Morrison, Adam P. et al.

Patent Trials and Appeals Board

Dec 19, 2019

14058770 - (D) (P.T.A.B. Dec. 19, 2019)

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.
14/058,770 10/21/2013 Adam P. Morrison 12-833-US 2603
20306 7590 12/19/2019
MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
300 S. WACKER DRIVE
32ND FLOOR
CHICAGO, IL 60606
EXAMINER
GRUBY, RANDALL A
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
12/19/2019 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 ADAM P. MORRISON and KELLY A. MARKLE
Appeal 2019-003725
Application 14/058,770
Technology Center 3700
Before JENNIFER D. BAHR, BRANDON J. WARNER, and
NATHAN A. ENGELS, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision, set forth in the Final Office Action, dated July 11,
2018 (hereinafter “Final Act.”), to reject claims 1, 4–6, 8, 9, 13, 15, and 22.2
We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
RUST-OLEUM CORPORATION. Appeal Br. 1.
2 Claims 2, 3, 10, 11, 14, 16–21, and 23–25, which are the only other
pending claims, have been withdrawn from consideration. Appeal Br. 5;
Final Act. 1 (Office Action Summary).
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Application 14/058,770

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CLAIMED SUBJECT MATTER
Appellant’s invention is directed to “propellantless aerosol fluid
dispensing systems including a reusable pressurizable canister and one or
more disposable liquid-containing pouches.” Spec. 2. Claim 1, reproduced
below, is illustrative of the claimed subject matter.
1. A propellantless aerosol fluid dispensing system
comprising:
a first assembly including a container having a
pressurizable chamber, a second chamber and a cap, the
combination of the pressurizable chamber and the cap forming
a pressure resistant cap seal, the cap further including at least
one aperture and a pressurizing means for intermittently or
continuously pressurizing the pressurizable chamber wherein a
fixed wall separates the pressurizable chamber from the second
chamber; and
a second assembly including a pressure-collapsible pouch
containing a dispensable fluid material and including a pouch
and valve assembly, the valve assembly including a fitment, a
valve and a nozzle wherein the pouch is sealed to the fitment
such that at least a portion of the fitment is located within the
sealed pouch and wherein the fitment and cap together form a
pressure resistant pouch seal such that the nozzle of the valve
assembly is located outside of the cap and wherein the second
assembly is removable from the first assembly and wherein
when the pressurizable chamber is pressurized with gas, gas
pressure applied to the surface of the pouch containing a
dispensible fluid urges the dispensible fluid in the pouch to exit
the pouch through the valve assembly.
EVIDENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Sims US 3,662,929 May 16, 1972
Coleman US 5,060,826 Oct. 29, 1991

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Application 14/058,770

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REJECTIONS3
I. Claims 1, 4–6, 8, 9, 15, and 22 stand rejected under
35 U.S.C. § 102(b) as anticipated by Coleman.
II. Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Coleman and Sims.
OPINION
Claims 1, 4–6, 8, 9, 15, and 22
In rejecting independent claims 1 and 22, the Examiner read the
claimed “pressurizable chamber” on the chamber defined by the portion of
Coleman’s shell 11 above the fixed wall, on which inflatable impervious
vessel 35 sits, and the fixed wall; the claimed “cap” on Coleman’s cover 25;
the claimed “pressurizing means” on Coleman’s elbow 16, conduit 17, valve
18, pressure regulator 19, compressed air source 20, coupler 21, and reducer
22; the claimed “pressure-collapsible pouch” on Coleman’s compressible
vessel 40; the claimed “second chamber” on the chamber defined by the
portion of Coleman’s shell 11 below the fixed wall, in which elbow 16 and
conduit 17 are disposed, and the fixed wall; and the claimed “fitment,”
“valve,” and “nozzle” on Coleman’s adaptor 47, valve 46, and dispensing
tube 45. Final Act. 6–7.
The Examiner provided an annotated version of an expanded portion
of the bottom of Coleman’s Figure 7, which the Examiner labeled “Figure
A,” to illustrate the structure of Coleman corresponding to the claimed

3 The Examiner withdrew a rejection of claims 1, 4–6, 8, 9, 13, and 15 under
35 U.S.C. § 112, second paragraph. Ans. 3; see Final Act. 5.
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Application 14/058,770

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“fixed wall” and “second chamber.” Final Act. 7. The Examiner’s Figure A
is reproduced below.

The Examiner’s Figure A is an axial sectional view of the bottom
portion of Coleman’s bulk container with Examiner annotations including a
box in dotted lines tracing the lateral wall traversing shell 11 on which the
bottom of inflatable vessel 35 sits and the portion of shell 11 below the
lateral wall, as well as a lead line identifying the dotted line box as the
“second chamber” and a lead line identifying the lateral wall as the “fixed
wall.” See Final Act. 7.
Appellant asserts that “[t]he pouch and its associated fitment are
referred to as the ‘second assembly’ in claim 1. Claim 1 further indicates
that the ‘second assembly is removable from the pressurizable chamber’.
Thus, in claim 1[, it] is clear that the collapsible pouch is located in the
chamber that is pressurized.” Appeal Br. 7. Appellant’s assertion is
incorrect in several respects. First, claim 1 does not recite that the second
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assembly is removable from the pressurizable chamber; rather, claim 1
recites that “the second assembly is removable from the first assembly.”
Appeal Br. 14 (Claims App.). As defined in claim 1, the “first assembly”
does not correspond solely to the “pressurizable chamber,” but, rather, also
includes the “second chamber and a cap.” Id. Further, reciting that one
structure (i.e., the second assembly) is “removable from” another structure
(i.e., the first assembly) is not the same as reciting that the first structure is
removable from within the second structure. Additionally, claim 1 recites a
“pressurizable chamber,” not a pressurized chamber. Id. (emphasis added).
The language “wherein when the pressurizable chamber is pressurized with
gas, gas pressure applied to the surface of the pouch containing a dispensible
fluid urges the dispensible fluid in the pouch to exit the pouch through the
valve assembly” at the end of claim 1 sets forth function to be performed
“when the pressurizable chamber is pressurized with gas,” but does not
require that the pressurizable chamber actually be pressurized with gas.
Thus, for all of these reasons, it is not clear from the recitation “the second
assembly is removable from the first assembly” in claim 1 “that the
collapsible pouch is located in the chamber that is pressurized,” as Appellant
argues. See id. at 7.
Moreover, Coleman’s compressible vessel 40 is located within shell
11 above the fixed wall and, thus, is located in the structure on which the
Examiner reads the claimed “pressurizable chamber.” See Coleman, Fig. 1;
4:45–48; Final Act. 7 (Figure A). Appellant argues that the Examiner’s
finding that the chamber within the upper portion of shell 11 is
“pressurizable,” in that it “does appear to be able to withstand pressure”
(Advisory Act. 2), is “speculative and without any factual support.” Appeal
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Br. 10. In fact, Appellant asserts that if Coleman’s shell 11 were
pressurizable, the pressure would increase as disc or piston 36 moves up as
inflatable vessel 35 is inflated, eventually halting the upward movement of
disc or piston 36 when it equals the pressure in vessel 35, thereby preventing
vessel 40 from being completely compressed and dispensing 100% of its
product as Coleman discloses, thus rendering Coleman’s device inoperable.
Id.
Appellant’s argument is not persuasive. Appellant’s assertion that
pressurization of the upper chamber of shell 11 by inflation of inflatable
vessel 35 and corresponding upward movement of disc or piston 36 would
prevent vessel 40 from compressing sufficiently to empty all of its contents
is itself unsupported attorney argument lacking in technical merit. Notably,
claim 1 does not specify any particular pressure level to which the chamber
must be capable of being pressurized, nor does claim 1 require that the
chamber actually be pressurized, only that it be capable of being pressurized.
Appellant does not point to any evidence in the record, or present persuasive
technical reasoning, to show that the pressure in the upper chamber of shell
11 would reach a level that could not be exceeded by injecting more
compressed air or fluid into vessel 35. Moreover, even assuming the
pressure in the upper chamber would reach a level that would effectively
halt upward movement of disc or piston 36, Appellant does not persuasively
explain why such pressure itself, acting on compressible vessel 40, would be
insufficient to completely compress vessel 40 so that it empties all of its
contents.
Appellant argues that “claim 22 requires the sealed pouch to be
‘located inside a pressurizable container.’ That way, the pressure acting on
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the outside of the claimed pouch can compress the pouch in all directions
and dispense the fluid held in the pouch. Coleman discloses no such
structure.” Appeal Br. 12. Appellant’s argument is not commensurate with
the scope of claim 22 and, thus, is unavailing. It is well established that
limitations not appearing in the claims cannot be relied upon for
patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Claim 22,
unlike claim 1, positively recites “a pouch . . . located in the pressurizable
chamber.” Id. at 15 (Claims App.). However, claim 22 does not recite that
the pressure compresses the pouch in all directions. Rather, claim 22 recites
that “the pouch is made of a pressure malleable material that collapses under
pressure.” Id.
Moreover, Appellant’s argument does not apprise us of error because,
as discussed above, Coleman’s compressible vessel 40 is located within shell
11 and, thus, is located in the structure on which the Examiner reads the
claimed “pressurizable chamber,” and Appellant’s arguments contesting the
Examiner’s finding that the upper chamber of shell 11 is “pressurizable” are
unpersuasive for the reasons discussed above.
Appellant also contends that “Coleman does not disclose a fixed wall
that separates the pressurizable chamber from the second chamber,” as
recited in claims 1 and 22. Appeal Br. 11. Appellant submits that “[in]stead
of disclosing a fixed wall between the chamber in which the collapsible
pouch is held and the adjacent second chamber, Coleman discloses the
opposite – a movable piston or disc.” Id. This argument lacks merit. As
illustrated in the Examiner’s annotated Figure A, reproduced above, a fixed
wall disposed directly below vessel 35 separates the upper chamber of shell
11 (the “pressurized chamber”) from the lower chamber (the “second
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chamber”) in which elbow 16 and conduit 17 are disposed. The “movable
piston or disc” (i.e., disc or piston 36) to which Appellant alludes is located
within the upper chamber (the “pressurizable chamber”). We do not discern,
and Appellant does not direct our attention to, any recitation in either claim
1 or claim 22 that would exclude such a movable structure.
Appellant argues:
Independent claim 1 is not anticipated because Coleman does
not disclose a chamber that is pressurized with gas such that the
gas pressure itself acts on the surface of the pouch containing a
dispensable fluid to urge the dispensable fluid in the pouch to
exit the pouch through the valve assembly. Indeed, the
Coleman device operates by mechanically compressing a
compressible vessel using a moving piston or disc and,
therefore does not use or require a compressible vessel located
in a pressurized container.
Appeal Br. 8. Notably, the clause of claim 1 apparently alluded to by
Appellant, namely, “wherein when the pressurizable chamber is pressurized
with gas, gas pressure applied to the surface of the pouch containing a
dispensible fluid urges the dispensible fluid in the pouch to exit the pouch
through the valve assembly” (id. at 14 (Claims App.)), does not specify that
the gas pressure is applied directly to the surface of the pouch, rather than
via a disc or piston acted on by the gas pressure. Further, as discussed
above, this “wherein” clause sets forth a function to be performed when the
pressurizable chamber is pressurized with gas, but the claim does not
positively require that the pressurizable chamber in fact be pressurized with
gas. Thus, for these reasons, Appellant’s argument is not commensurate
with the scope of claim 1.
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For the above reasons, Appellant does not apprise us of error in the
rejection of independent claims 1 and 22 as anticipated by Coleman.
Accordingly, we sustain the rejection of claims 1 and 22, as well as claims
4–6, 8, 9, and 15, which depend from claim 1 and for which Appellant does
not present any separate arguments, as anticipated by Coleman. See
37 C.F.R. § 41.37(c)(1)(iv) (permitting the Board to select a single claim to
decide the appeal as to a single ground of rejection of a group of claims
argued together); Appeal Br. 12 (urging the Board to “reverse the
[E]xaminer’s anticipation rejection of all claims because [Appellant] has
demonstrated that . . . Coleman . . . does not disclose every feature of
independent claims 1 and 22”).
Claim 13
Appellant does not present any additional arguments contesting the
rejection of claim 13 as unpatentable over Coleman and Sims, instead
relying on the arguments presented for claim 1. See Appeal Br. 11 (urging
the Board to “reverse the rejection of claim 13 for being obvious at least by
virtue of its dependence upon independent claim 1”). For the above reasons,
Appellant fails to demonstrate error in the Examiner’s finding that Coleman
anticipates the subject matter of claim 1. Thus, for the same reasons,
Appellant fails to apprise us of error in the rejection of claim 13 as
unpatentable over Coleman and Sims, which we, thus, sustain.
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Application 14/058,770

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1, 4–6, 8, 9,
15, 22
102(b) Coleman  1, 4–6, 8,
9, 15, 22

13 103(a) Coleman, Sims  13
Overall
Outcome
1, 4–6, 8,
9, 13, 15,
22

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED