Ex Parte Belcher

Patent Trials and Appeals Board

Apr 30, 2019

13091477 - (D) (P.T.A.B. Apr. 30, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/091,477 04/21/2011 Thomas Belcher
39564 7590 05/02/2019
FisherBroyles, LLP - MAIN CN
945 East Paces Ferry Road NE
Suite 2000
Atlanta, GA 30326
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.
06099.001 US 1/wsh 4689
EXAMINER
STAPLETON, ERIC S
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
05/02/2019 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):
docketing@fisherbroy les .com
patent@fisherbroyles.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS BELCHER
Appeal2018-008235
Application 13/091,477
Technology Center 3700
Before STEFAN STAICOVICI, MICHAEL J. FITZPATRICK, and
ANNETTE R. REIMERS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
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 1-5, 7, 8, and 21-23
as unpatentable over Harris (US 4,518,541, issued May 21, 1985), Kutyev
(US 2006/0000361 Al, published Jan. 5, 2006), and Sitz (US 2005/0199652
Al, published Sept. 15, 2005); and (2) claims 6, 9, 10, and 12-16 as
1 The Examiner has withdrawn the 35 U.S.C. § 112, first paragraph, rejection
of claims 21-23 for failing to comply with the written description
requirement. See Examiner's Answer ("Ans.") 2-3, dated May 25, 2018; see
also Final Office Action ("Final Act.") 2-3, dated May 9, 2016.
Appeal2018-008235
Application 13/091,477
unpatentable over Harris, Kutyev, Sitz, and Kateman (US 5,758,571, issued
June 2, 1998). Claims 11 and 17-20 have been canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to a hand-held decanter having a
pressurized gas cartridge vessel that is supportedly surrounded by a housing.
See Spec. ,r 42, Fig. 15. Claims 1, 9, and 21 are independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A decanter comprising:
a vessel containing pressurized gas;
a hand-held housing surrounding the vessel,
the housing including an internal sleeve and an
external wall, where the internal sleeve is sized to
support the vessel laterally over at least half the
length of the vessel;
a dispensing device in communication with
the vessel where the dispensing device comprises a
dispensing mechanism to selectively permit passage
of an amount of the pressurized gas from the vessel,
and where the dispensing device includes a ring for
connecting an upper side of the vessel with a top
side of the housing, where the ring engages and
retains the vessel within the internal sleeve;
an adapter having a first, proximal end and a
second, distal end with a path for fluid
communication there between, where the first,
proximal end connects to the dispensing mechanism
through a swivel to receive an amount of the
pressurized gas; and
2
Appeal2018-008235
Application 13/091,477
a nozzle in fluid communication with the
adapter at the second, distal end of the adapter;
wherein a user disposing the nozzle into a container
of wine and operating the dispensing mechanism
achieves dissolved oxygen content of at least 50%
immediately.
ANALYSIS
Obviousness over Harris, Kutyev, and Sitz
Claims 1-5, 7, 8, and 21-23
For independent claims 1 and 21, the Examiner finds that the
combined teachings of Harris and Kutyev fail to disclose, among other
things, "a hand-held housing surrounding the vessel, the housing including
an internal sleeve and an external wall, where the internal sleeve is sized to
support the vessel." See Final Act. 4--8; see also Br. 16, 20 (Claims App.). 2
The Examiner looks to the teachings of Sitz for the above cited limitation.
See Final Act. 8-9. In particular, the Examiner finds that Sitz discloses "a
hand-held housing (bottle 10) surrounding the vessel (bladder 30), the
housing including an internal sleeve (interior of bottle 10) and an external
wall ( external wall of bottle 10), where the internal sleeve is sized to support
the vessel laterally over at least half the length of the vessel." Ans. 4
( emphasis added).
Appellant contends that Sitz fails to disclose the claimed internal
sleeve. See Br. 10-13.
Appellant's Specification does not explicitly define the term "internal
sleeve." See Spec.,passim. However, Appellant's Figure 15 illustrates
2 Appeal Brief ("Br."), filed Nov. 3, 2017.
3
Appeal2018-008235
Application 13/091,477
housing 1515 including an internal sleeve and an external wall, wherein the
internal sleeve is sized to support vessel 1510 laterally over at least half the
length of vessel 1510. See the Board's Annotated Version of Appellant's
Figure 15 below.
1525
-~~ ... , .. J-n,o~ \:~·._.:: ·_.; :- .. _ ......... ;h~)
Fig. 15
Appellant's Specification describes Figure 15 as "a cross sectional
view of an example decanter." Spec. ,r 18; see also id. ,r 42. An ordinary
and customary meaning of the term "sleeve," which is consistent with
Appellant's Specification and drawings, is "a tubular part (such as a hollow
axle or a bushing) designed to fit over another part. " 3 As illustrated in the
3 See https://www.merriam-webster.com/dictionary/sleeve (last accessed Apr.
26, 2019).
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Appeal2018-008235
Application 13/091,477
annotated version of Appellant's Figure 15 above, the "internal sleeve" of
housing 1515 is a tubular part designed to fit over vessel 1510.
In this case, although we agree with the Examiner that Figure 2 of Sitz
illustrates housing 10 having an external wall (see Ans. 4; see also Sitz, Fig.
2), a skilled artisan, upon review of Sitz's Figure 2, would not consider the
"interior of bottle 1 O" of Sitz to reasonably constitute the "internal sleeve" as
claimed. See In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999)
("Although the PTO must give claims their broadest reasonable
interpretation, this interpretation must be consistent with the one that those
skilled in the art would reach."); see also Br. 10-13. Stated differently, it
would be unreasonable for a skilled artisan to consider the interior space of
bottle 10 of Sitz to constitute "a tubular part ... designed to fit over" vessel
30. See Ans. 4; see also Br. 10-13; Sitz, Fig. 2; Spec. ,r,r 18, 42, Fig. 15; n.3
above.
For these reasons, we do not sustain the Examiner's rejection of
claims 1-5, 7, 8, and 21-23 as unpatentable over Harris, Kutyev, and Sitz.
Obviousness over Harris, Kutyev, Sitz, and Kateman
Claims 6, 9, 10, and 12-16
Independent claim 9 is directed to a device for decanting a liquid and
includes language to an "internal sleeve" similar to that found in claims 1
and 21. See Br. 16, 18, 20 (Claims App.). The Examiner relies on the same
unsupported finding in Sitz for claim 9 as that discussed above for claims 1
and 21. See Final Act. 11-14. The Examiner does not rely on the teachings
ofKateman to remedy the deficiency of Sitz. See id. at 15-16.
Accordingly, for reasons similar to those discussed above for claims 1 and
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Appeal2018-008235
Application 13/091,477
21, we do not sustain the Examiner's rejection of claims 6, 9, 10, and 12-16
as unpatentable over Harris, Kutyev, Sitz, and Kateman.
DECISION
We REVERSE the decision of the Examiner to reject claims 1-5, 7, 8,
and 21-23 as unpatentable over Harris, Kutyev, and Sitz.
We REVERSE the decision of the Examiner to reject claims 6, 9, 10,
and 12-16 as unpatentable over Harris, Kutyev, Sitz, and Kateman.
REVERSED
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