Ex Parte Gompper et al

Patent Trial and Appeal BoardJan 11, 2018

14550495 (P.T.A.B. Jan. 11, 2018)

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. 139650.208 9094 EXAMINER KIM, CHRISTOPHER S ART UNIT PAPER NUMBER 3752 MAIL DATE DELIVERY MODE 14/550,495 11/21/2014 Brion Gompper 27162 7590 01/11/2018 CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO 5 BECKER FARM ROAD ROSELAND, NJ 07068 01/11/2018 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRION GOMPPER and VARANJITSINH CHUDASAMA Appeal 2016-007426 Application 14/550,495 Technology Center 3700 Before: LINDA E. HORNER, ERIC C. JESCHKE, 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 1,3,5, 6, 9-17, and 20—22. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2016-007426 Application 14/550,495 CLAIMED SUBJECT MATTER The claims are directed to a spray head for a pre-rinse assembly. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A spray head for a pre-rinse assembly comprising a discharge cover having a plurality of circumferentially disposed ports for discharging water therethrough; an impeller rotatably mounted within said cover, said impeller having a plurality of circumferentially disposed fins thereon and a plurality of tabs disposed circumferentially thereof and transverse to said fins, said tabs being disposed relative to said ports whereby a respective tab momentarily covers a respective port to prevent passage of water therethrough and from said discharge cover during rotation of said impeller while the other of said tabs are spaced from the other of said ports to allow passage of water therethrough and from said discharge cover; and means within said cover for directing at least one jet of water onto said fins of said impeller to effect rotation of said impeller within said cover and for subsequent passage out of said ports as jets of water, said means including a cup-shaped diffuser secured to and concentrically within said discharge cover, said diffuser having a base spaced from said discharge cover and a circumferential wall extending from said base and abutting said discharge cover, said wall having at least one slot extending angularly therethrough for directing a jet of water therethrough into said diffuser. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Shames Marsh US 5,356,077 Oct. 18, 1994 US 6,533,194 B2 Mar. 18, 2003 2 Appeal 2016-007426 Application 14/550,495 REJECTIONS Claims 1,3,5, 6, 9, 10, 12—17, 20, and 22 are rejected under 35 U.S.C. § 102(a)(2) as being anticipated by Shames. Claims 11 and 21 are rejected under 35 U.S.C. § 103 as being unpatentable over Shames and Marsh. OPINION Claims 1,12, and 15 are independent. The Examiner finds that the spray head of Shames anticipates each of the independent claims. Final Act. 2—3. In the Final Action concerning claims 1, 9, 10, 12, 14—17, and 20, the Examiner finds as follows: Shames et al. disclose a spray head comprising: a discharge cover 20 having a plurality of circumferentially disposed ports 86; an impeller 24 having a plurality of circumferentially disposed fins 100 and a plurality of tabs 104; a means 16, 22, 95; said means is a cup-shaped diffuser having a base 62 and a circumferential wall 22; said wall 22 having at least one slot 96. Id. The Examiner reiterates these findings in the response to arguments portion of the Final Action and in a subsequent Advisory Action. Final Act. 5 (119, 10); Advisory Act. 2-3. Appellants argue that “Shames does not disclose a cup-shaped diffuser with a circumferential wall having an angularly extending slot” as required by claim 1. Appeal Br. 9 (emphasis omitted). Appellants further explain: “Shames discloses the nozzle plate 22 to have tangentially directed flow channels 96 which direct jets of water into a rotor chamber 58. (col. 5, 3 Appeal 2016-007426 Application 14/550,495 In. 9—11). These flow channels 96 are not in a circumferential wall of the nozzle plate 22.” Id. As can be seen above, the Final Action and Advisory Action do not fully address this limitation of the claim. A detailed explanation of this part of the Examiner’s rejection is provided for the first time in the Answer. See Ans. 5—7. The Examiner finds that the nozzle plate 22 together with the “transverse wall 62” forms the bottom of the cup-shaped diffuser and that “cylindrical wall 63” is the sidewall of the cup-shaped diffuser. Id. at 6. The Examiner also finds that the nozzle plate 22 is a circumferential wall, because “nozzle plate 22 has a wall and a circumference” and it “extends around the circumference of inner wall 98.” Id. The Examiner also finds that “circumferential wall 22 . . . [has] an angularly extending slot 96.” Id. at 7. The Examiner does not specify whether the “circumferential wall” is being interpreted as essentially all of the nozzle plate that “extends around the circumference of inner wall 98” or whether it is limited to the wall located at and around the circumference of the nozzle plate. However, we understand it to be the former as the disclosure of Shames teaches the downward-extending flow channels 96 extend through the transverse wall of nozzle plate 22, but not through the cylindrical sidewall of nozzle plate 22. Shames, col. 5:9—12, Fig. 3. We are not persuaded that one skilled in the art would understand “circumferential wall” to read on all of the nozzle plate that “extends around the circumference of inner wall 98,” but rather would understand it to be limited to the wall located at and around the circumference of the nozzle plate. See In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 4 Appeal 2016-007426 Application 14/550,495 2004) (explaining that we give claims “their broadest reasonable [construction] in light of the specification as it would be interpreted by one of ordinary skill in the art.”). As the circumferential wall around nozzle plate 22 does not include flow channels 96 extending therethrough, the Examiner’s rejection does not show that the prior art teaches all of the limitations of claim 1. For this reason, we do not sustain the rejection of claim 1 as anticipated. Similar to claim 1, independent claims 12 and 15 both also claim “a circumferential wall” where “said wall having a [at least one] slot extending angularly therethrough.” We likewise do not sustain the anticipation rejection of those claims for reasons similar to claim 1. As the rejections of the dependent claims all depend on the Examiner’s unreasonably broad claim construction, we likewise do not sustain the remaining rejections. DECISION The Examiner’s rejections of claims 1, 3, 5, 6, 9-17, and 20-22 are reversed. REVERSED 5