Ex Parte Dejong et al

Patent Trial and Appeal BoardApr 14, 2016

13405456 (P.T.A.B. Apr. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/405,456 02/27/2012 66061 7590 04/18/2016 WESTROCK COMPANY ATTN: IPLAWGROUP-PATENTS 501 South 5th Street, 3rd Floor Richmond, VA 23219-0501 FIRST NAMED INVENTOR David L. DEJONG 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. 22062-USORDP 5430 EXAMINER WEISS, NICHOLAS J ART UNIT PAPER NUMBER 3754 NOTIFICATION DATE DELIVERY MODE 04/18/2016 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): docketadministrator@westrock.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 1 Appeal2014-002596 Application 13/405,456 Technology Center 3700 Before WILLIAM A. CAPP, AMANDA F. WIEKER, and FREDERICK C. LANEY, Administrative Patent Judges. WIEKER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE David L. Dejong et al. ("Appellants") appeal under 35 U.S.C. Â§ 134(a) from the Examiner's final rejection of claims 1-12.2 We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b ). We AFFIRM-IN-PART. 1 According to Appellants, the Real Party in Interest is MeadWestvaco Calmar, Inc. Appeal Br. 3. 2 Claims 13-1 7 have been cancelled. Id. Appeal2014-002596 Application 13/405,456 CLiU1\1ED SUBJECT 1\1i1~ TTER The invention concerns trigger sprayer valves. Spec. i-f 2. Claim 1, the only independent claim, is illustrative of the subject matter on appeal, and recites: 1. A trigger sprayer, comprising: a valve body, comprising: an inlet; a discharge passageway; a pump chamber; a pump chamber inlet between the inlet and the pump chamber; a pump chamber outlet between the pump chamber and the discharge passageway; and a valve seat on an end of the pump chamber outlet; an inlet valve positioned in the pump chamber, comprising an inlet valve member seated against the pump chamber inlet; and a discharge valve attached to the valve body, comprising: a valve, comprising: a body; at least one outer edge; at least one valve lip; and wherein the at least one valve lip is seated against the valve seat and the at least one outer edge is seated against the valve body; a frame retaining the at least one outer edge of the valve in a seated position against the valve body. Appeal Br. 11, Claims App. (emphasis added). REJECTIONS The claims stand rejected as follows: I. Claims 1and5-12 under 35 U.S.C. Â§ 102(b) as anticipated by Saito (US 4,489,861, iss. Dec. 25, 1984). II. Claims 2--4 under 35 U.S.C. Â§ 103(a) as unpatentable over Saito. 2 Appeal2014-002596 Application 13/405,456 Anticipation by Saito - Claims 1 and 5-12 Claim 1 In the Final Office Action, the Examiner finds that Saito discloses a trigger sprayer comprising valve body ( 11 ), which further comprises, inter alia, "pump chamber (25)." Final Act. 2 (citing Saito, Figs. 3-5). In the Final Office Action, the Examiner also finds that: While the adapter (26) is the main guide for the piston (15), the entire effective pump chamber is within the "cylindrical bore" (25). Due to the hole ( 4 7) in the adaptor (26), the adaptor alone does not physically create a pump chamber - since liquid will be expelled through the holes to effectively increase the pressure. It is inherent that some liquid will be expelled into the section that the intake valve (56) blocks at the inlet of the pump chamber. Id. at 6 (citing Saito 5:28-51). After the Final Office Action, Appellants submitted a Response in which Appellants argued that the Examiner's anticipation rejection is contradictory in identifying the structure that constitutes the claimed "pump chamber." Apr. 9, 2013 Resp. 4--8. The Examiner responded to this argument in an Advisory Action, and stated that the Final Office Action identified the claimed pump chamber by reference numeral 25 "because there is not a specific reference number in the Figures [of Saito] that denotes the effective pump chamber." Apr. 25, 2013 Adv. Act. 2; see also Ans. 5. The Examiner explained that "the pump chamber was denoted reference number 25 (since the holes, 47, through the adaptor, 26, effectively made the structure of 25 the pump chamber)." Adv. Act. 2 (also quoting the finding made in the Final Office Action that hole ( 4 7) in adapter (26) precludes the adaptor alone from creating the pump chamber); see also Ans. 6. The 3 Appeal2014-002596 Application 13/405,456 Examiner also provided an illustration of Saito' s Figure 3, \x1ith shading added to identify the pump chamber. Adv. Act. 3 (identifying the pump chamber as the chamber within adapter (26), which is located within cylindrical bore (25), and extending through hole (47)); see also Ans. 5-7. Appellants argue that the position taken in the Examiner's Advisory Action "retreats from the position taken in the Final Action," with respect to the structure that constitutes the claimed pump chamber. Appeal Br. 7. Therefore, Appellants contend: If [Saito' s] "cylinder bore 25" anticipates the "pump chamber" ... as alleged in the Final Action's Response to Arguments, then [Saito] fails to anticipate the "pump chamber outlet," "valve seat on an end of the pump chamber" and "at least one valve lip [seated] against the valve seat" as recited in claim 1. If, on the other hand, the rejection is based on the combination of the "cylinder bore 25," the "adapter 26," and the "annular thick body 55" to define the "pump chamber," then the "valve body, comprising: ... a pump chamber" is not anticipated. Id. at 8. We are not persuaded by Appellants' argument that the Examiner changed positions with respect to the structure that constitutes the claimed pump chamber. In the Final Office Action, the Examiner finds clearly that because Saito's adaptor (26) includes hole (47) through which pressurized liquid will flow, adaptor (26) alone cannot constitute the pump chamber. Final Act. 6. Rather, the effective pump chamber includes the area within adaptor (26), extending through hole (47), all of which is located within cylindrical bore (25). Id. (citing Saito 5:28-51); see also Adv. Act. 2-3; Ans. 5-7. Because we do not understand the Examiner to rely on Saito' s cylinder bore (25) alone to constitute the pump chamber, Appellants' 4 Appeal2014-002596 Application 13/405,456 argument that Saito "fails to anticipate the 'pump chamber outlet,' 'valve seat on an end of the pump chamber' and 'at least one valve lip [seated] against the valve seat"' is moot because it is not commensurate with the Examiner's rejection. Appeal Br. 8. We are also unpersuaded by Appellants' argument that Saito fails to disclose a "valve body, comprising ... a pump chamber." The Examiner finds that Saito's pump chamber, discussed above, "clearly extends through the holes ( 4 7) and contacts the bore (25) - which is part of the valve body (11 ). Figure 5 of Saito also shows an enlarged detail of the section that is being referenced by the Examiner." Ans. 7; see also Final Act. 2 (citing Saito, Figs. 3-5). The Examiner's finding is supported by a preponderance of the evidence, including Saito's Figures 3-5, which show the designated pump chamber located within valve body (11). See Saito, Figs. 3-5; Adv. Act. 3; Ans. 5-7; see also Saito 4:67-5:7 (describing Saito's Figures 3-5, which include a series of bores "in the same manner as the [embodiment of Figure 1]"), 2:46-3:2 (describing that the embodiment of Figure 1 comprises "body 11 having a pressurizing chamber or cylinder bore therein ... The body 11 has a horizontal, vertical, and oblique portions .... The oblique portion has a cylinder bore 25 formed to engage an adapter 26 therein. The adapter 26 has three stepwise cylinder bore diameters as a pressurizing chamber as will be described hereinafter in greater detail"). Therefore, we affirm the Examiner's rejection of claim 1. Claims 5-11 Appellants do not provide separate argument regarding claims 5-11, which depend from claim 1. Appeal Br. 8. Therefore, we affirm the Examiner's rejection of claims 5-11. 5 Appeal2014-002596 Application 13/405,456 Claim 12 The Examiner finds that Saito discloses discharge valve (54) comprising frame (26) that retains the at least one outer edge of the valve in a seated position against the valve body. Final Act. 2-3. The Examiner finds that Saito' s frame (26) is a continuous circular lip, as shown in Saito' s Figures 3 and 5, which "clearly has two opposing latches as a continuous lip or protrusion or rim in a circle shape can have an infinite number of opposing latches as each element/section/point of that lip or protrusion or rim is an effective latch." Ans. 7; see also Final Act. 4, 7; Adv. Act. 4. Appellants argue that a continuous rim does not anticipate "two opposing latches." Appeal Br. 8-9. We agree with Appellants. The Examiner has not shown that a continuous rim, joined along its entire length, includes "two opposing latches," as claimed, rather than a single continuous connection. Therefore, we reverse the Examiner's rejection of claim 12. Obviousness over Saito - Claims 2--4 Appellants do not provide separate argument regarding the rejection of claims 2--4 under 35 U.S.C. Â§ 103(a) as unpatentable over Saito. Appeal Br. 9. Therefore, we affirm the Examiner's rejection of claims 2--4. DECISION The rejection of claims 1and5-11under35 U.S.C. Â§ 102(b) as anticipated by Saito is AFFIRMED; the rejection of claim 12 under 35 U.S.C. Â§ 102(b) as anticipated by Saito is REVERSED; and the rejection of claims 2--4 under 35 U.S.C. Â§ 103(a) as unpatentable over Saito is AFFIRMED. 6 Appeal2014-002596 Application 13/405,456 1'-Jo time period for taking any subsequent action in connection \x1ith this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED-IN-PART 7