Ex Parte Good et al

Patent Trial and Appeal Board

Oct 30, 2017

13408499 (P.T.A.B. Oct. 30, 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.
13/408,499 02/29/2012 Robert J. Good 21827-USCONl 8025
147365 7590 11/01/2017
Silaan Disinensiina SJvstp.ms
EXAMINER
501 South 5th Street, 3rd Floor
Richmond, VA 23219-0501
WEISS, NICHOLAS J
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
11/01/2017 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):
patent@barjos.com
devin.jensen @ silgandispensing.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT J. GOOD,
DAVID L. DEJONG, and JOSEPH R. KRESTINE1
Appeal 2016-006655
Application 13/408,499
Technology Center 3700
Before JAMES P. CALVE, LEE L. STEPINA, and ARTHUR M. PESLAK,
Administrative Patent Judges.
CALVE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Office
Action rejecting claims 22—24 and 26—31. See Appeal Br. 5. Claims 1—21
and 25 are cancelled. Id. at 15 (Claims Appendix). We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
1 WestRock Dispensing Systems, Inc. is identified as the real party in
interest. Appeal Br. 3.
Appeal 2016-006655
Application 13/408,499
CLAIMED SUBJECT MATTER
Appellants disclose a blow-in dip tube connector 160 that connects a
trigger sprayer or pump system 100 to containers or bottles that include a
blown-in dip tube 960 integrated therein as illustrated in Figures 1 and 2 of
Appellants’ disclosure. Spec. 1, 37—38.
Claims 22, 26, and 27 are independent. Claim 22 is illustrative and is
reproduced below.
22. An improved blown-in dip tube connector for
connecting a blown-in dip tube of a container with a fluid
passageway of a trigger sprayer, wherein the improvement
comprises:
at least one connector lip about a periphery of a connector head
of the blown-in dip tube connector, wherein the at least one
connector lip is configured to mate with the trigger sprayer and
to retain the blown-in dip tube connector with the trigger
sprayer.
REJECTIONS
Claims 22 and 26 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Applicants’ Admitted Prior Art (“AAPA”)2 and Geier (US
5,244,126, iss. Sept. 14, 1993).
Claims 23 and 27 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over AAPA, Geier, and Hensen (US 2011/0036927 Al, pub.
Feb. 17, 2011).
Claims 24 and 28—31 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over AAPA, Geier, Hensen, and Ophardt (US 2008/0121664
Al, pub. May 29, 2008).
2 The Examiner treats the preamble of claim 22 as Appellants’ Admitted
Prior Art. See Final Act. 2. Appellants do not dispute this finding. See
Appeal Br. 8—11; Reply Br. 2—5.
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Appeal 2016-006655
Application 13/408,499
ANALYSIS
Claims 22 and 26
Rejected Over AAPA and Geier
Appellants argue independent claims 22 and 26 together. Appeal Br.
8. We select claim 22 as representative, with claim 26 standing or falling
with claim 22. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner relies on the AAPA (lines 1—2 of claim 22) to teach a
blown-in dip tube connector that connects a blown-in dip tube of a container
with a fluid passageway of a trigger sprayer, and Geier to teach at least one
connector lip (bead 11) about a periphery of a connector head (insert 9) that
mates via a snap-fit with grooves 13 of the trigger sprayer. Final Act. 2—3.
The Examiner determines it would have been obvious to provide such a
connector on the AAPA to overcome the danger of liquid leakage that is
associated with manual sprayer devices. Id. at 3; Ans. 7.
Appellants argue that the Examiner’s reason for combining Geier and
the AAPA “to overcome the danger of liquid leakage that is associated with
manual sprayer devices” is conclusory because the Examiner has not shown
the AAPA to have a leakage problem. Appeal Br. 8—9. Appellants argue
that Geier’s teaching of piston leakage associated with piston jamming does
not establish that the AAPA has a liquid leakage issue, and without such a
finding, there is no motivation to combine Geier’s design with the AAPA.
Id. at 9-10. Appellants argue that Geier’s teaching that circular beads 11
provide a fluid-tight seal would not have lead a skilled artisan to modify the
AAPA without using two parallel circular beads 11 and inner grooves 13.
Id. at 10. Asa result, Appellants argue that the rejection lacks a rational
underpinning and is based on hindsight from the Specification. Id. at 10—11.
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Appeal 2016-006655
Application 13/408,499
The Examiner’s reason for modifying the AAPA to include at last one
circular bead 11 to provide a fluid-tight fit that reduces leakage in the AAPA
sprayers is supported by a rational underpinning. Claim 22 recites that the
improvement comprises “at least one connector lip about a periphery of a
connector head of the blown-in dip tube connector.” Geier teaches at least
one connector lip in the form of two parallel circular beads 11 located about
a periphery of a connector head (insert 9), and beads 11 provide a fluid-tight
forced fitting when they engage inner grooves 13 on cylindrical seat 12 of a
trigger sprayer (sprayer device 1), as claimed. See Geier, 1:67—2:3, Fig. 2.
Geier thus teaches at least one connector lip about a periphery of a connector
head that mates with a trigger sprayer to form a fluid-tight fit. The Examiner
determines correctly that a skilled artisan would have been motivated to use
this fitting on the AAPA to prevent leakage, i.e., to provide a fluid-tight fit,
as Geier teaches. Ans. 7; see KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
417 (2007) (using a known technique to improve similar devices in the same
way is obvious unless such a modification is beyond the level of ordinary
skill).3 A fluid-tight connection ensures that the AAPA, as modified, does
not have any leakage problems. This rational underpinning also addresses
Appellants’ hindsight arguments. See In re Cree, 818 F.3d 694, 702, n.3
(Fed. Cir. 2016) (hindsight argument is of no moment where the Examiner
provides a sufficient, non-hindsight reason to combine the references).
3 We appreciate Appellants’ arguments that part of the leakage problem in
Geier is related to the problem of prior art pistons that do not extend fully in
a cylinder and therefore have a tendency to jam and leak. Geier, 1:26-44.
However, Geier also teaches a fluid-tight connection via circular beads 11
and grooves 13 on cylindrical seat 12. Geier, 1:67—2:3, Fig. 2. It is this
connection that the Examiner proposes to use with the AAPA. Ans. 7.
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Appeal 2016-006655
Application 13/408,499
Claims 23 and 27
Rejected Over AAPA, Geier, and Hensen
The Examiner relies on Hensen to teach a seal ring as recited in claim
23 and independent claim 27. Final Act. 3—A. The Examiner relies on the
AAPA as modified by Geier to disclose the other features of claim 27, such
as a connector lip, for the same reasons as claim 22. Id. at 3. The Examiner
determines it would have been obvious to provide the AAPA as modified by
Geier with a fluid coupling seal ring at the fluid inlet end of the dip tube
connector, as taught by Hensen, to provide a fluid communication between
the integrally molded dip tube of the container and the sprayer dispenser, as
Hensen teaches. Id. at 4 (citing Hensen 142).
Claim 23
Appellants argue that claim 23 is nonobvious because it depends from
claim 22. Appeal Br. 11. Because we sustain the rejection of claim 22, this
argument is not persuasive, and we also sustain the rejection of claim 23.
Claim 27
Appellants argue the AAPA and Geier do not teach a blown-in dip
tube with a connector head as recited in independent claim 27 and there is no
motivation to combine the AAPA with Geier. Appeal Br. 12. Appellants
also argue that Hensen does not teach the claimed connector lip or provide
motivation to combine the AAPA and Geier. Id. These arguments are not
persuasive for the reasons discussed above for claim 22. The Examiner does
not rely on Hensen to teach a connector lip or to provide motivation to add
the connector lip of Geier to the AAPA. Geier provides the motivation to
modify the AAPA to include at least one connector lip for a fluid-tight seal,
as discussed above. Thus, we sustain the rejection of claim 27.
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Appeal 2016-006655
Application 13/408,499
Claims 24 and 28—31
Rejected Over AAPA, Geier, Hensen, and Ophardt
Claim 24
Claim 24 depends from claim 23 and recites that the at least one seal
ring comprises at least one lip. Appeal Br. 15 (Claims Appendix). The
Examiner finds that Ophardt teaches an o-ring to provide a well-known seal
between two components, and an o-ring inherently contains a lip as claimed.
Final Act. 4—5. The Examiner determines it would have been obvious to use
an o-ring, as taught by Ophardt, to improve the seal connection of the AAPA
as modified by Geier and Hensen as an application of a known technique to
a known device ready for improvement for predictable results. Id. at 5. The
Examiner reasons that the outer semi-circle of the o-ring effectively forms a
lip, which is not recited to have a particular shape in claim 24. Ans. 8.
Appellants argue that an o-ring may teach or make obvious a seal ring
as recited in claim 24, but an o-ring does not include a “lip” because an o-
ring is inherently rounded and therefore has a smooth outer surface with no
lip on its outer surface. Appeal Br. 13.
Resolution of this issue turns on claim construction. We interpret the
term “lip” to mean “a projecting edge.” This meaning is consistent with an
ordinary meaning of lip, which includes “a projecting edge.” Definition of
lip by Merriam-Webster at https://www.merriam-webster.com/dictionary/lip
(last viewed Oct. 25, 2017). It is consistent with Appellants’ Specification,
which discloses that the one or more seal rings 163 may include one or more
lips 163 A, which Appellants illustrate with a projecting, semi-rounded edge
that extends outwardly from dip tube connector 160 beyond seal ring 163.
Spec. 1 53, Fig. 23.
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Appeal 2016-006655
Application 13/408,499
We agree with the Examiner that Ophardt illustrates o-ring 101 with
an edge that projects beyond outer surface 98 to engage chamber wall 40.
The projecting semi-circular edge of o-ring 101 corresponds to the claimed
lip, which Appellants illustrate as a projecting semi-circular edge 163 A that
extends outwardly beyond dip tube connector 160 and seal ring 163.4 Thus,
we sustain the rejection of claim 24.
Claims 28 and 30
Claims 28 and 30 depend from claim 22 (via claim 23) and claim 27
respectively and recite that “the at least one seal ring further comprises a bi-
injected seal ring on the fluid inlet end of the blown-in dip tube connector.”
The Examiner determines that this limitation is a product-by-process
limitation, the patentability of which is determined by features of the product
and not by the process by which the product feature is made. Final Act. 5.
Appellants argue that claim 28 is not a product-by-process claim and
is no different than a claim reciting a “plastic seal ring” or “metal seal ring.”
Appeal Br. 14. Appellants argue that “a bi-injected seal ring” is a definite
structure and defines and modifies the “seal ring.” Id.', Reply Br. 5.
We interpret “bi-injected” according to a plain meanings of “bi” and
“injected” as forming two elements by an injection process. This meaning is
consistent with the Specification, which discloses that one or more seal rings
163 may be bi-injected with blown-in dip tube connector 160. Spec. 1 55.
4 Appellants disclose that lip(s) 163 A “may snap into one or more detents or
snap fitments on a blown-in dip tube seat 963 to facilitate retention.” Spec.
1 53. Claim 24 does not recite this feature, however, and we decline to read
this unclaimed feature into claim 24. Appellants do not identify a functional
or structural feature of the claimed “lip” that is covered by claim 24 and not
disclosed or suggested by Ophardt’s o-ring 101. Moreover, Ophardt’s o-ring
101 snaps into annular groove 100 of sealing plug 98. Ophardt 124, Fig. 2.
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Appeal 2016-006655
Application 13/408,499
We agree with the Examiner that this limitation recites the process by
which the seal ring is formed, i.e., by an injection process when the blown-in
dip tube connector is injection formed. This meaning also is consistent with
the claim language, which recites that “the at least one seal ring further
comprises a bi-injected seal ring on the fluid inlet end of the blown-in dip
tube connector.” The seal ring is bi-injected with the dip tube connector.
“In determining validity of a product-by-process claim, the focus is on
the product and not the process of making it.” Greenliant Sys., Inc. v. Xicor
LLC, 692 F.3d 1261, 1268 (Fed. Cir. 2012) (quoting Amgen Inc. v. F.
Hoffman-La Roche Ltd., 580 F.3d 1340, 1369 (Fed. Cir. 2009)). Here, the
Examiner finds that Hensen discloses a seal ring, as recited in claim 23, and
Ophardt discloses a seal ring lip, as recited in claim 24. Final Act. 3—4, 5.
That the seal ring may be formed by a bi-injection process is not relevant to
the patentability of the claimed seal ring of the improved blown-in dip tube
connector product. The “bi-injected” limitation defines how the seal ring is
made. Appellants have not identified any structure, function, composition,
or other patentable feature that is encompassed by the bi-injected limitation,
except to assert that this limitation defines and modifies “seal ring.” Reply
Br. 5. Unlike a “plastic seal ring” or “metal seal ring” (Appeal Br. 14), a bi-
injected seal ring does not indicate any material composition or properties of
the seal ring. Thus, we sustain the rejection of claims 28 and 30.
Claims 29-31
Appellants argue that claims 29-31 are nonobvious because they
depend from independent claims 22 and 27, respectively. Appeal Br. 11, 12.
Because we sustain the rejection of claims 22 and 27, these arguments are
not persuasive, and we also sustain the rejection of claims 29-31.
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Appeal 2016-006655
Application 13/408,499
DECISION
We affirm the rejections of claims 22—24 and 26—31.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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