Ex Parte Heath

Patent Trial and Appeal BoardJan 23, 2013

11198827 (P.T.A.B. Jan. 23, 2013)

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. 11/198,827 08/05/2005 Edward H. Heath 04-666 1704 34704 7590 01/24/2013 BACHMAN & LAPOINTE, P.C. 900 CHAPEL STREET SUITE 1201 NEW HAVEN, CT 06510 EXAMINER BAKER, LORI LYNN ART UNIT PAPER NUMBER 3751 MAIL DATE DELIVERY MODE 01/24/2013 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 EDWARD H. HEATH ____________________ Appeal 2011-000042 Application 11/198,827 Technology Center 3700 ____________________ Before: WILLIAM V. SAINDON, SCOTT A. DANIELS, and JILL D. HILL, Administrative Patent Judges. DANIELS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000042 Application 11/198,827 2 STATEMENT OF CASE Edward H. Heath (Appellant) appeals under 35 U.S.C. § 134 from a rejection of claims 1-10, 12, 17 and 18. Claim 1 is the only independent claim, and claims 11 and 13-16 are withdrawn. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION The claims are directed to a dual action flushing assembly for toilets which allows the user to operate a flush handle to select either a full flush, or a partial flush to conserve water. Spec. 1. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A flusher assembly for a toilet having a single flapper valve, comprising: a main body adapted for mounting to a toilet tank; and a flush handle assembly comprising a shaft rotatably mounted within the main body and operable in a full flush rotation position and a limited flush rotation position, the flush handle assembly further comprising a handle connected to the shaft, a lift arm extending from the shaft, and a chain attached from the lift arm to the single flapper valve, whereby flushing in the limited flush rotation position lifts the chain and the single flapper valve to a partially open position, and flushing in the full flush rotation position lifts the chain and the single flapper valve to a fully open position. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Smolinski Coetzee US 3,758,893 US 3,777,316 Sep. 18, 1973 Dec. 11, 1973 Appeal 2011-000042 Application 11/198,827 3 Tsai US 5,396,666 Mar. 14, 1995 REJECTIONS The Examiner made the following rejections: Claims 1-10 and 12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Coetzee and Tsai. Ans. 4. Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Coetzee and Tsai in view of Smolinski. Ans. 5.1 ANALYSIS Appellant argues claims 1-8, 10 and 12 as a group, where claim 6 is the only independent claim, and present separate argument as to dependent claims 9 and 17-18 which each depend directly or indirectly from claim 1. See App. Br. 9-11. We select claim 1 as representative of the group where claims 2-8, 10 and 12 stand or fall with claim 6, and address in turn Appellant’s separate arguments as to dependent claims 9 and 17-18. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). Claims 1-10 and 12 as unpatentable over Coetzee and Tsai. Claim 1 recites a flush handle assembly comprising a shaft rotatably mounted within the main body and operable in a full flush rotation position and a limited flush rotation position…a handle connected to the shaft, a lift arm extending from the shaft, and a chain attached from the lift arm to the single flapper valve. 1 In the Answer, the Examiner withdrew the anticipation rejection of claims 1-10 and 12, the obviousness rejection of claims 17 and 18 over Jones in view of Smolinski, the indefiniteness rejection of claims 1, 9, and 18, and the new matter rejection of claims 1-10, 12, 17, and 18. Ans. 3. Appeal 2011-000042 Application 11/198,827 4 Emphasis added. The Examiner rejects the claim, observing that Coetzee discloses all the elements of claim 1 with the exception of a chain and flapper valve and concludes that Tsai “discloses an analogous flusher assembly which further includes a chain 30 and flapper valve 40.” Ans. 4-5. The Examiner found that “it would have been obvious to one of ordinary skill in the flusher assembly art to associate a chain and flapper with the Coetzee valve as being a common type of toilet flush valve which also exhibits dual flush capability.” Id. at 5. Appellant argues with regards to claims 1-8, 10 and 12 that Coetzee and Tsai’s flushing mechanism are entirely different and would not be combinable by a person skilled in the art. App. Br. 9. Appellant explains that Coetzee uses lost motion, cantilevers and cam-action to actuate different flushing modes, while Tsai is designed to have a neutral position, an upward position and a downward position. These handle assemblies cannot be exchanged with each other, and a person of skill in the art would not expect any success in attempting to do so. App. Br. 9. Coetzee discloses a handle for a toilet flushing assembly having partial flush and full flush capability. Coetzee col. 4, ll. 35-55. Referring to Figure 4, Coetzee describes that [w]hen the handle 210 is now depressed a partial flush of the cistern takes place. If the user wants to effect a full flush, he pulls the handle 210 so that the handle shaft 212 moves axially and the stud 234 is in the base portion 238 of the slot 232. On depressing the handle 210 the shaft 212 can now rotate through a large angle and the full flush results. Coetzee col. 4, ll. 49-55. The difference between the full and partial flush in Coetzee occurs due to the size and shape of the slot 232 and the relative location in the slot 232 of the stud 234. See Coetzee Fig. 4. Located as Appeal 2011-000042 Application 11/198,827 5 shown by Figure 4 in the smaller portion of the slot 232, the handle cannot rotate through as large an angle as when the stud 234 is in the larger portion of the slot 232. Thus, for each of the embodiments disclosed in Coetzee, it is the operation, i.e., the permitted rotation angle, of the flush handle in Coetzee which determines either a partial or full flush. The Appellant’s contention that Tsai is not combinable with Coetzee because the flushing assemblies have different structures and operate in different ways is not persuasive because the Examiner is merely using Tsai to show that a flapper valve is a commonly known toilet valve that can be used with a dual capacity flush handle assembly. Ans. 6. Whether or not the structures of Tsai’s and Coetzee’s mechanisms are in fact physically combinable is immaterial. See In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (pointing out that “[c]ombining the teachings of references does not involve an ability to combine their specific structures.”). Additionally, the Examiner found that Coetzee’s handle is not limited to use with a particular type of flush valve assembly. Ans. 6. Besides the siphon valve(s) shown in Figures 1 and 3, Coetzee describes the use of the flush handle with float valve(s) (see Figures 2 and 6), to either partially or fully raise valve(s) 38 or 112 off their respective seating depending on whether a partial or full flush is desired. See Coetzee col. 2, ll. 19-26 and col. 3, l. 35 – col. 4, l. 16. Indeed, Coetzee explains that the handle assembly described can be used with other types of flushing valves: “[f]urther, it will be understood that the handle operating arrangements of FIGS. 4 and 5 may be substituted for those described with reference to FIGS. 1, 2 and 3 and conversely the operating system of those Figures may be embodied in the cistern of FIG. 6.” Id. col. 5, ll. 35-39. Appeal 2011-000042 Application 11/198,827 6 Appellant’s argument focuses on the specific flushing valve structure and function in the prior art and do not take into account the broader teachings of Coetzee, nor that the Examiner has only used Tsai for its disclosure of a chain flapper valve. In this regard, the Appellant presupposes that all of the teachings in Tsai, including all its structure and function, must be incorporated into Coetzee in order for the combination to be adequately supported. However all the features of the secondary reference need not be bodily incorporated into the primary reference. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (explaining that “the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). We are therefore not persuaded of any error in the Examiner’s finding that “it would have been obvious to one of ordinary skill in the flusher assembly art to associate a chain and flapper with the Coetzee valve as being a common type of toilet flush valve which also exhibits dual flush capability.” Ans. 5, and see Tsai col. 4, ll. 15-28. Appellant also argues that the Coetzee reference discloses an inoperable device and that Coetzee’s assertions regarding the functionality of the handle during a partial flush are not true because due to the weight of the linkages and the force of the water on the flush valves “the ‘pull’ of the vacuum along with gravity working on these components will cause the assembly to fall back down and stop the flushing action.” App. Br. 10. We acknowledge this argument, but as such it is merely attorney argument directed only to the Coetzee reference, and provides no actual evidence that the Examiner’s findings are in error. See In re Sasse, 629 F.2d 675, 681 (CCPA 1980) (the burden is on applicant to provide facts rebutting the presumption of operability). We are therefore not apprised of error in the Appeal 2011-000042 Application 11/198,827 7 rejection of claim 1, and dependent claims 2-8, 10 and 12 fall therewith for the same reasons. Turning to claim 9, Appellant contends that “the ‘sloped surface’ of Coetzee in column 4, lines 47-49 does not remotely resemble the claimed subject matter.” We are not persuaded by this argument because the Examiner’s interpretation of Coetzee’s Figure 4, and the related description discussed supra, is a fair reading of Coetzee’s disclosure, including the drawings and written description. We agree with the Examiner’s finding that Coetzee’s Figure 4 discloses a sloped surface between portions 238 and 236 that is sloped toward the slot portion 236 “whereby the sloped end surface guides the pin back to the slot when the shaft is returning to a rest position from a full flush pivoted position” as stated in claim 9. App. Br. 6-7. Appellant has not apprised us of error in this finding. Accordingly, we are not apprised of error in the Examiner’s findings and therefore we sustain the Examiner’s rejections of claims 1-10 and 12 as unpatentable over Coetzee in view of Tsai. Claims 17 and 18. Claims 17 and 18 recite the flush handle and flush handle assembly according to claim 1 further having indicia indicating a direction of movement to accomplish either the partial or full flush. The Examiner relies on Figure 5 of Smolinski which discloses a handle having indicia indicating operation for desired flushes. Appellant does not offer separate arguments regarding the Examiner’s rejection of claims 17 and 18, and therefore for the reasons discussed supra Appeal 2011-000042 Application 11/198,827 8 we sustain the rejection of claims 17 and 18 as unpatentable over Coetzee, Tsai and Smolinski. DECISION For the above reasons, the Examiner’s rejections of claims 1-10, 12, 17, and 18 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)(1)(iv) (2011). AFFIRMED hh