Ex Parte Hasidashvili

Patent Trial and Appeal Board

Jan 30, 2017

13199532 (P.T.A.B. Jan. 30, 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.
13/199,532 09/01/2011 Lev Hasidashvili LH-l 3795
7590 01/31/2017
T ev Hasiirlasihvili
EXAMINER
6 Starr Road OLIVER, BRADLEY S
East Brunswick, NJ 08816
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
01/31/2017 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 LEV HASIDASHVILI
Appeal 2015-000304
Application 13/199,5321
Technology Center 3700
Before HUBERT C. LORIN, BRUCE T. WIEDER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
WIEDER, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35U.S.C. § 134 from the
Examiner’s rejection of claims 1—20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Appellant’s claimed invention relates “to an applicator for fluid
products, such as soap and lotion products.” (Spec. 2.)
Claims 1,13, and 16 are the independent claims on appeal. Claim 1
representative. It recites (some paragraphing added):
1 According to Appellant, the real party in interest is Lev Hasidashvili.
(Appeal Br. 2.)
Appeal 2015-000304
Application 13/199,532
1. A manual applicator utilizing one hand for manually
dispensing and applying fluid products to a surface to be treated
comprising
a base, the base having a region for holding a container for
such products,
the container having at least one dispensing channel of a
defined shape,
a lower part of the base having at least one base channel
of a defined shape coordinated with the defined shape of the
dispensing channel,
a cover attached to the base and at least partially open in
the region of the applicator above the container to form an
opening, the opening of a size to receive at least one finger,
a fitment depending from the cover and comprised of an
inner portion and an outer portion, one of the inner portion and
the outer portion connected to the cover and contactable by the
at least one finger through the opening,
one of the inner portion and the outer portion moveably
attached to the other whereupon [sic] the relative movement of
the outer portion and the inner portion one of the inner portion
and the outer portion moves toward the container to thereby
apply a force to the container and dispense the fluid product from
the container through the at least one dispensing channel and the
at least one base channel to an applicator surface,
whereby at least one of the inner portion and the outer
portion can be contacted by the at least one finger through the
opening in the at least partially open cover and manipulated for
relative movement to manually dispense product during the
process of applying the fluid product to the surface to be treated.
REJECTIONS
Claims 1—6 and 8—20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Hamilton (US 1,576,821, iss. Mar. 16, 1926) and deVirag
(US 2008/0131191 Al, pub. June 5, 2008).
2
Appeal 2015-000304
Application 13/199,532
Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Hamilton, deVirag, and Gebhard (US 5,186,563, iss. Feb. 16, 1993).
ANALYSIS
Claims 1, 12, 13, 16, and 20
Appellant argues that “[i]t is stated in the rejection over Hamilton that
Hamilton shows a manual applicator with a base 3. Part 3 is described as a
removable closure (page 1, lines 54—55). There is no described base.”
(Appeal Br. 12.)
Claim 1 recites “a base, the base having a region for holding a
container for such products” and that “a lower part of the base having at
least one base channel of a defined shape coordinated with the defined shape
of the dispensing channel.”
Hamilton discloses that “the bottom portion of the closure 3 is formed
with an opening and with an annular depending flange 8 around the same.”
(Hamilton, pg. 1,11. 74—77.) The discharge neck of the compressible tube
may be threaded through the opening in the base. (See id. at pg. 1,11. 79—
83.) In other words, the bottom portion of the closure has a region for
holding the neck of the tube and a defined shape coordinated with the
defined shape of the neck of the tube. Therefore, we are not persuaded that
Hamilton does not disclose a base as recited in claim 1.
Claim 1 also recites “a fitment depending from the cover and
comprised of an inner portion and an outer portion, one of the inner portion
and the outer portion connected to the cover and contactable by the at least
one finger through the opening.” Appellant argues that
3
Appeal 2015-000304
Application 13/199,532
[i]t is stated that [Hamilton discloses a] plate (ram) 27 and
threaded rod (longitudinal screw) 32 depend from an inner
surface of stationary closure 2. Part 32 is a longitudinal screw
which passes through the cover 2 to a handle 34 on the upper end.
Plate (ram) 27 is indirectly attached to longitudinal screw 32 via
bar 28. It is not directly attached to the longitudinal screw 32.
Also it is very clear that they do not depend from an inner surface
of the stationary cover 2.
(Appeal Br. 12.)
Hamilton discloses that “[t]he upper end of the screw is swiveled as
at 33 in the closed end 2 of the casing 1.” (Hamilton, pg. 1,11. 108—109; see
also id. at Fig. 1.) Hamilton further discloses that by turning the handle at
the end of the screw “in the proper direction, the ram 27 will be forced
downwardly, thus compressing the tube 12 for the purpose of discharging its
contents.” {Id. at pg. 2,11. 1 4.) In other words, as shown in Figure 1 of
Hamilton, screw 32 depends from cover 2 via swivel 33 which holds screw
32 in place longitudinally relative to cover 2. Therefore, we are not
persuaded of error.
Claim 1 also recites “a cover attached to the base and at least partially
open in the region of the applicator above the container to form an opening,
the opening of a size to receive at least one finger.”
The Examiner finds that “Hamilton does not disclose that the cover
has an opening and that at least one of the inner and outer portions of the
fitment can be contacted through the opening in the cover.” (Final
Action 3.) Looking to deVirag, the Examiner determines that it
teaches an applicator with a fitment (150) that is accessible
through an opening in a cover (120) for the purpose of preventing
inadvertent actuation of the fitment (paragraph [0025]). deVirag
also teaches that this arrangement is capable of being used with
one hand (a user’s thumb can rest on the grip portion of the
4
Appeal 2015-000304
Application 13/199,532
device and a middle or ring finger can actuate the wheel).
Accordingly, it would have been obvious to one of ordinary skill
in the art at the time the invention was made to have modified
the apparatus of Hamilton to use the manual actuation means
taught by deVirag for the purpose of preventing inadvertent
actuation of the fitment.
(Id.)
Appellant argues that
[tjhere is no disclosure of an opening in the body 120 or 202 in
deVirag, and particularly one of a size through which a finger
can be extended. There is disclosed a recess 220 for wheel 218
(0029). deVirag defines part 220 as a recess and not an opening
through which a finger can be extended. The wheel 150 is not
within the body 120 thus no opening in the body 120 is needed.
(Appeal Br. 12.)
Figure 2 of deVirag discloses that recess 220 includes an opening in
the body 202 that allows access to the wheel 218 by a finger of the user
contacting the wheel so as to rotate the wheel. deVirag additionally
discloses that the “manually rotatable wheel 218... can be accessed through
a recess 220 in the body 202” and that, although deVirag discloses a motor
coaxial with the wheel, “the motor 212 can be omitted completely, leaving
the manual input of power the sole source of pressure used to dispense
material.” (deVirag 129.)
Therefore, we are not persuaded that deVirag does not disclose an
opening in the body 202.
Independent claims 13 and 16 contain similar language to that
discussed above with regard to claim 1. Appellant argues that
“[independent claims 1,13, and 16 have not been individually examined,”
that “[tjhere are not specific rejections of these independent claims,” and
5
Appeal 2015-000304
Application 13/199,532
that Appellant is “left to suppose what the rejections would be extrapolating
from the group rejection of claims 1, 12, 13, and 20.” (Appeal Br. 13—14.)
Appellant does not, however, point to specific limitations in claims 12, 13,
16, or 20 that were not addressed in the rejection of claim 1. (See Appeal
Br. 13—14; see also Answer 2—3.) Thus, we are not persuaded of reversible
error.
Additionally, we agree with and adopt the Examiner’s rationale for
rejecting claims 1, 12, 13, 16, and 20 on pages 2—3 of the Answer.
Claim 2
Claim 2 recites: “A manual applicator as in claim 1 wherein the
applicator has a shape that has one of a circular periphery and a generally
rectangular periphery.”
The Examiner finds that Hamilton does not disclose the shape of its
applicator but that
Applicant has not disclosed that the shape of the applicator solves
a stated problem or provides a particular advantage.”
Accordingly, one of ordinary skill in the art would have
considered using a circular or rectangular applicator to be an
obvious matter of design choice which fails to patentably
distinguish over the prior art.
(Final Action 3.) Appellant argues that Hamilton does show the shape of its
applicator “by showing it as an elongated tube 1. The present applicator is
very different from the elongated tube of Hamilton.” (Appeal Br. 13.)
As an initial matter, Appellant has not persuasively argued why the
Examiner erred in determining that “one of ordinary skill in the art would
have considered using a circular or rectangular applicator to be an obvious
matter of design choice which fails to patentably distinguish over the prior
6
Appeal 2015-000304
Application 13/199,532
art.” (Final Action 3.) Moreover, claim 2 recites that the claimed applicator
“has one of a circular periphery and a generally rectangular periphery,” i.e.,
that a two-dimensional view of the claimed applicator (a circle and a
rectangular both being two-dimensional shapes) would show either a circular
periphery or a generally rectangular periphery. Figure 3 of Hamilton shows,
in a two-dimensional view of the prior art applicator, that it has a circular
periphery.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 2.
Claims 3, 4, 5, 14, 15, 17, and 18
Claim 3 recites: “A manual applicator as in claim 1 wherein the outer
portion is moveably attached to the inner portion by threads.”
We agree with the Examiner that, e.g., “[t]he threaded rod (32) could
be considered the outer portion because it extends outside the cover” and
that “the plate (27). . . could be considered the inner portion because it is
contained inside the cover. (Final Action 3.) Thus, we are not persuaded of
error by Appellant’s assertion that “[tjhere is no disclosure of such portions
in Hamilton. (See Appeal Br. 13.)
For the same reason, we are not persuaded of error by Appellant’s
argument regarding claims 4, 5, 14, 15, 17, and 18 that the Examiner is
“reconstructing” the claimed inner and outer portions “into the same part.”
Claim 6
Claim 6 recites: “A manual applicator as in claim 1 wherein the
container has more than one dispensing channel of a defined shape on a
7
Appeal 2015-000304
Application 13/199,532
lower surface, the more than one dispensing channel of a defined shape
interfitting into more than one base aperture.”
The Examiner finds that Hamilton “disclose[s] one dispensing channel
and one base channel.” (Final Action 4.) The Examiner rejects claim 6
noting that “[i]t has been held that a mere reproduction of parts has no
patentable significance unless a new and unexpected result is produced.”
{Id., citing In re Harza, 274 F.2d 669, 774 (CCPA I960).)
Appellant argues that “Applicant is not claiming a plurality of parts
versus a single part” and thus, that Harza “is not applicable.” (Reply Br. 4;
see also Appeal Br. 13.) But Appellant does not persuasively argue why the
claimed “more than one dispensing channel” and “more than one base
aperture” are not a plurality of parts under Harza. See Harza, 274 F.2d at
774. Moreover, Appellant does not argue that the claimed “more than one
dispensing channel” and “more than one base aperture” produce a new and
unexpected result. Therefore, we are not persuaded of error.
Claim 8
Claim 8 recites: “A manual applicator as in claim 1 whereon a lower
portion of the base has an applicator surface that is compatible with the
surface to be treated.”
Appellant argues that the Examiner states “that a lower portion of the
base (no base in Hamilton) has a surface 13 that is compatible with the
surface to which the paste is to be applied. There is no disclosure as to the
surface to which the Hamilton paste is to be applied.” (Appeal Br. 13.)
The Examiner answers that “the claim merely requires the applicator
surface to be ‘compatible’ with the target surface. The limitation
8
Appeal 2015-000304
Application 13/199,532
‘compatible’ is very broad, and as the applicator disclosed by Hamilton does
not appear to cause destruction of surfaces it reads on the claim.”
(Answer 8.)
Appellant does not dispute the Examiner’s construction of the term
“compatible” or that, using this construction, Hamilton teaches an applicator
surface compatible with the surface to be treated. (See Reply Br. 4.)
Therefore, we are not persuaded of error.
Claims 9 and 10
Appellant argues claims 9 and 10 together. We choose claim 9 as
representative. Claim 9 recites: “A manual applicator as in claim 1 wherein
the container dispensing channel has a non-circular defined shape which
mates with a non-circular defined shape of the base channel.”
Appellant argues that “the Examiner appears to be citing personal
knowledge. There is no such disclosure in Hamilton.” (Appeal Br. 13; see
also Reply Br. 4.) The Examiner, however, does not rely on personal
knowledge. Rather, the Examiner determines that “one of ordinary skill in
the art would have considered using non-circular channels of any shape in
place of the circular channels of Hamilton to be an obvious matter of design
choice which fails to patentably distinguish over the prior art.” (Final
Action 4.) Appellant does not persuasively argue why the Examiner’s
determination is erroneous.
Nonanalogous art
Appellant argues that “neither of the primary reference of Hamilton
and secondary reference of deVirag is directed to applying a cleaning
9
Appeal 2015-000304
Application 13/199,532
product to a surface, and in particular to one’s skin surface during bathing.”
(Appeal Br. 11.) But claim 1 is not so limited. It is directed more generally
to “applying fluid products to a surface to be treated.” Regardless,
Appellant further argues that “[a] main problem with all of the rejections is
that the cited references are not in the same art area as the claimed
invention.” {Id. at 14.)
We consider this to be a nonanalogous art-type argument.
The analogous-art test requires that the Board show that a
reference is either in the field of the applicant’s endeavor or is
reasonably pertinent to the problem with which the inventor was
concerned in order to rely on that reference as a basis for
rejection. In re Oetiker, 977 F.2d 1443, 1447 (Fed.Cir.1992).
References are selected as being reasonably pertinent to the
problem based on the judgment of a person having ordinary skill
in the art. Id. (“[I]t is necessary to consider ‘the reality of the
circumstances,’—in other words, common sense—in deciding in
which fields a person of ordinary skill would reasonably be
expected to look for a solution to the problem facing the
inventor.” (quoting In re Wood, 599 F.2d 1032, 1036 (C.C.P.A.
1979))).
In re Kahn, 441 F.3d 977, 986-87 (Fed. Cir. 2006).
Appellant’s Specification is entitled “An Applicator for Fluid
Products.” (Spec. 1.) Hamilton discloses “improvements in means for
holding and compressing collapsible tubes, such as those in which various
kinds of pastes are marketed, and the invention is intended primarily for use
in connection with an applicator to which the contents of the tube are
delivered when said tube is compressed or collapsed.” (Hamilton, pg. 1,
11. 12—19.) “[Gjels, slurries, and pastes” are fluids, i.e., non-Newtonian
fluids. See Tony Atkins and Marcel Escudier, A Dictionary of Mechanical
Engineering,
10
Appeal 2015-000304
Application 13/199,532
http://www.oxfordreference.eom/view/10.1093/acref/9780199587438.001.0
001/acref-9780199587438-e-4168 (last visited Jan. 17, 2017). Thus, like the
claimed invention, Hamilton relates to an applicator for fluid products.
deVirag is entitled “Spreadable Fluid Material Dispenser Apparatus.”
Specifically, deVirag discloses “an apparatus that dispenses fluid material
and facilitates spreading of the material on a surface.” (deVirag 123.)
Additionally, Gebhard (US 5,186,563) is entitled “Fluid Dispenser
with Applicator Member.”
In short, the references relied on by the Examiner are in the field of
fluid applicators and are reasonably pertinent to the problem of applying a
fluid to a surface. Therefore, we are not persuaded that Hamilton, deVirag,
or Gebhard are nonanalogous art.
Hindsight
Appellant also argues that “[t]he Examiner is using the Applicant’s
disclosure as a blueprint to reconstruct the claimed invention using random
parts from random references.” (Appeal Br. 14.) Appellant explains that
“[t]he basic problem with the present examination is that the cited references
are not very pertinent to the claimed invention.” (Id.)
However, as discussed above, the references relied on by the
Examiner are in the field of fluid applicators and are reasonably pertinent to
the problem addressed by the claimed invention. Additionally, we agree
with the Examiner
that any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning. But so long as
it takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made, and
11
Appeal 2015-000304
Application 13/199,532
does not include knowledge gleaned only from the applicant’s
disclosure, such a reconstruction is proper. See In re
McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
(Answer 9-10). Appellant does not persuasively argue that the Examiner
relied on “knowledge gleaned only from the applicant’s disclosure” or
otherwise used improper hindsight.
Other arguments
Appellant’s other arguments have been considered but are not deemed
persuasive of reversible error.
DECISION
The Examiner’s rejections of claims 1—20 under 35 U.S.C. § 103(a)
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)(l)(iv).
AFFIRMED
12