KHS GmbH

Patent Trials and Appeals Board

Nov 4, 2020

2020001448 (P.T.A.B. Nov. 4, 2020)

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.
14/418,597 01/30/2015 Dieter-Rudolf Krulitsch 40047-221US1 4661
69713 7590 11/04/2020
OCCHIUTI & ROHLICEK LLP
50 Congress Street
Suite 1000
Boston, MA 02109
EXAMINER
STCLAIR, ANDREW D
ART UNIT PAPER NUMBER
3799
NOTIFICATION DATE DELIVERY MODE
11/04/2020 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):
INFO@ORPATENT.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DIETER-RUDOLF KRULITSCH
__________________

Appeal 2020-001448
Application 14/418,597
Technology Center 3700
____________________

Before JAMES P. CALVE, WILLIAM A. CAPP, and
LEE L. STEPINA, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 10–27 and 31–33.2 Appeal Br. 1. We have
jurisdiction under 35 U.S.C. § 6(b). Appellant presented argument at an oral
hearing conducted on October 22, 2020.
We AFFIRM IN PART.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies KHS GmbH as the real party in interest. Appeal Br. 1.
2 Claims 1–9 and 28–30 are cancelled. Appeal Br. 59, 63 (Claims App.).
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CLAIMED SUBJECT MATTER
Claim 19, the sole independent claim, is reproduced below.
19. An apparatus comprising a can-filling machine for filling
cans with liquid filling-material, said can-filling machine
comprising
a rotor that rotates about a vertical machine-axis and that
defines filling positions for filling cans;
a filling element disposed in one of said filling positions,
said filling element comprising a filling-element housing
comprising a first housing-section that defines a liquid
channel that extends along a filling-element axis and
through said first housing-section to a delivery orifice
through which a controlled flow of liquid filling-material
enters a can,
a sealing tulip that is movable along said filling-element
axis between a raised position, at which said sealing tulip
releases said can, and a lowered position, at which said
sealing tulip seals against an orifice edge of said can,
a bellows that surrounds said filling-element axis and at
least a portion of said filling-element housing and that
forms seals with said filling-element housing and said
sealing tulip at first and second ends thereof, wherein said
bellows seals a transition between said sealing tulip and
said filling-element housing, whereby there is no sliding
seal to seal said transition between said tulip and said
filling-element housing, and
a valve disposed in said liquid channel and configured to
control flow of said liquid filling-material through said
delivery orifice,
wherein, during operation of said filling element, either a
filling pressure or a pre-tensioning pressure acts on inner
surfaces of both said sealing tulip and said bellows and
also presses said sealing tulip against said orifice edge.

Appeal Br. 61–62 (Claims App.).
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REJECTIONS3
Claims 10–13, 19–27, 31, and 32 are rejected under 35 U.S.C. § 103
as unpatentable over Rademacher (US 5,474,113, iss. Dec. 12, 1995) and
Held (US 3,892,264, iss. July 1, 1975).
Claims 14 and 15 are rejected under 35 U.S.C. § 103 as unpatentable
over Rademacher, Held, and Yun (US 5,145,008, iss. Sept. 8, 1992).
Claim 16 is rejected under 35 U.S.C. § 103 as unpatentable over
Rademacher, Held, and Swinney (US 3,530,928, iss. Sept. 29, 1970).
Claims 17, 18, and 33 are rejected under 35 U.S.C. § 103 as
unpatentable over Rademacher, Held, and Chant (US 4,648,421, iss. Mar.
10, 1987).
ANALYSIS
Claims 10–13, 19–27, 31, and 32
Rejected Over Rademacher and Held
Regarding claim 19, the Examiner finds that Rademacher teaches an
apparatus comprising a can-filling machine with a rotor, a filling element
(filling head 3) with a first housing section (housing 4) that defines a liquid
channel (flow channel 12) extending to a delivery orifice (at annular valve
seat 25 and valve 26) in liquid flow channel 12, and a movable sealing tulip
5 that seals against an orifice edge of a can as claimed. Final Act. 3–4. The
Examiner relies on Held to teach deformable bellows 40 as claimed. Id. at 4.
The Examiner determines it would have been obvious to a skilled artisan to
replace the telescoping elements and sliding seal of Rademacher with Held’s
bellows as a routine selection of known equivalent configuration. Id. at 4–5.

3 Appellant’s Amendment in Reply to Final Action overcame a rejection of
claims 15, 17, and 18 under 35 U.S.C. § 112(b). See Advisory Action,
mailed May 31, 2019 (“The amendments overcome the 112 issues.”).
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The Examiner also determines it would have been obvious to modify
Rademacher as a combination of known elements by known methods with
each element performing the same function for predictable results. Id. at 5.
Appellant argues that bellows are not a known equivalent for high
pressure applications because of a susceptibility to deformation and rupture,
and the Examiner has not provided sufficient evidence to establish bellows
as an art-recognized equivalent to sealing rings. Appeal Br. 4–7. Appellant
asserts that the prior art establishes it would not have been obvious to use
bellows when a pressure differential is expected. Id. at 7 (“The Examiner’s
entire case was based on the proposition that bellows and sliding seals were
known to be art-recognized equivalents.”).
We agree with the Examiner that the rejection of claim 19 does not
stand or fall based solely on the Examiner’s determination of equivalence.
See Ans. 3. The Examiner’s alternate reasoning is supported by a rational
underpinning and therefore is sufficient to support the Examiner’s proposed
modification of Rademacher with Held’s teachings of a bellows. See KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (holding the use of a
known technique to improve similar devices in a similar way is obvious
unless its application is beyond the level of ordinary skill in the art); see also
Ex Parte Frye, 94 USPQ 2d 1072, *4 (BPAI 2010) (precedential) (a panel
reviews rejections for error based on the issues identified by an appellant);
In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (approving of the Board’s
practice as set forth in Ex Parte Frye of requiring appellants to identify the
error allegedly committed by the Examiner in a rejection); 37 C.F.R.
§ 41.37(c)(1)(iv) (“The arguments [in the Appeal Brief] shall explain why
the examiner erred as to each ground of rejection contested by appellant.”).
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Because the Examiner’s rationale for modifying Rademacher to
include a bellows as taught by Held is supported by rational underpinnings,
we need not consider the Examiner’s alternate rationale, which relied on
equivalence to modify Rademacher. Appellant has not provided evidence or
argument traversing this alternative rationale. Thus, we are not apprised of
reversible error in the Examiner’s alternate determination. See Jung, 637
F.3d at 1365 (“Moreover, even assuming that the examiner had failed to
make a prima facie case, the Board would not have erred in framing the
issue as one of ‘reversible error.’”); KSR, 550 U.S. at 417 (“[A] court must
ask whether the improvement is more than the predictable use of prior art
elements according to their established functions.”); Final Act. 5
(determining that combining the teachings of Held with Rademacher
involves a simple combination of known elements according to known
methods with each element performing the same functions as it does
separately for predictable results).
Moreover, the Examiner relies on Held to teach bellows 40 and valve
sleeve 139 as equivalent structures for dispensing fluid from a supply bowl
and spout 35, 141 of dispensing device 36, 49 to a bottle. Final Act. 4; see
Held, 4:18–5:49. Appellant’s argument that it is reasonable to infer Held
teaches these structures as not equivalent is unpersuasive attorney argument.
Appeal Br. 4–7. Even if Held taught bellows 40 as unsuitable for negative
pressure filling, as Appellant argues (id. at 6–7), neither Rademacher nor
claim 19 uses negative pressure filling. See also In re Geisler, 116 F.3d
1465, 1470 Fed. Cir. 1997) (“An assertion of what seems to follow from
common experience is just attorney argument and not the kind of factual
evidence that is required to rebut a prima facie case of obviousness.”).
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Stated another way, Held teaches the equivalent use of bellows 40 and
valve sleeve 139 as structures on the lower portion of the dispensing conduit
of dispensing devices 36, 39. Even if Held would be understood by a skilled
artisan to teach the use of bellows 40 as less suitable for dispensing devices
that supply fluid at negative atmospheric pressure, the Examiner proposes to
use bellows in Rademacher to dispense fluids from filling bowl 2 via gravity
as Rademacher teaches to do. Rademacher, 4:45–5:10; Ans. 4. Held uses
bellows 40 to supply fluid from supply bowl 23 via gravity flow as bellows
collapses. Held, 4:58–68, Figs. 7, 8. Rademacher teaches the use of discs
37–39 with flow passages 44–46 to slow the flow of gravity fed fluid and
prevent overfill. Rademacher, 5:11–17. Thus, we agree it would have been
obvious to a skilled artisan to replace Rademacher’s housing with Held’s
bellows as the use of known elements for their intended purpose to improve
the similar filling device of Rademacher for predictable results.
Appellant also argues that the proposed modification of Rademacher
with Held’s bellows would not expose the bellows to pre-tensioning pressure
from high pressure gas as claimed. Appeal Br. 7–11. Appellant provides an
annotated version of Rademacher’s dispensing machine to illustrate why the
proposed modification would not satisfy this claim limitation. Id. at 8.
In response, the Examiner explains that the modification replaces the
telescoping elements and sliding seal of Rademacher with the bellows of
Held as described in the Office Action. See Final Act. 4–5; Ans. 4–5. The
Examiner’s Annotated Figure 4 in the Answer (Ans. 5) further supports the
Examiner’s determination that the combined teachings of Rademacher and
Held render obvious an apparatus with a bellows and sealing tulip that are
acted on by a filling or pre-tensioning pressuring as claimed.
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Appellant argues that the Examiner’s proposed modification would
render Rademacher unsuitable for its intended purpose of purging the can
with pressurized carbon dioxide gas and change its principle of operation.
Reply Br. 13–15. Appellant argues that replacing rigid walls of Rademacher
with a flexible bellows would allow pressurized carbon dioxide gas passing
through channel 9 to expand into the larger chamber formed by the bellows
and lose pressure rendering it unsuitable for purging the can of air. Id. As a
result, Appellant asserts the gas is no longer at either a filing pressure or a
pre-tensioning pressure as claimed. Id. at 16.
This argument is not persuasive because the proposed modification to
Rademacher results in a gas channel similar to the channel formed between
bellows 16 and housing 6.1 of Appellant’s claimed apparatus as illustrated in
Appellant’s Figure 1, which is reproduced below.

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Appellant’s Figure 1 above illustrates a filling machine with bellows
16 that encircles housing section 6.1 above sealing tulip 13 to create annular
gap 19. Spec. 4:22–29. During filling operation, sealing tulip 13 is lowered
onto container 2 so ring seal 14 seals against container edge 2.1. Id. at 5:23–
26. Prior to the actual filling, a pressurized inert gas such as carbon dioxide
gas is provided via gas channel 12 to container 2. Id. at 5:34–6:2. The gas
acts on inner annular surfaces of sealing tulip 13 and bellows 16 via annular
gap 19. It also produces a pressing force on sealing tulip 13 and ring seal 14
against orifice edge 2.1 of container 2. Id. at 6:4–9.
The Examiner’s proposed modification to Rademacher produces a
similar channel for pressurized carbon dioxide as reproduced below.

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The Examiner’s Annotated Figure A above illustrates the proposed
modification to Rademacher’s filling machine by replacing tulip housing 5
with bellows as taught by Held. Ans. 5. Once the tulip seal seals against the
container, the can is purged with carbon dioxide that is introduced into the
can through passage 9 in housing 4 as described in U.S. Patent 4,938,261 to
Petri, which is incorporated into Rademacher. See Rademacher, 3:29–34,
4:53–57, Petri, 4:20–26, 4:42–48, 6:7–13.
Appellant admits that Appellant’s Figure 1 is a flexible version of
Rademacher’s channel 9, and Appellant’s bellows 16 are exposed to high
pressure but do not rupture because “the bellows is almost skintight.” Reply
Br. 16. Appellant admits “the constricted space between the bellows and the
housing takes over the function of the channel 9 in Rademacher.” Id.
“A person of ordinary skill is also a person of ordinary creativity, not
an automaton.” KSR, 550 U.S. at 421. “[I]n many cases a person of
ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle.” Id. at 420. Here, the Examiner proposes to replace
Rademacher’s solid housing 5 with Held’s bellows for predictable results as
Held teaches. Appellant’s bellows are “made from a suitable elastic and/or
flexible material, for example Teflon.” Spec. 4:26–27. Held’s bellows are a
rubber or a rubber-like material. Held, 4:53–54. A skilled artisan would
configure the thickness and material properties of a bellows on Rademacher
to provide a chamber to hold purging gas without expanding. Indeed, Held
varies the thickness of the bellows walls and compresses and closes bellows
40 during filling. See Held, 4:53–67, Figs. 7, 8. Appellant’s argument is not
persuasive evidence. See Geisler, 116 F.3d at 1470; Ans. 6.
Thus, we sustain the rejection of claim 19.
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10
Claim 10
As illustrated by the Examiner’s annotated figure of Rademacher in
the Answer (Ans. 5) and reproduced above, the modified Rademacher filling
machine includes an annular gap formed by an outer surface of a housing 4,
an inner face of the bellows, and a distal section formed by the sealing tulip
(at annular seal 8). Appellant arguments do not address this configuration
and thus are not persuasive of Examiner error. See Appeal Br. 12–13; Jung,
637 F.3d at 1365. Thus, we sustain the rejection of claim 10.
Claim 11
The modified Rademacher filling machine also includes a channel that
opens into the annular gap at a location that permits liquid cleaning medium
to enter through the channel and clean an inner face of the bellows as recited
in claim 11. Appeal Br. 59 (Claims App.); Final Act. 5. Again, Appellant’s
arguments do not address the modification of Rademacher as set forth in the
Office Action and Answer and therefore do not apprise us of Examiner error.
See Final Act. 4–5; Ans. 5; Appeal Br. 14–18. Appellant argues against a
modification to Rademacher where the bellows ends before the opening of
channel 9 (see Appeal Br. 15). However, as discussed above, the Examiner
modifies Rademacher as indicated in Annotated Figure A, to encompass the
opening of channel 19. Ans. 5. Thus, we sustain the rejection of claim 11.
Claim 12
Claim 12 depends from claim 11 and recites
wherein said channel comprises an opening that leads into said
upper annular gap, wherein said channel defines a channel axis,
and wherein said channel axis forms an angle relative to a plane
that is perpendicular to said filling element axis, wherein said
angle is less than ninety degrees.
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Appeal Br. 59 (Claims App.).
Appellant illustrates this channel 18 in Figure 2, reproduced below.

Appellant’s Figure 2 above illustrates channel 18 configured to open
into annular gap 19 at an oblique angle α of less than 90º relative to plane E,
which is perpendicular to the filling element axis FA. Spec. 4:35–5:4. This
angle imparts a spiral-like flow to cleaning or disinfecting fluid that is fed
into annular gap 19. Id. at 4:31–5:8. Thus, the angle serves a function.
The Examiner finds that the modified filling device of Rademacher
does not teach this feature but determines that changing the angle of the
opening of channel 9 of Rademacher would not change the operation of the
filling machine so it would have been an obvious modification as a routine
change in shape or as a rearrangement of parts. Final Act. 6.
Appellant argues that the claimed angle of the channel axis provides a
different function, as described in the Specification, and therefore is not an
obvious modification. Appeal Br. 19. We agree. See Spec. 4:31–5:8.
Thus, we do not sustain the rejection of claim 12.
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Claim 13
Claim 13 depends from claim 12 and recites other features of the
channel. See Appeal Br. 59 (Claims App.). The Examiner relies on the
same findings and reasoning to reject claim 13 as for claim 12. Final Act. 6.
Appellant argues that claim 13 stands or falls with claim 12. Appeal Br. 20.
We agree. Thus, for the same reasons as claim 12 above, we do not sustain
the rejection of claim 13.
Claim 20
Claim 20 depends from claim 19 and recites “wherein said first
housing-section defines a valve seat for a valve body, said valve seat and
said valve body together defining said valve.” Appeal Br. 62 (Claims App.).
The Examiner finds that Rademacher teaches a first housing section as the
lower portion of housing 4 that defines a valve seat 25 for valve body 26 and
these elements together define a liquid valve 25, 26 as claimed. Final Act. 6.
Appellant argues that Rademacher’s housing 4 does not define a valve
seat because the valve seat 25 is a separate piece that is attached to the distal
portion of housing 4. Appeal Br. 20–21.
We agree with the Examiner that Rademacher teaches a housing 4 that
defines a valve seat 25. Indeed, Appellant does not dispute that element 25
of Rademacher is a valve seat as claimed. Appellant contends that it is not
part of housing 4 as allegedly required by the claim language. We disagree.
Claim 20 requires that the first housing-section “defines a valve seat
for a valve body.” Rademacher teaches a first housing section (housing 4)
that includes annular valve seat member 25 on the lower end of housing 4 to
form a seat for annular valve member 26. Rademacher, 4:2–4, Fig. 1. Thus,
the first housing section defines a valve seat 25 as claimed.
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Claim 20 does not require the first housing section to be unitary or
preclude a first housing section that includes a valve seat formed integrally
with it. Appellant’s Specification describes a liquid valve 9 as including
valve body 10 “which interacts with a valve seat in liquid channel 7” and
“which is configured in the region of a lower end of a gas tube 11 acting as a
valve cam follower.” Spec. 4:4–7. No other description is provided in the
Specification for a valve seat. There is no requirement for a unitary valve
seat. Appellant’s Figure 1 shows liquid valve 9 interacting with valve body
10. The claimed valve seat is not identified in Figure 1. Under a broadest
reasonable interpretation in light of the Specification, we agree with the
Examiner that Rademacher teaches a first housing-section 4 that defines a
valve seat 25 for valve body 26 as claimed.
Thus, we sustain the rejection of claim 20.
Claim 21
The Examiner finds that Rademacher teaches a cam follower that
raises and lowers tulip seal 5 as the turntable rotates along a filling-element
axis as recited in claim 21. Final Act. 6 (citing Rademacher, 3:19–28). The
Examiner also points out that additional details of such a configuration can
be found in U.S. Patent No. 4,938,261, which Rademacher references for the
teaching of a cam mechanism. Id.; Ans. 7.
Appellant argues that the Examiner has conceded that Rademacher
does not teach this feature and relies on U.S. Patent No. 4,938,261 (the ’261
patent) for this feature. Appeal Br. 22. Appellant argues that Rademacher’s
reference to this patent is not a proper incorporation by reference so the
rejection must include the ’261 patent in order to rely on its teachings. Id.
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We agree with the Examiner that Rademacher’s teaching is sufficient
by itself, without relying on further details in the ’261 patent. In this regard,
Rademacher teaches that tulip 5 is raised to an elevated release position by a
cam mechanism and as the turntable rotates, the cam mechanism elevates the
tulip against the force of spring 7 to permit can 1 to be introduced beneath
the filling head 3. Rademacher, 3:19–23. After a can is positioned under the
filling head, rotation of the turntable lowers the tulip so annular seal 8 on the
lower end of the tulip engages an upper end of the cam 1 under the influence
of spring 7. Id. at 3:23–28. Thus, Rademacher describes a cam mechanism
that is raised and lowered to raise and lower a tulip seal along an axis that is
parallel to a filling-element axis. See Ans. 7. Appellant’s arguments do not
apprise us of error in these findings of the Examiner. See Jung, 637 F.3d at
1365. Thus, we sustain the rejection of claim 21.
Claim 22
Claim 22 depends from claim 10 and recites “a channel that opens out
into said annular gap at said proximal end of said first housing-section.”
Appeal Br. 62 (Claims App.) (emphasis added). The Examiner finds that
Rademacher’s channel 9 opens into an annular gap at the proximal end of
first housing-section 4 as claimed. Final Act. 6–7.
Appellant argues that Rademacher’s channel 9 begins at the proximal
end of housing 4 but “does not open up until it has reached the distal end of
the housing, very close to the can 1.” Appeal Br. 24. We agree. Claim 10,
from which claim 22 depends, recites the annular gap with “a distal section
formed by an inner surface of said sealing tulip” and a proximal section
“formed by an inner face of said bellows.” Appeal Br. 59 (Claims App.).
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We agree with Appellant that Rademacher teaches channel 9 opening
near a distal end of the first housing section 4, namely, near the tulip annular
seal 8 that seals onto a container 1. See Rademacher, Fig. 1.
Thus, we do not sustain the rejection of claim 22.
Claim 23
We agree with the Examiner that the modified Rademacher includes
an annular gap that “opens at a distal end of said first housing-section” as
recited in claim 23. Appeal Br. 63 (Claims App.); Final Act. 7; Ans. 7. As
the Examiner indicates in Annotated Figure A (Ans. 4) reproduced above, an
annular gap is formed between the bellows and housing 4 of Rademacher.
The annular gap extends to the distal end of Rademacher’s filling machine
where it opens between annular valve seat 8 and annular valve seat 25 as
shown in Figure 1 of Rademacher. Passage 9 opens into this annular gap at
the distal end of Rademacher’s filling device. Contrary to Appellant’s
arguments (Appeal Br. 25), the Examiner does not rely on the circular
opening of passage 9 to teach the claimed annular gap (Final Act. 7; Ans. 7).
The annular gap opens to the distal end of the filling device to permit
purging carbon dioxide to exit from passage 9 and the annular distal
chamber into container 1. See Rademacher, 3:29–34, 4:53–57, Fig. 1. Thus,
we sustain the rejection of claim 23.
Claim 24
Claim 24 recites “said first housing-section is a tubular section that
has a first housing-section diameter and that adjoins a second housing-
section having a diameter greater than said first housing-section, and
wherein said second housing-section engages said bellows.” Appeal Br. 63
(Claims App.).
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The Examiner finds that Rademacher teaches first housing section 4
as a tubular section with a diameter and Held teaches bellows 40 attached to
a second larger housing portion of enlarged diameter portion (spout 35) as
compared to a smaller diameter portion housing (sleeve 39). Final Act. 7.
The Examiner determines it would have been obvious to attach the bellows
of Rademacher to a housing portion of larger diameter as taught by Held as a
routine change of shape or proportion that would not alter the operation of
the device. Id. Indeed, in Annotated Figure A (Ans. 5), the top of bellows
attaches to a larger diameter portion of a housing that supports bowl 2 in the
Rademacher device.
Appellant argues that the modification would require the addition of
another structure rather than a mere change in shape or proportion as the
Examiner has determined. Appeal Br. 28. Appellant does not argue that the
change would alter the function of Rademacher, however. See id.
Rademacher already teaches a filling device with housing section 4
connected at its upper, proximal end to a larger housing/structure used to
support filling bowl 2. Rademacher, 3:1–13, Fig. 1. Held teaches filling
devices with multi-section housings in which upper spout 35 has a larger
diameter than smaller diameter sleeve 39. Held, 4:18–45, Figs. 7, 8. Held
teaches a telescoping housing configuration in Figures 9 and 10 in which a
distal housing section (valve sleeve 139) of smaller diameter can telescope
into a proximal, larger diameter housing (spout extension 141) for filling.
Held, 5:20–42. As modified, Rademacher’s bellows attaches at its upper,
proximal end to an upper housing structure that would have been obvious to
configure with larger diameter than housing 4 as a routine change according
to the teachings of Held to do so for the bellows. Final Act. 7.
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Appellant argues that this feature performs a function stating, “it is
only because D2>D1 that the bellows is able to surround the first section
and thus create the annular gap in the first place.” Appeal Br. 30 (“[T]he
technical effect of having D2>D1 is that it enables the annular gap to be
formed.”). Even so, the Examiner’s modification of Rademacher provides
this feature by securing an upper end of the bellows to a housing structure of
larger dimensions than the diameter of first section 4. See Ans. 5 (Annotated
Figure A). We agree with the Examiner that the shape and dimension of the
upper housing structure of Rademacher are an obvious modification in view
of Held’s teachings to employ bellows 40 in the manner claimed with its
upper end secured to larger diameter spout 35 housing in Figures 7 and 8 of
Held. Thus, Held teaches to employ a bellows on a filling device such as
Rademacher by attaching the bellows to a larger diameter housing to allow
telescoping for filling. The Examiner finds that Held discloses the claimed
feature with Held’s bellows 40 and proposes to use this known technique in
Rademacher for similar, predictable results. See Final Act. 7; KSR, 550 U.S.
at 417. Contrary to Appellant’s arguments (Reply Br. 28), the Examiner
does not concede that the prior art lacks this claimed relationship. Thus, we
sustain the rejection of claim 24.
Claim 25
We agree with the Examiner that Rademacher teaches housing 4 that
defines an annular liquid channel (flow channel 12) that extends from a
proximal end of the housing all the way to the distal end of the housing
without interruption and the filling element comprises a gas channel as
recited in claim 25. Final Act. 7; see Appeal Br. 63 (Claims App.).
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Appellant argues that Figure 3 of Rademacher shows the annular
liquid channel ceases at the distal end because three channels are used in its
place separated by three projections 14. Appeal Br. 32. This argument is
not persuasive because Appellant’s disclosure indicates the claimed annular
liquid channel is interrupted at the distal end by valve body 10 and valve 9
“provided in liquid channel 7 upstream of delivery orifice 8.” Spec. 3:4,
Fig. 1. Rademacher’s annular liquid channel extends uninterrupted to the
distal end at least to the same extent as the claimed annular liquid channel in
light of Appellant’s Specification and drawings. See MBO Labs., Inc. v.
Becton, Dickinson & Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007) (“A claim
interpretation that excludes a preferred embodiment from the scope of the
claim is rarely, if ever, correct.”) (Citation omitted).
Thus, we sustain the rejection of claim 25.
Claim 26
Claim 26 depends from claim 19 and recites “wherein said valve
comprises a valve body that seals against an inner wall of said first housing-
section.” Appeal Br. 63 (Claims App.). We agree with the Examiner that
Rademacher teaches a valve (25, 26) comprising a valve body 26 that seals
against an inner wall of a first housing section (annular valve seat 25) as
recited in claim 26. Final Act. 8.
Appellant argues that Rademacher shows valve body 26 sealing
against valve seat 25, which is threaded to a wall of housing 4 and therefore
is separate from the housing so that valve body 26 does not seal against any
portion of housing 4. Appeal Br. 32. Appellant argues that the Examiner
has not established that valve seat 25 is an inner wall of the first housing
section. Id.
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19
This argument is not persuasive for the reasons discussed above for
the rejection of claim 20. Rademacher teaches that annular valve seat
member 25 is mounted on the lower end of housing 4, and annular valve
member 26 is connected to the lower end of fill tube 11. Rademacher, 4:2–
4, Fig. 1. The Examiner’s treatment of annular valve seat member 25 as part
of the lower end of housing 4 is reasonable and consistent with the language
of claim 26 interpreted in light of the Specification under a broadest
reasonable interpretation. Valve seat member 25 is mounted to housing 4
and is part of housing 4. Neither the Specification nor the claim language
requires the valve seat to be unitary rather than integral with the housing.
Spec. 4:4–7. Indeed, the Specification does not describe any features of the
valve seat. Moreover, a decision to make a feature separable versus integral
is normally an obvious design choice absent some indication that the feature
is critical. See In re Larson, 340 F.2d 965, 968 (CCPA 1965) (“[W]e are
inclined to agree with the position of the solicitor that the use of a one piece
construction instead of the structure disclosed in Tuttle et al. would be
merely a matter of obvious engineering choice.”).
Thus, we sustain the rejection of claim 26.
Claim 27
We agree with the Examiner that Rademacher teaches a gas channel
(inside vent tube 17) that opens on an underside of the filling element (fill
tube 11) after passing through the valve body and being parallel to the filling
element axis as recited in claim 27. Final Act. 8. The Examiner finds that
vent tube 17 and its openings 24 open on the underside of the filling element
and also has a channel that is parallel to the filling-element axis and claim 27
does not require the vent tube opening to face downward. Ans. 7–8.
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Appellant argues that Rademacher’s bent tube 17 opens into radial
passage 24 and therefore vent tube 17 does not open “on an underside of
said filling element” as claimed. Appeal Br. 33–35. We disagree.
Figure 2 of Rademacher illustrates vent tube 17 within an opening on
an underside of the filling element (fill tube 11) and valve 26. The gas
channel of vent tube 17 opens on an underside of fill tube 11 because the
passage opens straight through the bottom of fill tube similar to gas channel
11 of Appellant’s apparatus as illustrated in Appellant’s Figure 1. The radial
passage 24 also opens on the bottom of the fill tube and is not precluded by
the claim. Thus, we sustain the rejection of claim 27.
Claim 31
Claim 31 recites “wherein said sealing tulip is under a second
housing-section that adjoins said first housing-section, said first housing-
section being surrounded by said tulip.” Appeal Br. 63 (Claims App.).
As modified by Held’s bellows, Rademacher’s filling device has a
tulip valve 8 that surrounds a first housing-section where annular valve seat
member 25 is disposed. See Ans. 4; Rademacher, Fig. 2. Appellant does not
address these findings of the Examiner. Thus, we sustain the rejection of
claim 31.
Claim 32
We agree with the Examiner that Rademacher in view of Held teaches
a bellows that is elastic. Final Act. 8. Held indicates that bellows is made of
rubber or rubber-like material that expands and contracts. Held, 4:54–68,
Figs. 7, 8. Appellant argues that the Examiner has not shown that all rubber
is elastic and some rubbers are viscoelastic. Appeal Br. 37. Appellant
argues that elastic bellows would introduce additional restoring force. Id.
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An ordinary meaning of “elastic” is “capable of recovering size and
shape after deformation.” Merriam-Webster.com at “http://www.merriam-
webster.com/ dictionary/elastic” (accessed Oct. 16, 2020). This definition is
consistent with the Specification, which indicates only that “[b]ellows 16 is
made from a suitable elastic and/or flexible material, for example Teflon.”
Spec. 4:26–27.
The Examiner’s finding that Held’s bellows 40 is an elastic material is
supported by a preponderance of evidence, including the fact that Held’s
bellows 40 deforms into a compressed state (Figure 8) and recovers to an
uncompressed state after deformation (Figure 7). Bellows 40 is resilient and
exerts force by urging the lower edge of sleeve 39 into sealing engagement
with O-ring 42’. Held, 4:53–67. It restores vent tube 37 to a sealed state
after a filling operation is completed. See id., Figs. 7, 8.
Thus, we sustain the rejection of claim 32.
Claims 14 and 15
Rejected Over Rademacher, Held, and Yun
Regarding claim 14, the Examiner finds that Rademacher and Held
teach a sealing tulip 5 with an annular body that surrounds first housing
section 4 but the references lack a “distal portion comprising a lower annular
body section having an enlarged outer diameter that is greater than an outer
diameter of said proximal portion, wherein said lower annular body section
comprises an inner ring and an outer lip seal” as claimed. Final Act. 8–9.
The Examiner finds that Yun teaches a filling head sealing tulip with a distal
portion 10a and lower annular body section (with seals 32, 34, 38) of a
larger outer diameter than an outer diameter of an upper portion of 10a and
also includes inner ring seal 34 and outer lip seal 38 as claimed. Id. at 9.
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Appellant’s Specification describes the claimed sealing tulip 13 as an
annular body 13.1 that surrounds housing section 6.1 and has an enlarged
outer diameter lower body section 13.1.1 with an inner ring seal 14 and an
outer lip seal 15. Spec. 4:13–20, Fig. 1. For filling, sealing tulip 13 and its
seals 14, 15 are lowered to seal against container edge 2.1. Id. at 5:23–26.
Rademacher teaches a similar sealing tulip 5 with annular seal 8 along
its lower body portion to engage an edge of a container. Rademacher, 3:14–
28, Figs. 1, 2. Yun also teaches a sealing tulip structure for filling cans as
valve body 10a with two O-ring seals 32, 34 that seal the valve to the can by
fitting tightly in cylindrical neck portion 22a of can 22. Yun, 4:40–5:20,
Figs. 2–4. An additional seal (resilient member 38) contacts and seals to the
flange of can 22. Id. at 5:21–29. The Examiner reasonably determines that
it would have been obvious to modify the device of Rademacher and Held to
have an enlarged distal portion with inner and outer seals as claimed based
on the teachings of Yun of the advantages of this configuration for reliable
sealing against a can. Final Act. 9; see KSR, 550 U.S. at 417.
Appellant argues that the rejection should be reversed because Yun
does not use the word “tulip” and describes element 10a as a valve body.
Appeal Br. 41. This argument is not persuasive because it is well-settled
that to disclose a claimed feature a reference is not required to satisfy an
ipsissimis verbis test by using the same terminology as claimed. See In re
Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). As discussed above, Yun
teaches structures and functions that satisfy the requirements of claim 10.
Yun expressly teaches the benefits of this particular structure in sealing a
filling device to the opening of a can to be filled with liquid from the device
similar to the filling device of Rademacher and Held. See Yun, 4:40–5:20.
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23
We have considered Appellant’s other attempts to distinguish the tulip
valve structure of Yun and do not find them persuasive primarily because
they are not commensurate with the claim scope. Claim 14 merely requires
the apparatus to include a sealing tulip with the features recited above. Yun
teaches these features. The Examiner’s reason for modifying Rademacher
with these features is supported by rational underpinning based on teachings
of both references of the need for a distal element of a filling device to seal
against the top lid of a can to be filled with a fluid. Yun teaches that sealing
elements with these features are known in the art and provide the advantages
described in Yun. Yun, 5:5–29. They would benefit Rademacher similarly.
Thus, we sustain the rejection of claim 14.
Claim 15
The Examiner relies on the teachings of Rademacher and Held to
render obvious a channel that opens into an annular gap from between a first
housing section, bellows, and sealing tulip and opens away from the sealing
tulip as recited in claim 15. Final Act. 10; see Appeal Br. 60 (Claims App.).
Appellant argues that Rademacher and Held do not teach this feature
based on a misperception of the Examiner’s rejection. Cf. Appeal Br. 46–47
and Ans. 5. As a result, the Examiner’s findings and determination are
unrebutted by Appellant. Thus, we sustain the rejection of claim 15.
Claim 16
Rejected Over Rademacher, Held, and Swinney
The Examiner relies on Swinney to teach a clamping ring that
cooperates with a distally protruding step of a second housing section to
form a radially-extending recess in which the clamping ring clamps the
proximal end of the bellows as recited in claim 16. Final Act. 10.
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Appellant argues that Swinney is non-analogous art because Swinney
is in the field of endeavor of foundry arts by disclosing a blow head that
blows sand to make a core in a core box, but Appellant’s field of endeavor is
filling cans with a beverage and therefore has no connection to a foundry.
Appeal Br. 47–48. Appellant also argues that Swinney is concerned with the
problem of polymerization of resin-coated sane during a sand-blowing
process, and this problem is not reasonably pertinent to eliminating a sliding
seal, which is the problem that Appellant addressed. Id.
The Examiner responds that “the Swinney reference is analogous art
because it discloses a mechanism for fastening a bellows, and thus is at least
reasonably pertinent to the problem faced by the inventor.” Ans. 8. The
Examiner finds that Swinney uses a clamping ring 70, 75 to cooperate with a
step (shown in Figure 4 formed by a protrusion at the bottom of transition
element 26) to clamp the bellows to a filling head structure. Final Act. 10.
Two separate tests define the scope of analogous prior art.
(1) whether the art is from the same field of endeavor,
regardless of the problem addressed and, (2) if the reference is
not within the field of the inventor’s endeavor, whether the
reference still is reasonably pertinent to the particular problem
with which the inventor is involved.
In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (quoting In re Bigio, 381
F.3d 1320, 1325 (Fed. Cir. 2004)).
“A reference is reasonably pertinent if . . . it is one which, because of
the matter with which it deals, logically would have commended itself to an
inventor’s attention in considering his problem.” In re Clay, 966 F.2d 656,
659 (Fed. Cir. 1992). In addition, “[i]f a reference disclosure has the same
purpose as the claimed invention, the reference relates to the same problem,
and that fact supports use of that reference in an obviousness rejection.” Id.
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The Specification describes the problem confronted by the inventor as
pressure-filling cans and containers using bellows 16 to seal the transition
between a sealing tulip 13 and filling element housing 6. Spec. 2:27–28,
4:22–29. Flexible bellows 16 permits downward movement of a dispensing
housing 6 to open valve 9 so that fluid may be dispensed into a container 2.
See id. at Spec. 5:10–6:17.
Swinney describes a similar problem solved by its use of a bellows
(flexible walls 74) used to seal a transition between a dispensing head (blow
head 27) and filling element housing (transition piece 26) so the head may
be lowered over a container F to be filled with a pressurized material without
leaking. Swinney, 2:70–3:42, Fig. 4. Downward movement of the filling
head causes valve 73 to be opened in wall 71 so that air under pressure from
tank 28 forces sand through flexible conduit 24 and chambers 57, 58 into the
core box container. Id. The flexible walls 74 (bellows) permit valve 73 to
be closed when the device is raised after dispensing. Id. at 3:42–46.
We agree with the Examiner that Swinney is reasonably pertinent to
the problem addressed by Appellant of joining a dispensing tank to a filling
head of a dispenser to allow the relative movement between the filling head
and a dispensing tank to open a valve so fluid is dispensed into a container
without leaking. Thus, it serves the same purpose as the claimed bellows.
Appellant also argues that Swinney does not disclose a clamping ring
configured to cooperate with a distally-protruding step to form a radially-
extending recess as claimed. Id. Appellant contends that Swinney discloses
bellows clamped into an axially extending recess. Id. at 49. Appellant also
asserts that transition piece of Swinney is a radially extending step and not a
distally extending step as recited in claim 16.
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We agree with the Examiner that Swinney discloses a step that
protrudes distally from a housing section (transition piece 26 in Figure 4). A
clamping ring (collar 70, bolt 75) is configured to cooperate with this distal
step to form a radially-extending recess for clamping a distal end of flexible
material 74 of the bellows as shown in Figure 4 of Swinney. The radial
recess is formed by cooperation between the clamping ring and distal step as
broadly recited in claim 16 under a broadest reasonable interpretation.
Appellant is correct that the protrusion extends in a radial direction.
See Appeal Br. 50. However, the three-dimensional protrusion also extends
distally, as claimed, along the axis of transition piece 26. This distal extent
of the protrusion of transition piece 26 cooperates with the ring 70 to create
a radially-extending recess in which the upper end of flexible bellows 74 is
clamped in Figure 4 of Swinney. Swinney’s recess extends radially, distally,
and circumferentially, which is no different than Appellant’s disclosure of
the claimed recess 20 in Appellant’s Figure 1. There, annular recess 20 is
illustrated as a three-dimensional space that extends radially, distally, and
circumferentially. See Spec. 5:10–21.
Thus, we sustain the rejection of claim 16.
Claims 17, 18, and 33
Rejected Over Rademacher, Held, and Chant
Claim 17 depends from claim 19 and recites features of the bellows
including that “said lower bellows section is a cylinder that surrounds said
filling element axis and extends distally from said upper bellows section into
said sealing tulip’s annular body, and wherein said lower bellows section
connects to said inner face of said annular body.” Appeal Br. 61 (Claims
App.).
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The Examiner relies on Chant to teach a filling device with a bellows
that connects to an interior surface and has a cylindrical portion as claimed.
Final Act. 11 (citing Figure 3 of Chant). The Examiner explains that Chant
is relied on to teach a bellows that fastens to an interior surface as opposed
to Swinney’s teaching to fasten a bellows to an exterior surface. Ans. 8.
The Examiner determines that it would have been obvious to implement the
device of Rademacher and Held with bellows attached to an inner surface of
the tulip instead of an outer surface with a cylindrical-shaped section in the
recess as a routine design choice that would not have changed the operation
of the device. Final Act. 11–12. The Examiner also reasons that the change
is a simple combination of known elements according to known methods for
predictable results in which each element performs the same function that it
does separately. Id. at 12.
Appellant argues that the lower bellows section in Chant does not
extend into part 38. Appeal Br. 51. Appellant contends that Chant teaches a
short cylinder on a bellows, but “neither the short cylinder nor any other part
of the bellows actually extends into part 38’s body.” Id. at 51–52.
The Specification describes bellows 16 as having an upper annular
section 16.1 clamped by clamping ring 21 in annular recess 20 and a lower
end lying near delivery orifice 8. The lower end of bellows 16 is
manufactured integrally with an annular bellows section 16.2
which extends into annular body 13.1 where it is suitably
connected in a recess on the inner face of annular body 13.1 to
the latter, for example, by gluing, clipping, clamping,
vulcanizing, screwing etc., such that the inner face of bellows
section 16.2 is flush or essentially flush with the contiguous
inner face of annular body 13.1.
Spec. 5:16–21, see Fig. 1.
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The Examiner’s modification of Rademacher with a bellows of Held
connects the lower end of the bellows to an outer surface of Rademacher’s
sealing tulip as illustrated by the Examiner’s Annotated Figure A. Ans. 5.
The Examiner finds that Swinney mounts a lower end of bellows (flexible
material 74) to an outer surface of a sealing tulip-like structure, and Chant
teaches an inner mount configuration for a bellows on a sealing device head.
Id. at 8. The Examiner reasons that it would have been an obvious design
choice to connect the cylindrical lower bellows section to the inner surface
of Rademacher’s sealing tulip where the inner attachment does not change
operation of the device and the combination uses known elements according
to known methods for predictable results where each performs the same
function as it does separately. Final Act. 11–12.
Appellant does not dispute Chant teaches an inner mount of a lower
bellows cylinder. Rather, Appellant contends that the inner mount does not
extend into part 38, which is Chant’s nozzle housing. Appeal Br. 51–52; see
Chant, 7:10–25. This argument fails because it attacks the references
individually rather than as combined by the Examiner who explains Chant is
relied on to teach broadly an inner mounted bellows cylinder rather than an
outer mounted bellows cylinder in Swinney. Ans. 8. Essentially, Chant and
Swinney teach finite options for mounting a lower bellows cylinder to a
filler head/sealing tulip structure. Appellant does not refute the Examiner’s
determination that an interior mounted lower bellows cylinder would not
change the operation of Rademacher or function as intended for predictable
results. Appeal Br. 51–52. Nor does the Specification’s description of an
inner mount indicate a particular purpose or function for an inner mount.
See Spec. 5:16–21 (quoted above).
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If the lower bellows cylinder illustrated in Annotated Figure A of the
Answer (Ans. 5) were attached to an inner surface of Rademacher’s sealing
tulip, as proposed by the Examiner and as claimed, we have no argument or
indication from Appellant that Rademacher would operate differently. Thus,
Appellant has not apprised us of error in the Examiner’s reasoning. Indeed,
to the extent that the modification would change Rademacher, it appears to
improve the ability of pressurized purging carbon dioxide to be delivered
from the opening of channel 9 to the sealing tulip and a container without
dissipating its volume or pressure as much as may occur in an outer mount.
Thus, we sustain the rejection of claim 17.
Claim 18
Claim 18 depends from claim 17 and recites that “said inner face of
said annular body comprises walls forming a distally-extending recess and
wherein said lower bellows section connects to said inner face at said
recess.” Appeal Br. 61 (Claims App.). The Examiner relies on Chant to
teach an inner mounted lower bellows cylindrical section that mounts to an
inner face of a distally-extending recess in the tulip seal of Rademacher.
Final Act. 11. As illustrated in the Examiner’s Annotated Figure A (Ans. 5),
Rademacher’s tulip seal includes a distally extending recess with an inner
surface to which the Examiner proposes to attach Held’s bellows based on
the teachings of Chant. Appellant’s argument that “the recess in question is
not formed by the inner face of the annular body of part 38” (Appeal Br. 53)
does not address the Examiner’s rejection as set forth in the Office Action
and Answer to attach Held’s bellows to an inner face of Rademacher’s tulip
seal and instead attacks the references individually, which is unpersuasive.
Thus, we sustain the rejection of claim 18.
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Claim 33
Claim 33 depends from claim 19 and recites “wherein a distal end of
said bellows is flush with an inner face of said sealing tulip.” Appeal Br. 64
(Claims App.). The Examiner finds that Chant teaches this feature as lower
cylinder of bellows 28 includes an inner face that is flush with an inner face
of nozzle housing 38, namely inner surface 54 illustrated in Figure 3. Final
Act. 12. Appellant again attempts to distinguish nozzle housing 38 from the
claimed sealing tulip. Appeal Br. 53–56. This argument does not address
the Examiner’s rejection, which relies on Rademacher to teach a sealing
tulip. Final Act. 3–4, 12. The Examiner relies on Chant to teach an interior
mount of a lower cylindrical portion of the bellows on nozzle housing 38,
which is similar to the claimed sealing tulip. Id. at 12. We agree with the
Examiner that nozzle housing 38 is comparable to the claimed sealing tulip
of Rademacher because it extends into a carton C to be filled and includes
valve seat 50 at the lower extremity of its internal surface. Chant, 7:22–51.
We agree with the Examiner that a lower cylindrical end of bellows 38 is
flush with an inner surface 54 of nozzle housing 38 in Figure 3 of Chant. Id.
An inner surface of Chant’s lower bellows cylinder is flush with an inner
surface 54 of nozzle housing 38 as illustrated in Figure 3 of Chant to the
same extent as Appellant illustrates the inner surface of annular bellows
section 16.2 is flush with inner surface of sealing tulip 13 in Appellant’s
Figure 1. We agree that a skilled artisan would have been motivated by
Chant’s teaching of an inner mounted lower bellows to modify the bellows
on Rademacher and Held for similar benefits or as a routine design choice.
See id.; KSR, 550 U.S. at 417.
Thus, we sustain the rejection of claim 33.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed
10–13, 19–
27, 31, 32
103 Rademacher,
Held
10, 11, 19–
21, 23–27,
31, 32,
12, 13, 22
14, 15 103 Rademacher,
Held, Yun
14, 15
16 103 Rademacher,
Held, Swinney
16
17, 18, 33 103 Rademacher,
Held, Chant
17, 18, 33
Overall
Outcome
10, 11, 14–
21, 23–27,
31–33
12, 13, 22
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 IN PART