Richard Bloc et al.

Patent Trials and Appeals Board

Aug 29, 2019

14355159 - (D) (P.T.A.B. Aug. 29, 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.
14/355,159 04/29/2014 Richard Bloc 008165.10005 5902
22908 7590 08/29/2019
BANNER & WITCOFF, LTD.
71 SOUTH WACKER DRIVE
SUITE 3600
CHICAGO, IL 60606
EXAMINER
CERNOCH, STEVEN MICHAEL
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
08/29/2019 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):
eofficeaction@bannerwitcoff.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICHARD BLOC and BERNARD CLERGET
____________

Appeal 2017-0115361
Application 14/355,1592
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, KENNETH G. SCHOPFER, and
TARA L. HUTCHINGS, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the rejection of
claims 1–15. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 Our decision references the Appeal Brief (“Appeal Br.,” filed Feb. 7,
2017), the Reply Brief (“Reply Br.,” filed Sept. 11, 2017), the Examiner’s
Answer (“Ans.,” mailed July 10, 2017), and the Final Office Action (“Final
Act.,” mailed July 8, 2016).
2 According to Appellants, the real party in interest is “ALBEA LE
TREPORT.” Appeal Br. 2.
Appeal 2017-011536
Application 14/355,159

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BACKGROUND
The Specification discloses that “[t]he invention concerns a
dispensing head for a system for dispensing a pressurized product, a
dispensing system comprising such a head fixed to a tube for feeding the
pressurized product and a bottle containing a product to be dispensed under
pressure by means of such a dispensing system.” Spec. 1, ll. 1–4.
ILLUSTRATIVE CLAIM
Independent claim 1 is illustrative of the appealed claims and recites:
1. Dispensing head for a system for dispensing a pressurised
cosmetic or pharmaceutical product, said head comprising a
body having a well for mounting said head on a tube for feeding
pressurised cosmetic or pharmaceutical product and a housing in
communication with said well, said housing being equipped with
an insert around which a sleeve is disposed to form a path for
dispensing the cosmetic or pharmaceutical product between said
well and a dispensing orifice formed in a wall of said sleeve that
is disposed opposite a wall of said insert, said head being
characterised in that at least one of the walls of the sleeve and of
the insert has a surface intended to be in contact with the
cosmetic or pharmaceutical product, said surface comprising
metallic copper.
Appeal Br. 9.
REJECTION
The Examiner rejects claims 1–15 under 35 U.S.C. § 103(a) as
unpatentable over Bandawat3 in view of Nicolai.4

3 Bandawat et al., US 2009/0174086 A1, pub. July 9, 2009.
4 Nicolai et al., US 2008/0257985 A1, pub. Oct. 23, 2008.
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Application 14/355,159

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DISCUSSION
With respect to claim 1, the Examiner finds that Bandawat discloses a
dispensing head including a housing with a sleeve and insert as claimed,
except that Bandawat does not teach a surface of the sleeve and insert
comprising metallic copper. Final Act. 2–3 (citing Bandawat Figs. 1, 10;
¶¶ 29, 31–34). To cure this deficiency, the Examiner relies on Nicolai.
Specifically, the Examiner finds that “Nicolai teaches wherein the surface
comprising metallic copper,” and the Examiner determines that “it would
have been obvious to an individual having ordinary skill in the art at the time
of invention to modify Bandawat in view of the teachings in Nicolai to
provide . . . the surface comprising metallic copper in order to provide
bactericidal properties.” Id. at 3 (citing Nicolai ¶ 24). The Examiner also
determines that the claim recitation of “cosmetic or pharmaceutical product”
is considered an intended use and is afforded limited patentable weight. Id.
We are persuaded of error in the rejection by Appellants’ argument
that the Examiner has not identified an adequate reason to support the
conclusion of obviousness.
Bandawat discloses a handheld cooling apparatus. Bandawat ¶ 1.
Bandawat’s apparatus includes a cap 15 including a nozzle 27 with an insert
26 and an inner tube 25 through which water is delivered to the nozzle. See
Bandawat Fig. 10; ¶¶ 33, 34. Bandawat does not appear to disclose any
specific materials that may be used for these components. However,
Bandawat discloses a pressure gauge for use in the apparatus, which
includes a copper tube. Id. ¶ 35. Bandawat does not appear to specifically
explain why copper is the preferred material for this tube. See id.
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Application 14/355,159

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Nicolai teaches a mist spraying device including, inter alia, a mist
spraying manifold 14 with mist spraying nozzles; a particle filter 16; an
ultrafiltration filter 18; an Ultra Violet Type C (“UVC”) bank chamber 20;
and pipes 11, 24, 28, 30 connecting the various elements of the device. See
Nicolai Figure; Abstract; ¶¶ 11–16, 24. Nicolai discloses that the particle
filter; the ultrafiltration filter; and UVC are provided “to obtain maximum
decontamination, which is the aim of the invention.” Id. ¶ 16. Nicolai also
discloses that the pipes connecting the device elements “are preferably made
of copper, which is a bactericidal metal, or made of copper alloy.” Id. ¶ 24.
However, Nicolai does not appear to discuss the specific structure of the
nozzles used or indicate that the nozzle structure should include the same
antibacterial properties as the piping system for the water used in the device.
We agree with Appellants that the Examiner has not set forth an
adequate reason to support the conclusion that it would have been obvious to
modify Bandawat’s dispensing nozzle 27 or insert 26 to include copper
surfaces as required by the claim. Notably, neither reference relied upon
discusses material requirements for the misting nozzles used. Further,
Nicolai’s disclosure of a mist spraying device designed to “obtain maximum
decontamination” without providing the specific structure or materials of the
nozzle suggests that the specific materials used in the nozzle are not a
concern in maintaining decontamination. Thus, given the disclosures of
Bandawat and Nicolai it is unclear why one of ordinary skill in the art would
have found it obvious to use any specific material in Bandawat’s nozzle or
insert. Rather, at best, Nicolai’s teachings would only logically lead one of
ordinary skill in the art to provide a specific material, i.e. copper, for the
interior surfaces in Bandawat water tank 11, such as inner tube 25, to obtain
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Application 14/355,159

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copper’s bactericidal properties within the container. Finally, we note that
our analysis remains the same regardless of whether the recitation of
“cosmetic or pharmaceutical product” in the claim is afforded patentable
weight.
For the above reasons, we determine that the Examiner’s rejection of
claim 1 fails to articulate reasoning with some rational underpinning to
support the legal conclusion of obviousness. See In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds . . . [require]
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.”) (cited with approval in KSR Int'l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007)). Accordingly, we do not sustain the
rejection of claim 1. Because each of the remaining claims requires the
structure of claim 1 and because the Examiner relies on the same reasoning
to reject these claims, we also do not sustain the rejections of claims 2–15
for the same reasons.
CONCLUSION
We REVERSE the rejection of claims 1–15.

REVERSED