Ex Parte Gregory et al

Patent Trial and Appeal Board

Jul 3, 2013

12025499 (P.T.A.B. Jul. 3, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/025,499 02/04/2008 Christian T. Gregory 8473-91454-US 1377
22242 7590 07/05/2013
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
EXAMINER
KIM, CHRISTOPHER S
ART UNIT PAPER NUMBER
3752
MAIL DATE DELIVERY MODE
07/05/2013 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 CHRISTIAN T GREGORY and
JOHN J. ALARCON
____________

Appeal 2011-006769
Application 12/025,499
Technology Center 3700
____________

Before EDWARD A. BROWN, LYNNE H. BROWNE, and
CARL M. DEFRANCO, Administrative Patent Judges.

BROWNE, Administrative Patent Judge

DECISION ON APPEAL

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STATEMENT OF THE CASE

Christian T. Gregory and John J. Alarcon (Appellants) appeal under
35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1, 4-13, 15-
24 and 26-31. Claims 2, 3, 14, and 25 have been cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
Claim 1, with emphasis added, is reproduced below:
1. An irrigation sprinkler nozzle for discharging a
stream of fluid, comprising:
a nozzle body defining a nozzle passage
having an upstream end for mounting in flow
communication with a supply of water under
pressure, and a downstream end defining a nozzle
outlet for outward projection of a water stream to
irrigate surrounding terrain, the water stream
including an upper stream segment to irrigate a
terrain zone disposed a first distance from the
sprinkler nozzle and a lower stream segment to
irrigate terrain disposed a second distance from the
sprinkler nozzle, the first distance being greater
than the second distance;
said nozzle outlet including a lower margin,
an upper margin and a pair of side margins
connecting the upper and lower margins, and
having an outboard side defining a front face, the
lower margin, upper margin and side margins
surrounding the nozzle outlet at the front face; and
a plurality of discrete ramps formed at said
lower margin of said nozzle outlet and extending
forwardly and angularly downwardly therefrom,
the upper and side margins being free of said
ramps, each such discrete ramp having a different
selected declination angle than an adjacent ramp
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and arranged in a side-by-side array along said
lower margin of said nozzle outlet such that a
sidewall is formed between adjacent ramps, each
of said ramps having an upstream end disposed a
distance upstream relative to said front face of said
nozzle outlet, whereby a portion of the water
passing through said nozzle outlet is guided
downwardly generally along said ramps to form at
least part of the lower stream segment to irrigate
surrounding terrain relatively close to the sprinkler
nozzle.

PRIOR ART
Thompson US 2,936,960 May 17, 1960
Gregory US 7,325,753 B2 Feb. 5, 2008

GROUNDS OF REJECTION1

1. Claims 1, 4-11, 15-19, 21-24 and 29-31 stand rejected under 35
U.S.C. § 102(b) as anticipated by Thompson.
2. Claims 1, 4-13, 15-24 and 26-31 stand rejected under the judicially
created doctrine of obviousness-type double patenting over claims 1-25 of
Thompson.
OPINION
Anticipation
Claims 1 and 4-11:
The Examiner finds that Thompson discloses each and every element
of independent claim 1. Ans. 3-5. In particular, the Examiner finds that

1 The rejections of claims 1, 4-13, 30 and 31 under 35 U.S.C. § 112, 1st and
2nd paragraphs, are withdrawn by the Examiner. Ans. 3.
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Thompson discloses “a lower margin (the lower arc portion of mouth 12
having deflector 20); an upper margin (the upper arc portion of mouth 12
free of deflector 20); and a pair of side margins (lateral side arc portion of
mouth 12 free of deflector 12).” Ans. 4-5.
Appellants argue that Thompson does not disclose an upper margin
and side margins that are free of ramps (see App. Br. 20) because
“Thompson's tooth-like deflectors 20 are shown as extending around the
entire mouth 12 of the fire hose nozzle from the bottom of the mouth, up the
side, and to the top.” App. Br. 21. In support of this argument Appellants
cite Thompson column 3, lines 62-68, which states in relevant part:
Also conventional are the tooth-like deflectors 20
around the mouth of the nozzle, by which the
stream issuing from the nozzle in its fog position is
partially broken up and deflected radially inwardly
so that the cone of fog spray produced by the
nozzle has a substantially uniform intensity across
its entire cross-sectional area.

Appellants’ argument is persuasive. Thompson unequivocally describes
deflectors around the mouth of the nozzle, thus failing to describe upper and
side margins of the nozzle that are free of ramps as required by independent
claim 1.
For these reasons, we do not sustain the rejection of claim 1 and
claims 4-11 which depend therefrom.

Claims 15-19, 21-24, 30 and 31:
The Examiner finds that Thompson discloses each and every element
of independent claims 15 and 21. Ans. 5-6. In particular, the Examiner
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finds that Thompson discloses a “Common Downstream Plane” as indicated
on the marked-up figure in the bottom right hand corner of page 5
(hereinafter “Fig. A”) of the Examiner’s Answer.
Appellants argue that Thompson does not disclose a downstream end
sharing a common downstream plane with adjacent ramps because as shown
in Figure 1,2 the downstream ends of the deflectors (ramps) extend beyond
the spaces between the deflectors (the adjacent ramps). See App. Br. 22-24;
see also Reply Br. 5-7. We agree. The Examiner’s reliance upon Fig. A is
in error as it is a figure created by the Examiner which is not supported by
Thompson’s disclosure and contradicts Thompson’s Figure 1.3
For these reasons, we do not sustain the Examiner’s rejection of claim
independent claims 15 and 21. Likewise we do not sustain the Examiner’s
rejection of claims 16-19 and 30 which depend from independent claim 15
and claims 22-24 and 31 which depend from independent claim 21.
Claim 29:
The Examiner finds that Thompson discloses each and every
limitation of independent claim 29. In particular, the Examiner finds that
Thompson discloses “a segment (area of mouth 12 outboard of [the] area
having deflectors 20).” Ans. 7.
Appellants argue that Thompson does not disclose “‘a segment of the

2 Appellants refer to Thompson’s Figure 3; however, it appears that
Appellants have instead reproduced a portion of Thompson’s Figure 1 as
Figure 3 does not illustrate all of the deflectors 20.
3 We note that while Thompson’s Figures 2-6 illustrate the deflectors 20 in
phantom so as to not obscure the change in position of the valve element 8
within the nozzle shown in these Figures, this in no way implies that the
deflectors do not extend around the mouth of the nozzle as shown in Figure
1 and described supra.
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nozzle outlet at the faceplate being free of the ramps’ because Thompson's
deflectors and the spaces therebetween extend around the entire perimeter of
the mouth.” App. Br. 24; Reply Br. 7. As discussed supra, we agree.
For these reasons, we do not sustain the Examiner’s rejection of claim
29.
Double Patenting
In the final Office action dated March 23, 2010, claims 1, 4-13, 15-24
and 26-31 were rejected under the judicially created doctrine of
obviousness-type double patenting over claims 1-25 of U.S. Patent No.
Gregory. Final Rej. 8. The Notice of Appeal filed July 23, 2010 is silent as
to the specific claims being appealed. In the Appeal Brief, Appellants state
that claims 1, 4-13, 15-24, and 26-31 constitute the subject matter of the
appeal (see App. Br. 5), but have not addressed, or even acknowledged, the
double patenting rejection. In the Reply Brief, Appellants state that “[t]he
Examiner's Answer (pp. 7-8) also raises a double patenting rejection, which
was not an issue for appeal.” Reply Br. 1.
Since Appellants do not argue the ground of rejection of claims 1, 4-
13, 15-24 and 26-31 over claims 1-25 of U.S. Patent No. 7,325,753, we
summarily affirm the rejection.

DECISION

The Examiner’s rejection of claims 1, 4-11, 15-19, 21-24 and 29-31 as
anticipated by Thompson is REVERSED.
The Examiner’s rejection of claims 1, 4-13, 15-24 and 26-31 under
the judicially created doctrine of double patenting is 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).

AFFIRMED

rvb