Ex Parte Hagin

Board of Patent Appeals and Interferences

Aug 20, 2012

11113448 (B.P.A.I. Aug. 20, 2012)

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.
11/113,448 04/22/2005 Susanne EL Hagin EL HAGIN - 1 7798
25889 7590 08/21/2012
COLLARD & ROE, P.C.
1077 NORTHERN BOULEVARD
ROSLYN, NY 11576
EXAMINER
JACYNA, J CASIMER
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
08/21/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SUSANNE EL HAGIN
____________

Appeal 2010-008151
Application 11/113,448
Technology Center 3700
____________

Before STEVEN D.A. McCARTHY, JAMES P. CALVE, and RICHARD E.
RICE, Administrative Patent Judges.

RICE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the rejection of
claims 1, 3, 4 and 10-15. App. Br. 2. Claim 2 has been canceled, and claims
5-9 and 16-20 have been withdrawn. We have jurisdiction under 35 U.S.C.
§ 6.
We AFFIRM-IN-PART.
Appeal 2010-008151
Application 11/113,448

2
CLAIMED SUBJECT MATTER
Claim 1, which is reproduced below, is representative of the subject
matter on appeal:
1. A metering pump assembly comprising:
(a) a container with a changeable volume for
accommodating a fluid;
(b) a manually-activatable pump sealably connected with
the container having an outlet opening connected with an
outside area;
(c) a flange-shaped lid for sealing the container with
regard to the pump;
(d) a bypass channel outside the pump connecting the
container with the outside area, the bypass channel being
formed by a separate opening formed in the lid, the opening
being spaced from the pump by a distance; and
(e) a closure element for sealing the bypass channel from
the outside area.

REJECTIONS
The following Examiner’s rejections are before us for review:
1. Claims 1, 3, 4, and 10-15 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Padar (US 6,666,355 B2, iss. Dec. 23, 2003).
2. Claims 1, 3, 4, and 10-15 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Ash (US 5,199,609, iss. Apr. 6, 1993) and Padar.

Appeal 2010-008151
Application 11/113,448

3
OPINION
The rejection of claims 1, 3, 4, and 10-15 as anticipated by Padar
Appellant argues claims 1, 3, 4, and 10-15 as a group. App. Br. 7-11.
We select claim 1 as representative, and the remaining claims stand or fall
with claim 1.
Independent claim 1 calls for a metering pump assembly that includes
“a flange-shaped lid for sealing the container with regard to the pump” and
“a bypass channel outside the pump connecting the container with the
outside area, the bypass channel being formed by a separate opening formed
in the lid, the opening being spaced from the pump by a distance.” The
Examiner found that Padar discloses a metering pump including “a lid 3
with vertical flanges that seals the pump to the container.” Ans. 3. The
Examiner further found that Padar discloses
a bypass channel that extends through the lid 3 at 5b and 21that
is not part of the sealed pressure inducing pumping chamber
and thereby is not considered part of the pump and is outside
the pump as claimed[,] the bypass channel including 10, 12, 26,
27, 24 and 29 [as shown] in figure 4[,] all of which are spaced a
distance above the pumping mechanisms at the end of pointers
5 and 7 in figure 4[,] with bypass opening 10 in the lid [3] being
a separate opening with respect to 14 for the pump.
Id. The Examiner also found that the air passes through the “sucked
open[] lid valve 19 at 20.” Id. at 5.
To this, Appellant argues that the path of the residual air in
Padar is not a “bypass channel” because it: (1) does not connect the
container with the “outside area;” (2) is not “outside the pump” or
“spaced from the pump by a distance;” and (3) includes opening 24,
which is within the pump because pressure cylinder 5 and cylindrical
Appeal 2010-008151
Application 11/113,448

4
section 3a (which abuts opening 24) are one and the same component.
App. Br. 8-10.
Appellant additionally argues that Padar does not disclose a
“lid” that seals the container with regard to the pump. Id. 10-11.
Appellant asserts that the lower housing part 3 does not meet this
limitation, because “there is no sealing effect between the lower
housing part 3 … and collapsible bag 1a with respect [to] the pump
body” and “[m]oreover, the annular bypass channel surrounding the
pump in the Padar arrangement prevents the sealing effect of the lid.”
Id. 11. Appellant contends that the only elements of Padar’s fluid
dispensing device that could be a lid are “the sealing washer just
outside pointer 5a” and “the flange-like portion of element 5,” which
lack “anything like” a bypass channel. Id.
Figure 4 of Padar is reproduced below:
App
App

cont
29 fo
resid
endin
Pada
eal 2010-0
lication 11
Figure 4
ainer, toge
r drawing
ual air wh
g near po
In respo
r is not a b
08151
/113,448
depicts a
ther with a
off the res
en drawn o
inter 29.
nse to App
ypass cha
device for
removabl
idual air.
ff is show
ellant’s ar
nnel becau
5
dispensing
e suction
Col. 5, ll.
n by arrow
gument th
se it does
fluids fro
device 28
19-22. Th
s, starting
at the path
not conne
m a storag
with press
e path of
near poin
of the res
ct the cont

e
ure hose
the
ter 5a and
idual air in
ainer with

Appeal 2010-008151
Application 11/113,448

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the “outside area,” the Examiner finds that the residual air is sucked into
hose connection 29, which is exterior to both the container 1 and the pump 7
and is an outside area that is part of their surroundings. Ans. 5. We agree
with the Examiner. This finding is based on an interpretation of “outside
area” consistent with Appellant’s Specification, which discloses that the
bypass channel can be connected to a suction line so that residual air can be
drawn out of the container. Spec. 16.
We also agree with the Examiner that Padar discloses a flange-shaped
lid that seals the collapsible bag 1a with respect to the pump. Figures 1 and
4 illustrate the sealing function of the flange-like structure, and Padar
expressly discloses that “[t]he lower housing part 3 of the housing body is
designed as a closure cap which is placed onto the storage container 1 in a
snapping-on and sealing manner.” Col. 3, ll. 62-65.
Appellant has not convinced us that the Examiner erred in finding a
bypass channel that is outside the pump, is spaced from the pump by a
distance, and is formed in the lid 3 at the location of the sealing washer 19.
Ans. 3, 5. Appellant’s argument that pressure cylinder 5 and lower housing
part 3a are one and the same pump component ignores the Padar disclosure
that when “the sealing washer 19 loses its sealing action … the residual air
flows out of the inner bag 1a via … the grooves 27 at the upper edge of the
pressure cylinder into the space 22.” Col. 5, ll. 28-34.1 As described in
Padar, the space 22, which is enclosed by the upper and lower housing parts
3, 4 (col. 5, ll. 9, 10) and connected to the outside area by opening 24, is thus

1 Padar similarly discloses that the annular projection 26, in which the
grooves 27 are formed, is at “the upper edge” of the upper section
5b of the pressure cylinder 5. Col. 4, ll. 14-16.

Appeal 2010-008151
Application 11/113,448

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outside the pump. The sealing washer 19 is inserted “in the lower housing
part 3 of the housing body 2” within the space 22 at a distance above the
grooves 27. Col. 4, ll. 34-38; fig. 4. As such, the Examiner had a sound
basis for finding that the opening in lid 3 at the location of the sealing
washer 19 is outside the pump and spaced a distance from the pump.
Appellant’s Specification answers the further question of whether the
scope of the term “channel” in “bypass channel” encompasses the opening in
the lid 3 at the location of the sealing washer 19. It does. The Specification
uses the term “channel” sufficiently broadly to refer to an opening in a lid
through which air can pass from a container to an outside area. Spec. 15
(“an opening 11 is formed in lid 10 … [o]pening 11 therefore forms a bypass
channel by means of which container 2 is connected with the
surroundings”).
Thus, we sustain the rejection of claims 1, 3, 4, and 10-15 as
anticipated by Padar.
The rejection of claims 1, 3, 4, and 10-15 as obvious over Ash and Padar

Independent claims 1 and 15 each call for “a manually-activatable
pump … having an outlet opening connected with an outside area.” The
Examiner concluded that it would have been obvious to modify the manual
pump of the pressurized beverage dispensing system of Ash to employ the
metering pump of Padar “in order to directly spray fluid from the
container.” Ans. 4. Appellant persuasively contends that substituting the
Padar pump in order to directly spray fluid from the pressurized dispensing
system of Ash would effectively reverse the function of the manual pump
of Ash, which introduces pressurized air into the beverage dispensing tank.
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Application 11/113,448

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App. Br. 12-13. The Examiner’s response lacks adequate reasoning as to
why the person of ordinary skill in the art would have modified the
pressurized dispensing system of Ash so as to dispense fluid from the
metering pump of Padar.
As such, the rejection of independent claims 1 and 15 and dependent
claims 3, 4, and 10-14 as obvious over Ash and Padar is not sustained.

DECISION
The rejection of claims 1, 3, 4, and 10-15 under 35 U.S.C. § 102(b) as
anticipated by Padar is AFFIRMED.
The rejection of claims 1, 3, 4, and 10-15 under 35 U.S.C. § 103(a) as
unpatentable over Ash and Padar is REVERSED.
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)(1)(iv).

AFFIRMED-IN-PART

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