Ex Parte Brennan et al

Patent Trial and Appeal BoardMay 29, 2014

11725678 (P.T.A.B. May. 29, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ROBERT C. BRENNAN, CURT METZBOWER, and MATTHEW E. PAPPALARDO ____________ Appeal 2012-000314 Application 11/725,678 Technology Center 3700 ____________ Before NEAL E. ABRAMS, LYNNE H. BROWNE, and BART A. GERSTENBLITH, Administrative Patent Judges. ABRAMS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Robert C. Brennan et al. (Appellants) seek our review under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-3 and 7-11. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2012-000314 Application 11/725,678 2 THE INVENTION The claimed invention is directed to a self-contained single dose dual fluid dispenser to store and dispense two fluids. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A self-contained single dose dual fluid dispenser to store and dispense two fluids, comprising: a dual fluid container having an outer cartridge wall having proximal and distal ends and defining a first outlet at the distal end and an open end at the proximal end, the open end including a tab; a delivery tube disposed within the outer cartridge wall and defining a second outlet at the distal end; a first piston disposed between the outer cartridge wall and the delivery tube forming a first fluid chamber for a single dose of a first fluid; a second piston disposed within the outer cartridge wall between the first piston and the open end of the outer cartridge wall, the second piston being longitudinally in-line with the first piston; a fixed wall disposed between the first piston and the second piston, wherein the fixed wall and the second piston define a second fluid chamber for a single dose of a second fluid, the second fluid chamber being longitudinally in-line with the first fluid chamber; a force providing mechanism disposed within the open end of and attached to the dual fluid container, wherein, when activated, the force providing mechanism applies a force to the second piston, the force providing mechanism including a notch adapted to engage the tab of the outer cartridge wall to prevent premature advancement of the second piston; and a transmission structure disposed between the second piston and the first piston. Appeal 2012-000314 Application 11/725,678 3 THE PRIOR ART The Examiner relied upon the following as evidence of unpatentability: Dunning US 5,310,091 May 10, 1994 Vizsolyi US 5,636,933 Jun. 10, 1997 THE REJECTION Claims 1-3 and 7-11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Dunning and Vizsolyi. OPINION The Examiner has found that all of the subject matter recited in independent claims 1, 9 and 10 is disclosed in Dunning, except for the tab on the outer cartridge wall and the interlocking notch on the force providing mechanism. Ans. 4-5. However, the Examiner has taken the position that these features are taught by Vizsolyi, and has concluded that it would have been obvious to one of ordinary skill in the art to modify the Dunning device by adding the tab and notch “in order to control the movement of the plunger in respect to outer housing so that the plunger does not advance before the intended use thereof.” Ans. 5. Appellants contend that Vizsolyi is non-analogous art. In this regard, Appellants argue that Vizsolyi’s invention is in the field of travel toothbrushes, whereas the field of Appellants’ invention is dispensing two fluids from a single dose dispenser (App. Br. 11), and that the problem with which Vizsolyi is concerned is dispensing a predetermined quantity of toothpaste multiple times, as opposed Appellants’ problem of preventing premature mixing and hardening of a two-component mixture (App. Br. 11- Appeal 2012-000314 Application 11/725,678 4 12). Additionally, Appellants assert that the Examiner has failed to set forth the motivation for combining the teachings of Dunning and Vizsolyi, and has utilized Appellants’ own disclosure and improper hindsight to support the conclusion of obviousness. App. Br. 14. The Examiner responded to Appellants’ argument regarding non- analogous art by expressing the opinion that both Vizsolyi’s and Appellants’ devices are in the same field of endeavor because both “are cylinder fluid dispensers and both have pistons to move material out of the dispensers.” Ans. 6. The Examiner further asserts that both are directed to solving the same problem, which is preventing premature movement of the piston prior to the intended use thereof. Ans. 7. Non-analogous Art A reference is analogous art if the invention is from the same field of endeavor as the claimed invention or the reference is reasonably pertinent to the problem faced by the inventor, and in order for the reference to be reasonably pertinent, it must “logically have commended itself to the inventor’s attention in considering his problem.” See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Even assuming, arguendo, that Vizsolyi is not in the same field of endeavor as Appellants’ invention, it qualifies as analogous art on the basis of being reasonably pertinent to the problem faced by Appellants. The problem to which Appellants have directed their inventive efforts is preventing the plunger that drives the pistons in a piston/cylinder type dispenser “from advancing prematurely, which would prematurely dispense the fluids.” Spec. para. [0016]. Vizsolyi discloses a piston/cylinder type dispenser which selectively dispenses successive measured doses of material Appeal 2012-000314 Application 11/725,678 5 as controlled by a series of interacting detents and indents located on the cylinder and the piston. However, Vizsolyi also is concerned with the problem of initial premature movement of the plunger, as evidenced by the presence of an additional indent 63 positioned on the outer surface of the outboard end of plunger 16, which secures the plunger in main housing 12 (col. 6, ll. 6-9) by engagement with detent 26 on the inner surface of the cylindrical housing (col. 4, ll. 64-66; fig. 6), thus preventing premature advancement of the plunger prior to the dispensing of the initial dose of material. Therefore, Vizsolyi logically would have commended itself to the attention of an inventor attempting to solve this problem. Consideration of Appellants’ arguments has not convinced us that the Examiner’s conclusion on this issue is in error. Obviousness Without challenging the particular findings by Examiner as to what each reference discloses, Appellants assert that the Examiner failed to articulate a reason as to why one of ordinary skill in the art would have been motivated to combine Dunning and Vizsolyi. App. Br. 13-14. As expressed above, the Examiner found that one of ordinary skill in the art would have been motivated to modify Dunning “to include the annular tab and annular notch of the outer housing and plunger as taught by Vizsolyi in order to control the movement of the plunger in respect to outer housing so that the plunger does not advance before the intended use thereof.” Ans. 5. Thus, contrary to Appellants’ argument, the Examiner provided a reason why one of ordinary skill in the art would have been prompted to combine the teachings of the references as proposed. Further, the Examiner’s rationale is based on a rational underpinning. Appeal 2012-000314 Application 11/725,678 6 In their Reply Brief, Appellants assert that adding “a series of detents and indents as shown by Vizsolyi on the plunger and cylinder of Dunning” would “undermine the intended, single dose operation of the Dunning dispenser.” Reply Br. 6. Contrary to the premise of Appellants’ argument, the Examiner’s proposed combination does not modify Dunning to include a series of detents and indents as taught by Vizsolyi; rather, the Examiner’s proposed combination includes “the annular tab and annular notch of the outer housing and the plunger.” See Ans. 5. We understand the Examiner to refer to indent 63 and detent 26 (see Vizsolyi, fig. 6), which prevent premature movement of the plunger prior to dispensing an initial dose so that the plunger does not advance before the intended use thereof as reasoned by the Examiner. Thus, Appellants’ argument with respect to the series of detents and indents is not responsive to the Examiner’s proposed combination. The rejection of independent claims 1, 9 and 10 is sustained. Because Appellants have elected not to argue the separate patentability of dependent claims 2, 3, 7, 8 and 11 (App. Br. 14), the rejection of those claims is also sustained. DECISION The Examiner’s decision to reject claims 1-3 and 7-11 as being unpatentable over Dunning and Vizsolyi is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED Klh