APTAR RADOLFZELL GMBH

Patent Trials and Appeals Board

Feb 21, 2020

15102415 - (D) (P.T.A.B. Feb. 21, 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.
15/102,415 06/07/2016 Matthias WOCHELE 3119.P0039US 2699
23474 7590 02/21/2020
FLYNN THIEL, P.C.
2026 RAMBLING ROAD
KALAMAZOO, MI 49008-1631
EXAMINER
MELARAGNO, MICHAEL
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
02/21/2020 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):
DOCKET@FLYNNTHIEL.COM
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MATTHIAS WOCHELE
____________

Appeal 2019-004518
Application 15/102,415
Technology Center 3700
____________

Before WILLIAM A. CAPP, RICHARD H. MARSCHALL, and
PAUL J. KORNICZKY, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 2–22. 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(a). Appellant identifies Aptar Radolfzell GmbH, as the
Applicant and real party in interest. Appeal Br. 1.
Appeal 2019-004518
Application 15/102,415
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THE INVENTION
Appellant’s invention relates to dispensers for pharmaceutical and
cosmetic liquids. Spec. ¶ 1. Claim 10, reproduced below, is illustrative of
the subject matter on appeal.
10. A discharging device comprising:
a dispenser for discharging pharmaceutical and/or cosmetic
liquids, the dispenser having a liquid reservoir and an exit
opening through which the liquid can be discharged into a
surrounding atmosphere; and
a protective cap engageable with the dispenser and having
at least one ventilation opening in order for an interior of the
protective cap to communicate with exterior surroundings,
wherein the protective cap has arranged thereon a sterile
filter which covers the at least one ventilation opening so as to
reduce, or to prevent, introduction of germs into the interior of
the protective cap via the at least one ventilation opening;
wherein the protective cap must be removed from the
dispenser to allow the liquid to be discharged through the exit
opening into the surrounding atmosphere; and
wherein the at least one ventilation opening is not in a
liquid path of travel between the liquid reservoir and the
surrounding atmosphere via the exit opening during use of the
discharging device.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
La Haye US 5,105,993 Apr. 21, 1992
Buxmann US 2004/0200860 A1 Oct. 14, 2004
Manesis US 2006/0180613 Al Aug. 17, 2006
Webb US 2006/0242933 Al Nov. 2, 2006
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The following rejections are before us for review:
1. Claims 2, 3, 5, 9–17, 19, and 20 are rejected under 35 U.S.C. § 103
as being unpatentable over Buxmann and La Haye.
2. Claims 4 and 6 are rejected under 35 U.S.C. § 103 as being
unpatentable over Buxmann, La Haye, and Manesis.
3. Claims 7, 8, 18, 21, and 22 are rejected under 35 U.S.C. § 103 as
being unpatentable over Buxmann, La Haye, and Webb.
OPINION
Unpatentability of Claims 2, 3, 5, 9–17, 19 and 20
over Buxmann and La Haye
Appellant argues claims 2, 3, 5, 9–17, 19 and 20 as a group. Br. 4–8.
We select claim 10 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Buxmann discloses the invention
substantially as claimed except for a sterile filter covering a ventilation
opening, for which the Examiner relies on La Haye. Non-Final Action 2–3.
The Examiner concludes that it would have been obvious to a person of
ordinary skill in the art at the time of the invention to include a sterile filter,
as taught by La Haye, over Buxmann’s ventilation opening to achieve the
claimed invention. Id. According to the Examiner, a person of ordinary
skill in the art would have done this to inhibit transmission of
microorganisms and maintain sterile conditions inside of the cap housing.
Id. at 3.
Appellant argues that it would not have been obvious to combine
Buxmann and La Haye in the manner proposed by the Examiner to achieve
the claimed invention. Appeal Br. 5. Appellant argues that Buxmann fails
to recognize the problem purportedly solved by the invention, namely, a
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Application 15/102,415
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contamination problem associated with exposing the interior of the fluid
dispenser to the environment surrounding the fluid dispenser. Id. at 6.
Appellant further argues that La Haye is directed to a squeeze bottle that
uses a filter to obviate the need to include an antimicrobial agent in its
medicament. Id. at 7. Appellant further argues that, because Buxmann
allows excess/non-dispensed fluid to evaporate, there is no need for a sterile
filter. Id. at 7–8. Appellant summarizes its position by stating, in essence,
that, because a person of ordinary skill in the art would not have recognized
a contamination problem in Buxmann, such a person would not have turned
to the teachings of La Haye to solve it. Id. at 8.
In response to Appellant’s argument that Buxmann does not
recognize a contamination problem, the Examiner notes that it is obvious
that an opening to the atmosphere could create a contamination problem.
Ans. 7–8. The Examiner further notes that La Haye explicitly teaches that a
sterile venting port can be provided in the nozzle or housing member to
assist transmission of sterile air into the housing member. Id. at 8 (quoting
La Haye, col. 5, ll. 34–36). The Examiner further notes that La Haye
teaches that a filter can preclude transmission of microorganisms and
maintain sterile conditions inside a bottle housing. Id. (quoting La Haye,
col. 9, ll. 3–5).
Buxmann is directed to a fluid dispenser for germ-free fluids.
Buxmann ¶ 1. Buxmann’s dispenser features a container in fluid
communication with outlet passage 25 leading to delivery opening 24
through bore 20. Id. ¶¶ 36, 37. Buxmann also features removable cap 3 that
covers and seals delivery opening 24. Id. ¶ 38. In turn, cap 3 features
hole 3b that functions as an aeration means. Id. By passing air through
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hole 3b, excess fluid remaining after use is allowed to evaporate. Id. As can
be seen from Figure 1, hole 3b in cap 3 is disposed so that it is not in a liquid
path of travel via the exit opening during use of the discharging device. Id.,
Fig. 1. According to Buxmann, such aeration and evaporation provides
protection against contamination. Id. ¶ 38. This disclosure refutes
Appellant’s argument that Buxmann fails to recognize the existence of a
contamination problem. Appeal Br. 6.
La Haye is directed to a container for dispensing sterile liquid
medicaments. La Haye, Abstract. La Haye features filter 8 disposed in
dispensing nozzle 6. Id. col. 6, ll. 19–41; Fig 2. La Haye further discloses
that a sterile venting port can be provided in the nozzle to assist transmission
of sterile air into the housing member to replace the volume of liquid
material that is dispensed. Id. col. 5, ll. 34–38.
Having considered the competing position of Appellant and the
Examiner, it is our opinion that the Examiner has the better position.
Buxmann repeatedly emphasizes the dangers of contamination and the
importance of preventing contamination. Buxmann, ¶¶ 2, 6, 9, 10, 11, 13,
23, 25, 38. In particular, Buxmann recognizes that excess fluid that is
trapped under cap 3 following use of the dispenser poses a contamination
risk and provides a means of ventilation and aeration through hole 3b to
protect against such contamination. Id. ¶ 38. La Haye discloses providing a
sterile venting port in a dispensing nozzle that contains a filter. La Haye,
col. 5, ll. 25–38, Fig. 8. Appellant provides no evidence or technical
reasoning that placing a filter in the air path represented by hole 3b in
Buxmann would require more than ordinary skill. Appellant provides no
evidence or technical reasoning that filtering such an air path achieves
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unexpected results. Here, the Examiner provides a cogent reason for making
the proposed combination, namely, to maintain sterile conditions in the
device. Final Action 3.
Appellant’s argument that Buxmann performs adequately due to
evaporation and, therefore, does not need a filter is not persuasive. The fact
that the prior art may already perform adequately does not preclude a skilled
artisan from seeking to improve upon it. See Dystar Textilfarben GmBH &
Co, v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) (explaining
that the desire to enhance commercial opportunities by improving a product
is universal—and even common-sensical).
Appellant’s hindsight argument is not persuasive as the Examiner
provides a sufficient, non-hindsight reason to combine the references. Id. It
is well settled that a hindsight argument is of no moment where the
Examiner provides a sufficient, non-hindsight reason to combine the
references. In re Cree, Inc., 818 F.3d 694, 702 n.3 (Fed. Cir. 2016).
In view of the foregoing discussion, we determine the Examiner’s
findings of fact are supported by a preponderance of the evidence and that
the Examiner’s legal conclusion of unpatentability is well-founded.
Consequently, we sustain the Examiner’s unpatentability rejection of
claims 2, 3, 5, 9–17, 19, and 20.
Unpatentability of Claims 4 and 6
over Buxmann, La Haye, and Manesis
These claims depend, directly or indirectly, from claim 10. Claims
App. Appellant does not argue for the separate patentability of claims 4
and 6 apart from arguments presented with respect to claim 10 which we
have previously considered. We sustain the Examiner’s rejection of
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7
claims 4 and 6. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to separately argue
claims constitutes a waiver of arguments for separate patentability).
Unpatentability of Claims 7, 8, 18, 21, and 22
over Buxmann, La Haye, and Webb
Claims 7, 8, 18, 21, and 22 depend, directly or indirectly, from
claim 10. Claims App. Appellant does not argue for the separate
patentability of these claims apart from arguments presented with respect to
claim 10 which we have previously considered. We sustain the Examiner’s
rejection of claims 7, 8, 18, 21 and 22. 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
Claims
Rejected
§ Reference(s) Aff’d Rev’d
2, 3, 5, 9-17,
19, 20
103 Buxmann, La Haye 2, 3, 5, 9-17,
19, 20

4, 6 103 Buxmann, La Haye, Manesis 4, 6
7, 8, 18, 21,
22
103 Buxmann, La Haye, Webb 7, 8, 18, 21,
22

Overall
Outcome
2-22
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED