Ex Parte Alluigi

Patent Trial and Appeal Board

Sep 20, 2017

13148074 (P.T.A.B. Sep. 20, 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.
13/148,074 08/05/2011 Riccardo Alluigi 3101-071 8568
33432 7590 09/20/2017
KILYK & BOWERSOX, P.L.L.C.
400 HOLIDAY COURT
SUITE 102
WARRENTON, VA 20186
EXAMINER
SHAW, BENJAMIN R
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
09/20/2017 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 RICCARDO ALLUIGI
Appeal 2015-006505
Application 13/148,074
Technology Center 3700
Before: CHARLES N. GREENHUT, ANNETTE R. REIMERS, and
SEAN P. O’HANLON, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1—
3, 5—7, and 13—20. Appellant’s representative presented oral argument on
September 6, 2017. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-006505
Application 13/148,074
CLAIMED SUBJECT MATTER
The claims are directed to a trigger sprayer. Claim 1, reproduced
below, with emphasis added, is illustrative of the claimed subject matter:
1. Dispenser head (1) associable with a container so as to contain
a liquid for dispensing, comprising:
- a main body (2) having a body axis (X);
- an arm (60) hinged to the main body (2), the arm
comprising a lever (62) for activating the head;
- pumping means comprising:
i) a main cylinder (12) supported in the main body
(2);
ii) a piston (16) sliding axially sealed in the main
cylinder (12), which defines in the main cylinder a compression
chamber (18);
iii) dispensing means sensitive to the pressure of the
liquid in the compression chamber (18) able to place the
compression chamber (18) in fluidic communication with the
external environment via a dispensing route when the pressure of
the liquid in the compression chamber exceeds a threshold
dispensing pressure; wherein the arm (60) is hinged to the main
body (2) in a hinging portion (60b) distanced radially from the
body axis (X), straddles the body axis (X) and transmits an axial
translation movement to the piston (16) by means of an
elastically yielding element (30), wherein the arm (60) is able to
transmit the axial translation movement to the piston (16) by
means of a tubular stem (24), wherein the tubular stem (24) slides
inside the piston (16) and a dispenser mechanism comprises an
obturator (22) joined in translation to the stem and disengaging
from the piston (16) so as to place the compression chamber (18)
in fluidic communication with the outside environment when the
pressure of the liquid in the compression chamber exceeds a
threshold dispensing pressure, wherein the elastically yielding
element is a first spring (30) positioned so as to be compressed
between a boss (27) of the tubular stem (24) and the piston (16),
and an elastic return means which comprises a second spring (32)
is housed in the compression chamber, wherein the elastically
yielding element (30) has a greater resistance to compression
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Application 13/148,074
than the resistance to compression of the second spring (32), and
wherein
the arm (60) has a free end (62') opposite the hinging
portion (60b) with respect to body axis (X) the free end (62')
being radially distanced from the body axis (X),
the main body (2) further comprises a branch (6) having a
radial extension, at the distal end (6b) of which the arm (60) is
hinged, and
a lever mechanism comprised of the branch (6) and the
arm (60) to obtain dispensing of the liquid, in which a resistance
(R), caused by the threshold dispensing pressure, is overcome by
application of a power (P), wherein the hinged portion (60b)
comprising a fulcrum (F) between the branch (6) and the arm
(60), wherein the branch (6) comprises a resistance arm (br) of
the lever mechanism wherein the resistance arm (br) is defined
as the distance between the body axis (X) and the fulcrum (F),
and the arm (60) comprises a power arm (bp) of the lever
mechanism wherein the power arm (bp) is defined as the distance
between the free end (62') and the fulcrum (F), wherein a ratio
bp/br is from 3 to 4 so as to dispense a large dose of a liquid with
a fine nebulisation.
REJECTIONS
Claims 1—3, 5—7, 13—14, and 16—20 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Walters (U.S. Patent No. 7,249,692 B2,
issued July 31, 2007) and Marelli (U.S. Patent No. 4,960,230, issued Oct. 2,
1990).
Claim 15 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Walters, Marelli, and Bennett (U.S. Patent No. 4,441,633, issued Apr.
10, 1984).
Claims 1—3, 5—7, 13—14, and 16—20 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Walters, Marelli, and Iizuka (US Patent
No. 4,643,338, issued Feb. 17, 1987).
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Application 13/148,074
OPINION
Sole independent claim 1 is rejected on Walters and Marelli with and
without Iizuka. Appellant argues against each rejection of claim 1 mainly
based on the power arm to resistance arm ratio (bp/br) limitation emphasized
above. See App. Br. 11—30, 36—39. Claims 18 and 19 recite more precise
ranges for this limitation or its equivalent, but present essentially the same
issues. See App. Br. 30—33. Where the Examiner adds Bennett to the
rejections of claim 15, Appellant argues Bennett does not cure the
deficiencies of the Examiner’s primary combinations without contesting the
subject matter for which Bennett is relied upon by the Examiner. App. Br.
33-35.
Regarding the bp/br ratio of claim 1, the Examiner recognizes Walters
and Marelli lack any express disclosure regarding that ratio. The Examiner
reasons, “increasing the ratio of bp/br, to increase the mechanical advantage
of the lever [would be obvious,] as one skilled in the art would appreciate
that extending the length of the lever would increase the torque about the
fulcrum and increase the force exerted on the piston with a high probably of
success.” Non-Final Act. 4. From this, the Examiner concludes that setting
the bp/br ratio involves routine optimization of a known result-effective
variable. Non-Final Act. 4.
Appellant’s initial contention concerning this limitation, that Walters
does not disclose bp/br is a result-effective variable (App. Br. 15), is
inapposite because the Examiner never made any finding to the contrary.
Appellant’s disagreement with Walters’ inherently having some bp/br ratio
(Reply Br. 3—4) also misses the point. The Examiner never alleged Walters
must have considered this particular ratio in formulating its design, only that
every trigger sprayer of this type must inherently have some calculable bp/br
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Application 13/148,074
ratio—a point that cannot reasonably be disputed. See Ans. 17. Further, the
particular effect of the variable optimized need not be the same as that
desired by Appellant. Ans. 18. It is not necessary for the prior art to serve
the same purpose as that disclosed in Appellant’s Specification in order to
support the conclusion that the claimed subject matter would have been
obvious. See In reLintner, 458 F.2d 1013, 1016 (CCPA 1972); accordKSR
Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007) (“[N]either the particular
motivation nor the avowed purpose of the [Appellant] controls” in an
obviousness analysis.)
Appellant argues the Examiner is oversimplifying the lever of Walters
because it is “not a ‘teeter-totter’ type structural configuration.” App. Br. 16.
Several references of record,1 and Appellant’s own Specification2
acknowledge that this form of lever was well-known and used in the sprayer
art. Appellant does not elaborate on why a trigger spray lever is much more
complex than, or obeys different mechanical principles than, the lever of a
“teeter-totter.” The main difference between the lever types is that the
resistance, output, and input forces are on the same side of the fulcrum point
with the trigger sprayer. We are not apprised of any reasons why this would
render traditional mechanical lever laws inapplicable. Although the
Examiner has consistently taken this position, for the first time in the Reply
Brief Appellant characterizes the Examiner’s finding in this regard as taking
“Official notice.” Reply Br.4. In addition to being untimely (37 C.F.R. §
41.41(b)(2)), and lacking adequate evidence or reasoning to traverse facts
officially noticed (MPEP § 2144.03(C)), this argument directly conflicts
1 Walters, Iizuka, Corba (U.S. Patent No. 4,993,214) (cited at Non-Final Act.
18), Nozawa (U.S. Patent No. 4,082,223) (cited at Non-Final Act. 18)
2 Para. 4
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with the Specification’s acknowledgement that “[g]iven the known laws of
levers, P=R (br/bp)” (Spec. 12:20—21). We must attribute skill to the
hypothetical artisan of § 103(a). In re Sovish, 769 F. 2d 738, 743 (Fed. Cir.
1985) (“This argument presumes stupidity rather than skill.”).
Appellant raises a similar argument regarding the alleged
incompatibility of the Walters and Marelli devices. App. Br. 20. Whether
actuated by the downward press of a finger or the rotation of a trigger, the
input to the pump mechanism is linear (downwardly as depicted in Walters’
and Marelli’s figures). The existence of some structural differences in
mechanisms implementing these different types of actuators, as in Iizuka
(App. Br. 37), does not negate this fact. Rather, the discussion of both types
of mechanisms in a single reference reinforces the Examiner’s position
regarding the combinability of reference teachings. Ans. 23—24. Appellant’s
own stated goal involves borrowing attributes from both types of sprayers.
Spec. p. 1, paras. 3^4. We are not apprised of any technical reason why one
skilled in the art would not have at least a reasonable expectation of success
in doing so. See In re O’Farrell 853 F.2d 894, 903-04 (Fed. Cir. 1988)
(Absolute predictability that the substitution will be successful is not
required, all that is required is a reasonable expectation of success.)
Although Appellant also appears to take issue with the Examiner’s
characterization of the X-axis in the annotated version of Figure 2 from
Walters (Non-Final Act. 9), we are unable to ascertain based on Appellant’s
arguments specifically what limitations are being argued and what Appellant
perceives as the shortcoming of Walters in this regard. See App. Br. 18. We
have a similar problem with the arguments advanced concerning the
transmission of axial movement. See App. Br. 21. Appellant must identify
with specificity the supposed errors in the Examiner’s position. 37 C.F.R. §
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41.37(c)(l)(iv). We will not search the record to advocate on Appellant’s
behalf. See Ex Parte Frye, 94 USPQ2d 1072, 1075-76 (BPAI 2010)
(precedential)(citations omitted)(“[T]he Board will not, as a general matter,
unilaterally review those uncontested aspects of the rejection.”). In response
to these arguments, the Examiner directs Appellant’s attention to the
findings and reasoning articulated in the Non-Final Action, which do not
appear to be rebutted with specificity. See Ans. 22—23, 25—26.
We turn to the Supplemental Declaration of August 13, 2014
(“Decl.”) and Appellant’s allegation of unexpected results. See App. Br. 22—
29. Appellant is in the best position to furnish evidence of, and therefore
bears the burden of establishing, unexpected results. MPEP § 716.02(b).
Here, the Examiner correctly points out (Non-Final Act. 18—19; Ans. 26—31)
that there is neither evidence nor reasoning of record to demonstrate a nexus
between the bp/br limitation at issue and the purported unexpectedly good
nebulization and dose size. See Decl. 7—10. Appellant does not dispute that
these factors will be influenced by the nozzle (see Non-Final Act. 18 (citing
Joy (US Patent No. 4,380,491) col. 1,11. 60—63)) and that the nozzles of the
compared products were not identical. We therefore have no reason to
conclude that the lever arm ratio bp/br was a significant influencing factor in
the purportedly unexpectedly good nebulization and dose.
Appellant’s attack against Joy (App. Br. 28—29) relates more to form
than substance. While the general rule is that references relied upon should
be included in the rejection statement (App. Br. 29 (citing In re Hoch, 428
F.2d 1341, 1342 n.3 (CCPA 1970)), that rule is to ensure adequate notice of
the basis for the rejection. Here, given the clarity and timeliness of the
Examiner’s position, it cannot reasonably be argued that Appellant did not
know or understand what Joy was cited for—demonstrating the undisputed
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fact that dose and nebulization could be influenced by factors uncontrolled
in Appellant’s experiments such as the chosen nozzle. See Ans. 30.
Acknowledging this issue, Appellant contends that the comparison data was
obtained using the “closest prior art,” and that is all that is required. App. Br.
25—30. It is true that the “closest” prior art available must be used as a basis
for comparison. However, the “closest” requirement does not necessarily
mean closest to the primary reference cited in a rejection. Rather, the
similarities and differences, and relative importance of those similarities and
differences, must be taken into consideration in making this determination.
See MPEP § 716.02(e) (and cases cited therein). The scope of prior art
considered to be the closest for purpose of establishing unexpected results is
not necessarily confined to that relied on by the Examiner in support of a
rejection. Id. The important consideration is what the applicant, as opposed
to the Examiner, is attempting to establish. Here, it is the nexus between the
lever arm ratio bp/br and the nebulization and dose. Thus, the “closest” prior
art should be nearly identical in any aspects other than bp/br that may
influence nebulization and dose. Such a comparison has not been made. If
no such products are obtainable, there should at least be some evidence or
technical analysis of record to demonstrate or explain why, in spite of the
differences between the compared products, a nexus still exists. This has not
been done either. Accordingly, we are in agreement with the Examiner that a
nexus between the lever arm ratio bp/br and the nebulization and dose has
not been established. Furthermore, Appellant is reminded that the claims
before us are directed to an apparatus, a dispenser head. Even the invention
of a new and non-obvious design methodology for constructing a dispenser
head will not impart patentability to the dispenser head itself if that
dispenser head was known or an obvious variant of that known in the prior
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art. See, e.g., Catalina Marketing International, Inc. v. Coolsavings.com,
Inc., 289 F.3d 801, 809-10 (Fed. Cir. 2002).
On the record presently before us, the Examiner has established that
the evidence of obviousness of the subject matter of claim 1 outweighs the
evidence against obviousness, based on Walters and Marelli alone.
Appellant raises a legitimate concern regarding the Examiner’s
reliance on Iizuka3 in that the basis for the Examiner’s findings regarding the
ratio limitation are unclear. See Non-Final Act. 12 (citing Iizuka Figure 6
[sic 2]; Ans. 33—34 (citing Iizuka Fig. 2)). The general rule is that when the
reference does not disclose that the drawings are to scale and is silent as to
dimensions, arguments based on measurement of the drawing features are of
little value. See Hockerson-Halberstadt, Inc. v. Avia Group Int'l, 222 F.3d
951, 956 (Fed. Cir. 2000) (The disclosure gave no indication that the
drawings were drawn to scale. “[I]t is well established that patent drawings
do not define the precise proportions of the elements and may not be relied
on to show particular sizes if the specification is completely silent on the
issue.”). Here, it is not even clear that the Examiner was relying on the
Iizuka’s Figure 2 to deduce the bp/br ratio. “[T]he precise language of 35
U.S.C. § 102 that ‘(a) person shall be entitled to a patent unless,’ concerning
novelty and unobviousness, clearly places a burden of proof on the Patent
Office which requires it to produce the factual basis for its rejection of an
application under sections 102 and 103.” In re Warner 379 F.2d 1011, 1016
(CCPA 1967). The Patent Trial and Appeal Board is primarily a tribunal of
review. See Ex Parte Frye, 94 USPQ2d 1072, 1075-1077 (BPAI
2010)(precedential). For that review to be meaningful it must be based on
3 and, for that matter, Corba and Nozawa (Non-Final Act. 18).
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some concrete evidence in the record to support the Examiner’s factual
findings and legal conclusions. In re Zurko, 258 F.3d 1379, 1386 (Fed. Cir.
2001). A rejection must be set forth in a sufficiently articulate and
informative manner as to meet the notice requirement of § 132, such as by
identifying where or how each limitation of the rejected claims is met by the
prior art references. In re Jung, 637 F. 3d 1356, 1363 (Fed. Cir. 2011). It is
neither our place, nor Appellant’s burden, to speculate as to the basis for
rejecting claims. In re Stepan, 660 F. 3d 1341, 1345 (Fed. Cir. 2011) (It is
the PTO’s obligation to provide timely notice to the applicant of all matters
of fact and law asserted.). Nevertheless as we would sustain the rejection on
Walters and Marelli alone, and Iizuka, as discussed above offers some
evidence concerning certain issues raised by Appellant pertaining to the
Walters-Marelli combination, this shortcoming is harmless error and the
Examiner’s rejections are sustained both with and without Iizuka. See, e.g.,
In re Kronig, 539 F.2d 1300, 1302 (CCPA 1976) (affirmance may be based
on fewer than all references cited so long as an appellant has had a fair
opportunity to react to the thrust of the rejection); see also In re Boyer 363
F.2d 455, 458 n. 2 (CCPA 1966) (citing In re Bush, 296 F.2d 491, 495-96
(CCPA 1961)). Our affirmance of the rejections including Iizuka should be
understood as not relying on any express disclosure of the recited bp/br ratio
in Iizuka.
DECISION
The Examiner’s rejections are affirmed.
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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)(l)(iv).
AFFIRMED
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