiring showing of good cause for
Board to entertain new arguments in a Reply).
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