Kutella, James D.

Patent Trials and Appeals Board

Sep 25, 2020

2019005334 (P.T.A.B. Sep. 25, 2020)

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.
15/158,244 05/18/2016 James D. Kutella 8766.0003 4161
152 7590 09/25/2020
CHERNOFF, VILHAUER, MCCLUNG & STENZEL, LLP
111 SW Columbia Street
Suite 725
PORTLAND, OR 97201
EXAMINER
COMLEY, ALEXANDER BRYANT
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
09/25/2020 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):
patent.docket@chernofflaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAMES D. KUTELLA

Appeal 2019-005334
Application 15/158,244
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, ANNETTE R. REIMERS, and
PHILIP J. HOFFMANN, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 5, 7–13, 15–17, and 20–22.2 We
have jurisdiction under 35 U.S.C. § 6(b). The Appellant’s arguments were
heard in an oral hearing held on August 10, 2020.
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as the
inventor, James D. Kutella. Appeal Br. 2.
2 “An appeal, when taken, is presumed to be taken from the rejection of all
claims under rejection unless cancelled by an amendment filed by the
applicant and entered by the Office.” 37 C.F.R. § 41.31(c); see infra.
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STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellant’s invention pertains to a bi-directional bilge pump,
which is used to remove accumulated water from within a watercraft. See
Spec. Title, ¶ 1. The bi-directional bilge pump, as compared to traditional
bilge pumps having a plunger valve, avoids clogging due to debris, e.g.,
stick and leaves. See id. ¶¶ 2–4. Additionally, the bi-directional bilge pump
of the present invention “may include two ball valves, one between the
pump inlet and the first chamber, and one that separates the first chamber
with the secondary chamber.” Id. ¶ 13, Figs. 1–5.
Claims 1, 9, and 16 are the independent claims on appeal. Claim 9,
reproduced below, is illustrative of the claimed subject matter.
9. A pump comprising:
(a) an outer housing defining an enclosure;
(b) a first chamber within said outer housing, the first
chamber for receiving fluid admitted into said
pump through an inlet, the inlet controlled by a
valve having a moving ball with a peripheral
surface that defines both a pump entrance for fluid
and debris to be admitted into the pump and a valve
exit for fluid and debris to escape the valve into the
first chamber;
(c) a second chamber within said outer housing for
receiving fluid from said first chamber; and
(d) a piston that (i) selectively controls the flow of fluid
from said first chamber to said second chamber and
(ii) selectively expels said fluid out of the pump from
said second chamber.
Appeal Br. 8–9, Claims App.
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Rejections
Claims 1, 2, 5, 7–13, and 15 are rejected under 35 U.S.C. § 102(a)(1)
as anticipated by Corson (US 1,746,524, iss. Feb. 11, 1930).
Claims 16, 17, and 20–22 are rejected under 35 U.S.C. § 103 as
unpatentable over Corson in view of Hoferer et al. (US 2,137,402, iss.
Nov. 22, 1938) (“Hoferer”).
ANALYSIS
Independent Claim 1 and Dependent Claims 2, 5, 7, and 8
Claim 1 recites “[a] pump,” including “[a] valve having a moving ball
with a peripheral surface that defines both the valve entrance for fluid and
debris to enter the valve from the first chamber and the valve exit for fluid
and debris to escape the valve into [a] second chamber.” Appeal Br. 8,
Claims App.
The Examiner finds that the claimed “valve having a moving ball”
reads on Corson’s valve body 34 and ball 38, and the claimed “second
chamber” reads on Corson’s passage 29. Final Act. 6–7 (citing Corson
2:59–3:3, Fig. 2). Passage 29 is a concentric space between plunger 26 and
cylinder 17. See Corson 2:82–96, Figs. 1–2; see also Reply Br. 4. The
Appellant argues that ball 38’s peripheral surface does not define the valve
exit for fluid and debris to escape the valve into passage 29. See Appeal
Br. 5; Reply Br. 4.
In view of the foregoing, we consider it useful to construe the
disputed claim recitation, “[a] valve having a moving ball with a peripheral
surface that defines . . . the valve exit for fluid and debris to escape the valve
into [a] second chamber.” Appeal Br. 8, Claims App. When this recitation
is read in its entirety and interpreted in light of the Specification as
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understood by one of ordinary skill in the art, it refers to the moving ball’s
peripheral surface providing a limit for the most restrictive space for fluid
and debris to escape the valve. See Transcript 6:10–15 (mailed Aug. 28,
2020). For example, the Appellant’s Figures 1, 2, and 4 show piston 36 with
first end 38 including member 42, which has seal 50 and secondary check
valve 48 (i.e., ball valve). Spec. ¶¶ 24, 26. Check valve 48 includes a ball, a
seat for the ball, and a portion of piston 36’s first end 38 that acts as a stop
for the upward movement of the ball. As shown in the cross-sectional view
of Figure 4, the most restrictive space where fluid and debris can escape
check valve 48 is represented by the distance between the peripheral surface
of check valve 48’s moving ball and the seat for the ball. We note that the
most restrictive space is indirectly set by the portion of piston 36’s first
end 38 that acts as a stop for the upward movement of the ball.
The Examiner offers two scenarios of how the peripheral surface of
Corson’s ball 38’s defines a valve exit. Ans. 10. In one scenario, the
Examiner explains that it appears possible that ball 38 moves upward to
contact upper plug 41, which would act as a stopper for ball 38 and, as such,
the lower peripheral surface of ball 38 defines the valve exit. Id. The
Examiner explains that an exit path would be formed between the
lower/lateral peripheral surface of ball 38 and the sidewall of plunger 26,
which would act to direct the pressurized fluid outwardly so as to reach
apertures 39 and ultimately enter passage 29. Id. Accordingly, it appears
the Examiner contemplates that the valve may include valve body 34, ball
38, and the stopper of ball 38 (i.e., bottom surface of upper plug 41). See
Corson Fig. 2. Notably, although the Examiner finds that this scenario “is
not explicit in [Corson]” (id.), the Appellant appears to agree to the
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existence of this scenario. See Reply Br. 7 (“The mechanical structure that
does this in Corson is the entire structure between the seat at the bottom of
the valve 33 that the ball valve rests in on the upstroke and the seat at the top
of the valve 33 that the ball valve rests in on the upstroke.”). In this
scenario, the Examiner’s explanation fails because the most restrictive space
where fluid and debris can escape the valve appears to be the entrance to
aperture 39. See Corson Fig. 2. In this case, it is not pertinent that fluid and
debris may follow a path to the entrance to aperture 39 because when ball 38
is in contact with upper plug 41, the entrance to aperture 39 appears to be the
most restrictive space where fluid and debris can escape the valve.
Therefore, in this scenario, the peripheral surface of ball 38 does not define
the valve exit for fluid and debris to escape the valve into passage 29.
In the other scenario, the Examiner explains that when ball 38 is lifted
away from its valve seat “pressurized fluid is forced to flow past and around
the ball 38 to exit upwardly from the valve.” Ans. 10. The Examiner
explains that “a valve exit path is formed between the lateral/upper
peripheral surfaces of [] ball 38 and the sidewall of [] valve body 34.” Id.
However, it is not clear from Corson’s written description and figures that
the valve works in this manner. For example, it is unclear if under a specific
fluid pressure, ball 38 could move upward without contacting upper plug 41.
Therefore, the Examiner’s explanation fails because it appears to be based
on speculation.
Thus, we do not sustain the Examiner’s rejection of independent
claim 1 and claims 2, 5, 7, and 8, which depend therefrom.

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Independent Claim 9 and Dependent Claims 10–13 and 15
Claim 9 calls for a pump that includes:
(b) a first chamber within said outer housing, the first chamber
for receiving fluid admitted into said pump through an inlet, the
inlet controlled by a valve having a moving ball with a
peripheral surface that defines both a pump entrance for fluid
and debris to be admitted into the pump and a valve exit for
fluid and debris to escape the valve into the first chamber.
Appeal Br. 8–9, Claims App.
The Appellant argues ball 23 of Corson’s valve lacks a peripheral
surface that defines “a valve exit for fluid and debris to escape the valve into
the first chamber,” as recited in claim 9, because “the pin 2[4] prevents the
ball 23 from reaching the exit of the valve 21 into the first chamber.”
Appeal Br. 7; see Reply Br. 8. In other words, the Appellant contends that
the existence of pin 24 prevents the surface of ball 23 from acting as a valve
exit for fluid and debris to escape the valve into the first chamber.
The Examiner disagrees with the Appellant that the existence of
pin 24 prevents Corson’s ball 23 from corresponding to the claimed “valve
exit.” See Ans. 14. The Examiner explains that Corson’s valve exit is
shown by the valve outlet path formed between the lateral/upper peripheral
surfaces of ball 23 and the sidewall of valve body 21. Id. (citing Corson,
Fig. 2).
In view of the foregoing, we consider it useful to construe the
disputed claim recitation, “[a] valve having a moving ball with a peripheral
surface that defines . . . a valve exit for fluid and debris to escape the valve
into [a] first chamber.” Appeal Br. 8–9, Claims App. When this recitation is
read in its entirety and interpreted in light of the Specification as understood
by one of ordinary skill in the art, it refers to the moving ball’s peripheral
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surface providing a limit for the most restrictive space for fluid and debris to
escape the valve. For example, with reference to the Appellant’s drawings,
Figures 1–5 show primary check valve (i.e., ball valve) 32, which includes a
ball, a seat for the ball, and an arch member that acts as a stop for the
upward movement of the ball. As shown in the cross-sectional view of
Figure 3, the most restrictive space where fluid and debris can escape
primary check valve 32 is represented by the distance between the peripheral
surface of check valve 32’s moving ball and the seat for the ball. Notably,
the most restrictive space is indirectly set by the arch member that acts as a
stop for the upward movement of the ball. Additionally, the portions of a
valve’s structure (e.g., the arch member), which are located above the most
restrictive space, do not affect the most restrictive space where fluid and
debris can escape check valve 32.
The most restrictive space where fluid and debris can pass Corson’s
valve 23 is represented by the lateral distance between the widest portion of
the ball and the nearest portion of internal wall of valve body 21. The most
restrictive space where fluid and debris can pass through valve 23 is not
affected by existence of pin 24 and a small portion of valve body 21 above
the ball.
Thus, we sustain the Examiner’s rejection of independent claim 9 and
claims 10–13 and 15, which depend therefrom.3

3 The Appellant argues against the Examiner’s rejection of claims 9–13
under 35 U.S.C. § 102(a)(1) as anticipated by Corson. Appeal Br. 6–7. The
Appellant does not include claim 15, which depends from claim 9, in this
argument. We understand the lack claim 15 in the group of claims 9–13 as a
minor oversight.
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Independent Claim 16 and Dependent Claims 17 and 20–22
The Appellant acknowledges the rejection of claims 16, 17, and 20–22
(Appeal Br. 3), but does not present an argument for the rejection of these
claims. The Appellant states that “[c]laims 1, 2, 5 and 7[–]13 are on
appeal,” and presents arguments for the rejection of independent claims 1
and 9, as well as their respective dependent claims. Id. at 4–7. This
statement suggests that the Appellant views the rejection of claims 16, 17,
and 20–22 as not on appeal. However, “[a]n appeal, when taken, is
presumed to be taken from the rejection of all claims under rejection unless
cancelled by an amendment filed by the applicant and entered by the
Office.” 37 C.F.R. § 41.31(c). Therefore, the rejection of claims 16, 17, and
20–22 under 35 U.S.C. § 103 as unpatentable over Corson in view of
Hoferer is on appeal. Accordingly, we summarily sustain the Examiner’s
rejection of independent claim 16 and claims 17 and 20–22, which depend
therefrom.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1, 2, 5,
7–13, 15
102(a)(1) Corson 9–13, 15 1, 2, 5, 7, 8
16, 17,
20–22
103 Corson, Hoferer 16, 17,
20–22

Overall
Outcome
9–13, 15–
17, 20–22
1, 2, 5, 7, 8

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 IN PART