Ex Parte May et al

Patent Trial and Appeal BoardFeb 19, 2019

12362062 (P.T.A.B. Feb. 19, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/362,062 01/29/2009 30662 7590 02/19/2019 Schacht Law Office, Inc. 310 E. Magnolia Street Suite 201 BELLINGHAM, WA 98225 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR Richard J. May 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. 505505.00055 9368 EXAMINER LE,HUYEND ART UNIT PAPER NUMBER 3754 MAIL DATE DELIVERY MODE 02/19/2019 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 RICHARD J. MAY, PHILIP J. BL YSKAL, and GEORGE CLARK Appeal2017-003404 Application 12/362,062 1 Technology Center 3700 Before PHILIP J. HOFFMANN, BRADLEY B. BAY AT, and AMEE A. SHAH, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. Â§ 134(a), Appellants appeal from the Examiner's rejection of claims 1-16, 18-26, 28--43, 59, and 60. We have jurisdiction under 35 U.S.C. Â§ 6(b ). Appellants argued before the Board on February 11, 2019. We REVERSE. 1 Appellants identify "James Alexander Corporation" as the real party in interest. Appeal Br. 3. Appeal2017-003404 Application 12/362,062 According to Appellants, "[ t ]he invention relates ... to a dispenser for a flowable material or substance[,] and[,] more particularly, to a dispenser having a membrane having enhanced rupturing characteristics for allowing a flowable substance to be contained and dispensed as desired." Spec. ,r 3. Claims 1, 34, 43, 59, and 60 are the independent claims on appeal. Below, we reproduce claim 59 as illustrative of the appealed claims. 59. A dispenser for dispensing a flowable material, the dispenser comprising: a container having an outer wall and a membrane collectively defining a first chamber configured to contain a flowable material, the membrane extending from the outer wall at an angle, wherein the angle is in the range from approximately 20Â° to 22.5Â°, the membrane having a thickness and a weld seam, the weld seam having a thickness less than the thickness of the membrane, wherein the weld seam thickness is in the range of approximately .003 inches to .004 inches. REJECTIONS AND PRIOR ART The Examiner rejects the claims as follows 2 : I. Claims 1-14, 18-26, 28--40, 3 43, 59, and 60 under 35 U.S.C. Â§ 103(a) as unpatentable over Haber et al. (US 5,490,736, iss. Feb. 13, 1996) (hereinafter "Haber") and Song (US 3,567,061, iss. Mar. 2, 1971); and 2 We combine two rejections from the Final Office Action. 3 Although the Examiner appears to reject claims 28 and 29, we are unable to locate the Examiner's specific findings regarding these claims. Final Office Action 2--4. 2 Appeal2017-003404 Application 12/362,062 II. Claims 15, 16, 41, and 42 under 35 U.S.C. Â§ 103(a) as unpatentable over Haber, Song, and Baumann (US 3,684,136, iss. Aug. 15, 1972). ANALYSIS Reiection I As set forth above, independent claim 59 recites "a container having an outer wall and a membrane collectively defining a first chamber configured to contain a flowable material, ... the membrane having a thickness and a weld seam." Appeal Br., Claims App. Each of independent claims 1, 34, 43, and 60 includes a similar recitation. Id. In support of the independent claims' rejection, the Examiner relies on Haber's score line to disclose the claimed weld seam, and on Song's disclosure of forming a score line during a molding process. See, e.g., Final Action 2 (citations to Haber and Song omitted); see, e.g., Answer 7-8 ( citations omitted). Appellants argue that the Examiner errs because both Haber and Song disclose score lines, and "[ r ]egardless of whether [a] score line is formed from a removal of material or formed in an injection molding process, the resulting score lines do not result from the abutment of flow fronts that are required to form the claimed weld seam." Reply Br. 5. "Accordingly, the claimed weld seam is structurally different from the score lines disclosed by the prior art." Id. Based on our review of the record, the Examiner does not support adequately that either Haber's or Song's score line corresponds to the claimed weld seam. Appellants' Specification consistently describes a weld seam as formed by abutting flow fronts. See, e.g., Spec. ,r 25 ("As explained in 3 Appeal2017-003404 Application 12/362,062 greater detail below, the mold segments 60, 62 are formed together that abut to form a weld seam 40."), ,r 26 ("As shown in FIGS. 5 and 7, adjacent mold segments 60, 62 from an injection molding process abut with one another to form the weld seams 40."), ,r 30 ("As will be described in greater detail below, and as generally shown in FIGS. 5-6, and 14--16, a first segment 60 of injected molded material abuts a second segment 62 of injected molded material to form the weld seam 40."), ,r 44 ("The material continues to flow into the membrane space 108 and then the adjacent mold segments 60, 62 abut at the interface area 64 to form the weld seams 40."). Further, Appellants' Specification differentiates a weld seam from other "rupturable members," including members that are rupturable after "scoring." Id. ,r 26; see also id. ,r 47 ("In addition, because the membrane 34 is molded to have the weld seams, radial depressions, or bands, an additional manufacturing step such as scoring to create a weakened rupturable member is unnecessary. . . . It is also understood that in certain embodiments of the multi-chambered dispenser, the rupturable member could be other than a weld seam if desired. For example, a scored line could be provided, a frangible seam, or other rupturable member."). Thus, the broadest, reasonable interpretation of the claim term "weld seam" includes a structure formed by abutting flow fronts, which is distinct from a score line. This interpretation is also entirely consistent with the Declaration of Angela C. McIntosh, dated December 17, 2014. See, e.g., Declaration ,r,r 9-10, 16. Because the Examiner does not demonstrate that either Haber or Song discloses a structure formed by abutting flow fronts, we agree with Appellants that neither reference discloses the claimed weld seam. Thus, we do not sustain the Examiner's obviousness rejection of any of independent 4 Appeal2017-003404 Application 12/362,062 claims 1, 34, 43, 59, and 60, or of dependent claims 2-14, 18-26, 28-33, and 35--40. Rei ection II Claims 15, 16, 41, and 42 depend from independent claims 1 and 34. The Examiner does not rely on Baumann to remedy the above-discussed deficiency in the rejection of claims 1 and 34. Thus, we do not sustain the Examiner's obviousness rejection of claims 15, 16, 41, and 42. DECISION We REVERSE the Examiner's obviousness rejections of claims 1-16, 18-26, 28--43, 59, and 60. REVERSED 5