Ex Parte Woodruff

Patent Trial and Appeal Board

May 3, 2018

13907721 (P.T.A.B. May. 3, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/907,721 05/31/2013
22497 7590 05/07/2018
LARSON AND LARSON
11199 69TH STREET NORTH
LARGO, FL 33773
FIRST NAMED INVENTOR
Tony Woodruff
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.
3588.2 5211
EXAMINER
MAYO-PINNOCK, TARA LEIGH
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
05/07/2018 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):
frank@larsonpatentlaw.com
ipdocket@larsonpatentlaw.com
justin@larsonpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TONY WOODRUFF 1
Appeal 2016-005311
Application 13/907, 721
Technology Center 3600
Before JAMES P. CALVE, SCOTT A. DANIELS, and NEIL T. POWELL,
Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Action
rejecting claims 1--4, 6-15, and 17-19. Appeal Br. 2. Claims 5 and 16 are
cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellant is identified as the real party in interest. Appeal Br. 2.
Appeal 2016-005311
Application 13/907, 721
CLAIMED SUBJECT MATTER
Claims 1 and 11 are independent. Claim 1 is reproduced below.
1. A system for collecting, storing, and dispensing drinkable
water in a bathtub, the system comprising:
a. a collapsible, disposable liner configured to cover an
interior surface of a bathtub and to provide a barrier
between the interior surface and liquid contained in the
bathtub, wherein said liner is a food grade bladder liner
compnsmg:
1. a body, wherein said body is composed of plastic film
of about 1 to 20 mils in thickness and enclosing a
storage volume of at least 50 gallons,
11. a first aperture in said body for filling said bladder
liner, said aperture comprising a fitting for attachment
of a filling hose; and
111. a second aperture in said body for dispensing from
said bladder liner, said second aperture comprising a
fitting for attachment of a dispenser;
b. a filling hose comprising a universal adaptor and comprising
a collar for attachment to said first aperture of said body; and
c. a dispenser comprising a collar for attachment to said second
aperture of said bladder liner.
REJECTIONS 2
Claims 1--4, 6, 9--13, and 17-19 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Lasalandra (US 4,264,991, iss. May 5, 1981), Shown
(US 5,967,197, iss. Oct. 19, 1999), and Woolman (US 5,165,456, iss.
Nov. 24, 1992).
Claims 7, 8, 14, and 15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lasalandra, Shown, Woolman, and Cramer
(US 5,402,909, iss. Apr. 4, 1995).
2 The Examiner withdrew the rejection of claims 14 and 15 under 35 U.S.C.
§ 112, second paragraph, for indefiniteness. Final Act. 2-3; Ans. 4.
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Appeal 2016-005311
Application 13/907, 721
ANALYSIS
Claims 1-4, 6, 9-13, and 17-19
Rejected Over Lasalandra, Shown, and Woolman
Appellants argue claims 1--4, 6, 9-13, and 17-19 as a group. Appeal
Br. 9-13. We select claim 1 as representative, with claims 2--4, 6, 9-13, and
17-19 standing or falling with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
Appellant presents three arguments for our consideration. First,
Appellant argues that "[ t ]he examiner has not cited prior art disclosing a
bladder liner." Appeal Br. 9. In support of this argument, Appellant cites
the definition of "bladder liner" in the Specification.
The term "bladder liner" as used herein refers to a liner
for a bathtub configured to provide a barrier between the
bathtub surface and liquid contained in the bathtub. The
bladder liner is further configured to enclose the liquid
contained, e.g., to prevent contamination from falling debris or
other matter, and to provide access to the liquid contained in the
bladder through one or more apertures.
Id. (citing Spec. 4:28-5:2). Appellant cites Figure 2B, reproduced below, as
illustrative of the claimed bladder liner. Id.
Figure 2B shows bladder liner 1 with apertures 2, 3. Spec. 10:2--4.
Appellant also argues "Lasalandra only discloses a plastic layer across
the bottom of a bathtub, covered by rigid plastic plate 1." Appeal Br. 10.
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Appeal 2016-005311
Application 13/907, 721
We agree with the Examiner that Lasalandra discloses a "bladder
liner." The Examiner's findings are supported by a preponderance of
evidence and illustrated in Figure 2 of Lasalandra, reproduced below.
FIG.2
Figure 2 is a section view of a tank mounted in a bathtub. Lasalandra,
1:54--56. We agree with the Examiner that flexible wall 3 is configured to
provide a barrier between the bathtub surface and the liquid contained in the
bathtub as shown in Figure 2. Id. at 2:3-13; Final Act. 4; Ans. 4--5.
We also agree with the Examiner that flexible wall 3 is configured to
enclose the liquid contained therein and to provide access to that liquid in
the bladder through one or more apertures 6. Lasalandra, 2:21--42; see Final
Act. 4--5; Ans. 4--5. Notably, the definition of "bladder liner" reproduced
above, does not require the first and second apertures to be formed in the
bladder liner itself. Claim 1 requires a first and second aperture "in said
body." Appeal Br. 16 (Claims App'x). However, "body" is defined in the
Specification to mean
The term 'body' as applied to the bladder that encloses
the liquid contained in the bathtub, but does not include fittings
at the aperture(s) (e.g., threaded fittings), or any attached
devices for filling or dispensing.
Spec. 5:3---6.
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Application 13/907, 721
In view of the foregoing, we are not persuaded by the argument that
"Lasalandra only discloses a plastic layer across the bottom of a bathtub,
covered by rigid plastic plate 1." Appeal Br. 10. First, this argument does
not explain why the Examiner's findings that Lasalandra teaches a bladder
liner as defined in the Specification and claimed (Final Act. 4; Ans. 4--5) are
in error. See 37 C.F.R. § 41.37(c)(iv) ("The arguments shall explain why the
examiner erred as to each ground of rejection contested by appellant."); In re
Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (approving of Board's practice
as set forth in Ex Parte Frye of requiring appellants to identify error in a
rejection); Ex Parte Frye, 94 USPQ 2d 1072, 1075-76 (BPAI 2010)
(precedential) (holding that a panel reviews rejections for error based on
issues identified by an appellant).
Second, the Examiner explains in detail how Lasalandra teaches a
"bladder liner" as defined in the Specification. Ans. 4--5. Appellant does
not apprise us of error in these findings. Appeal Br. 9-10; Reply Br. 2.
Third, an ordinary meaning of "enclose" is "to close in: surround
enclose a porch with glass [or] to fence off (common land) for individual
use." See Merriam-Webster definition of enclose at http://www.merriam-
webster.com/dictionary/enclose (last viewed Apr. 26, 2018). The Examiner
explains how Lasalandra's flexible wall 3 "encloses" the liquid therein and
provides access thereto. Ans. 4--5. Figure 1 of Lasalandra illustrates fluid
enclosed in flexible wall 3. Rigid plastic plate 1 essentially acts as a fitting
attached to flexible wall 3 and forming apertures 6 for covers 7 as claimed.
Lasalandra, 2:3-13, 2:34--42. Lasalandra's disclosure is consistent with the
definition of "bladder liner" and the definition of "body" in the Specification
as "not include[ing] the fittings at the aperture(s)." Spec. 5:3---6.
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Appeal 2016-005311
Application 13/907, 721
We agree with the Examiner that flexible wall 3 of Lasalandra forms a
"body" of a "bladder liner" as claimed and interpreted in light of Appellant's
Specification and as discussed above. Flexible wall 3 is not disposed only
"across the bottom of a bathtub" as Appellant argues. Appeal Br. 10. It also
is "formed so as to be able to assume the shape of the internal surface of a
bathtub of standard shape and dimensions, and thereby continuously cover
the internal surface of the bathtub." Lasalandra, 2:3-13, Figs. 1, and 2. As
such, it can "provide a barrier between the interior surface [of the bathtub]
and liquid contained in the bathtub" as claimed.
As to Appellant's second argument, we are not persuaded that Shown
"teaches away" from a combination with Lasalandra. Appeal Br. 10. The
Examiner relies on Shown to teach bladder 14 formed of plastic film of a
thickness of 4 mils, which falls within the claimed range of 1 to 20 mils, for
containing drinkable water. Final Act. 4. The Examiner reasons correctly
that this express teaching of Shown of the suitability of such plastic films for
containing drinking water in a flexible bladder would have motivated a
skilled artisan to make Lasalandra' s thin plastic sheet of flexible wall 3 of a
similar thickness material, as taught by Shown, to provide similar benefits in
Lasalandra with a reasonable expectation of success to contain water. Id.;
see also Ans. 6.
Essentially, Appellant's argument boils down to a contention that
Shown teaches small portable, flexible water delivery pouches in small
containers weighing normally less than 20 pounds when filled with water
and therefore teaches away from combining such flexible containers with
large volumes of water such as a tank for use in a bathtub in Lasalandra.
Appeal Br. 11.
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Application 13/907, 721
"A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant." In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). Thus, a reference's "mere disclosure of alternative designs
does not teach away" absent a disclosure that criticizes, discredits, or
otherwise discourages the claimed invention. In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004). Similarly, silence in a reference regarding a larger
liner is therefore not a teaching away. See DyStar Textilfarben GmbH & Co.
v. CH Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006).
Shown teaches the suitability of thin, flexible plastic film bladders of
a thickness that falls within the claimed range for containing and dispensing
potable water as the Examiner correctly finds. Shown, 1 :4--9, 2:52-56,
4:20-29, Fig. 1. Shown's use of this film for water volumes of 2Yz gallons
(21 pounds) is not a criticism, discrediting, discouragement, or teaching
away from using the film in bathtub liners of Lasalandra. Rather, Shown is
trying to find a way to refill inverted five gallon water bottles 12, without a
person having to lift a 45 pound water container onto dispenser 10. Shown,
1: 12-33, 2:52-56. Shown solves this problem with refill bags or bladders
14 of 4 mil thickness and a capacity of up to 2 Yz gallons (21 lbs.) that "is
readily lifted by people of even slight physical build and strength whereas
the 5 gallon bottle presently used requires substantial physical strength and
balance for installation in the water dispenser." Id. at 4:21-29.
Lasalandra's flexible wall 3 bladder is not lifted when it is filled with
water. Instead, it is unfolded in a bathtub and filled with water wherein the
bathtub provides supporting strength to flexible walls 3. Lasalandra, 2:3-56.
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Appeal 2016-005311
Application 13/907, 721
Finally, Appellant attacks the reason for adding apertures, fittings, and
a hose of Woohnan to the bladder liner of Lasalandra "to facilitate filling of
and dispensing from the bladder liner." Final Act. 5. Appellant argues that
"[t]he combination of Lasalandra and Woolman is nonsensical" because "a
person of ordinary skill would have no rationale to add aperatures [sic] to the
rigid upper plate of Lasalandra [when] Lasalandra already discloses doors
that open for access to the contained water. The nozzle connections would
be superfluous, and unneeded." Appeal Br. 12. Appellant illustrates these
arguments on Figure 1 of Lasalandra, which we reproduce below. Id. at 13.
Appellant's arguments are not persuasive because the Examiner is not
proposing to include Woolman's fittings and apertures on upper right plate 1
as Appellant has illustrated above. Rather, the Examiner proposes to modify
Lasalandra's flexible wall 3, which corresponds to the claimed bladder liner
and body, to include first and second apertures, as claimed. Final Act. 4, 5;
Ans. 7-8. Thus, the Examiner does not propose to modify rigid plate 1 of
Lasalandra's bathtub liner as Appellant argues. Appeal Br. 12; see Ans. 8.
Appellant's arguments do not address the Examiner's findings or rationale
as set forth in the Final Action and Answer in this regard. See Reply Br. 2
("Applicant maintains the arguments presented within the Appeal Brief.").
Thus, we sustain the rejection of claims 1--4, 6, 9-13, and 17-19.
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Appeal 2016-005311
Application 13/907, 721
Claims 7, 8, 14, and 15
Rejected Over Lasalandra, Shown, Woolman, and Cramer
Appellant argues claims 7, 8, 14, and 15 as a group. Appeal Br. 13-
14. We select claim 7 as representative, with claims 8, 14, and 15 standing
or falling with claim 7. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner relies on
Cramer to teach a dispenser comprising a pump as recited in claim 7. Final
Act. 6. The Examiner reasons it would have been obvious to include such a
siphon pump on the system of Lasalandra "to facilitate complete drainage of
the bladder liner" as Cramer teaches with "a reasonable expectation of
success." Id. (citing Cramer, 3: 12-25). The Examiner also determines the
prior art elements are combined according to known methods with no
change in their respective functions to yield predictable results. Ans. 9.
Appellant argues that "listing rationales of 'reasonable expectation of
success,' 'known elements' and 'intended purpose' does not result in an
articulated reasoning." Appeal Br. 13. Appellant also argues that "[t]he
rationale that an ordinary person would apply to combine the reference is
unarticulated." Id. at 13-14.
These arguments are not persuasive because they do not address the
Examiner's stated rationale in the Final Action and Answer. This rationale
is supported by a rational underpinning based on the express teaching of
Cramer that a siphon pump can be used to drain a liquid storage tank "for
substantially essentially complete drainage of the drum by a dip tube 62
connected to a siphon or pump." Cramer, 3:12-15; see Final Act. 6 (citing
id.). Appellant has not explained why such a capability would not also
improve the ability of Lasalandra's modified system to dispense fluid stored
therein. Thus, we sustain the rejection of claims 7, 8, 14, and 15.
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Appeal 2016-005311
Application 13/907, 721
DECISION
We affirm the rejections of claims 1--4, 6-15, and 17-19.
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
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