Ex parte Burns

Board of Patent Appeals and Interferences

Jul 30, 1998

08367837 (B.P.A.I. Jul. 30, 1998)

Application for patent filed January 3, 1995.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte MARVIN D. BURNS,
MARK E. CHARPIE
and
THOMAS E. GRIME
_____________
Appeal No. 97-2906
Application 08/367,8371
______________
ON BRIEF
_______________
Before CALVERT, FRANKFORT and STAAB, Administrative Patent
Judges.
FRANKFORT, Administrative Patent Judge.
Appeal No. 97-2906
Application 08/367,837
2
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 6, all of the claims remaining in
the application. Claims 7 through 12 have been canceled.
Appellants’ invention relates to a spray head for use
with a spray gun having passages in a spray gun body for
delivering fluid (i.e., paint) and pressurized air to said spray
head. Of importance to appellants is the use of a fluid flow
valve mounted in the spray head, which fluid flow valve controls
the rate of flow of the fluid (i.e., paint) and thereby
eliminates the need to change the fluid tip size or to throttle
the trigger valve for adjusting the fluid discharge rate of the
spray gun. Independent claim 1 is representative of the subject
matter on appeal and a copy of that claim may be found in the
Appendix to appellants’ brief.
The prior art references of record listed by the
examiner as being relied upon in the rejections of the claims
under appeal are:
Atwater 1,913,149 June 6, 1933
Appeal No. 97-2906
Application 08/367,837
3
Asbeck et al. (Asbeck) 2,780,496 Feb. 5, 1957
Grime et al. (Grime) 5,236,129 Aug. 17, 1993
Claim 1 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Asbeck and Grime.
Claims 2 through 6 stand rejected under 35 U.S.C. § 103
as being unpatentable over Asbeck and Grime as applied to claim 1
above, and further in view of Atwater.
Rather than reiterate the examiner's full explanation
of the above-noted rejections and the conflicting viewpoints
advanced by the examiner and appellants regarding the rejections,
we make reference to the examiner's answer (Paper No. 11, mailed
March 21, 1997) for the examiner's reasoning in support of the
rejections, and to appellants’ brief (Paper No. 10, filed
February 5, 1997) and reply brief (Paper No. 12, filed April 21,
1997) for appellants’ arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellants’ specification and claims, to
the applied prior art, and to the respective positions
Appeal No. 97-2906
Application 08/367,837
4
articulated by appellants and the examiner. As a consequence of
our review, we have made the determinations which follow.
Turning first to the examiner's rejection of
independent claim 1 under 35 U.S.C. § 103, we note that this
claim is directed to a spray head for use with a spray gun having
passages in a spray gun body for delivering fluid and pressurized
air to said spray head. The spray head is identified by the
reference character (14) in appellants’ Figure 1. The spray head
is further defined in claim 1 on appeal as being “adapted to be
detachably mounted on the spray gun body,” for example, by the
retaining ring (16) seen in Figure 1, and as including a fluid
discharge orifice (52), a fluid inlet passage (54, 55, 50)
“adapted to receive fluid from a passage in the spray gun body
and to deliver such fluid to said fluid discharge orifice,” a
valve surface (at 51) adapted for cooperating with a trigger
operated valve needle (53) to form a trigger operated valve for
initiating and terminating the discharge of fluid from said fluid
discharge orifice, and a valve (25) mounted in said spray head
upstream of said valve surface (at 51) which serves to limit flow
of fluid to said fluid discharge orifice when the trigger
operated valve is open.
Appeal No. 97-2906
Application 08/367,837
5
According to the examiner (answer, pages 3-4),
Asbeck “shows all of the basic spray head including a spray gun,
passages 69 and 70, discharge orifice 136, trigger 40, valve
needle 50, and valve 80 in spray head upstream of the surface
(column 5, lines 57-65).” The only feature of claim 1 on appeal
the examiner sees as lacking in Asbeck is that the spray head
therein (apparently that portion of the barrel (11) of the spray
gun body from and including the extension (67) up to the
discharge orifice (136)) is not detachably mounted on the spray
gun body. To overcome this difference, the examiner points to
the spray head (15) of Grime which is detachably mounted on the
spray gun body (11) therein. From these teachings the examiner
concludes (answer, page 4) that
[i]t would have been obvious to one of
ordinary skill in the art at the time the
invention was made to modify the spray gun of
Asbeck . . . to have a detachably
mounted spray head as taught by Grime.
Appellants urge that the examiner’s modification of
Asbeck in view of Grime is made only with hindsight after
considering appellants’ invention. We tend to agree. Moreover,
even if the spray gun of Asbeck were to be modified to have the
Appeal No. 97-2906
Application 08/367,837
6
barrel portion of the spray gun from the extension (67) to the
discharge orifice (136) made detachable from the remainder of the
spray gun body, the resulting structure would not be the same as
that set
forth in appellants’ claim 1 on appeal. Modifying Asbeck so as
to have the valves (80) in the detachable spray head, as urged by
the examiner, would also result in the passages (69, 70) being in
the detachable spray head, thereby creating a spray head which is
not for use with a spray gun having “passages in a spray gun body
for delivering fluid and pressurized air to said spray head”
(emphasis added), as set forth in appellants’ claim 1 on appeal.
The resulting spray head in the examiner’s modification of Asbeck
would be a spray head wherein the fluid inlet passage thereof is
not intended or adapted to receive fluid “from a passage in the
spray gun body and to deliver such fluid to said fluid discharge
orifice,” as required in the spray head of appellants’ claim 1.
For these reasons, we will not sustain the examiner’s rejection
of claim 1 under 35 U.S.C. § 103.
The examiner's rejection under § 103 of claims 2
through 6, which depend from claim 1, will likewise not be
Appeal No. 97-2906
Application 08/367,837
7
sustained. In this regard, we note that the variable gas flow
valve of Atwater, even if it is considered to be analogous prior
art, does nothing to overcome the deficiencies we have noted
above in the combined teachings of Asbeck and Grime.
As should be apparent from the foregoing, the decision
of the examiner rejecting claims 1 through 6 of the present
application under 35 U.S.C. § 103 is reversed.
REVERSED
IAN A. CALVERT )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
Appeal No. 97-2906
Application 08/367,837
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