Ex Parte BelcherDownload PDFPatent Trials and Appeals BoardApr 30, 201913091477 - (D) (P.T.A.B. Apr. 30, 2019) Copy Citation 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and Sitz (US 2005/0199652 Al, published Sept. 15, 2005); and (2) claims 6, 9, 10, and 12-16 as 1 The Examiner has withdrawn the 35 U.S.C. § 112, first paragraph, rejection of claims 21-23 for failing to comply with the written description requirement.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). 4 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 5 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 6 Copy with citationCopy as parenthetical citation