Ex Parte Dejong et al

Patent Trial and Appeal BoardMay 15, 2017

13264447 (P.T.A.B. May. 15, 2017)

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. 13/264,447 10/14/2011 David L. Dejong 21791-USPCT 4490 147365 7590 05/17/2017 Silaan Disinensiina SJvstp.ms EXAMINER 501 South 5th Street, 3rd Floor Richmond, VA 23219-0501 REIS, RYAN ALEXANDER ART UNIT PAPER NUMBER 3649 NOTIFICATION DATE DELIVERY MODE 05/17/2017 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@barjos.com sdslegaldocket @ silgands .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID L. DEJONG, STEVEN L. SWEETON, and JOSEPH K. DODD Appeal 2015-006558 Application 13/264,447 Technology Center 3600 Before: LYNNE H. BROWNE, THOMAS F. SMEGAL, and BRENT M. DOUGAL, Administrative Patent Judges. DOUGAL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a final rejection of claims 1 and 4—16. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2015-006558 Application 13/264,447 CLAIMED SUBJECT MATTER The claims are directed to a trigger sprayer. Claims 1, 9, and 12 are independent. Claim 9, reproduced below, is illustrative of the claimed subject matter: 9. A trigger sprayer, comprising: a valve body; a shroud mounted to the valve body; and a trigger comprising a trigger lever and a bias member positioned between the valve body and the shroud wherein the bias member moves freely within the shroud. REJECTIONS Claims 9—11 are rejected under 35 U.S.C. § 102(b) as being anticipated by Maas (US 5,228,602, iss. July 20, 1993). Claims 1, 4—8, and 12—16 are rejected under 35 U.S.C. §103(a) as being unpatentable over Maas. OPINION Claim 9 Appellants first argue that Maas does not disclose ‘“a shroud mounted to the valve body’ as recited in claim 9.” Appeal Br. 7. Appellants argue that the body 14 of Maas, relied on by the Examiner as the claimed shroud is not called or described as a “shroud.” Id. (“there is no express description of a ‘shroud’” nor is a shroud “inherently described” in Maas.); see also Reply Br. 2. Appellants’ argument that Maas’s body 14 could only be considered a “shroud” if it was described as such by Maas is unconvincing. “[I]n determining the ordinary and customary meaning of the claim term as 2 Appeal 2015-006558 Application 13/264,447 viewed by a person of ordinary skill in the art, it is appropriate to consult a general dictionary definition of the word for guidance.” Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir. 2010) (citingPhillips c. AWH Corp., 415 F.3d 1303, 1322—23 (Fed. Cir. 2005) (en banc)). An ordinary and customary meaning of the claim term “shroud” is “something that covers, screens, or guards.” Merriam-Webster.com, http://www.merriam- webster.com/dictionary/shroud (accessed May 9, 2017). This definition is consistent with the use of the term in the Specification. See e.g., Spec. 143. Accordingly, we adopt this definition of “shroud.” The Examiner’s finding that “[ejlement 14 is a covering” that “qualifies as a shroud” (Ans. 6—7) is consistent with this definition of “shroud.” Thus, we are not informed of error in the Examiner’s rejection. Appellants also argue that Maas does not teach the claimed “shroud mounted to the valve body,” nor the claimed “bias member positioned between the valve body and the shroud,” because the body 14 (i.e. shroud) and cylindrical base 26 (i.e. valve body) of Maas “are not separate components but are regions or sections of a singular component.” Appeal Br. 8. Appellants’ argument is not commensurate with the scope of claim 9. Appellants do not identify any claim limitation, and we see none, that limits the claim to a shroud and a valve body that are separable components. Thus, we are not informed of error in the Examiner’s rejection. Claim 1 Appellants argue that claim 1 is allowable over Maas because 1) “Maas et al. does not describe a ‘shroud’” and 2) the rejection does not 3 Appeal 2015-006558 Application 13/264,447 include a finding that “the inclusion of a ‘shroud’ on the Maas et al. ‘trigger sprayer,’ [is] obvious.” Appeal Br. 9; see also id. at 10 (arguing that the claimed “bias member guide integral with the shroud” is not taught because Maas does not teach a shroud). As discussed above with reference to claim 9, the Examiner’s finding that “[ejlement 14 is a covering” that “qualifies as a shroud” (Ans. 6—7) is correct. Thus, Appellants’ arguments do not inform us of error in the rejection. Claim 1 also includes the limitation “a bias member formed integrally with the trigger lever,” which the Examiner states is not “expressly disclose[d]” by Maas. Final Act. 3. The Examiner determines that this limitation “would have been obvious . . . since it has been held that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art.” Id. at 3^4 (citing Howard v. Detroit Stove Works, 150 U.S. 164 (1893)).” The Examiner further determines that “such a modification could be done using known methods to yield predictable results.” Adv. Act. 2. Appellants argue that the Examiner’s reasoning and the reliance on Howard is insufficient “to establish aprima facie obviousness rejection.” Appeal Br. 9. In particular, Appellants state that additional evidence is required in order to support the Examiner’s position. Id. However, other than making general statements, Appellants do not explain why the Examiner’s reasoning is incorrect (e.g. why it would not be predictable, or would require more than routine skill in the art) or how the 4 Appeal 2015-006558 Application 13/264,447 present claims and facts are distinct from those in Howard.1 Appellants general assertions not do inform us of error in the Examiner’s reasoning. Claim 12 Claim 12 includes the limitation “a bias member integral with the trigger lever” which is similar to the limitation of claim 1 discussed above. Appellants repeat some of the same arguments with regard to claim 12 that we found unconvincing with respect to claim 1. Appeal Br. 10. Thus, we are not informed of error in the Examiner’s reasoning. Claim 12 also requires “wherein the bias member is not restricted by connection to the valve body.” Appellants argue that “[tjhese recitations are not described by Maas et al. and, in fact, the “plastic spring assembly 40” of Maas et al. is “press-fitted into a recess 412 in the body 14.’” Appeal Br. 10 (citing Maas, col. 5:32—34). 1 Many of the arguments included in Appellants’ Reply Brief were not presented in the Appeal Brief, even though the arguments address findings first made in the Final Action or Advisory Action. This includes Appellants’ arguments that integrally forming the bias member with the trigger lever is not a simple step because there are a number of additional considerations Appellants believe that one of skill in the art would need to consider. Reply Br. 4—6. As these arguments were not presented in the Appeal Brief, and Appellants have not proffered a showing of good cause explaining why the argument could not have been presented in the Appeal Brief, we will not consider these new and untimely arguments. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2); Ex parte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative). 5 Appeal 2015-006558 Application 13/264,447 The Examiner found that these claim elements are taught by Maas “since element 40 [the bias member] is not connected to element 26 [the valve body].” Adv. Act. 2 (citing Maas, Figs 2 and 3). Though the plastic spring assembly 40 of Maas is press-fit into recess 412 in the body 14, this recess is positioned above and appears to be unrelated to the valve body. See Maas, Figs. 2 and 3. Thus, we are not informed of error in the Examiner’s rejection. DECISION The Examiner’s rejections of claims 1 and 4—16 are 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). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 6