Ex Parte Sell

Patent Trial and Appeal Board

Jan 30, 2017

13818124 (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.
13/818,124 02/21/2013 Steven A. Sell 22070-USPCT 9519
66061 7590
WESTROCK COMPANY
ATTN: IP LAW GROUP - PATENTS
501 South 5th Street, 3rd Floor
Richmond, VA 23219-0501
EXAMINER
CHEYNEY, CHARLES
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
02/01/2017 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 STEVEN A. SELL
Appeal 2015-003393
Application 13/818,1241
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Steven A. Sell (Appellant) appeals under 35 U.S.C. § 134(a) from the
Examiner’s final decision rejecting claims 1—11 under 35 U.S.C. § 103(a) as
unpatentable over Strand (US 2009/0283609 Al, pub. Nov. 19, 2009) and
Landsman (US 3,765,573, iss. Oct. 16, 1973), as well as, claims 12—14
under 35 U.S.C. § 103(a) as unpatentable over Mascia (US 4,187,963, iss.
Feb. 12, 1980) and Strand. We have jurisdiction over this appeal under 35
U.S.C. § 6(b).
We REVERSE.
1 According to Appellant, the real party in interest is MeadWestvaco Calmar,
Incorporated. Appeal Br. 3 (filed August 18, 2014).
Appeal 2015-003393
Application 13/818,124
INVENTION
Appellant’s invention “relates to aerosol sprayer devices and more
particularly to simplified aerosol actuators.” Spec. 12.
Claims 1 and 12, reproduced below, are independent and illustrative
of the claimed invention.
1. An aerosol actuator, comprising:
a base, comprising at least one valve guide sloping from
an opening at a bottom of the base to a narrow hole\ and
a trigger, comprising:
a cap portion;
a trigger portion; and
a manifold integrally formed with the trigger portion and
having an end seated in the narrow hole of the valve guide.
12. An aerosol actuator, comprising:
a base, comprising:
at least one container connection adjacent a lower portion
of the base;
a valve guide positioned above the at least one container
connection, wherein the valve guide comprises a
wall sloping from an opening near a bottom of the
base to a narrow hole further away from the bottom
of the base; and
at least one snap fitment adjacent an upper portion of the
base;
a trigger attached to the base, comprising:
a cap portion;
at least one snap attachment extending downward from the
cap portion and snap-fit to the at least one snap fitment of the
base;
a trigger portion extending from the cap portion;
a living hinge in the cap portion and connected to the
trigger portion; and
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Appeal 2015-003393
Application 13/818,124
a manifold, wherein an end of the manifold is seated in the
narrow hole of the valve guide.
Appeal Br. (Claims App.) (emphasis added).
ANALYSIS
Claims 1—11
Rejecting claims 1—11, the Examiner finds “Strand discloses the
claimed invention except for the valve guide sloping from the opening at the
base bottom to a narrow hole,” which independent claims 1 and 7 require.
Final Act. 3. Strand teaches a one-piece aerosol spray cap, which includes
an integrally formed finger trigger portion and a base for engaging a
mounting cup that holds the valve actuator. Strand Tflf 9, 36, 37, 40, Figs. 1—
3. The base 5 also includes a V-shaped trigger support 22 above the collar
8, which has a solid ramp on the front portion 23 that assists in directing the
down tube 7 into the central opening, so that the down tube 7 can engage
and communicate with the valve stem V. Id. Tflf 9, 37, 39, Figs. 1—3.
Citing elements 31’ (as showing a valve guide), 33’ (as showing a
slope), 32’ (as showing an opening), and 34’ (as showing a narrow hole)
from Fandsman, the Examiner finds the prior art discloses the “valve guide
sloping from the opening at the base bottom to a narrow hole” claim element
missing in Strand. Final Act. 3 (citing Fandsman, 4:18—20, Fig. 4). The
Examiner concludes,
[i]t would have been obvious to one having ordinary skill in the
art at the time the invention was made to have the valve guide
slope to a narrow hole as taught by Fandsman, since Fandsman
states in column 4, lines 19—20 that such a modification aligns
the valve with the narrow hole allowing for unimpeded channel
for dispensing.
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Appeal 2015-003393
Application 13/818,124
Id.; see also Ans. 2. Taking exception to the Examiner’s rationale for
combining Strand and Landsman, Appellant argues it lacks a rational
underpinning. Appeal Br. 9-11.
Appellant asserts element 31’, which Landsman calls a
“protuberance” (col. 2,1. 50), is an actuator rather than a “valve guide.”
Appeal Br. 9. Landsman is directed to an “actuating cap,” which is designed
“to protect the nozzle from accidental discharge in one position of the cap
and which with a simple operation may be moved to a second position and
affixed to the container to actuate such nozzle and retain the latter in
actuated condition.” Landsman, Title, 1:38—42. Appellant points out that
Landsman describes element 31 as having an “internal conical cavity 32, the
apex 33 of which has a discharge opening 34 of relatively small diameter . . .
[the] inclined inner surface of the conical wall 35 of the protuberance 31
forms a cam surface to actuate the nozzle 13.” Appeal Br. 9 (quoting
Landsman, 2:49-61). Landsman further states, “the nozzle 13’ will abut
against the inner wall 35’ of the cavity 32’ ... [so that] with further
downward movement of the cap . . ., the nozzle 13’ will be displaced
inwardly and actuated for release of the contents of the container through the
discharge opening 34’.” Landsman, 4:15—26.
Even if the claimed “valve guide,” given its broadest reasonable
interpretation, may encompass the “protuberance” of Landsman because it
provides direction to the nozzle, Appellant appropriately points out that the
purpose for the protuberance in Landsman is to apply a directional force to
the nozzle to actuate the associated valve. In addition, the protuberance of
Landsman is located on a transverse wall of the cap, which is distanced from
both the top and bottom of the cap to create chambers A and B, which are
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Application 13/818,124
designed to collect undesired contents released from the container.
Landsman, at 3:28—39, Fig. 2. Therefore, the “valve guide” of Landsman
does not slope from the opening at the base bottom to a narrow hole, as
independent claims 1 and 7 require, nor does Landsman suggest using the
protuberance to facilitate a valve/manifold connection, which is the purpose
the Specification, at paragraphs 71—73, 77, and 78, ascribes to the claimed
valve guide.
“[Federal Circuit] precedent dictates that the [Examiner] must make a
finding of a motivation to combine when it is disputed.” In re Nuvasive,
Inc., 842 F.3d 1376, 1382 (Fed. Cir. 2016). “Although identifying a
motivation to combine ‘need not become [a] rigid and mandatory formula[],’
KSRInt'l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007), the [Examiner] must
articulate a reason why a PHOSITA would combine the prior art
references.” Id. The Examiner “must examine the relevant data and
articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Id. (quoting
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
In this case, the Examiner was obligated to articulate a reason why a
skilled artisan would have modified Strand to have a “valve guide sloping
from the opening at the base bottom to a narrow hole.” A skilled artisan
would have made that modification, according to the Examiner, because
Landsman teaches a structure that aligns the valve with a narrow hole and
allows for an unimpeded channel for dispensing. Final Act. 3; Ans. 2.
Missing from the Examiner’s obviousness determination, however, is any
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Application 13/818,124
explanation of why knowledge of Landsman’s dispensing structure would
have led a skilled artisan to change the alignment structure Strand discloses.
In particular, the Examiner fails to set forth a rational connection
between Landsman’s actuating structure that aligns a valve to facilitate
dispersion and why a skilled artisan would modify, in Strand, the V-shaped
trigger support 22 above the collar 8, which has a solid ramp on the front
portion 23 that assists in directing the down tube 7 into the central opening
so that the down tube 7 can engage and communicate with the valve stem V,
to have a base with a valve guide that slopes from an opening near a bottom
of the base to a narrow hole further away from the bottom of the base. This
is particularly problematic in this case because Landsman does not suggest a
structure that facilitates a valve/manifold connection or a structure that has a
wall sloping from near the bottom of the base. Nor does Strand disclose or
suggest a base with a valve guide that slopes from near the bottom of the
base to an opening with a manifold seated therein. Therefore, we do not
sustain the Examiner’s obviousness determination of claim 1 and 7 because
it lacks a rational underpinning and, for the same reasons, we also do not
sustain the obviousness determination of dependent claims 2—6 and 8—11.
Claims 12—14
The Examiner determines claims 12—14 are an obvious combination
of elements Mascia and Strand disclose. Final Act. 3^4. Similar to claims 1
and 7 discussed above, independent claim 12 requires a base with a “valve
guide compris[ing] a wall sloping from an opening near a bottom of the base
to a narrow hole further away from the bottom of the base.” Appeal Br. 18
(Claims App.). Having already found Strand does not disclose a valve guide
sloping from the opening at the base bottom to a narrow hole (Final Act. 3),
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Application 13/818,124
the Examiner relies on Mascia to disclose the valve guide claim 12 recites.
Final Act. 4. Mascia relates to an adapter ring for a dispensing overcap that
“includes an axially movable valve stem adapter which provides a fluid
connection between the dispensing overcap and the valve stem of the aerosol
can.” Mascia, Abstract. “The valve stem adapter 43 includes a lower ring
portion 44 which is connected to the inner ring 40 by a plurality of
circumferentially spaced arms 45,” which are tapered in width from their
lower ends to the ring 44, as shown in Figures 3 and 4 reproduced below.
Id. at 2:64—3:2, Figs. 3, 4.
The above figures are “an enlarged plan view of the adapter ring” (Figure 3)
and “an enlarged fragmentary vertical sectional view” (Figure 4) of the
Mascia device. Id. at 1:47-49. Mascia teaches that, when a downwardly
directed pressure is applied to the overcap 10, “the arms 45 flex and permit
the valve stem adapter 43 to move downwardly, thereby causing downward
movement of the valve stem 48 open the valve with which it is associated.”
Id. at 3:22—27. The Examiner finds elements 44 and 45 of Mascia’s adapter
ring disclose the claimed valve guide. Final Act. 4.
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Application 13/818,124
Appellant persuasively argues “the alleged basis for the rejection of
claim 12 is flawed in that the components alleged to act as a ‘valve guide’ do
not do so.” Appeal Br. 13. Appellant correctly notes that Mascia teaches
that the valve stem adapter 43 includes a valve guide by stating, “[t]he valve
stem adapter 43 has a lower socket 46 defined by a bore which includes a
conical lower portion 47 so that the upper end of the valve stem 43 [sic] may
be readily telescoped into the socket 46 and seated therein in sealed
engagement.” Id. (quoting Mascia, 3:3—7). Nevertheless, that valve guide
differs from the claimed one because it has a wall that slopes from an
opening near the top of the valve stem adapter rather than having “a wall
sloping from an opening near a bottom of the base,” as claim 12 requires.
Still, even though Mascia specifically discusses a structure for guiding
the valve stem, Mascia does not suggest or indicate elements 45 and 44,
which the Examiner finds is a valve guide, serve any function toward
accomplishing that purpose. To the contrary, Mascia describes the structural
design of elements 45 and 44 as providing “flex” to enable overcap 10
operate in a conventional manner when a downward force is applied to
actuate the valve. Mascia, 2:64—3:2, 3:22—27, Figs. 3, 4. Although the
Examiner finds, “legs (45) of Mascia provide for separate guides as they
clearly direct anything in contact with them towards fluid communication
with the manifold with their convex nature toward said manifold,” (Ans. 4),
a preponderance of the evidence fails to support this finding. Therefore,
because Examiner has not established Strand or Mascia disclose the claimed
valve guide that has “a wall sloping from an opening near a bottom of the
base to a narrow hole further away from the bottom of the base,” we do not
sustain the Examiner’s rejection of claims 12—14.
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Appeal 2015-003393
Application 13/818,124
DECISION
The Examiner’s rejections of claims 1—14 are reversed.
REVERSED
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