Ex Parte Daciw

Patent Trial and Appeal Board

Feb 28, 2018

13562455 (P.T.A.B. Feb. 28, 2018)

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.
13/562,455 07/31/2012 Michael James Daciw MAS CP 0101 PUS 4072
101011 7590 03/02/2018
Brooks Kushman P.C. / Masco Corporation
1000 Town Center, 22nd Floor
Southfield, MI 48075
EXAMINER
KLOTZ, WILLIAM R
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
03/02/2018 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):
docketing @brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL JAMES DACIW
Appeal 2017-003351
Application 13/562,4551
Technology Center 3700
Before STEFAN STAICOVICI, GEORGE R. HOSKINS, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael James Daciw (Appellant) appeals under 35 U.S.C. § 134(a)
from the Examiner’s decision (entered Oct. 15, 2015 hereinafter “Final
Act.”) rejecting claims 1, 3—5, 10-17, and 21 under 35 U.S.C. § 103(a) as
unpatentable in view of Stein (US 8,307,468 B2, iss. Nov. 13, 2012) and
Vandenbergh (US 8,782,822 Bl, iss. July 22, 2014) (hereinafter “Rejection
I”); and claims 1, 3—5, 10-17, and 21 as unpatentable in view of Stein and
1 According to Appellant, the real party in interest is Brasscraft
Manufacturing Company. Appeal Br. 3 (entered Apr. 14, 2016).
Appeal 2017-003351
Application 13/562,455
Hadfield (US 70,087, iss. Oct. 22, 1867) (hereinafter “Rejection II”).2 We
have jurisdiction over this appeal under 35 U.S.C. § 6(b). We REVERSE.
INVENTION
The invention Appellant describes in the Specification “relate[s] to a
plunger for unclogging plumbing.” Spec. 11.
Claim 1 is independent. Claim 1 is representative of the claimed
invention and it is reproduced below with emphasis added to the limitation
at the center of this dispute.
1. A plunger comprising:
a flange having a length, a width and a thickness, wherein
the length is greater than the width to cover an elongated toilet
trapway; and
a peripheral seal extending away from the flange to seal
with the elongated toilet trapway;
wherein the seal extends centrally inward from an
outward periphery of the flange;
wherein the seal is radially asymmetrical; and
wherein the seal has a continuous profile around the
periphery of the flange.
Appeal Br. (Claims App. 1).
ANALYSIS
Appellant contends Rejection I and Rejection II are improper because
the Examiner wrongly finds Stein discloses a plunger with a seal that
“extends centrally inward from an outward periphery of the flange,” as
recited in independent claim 1. Appeal Br. 6—10. This is so, Appellant
asserts, because the element in Stein that the Examiner relies on to show that
2 Claims 2, 6, and 18—20 have been canceled. Response 2, 4 (entered June
30, 2015). Claims 7—9 have been withdrawn. Id. at 3.
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Appeal 2017-003351
Application 13/562,455
limitation “extends centrally inward from a sidewall of the cup 14.” Id. at 9,
10 (emphasis added). For the following reasons, we agree.
The Examiner finds Figures 1—7 of Stein illustrate a plunger with a
seal that “extends centrally inward from an outward periphery of the flange,”
and notably without any citations to its written description. In the Answer,
as additional support, the Examiner cites to an annotated version of Figures
11 and 12 from Stein, reproduced below. Ans. 4.
■■■■11'-I'■jK
Above Figures 11 and 12 illustrate a side and cross-sectional view of the
plunger Stein discloses, which the Examiner annotates to specifically
identity the flange and seal elements. Id. The Examiner explains “[t]he seal
is joined at a connection on the wall of the flange” and “[t]his connection
between the seal and the flange meets the claim requirement of an outward
periphery as the points along the wall of the flange are interpreted to be an
outer periphery.” Id. Therefore, the Examiner finds, “[t]he seal of Stein
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Appeal 2017-003351
Application 13/562,455
both extends away from the flange, and centrally inward from an outward
periphery of the flange.” Id.
The Examiner erred by relying on an unreasonable interpretation of
“flange” that broadens its scope to include the inner side wall of the plunger
cup 14 Stein discloses. As claim 1 recites, the flange “cover[s] an elongated
toilet trapway” and provides the base structure that the plunger seal
“extend[s] away from ... to seal with the elongated toilet trapway.” Appeal
Br. (Claims App. 1). The Specification illustrates and describes the flange
as being located at the periphery of the distal end of the plunger bell and
shaped for engagement with an elongated trapway. See Spec. 137, 39, Figs.
2, 4. Stein uses “flange” similarly to describe a rim at the distal end of a
plunger bell that engages a trapway; specifically, Stein describes the distal
end of the plunger bell as having a “rim 50 that forms an ‘0-ring’ type bead
about the outer circumferential edge in a manner that flanges outwards.”
Stein col. 4,11. 57—59, Figs. 8, 11, 12. The generally understood meaning of
the term “flange” is “a rib or rim for strength, for guiding, or for attachment
to another object.” See Flange Definition, Merriam-Webster.com,
http://www.merriam-webster.com/dictionary/flange (last visited on Feb. 22,
2018). In light of Appellant’s Specification and the ordinary meaning of the
term “flange,” the broadest reasonable interpretation of “flange” is a rim at
the circumferential edge and distal end of a plunger bell (or force cup) that
covers a toilet trapway.
Although Stein does not include any written description of the
element that the Examiner identifies as the seal in Figure 12, Stein does
describe the bell structure to which the illustration shows the seal is attached
to a portion of the continuous sidewall that extends vertically upward from
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Appeal 2017-003351
Application 13/562,455
flanging rim 50. Stein col. 4,11. 61—63. The Examiner does not offer any
support or reasoning for why a skilled artisan would consider this portion of
the sidewall of the Stein plunger to be part of the flange. And, in view of the
broadest reasonable interpretation of “flange” discussed above, we do not
agree that the vertically extending sidewall portion of the Stein plunger is
part of the flange. Therefore, the Examiner has failed to establish by a
preponderance of the evidence that Stein discloses a seal that “extends
centrally inward from an outward periphery of the flange,” as recited in
independent claim 1.
As a result, because claims 3—5, 10-17, and 21 depend from claim 1,
and furthermore, because the Examiner does not rely on Vandenbergh or
Hadfield to correct the above deficiency with the rejection of claim 1, we do
not sustain Rejection I or Rejection II.
DECISION
The Examiner’s rejections of claims 1, 3—5, 10-17, and 21 are
reversed.
REVERSED
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