Ex Parte Hartley et al

Patent Trial and Appeal Board

Oct 30, 2013

11906229 (P.T.A.B. Oct. 30, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL DEAN HARTLEY and SCOTT T. MEINTS
____________

Appeal 2012-000987
Application 11/906,229
Technology Center 3700
____________

Before MEREDITH C. PETRAVICK, GAY ANN SPAHN, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1-20. We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We REVERSE.
Appeal 2012-000987
Application 11/906,229

2
Claimed Subject Matter
Claims 1, 6, and 12 are independent claims. Claim 1, reproduced
below, is illustrative of the subject matter on appeal.
1. In an intermediate bulk container (IBC) for
storing materials and including a bottom wall
having a bottom discharge outlet and an outlet
valve for connection to the discharge outlet, the
improvement comprising:
a sweep elbow connected between the
discharge outlet and the outlet valve, the sweep
elbow having a circular cross sectional
configuration at an inlet connected to the discharge
outlet and having a segment of a circle cross
sectional configuration at an outlet connected to
the outlet valve.

Rejections1
Claims 1-4, 6-9, 12-15, 18, and 19 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Evans (US 5,833,120, iss. Nov. 10, 1998).
Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Evans and Arch (US 6,682,108 B1, iss. Jan. 27, 2004).
Claims 1, 5-7, 10-13, 16, and 17 are rejected under 35 U.S.C. § 102(b)
as anticipated by Coleman (US 4,960,227, iss. Oct. 2, 1990).

OPINION
Anticipation by Evans
The Examiner finds, in relevant part, that Evans discloses “a sweep
elbow located between the discharge outlet and the outlet valve.” Ans. 3.

1 We review the rejections in a different order than presented in the
Examiner’s Answer.
Appeal 2012-000987
Application 11/906,229

3
The Examiner indicates that Evans’s outlet fitment 62 constitutes the
claimed discharge outlet, bent conduit (hose) 35 constitutes the claimed
sweep elbow, and pinch member 47 constitutes the claimed outlet valve.
See Ans. 3, 4-5; Evans, figs. 1-3, col. 3, ll. 12-22, col. 4, l. 28.
The Appellants point out Evans’s pinching mechanism utilizes pinch
member 47 to pinch off hose 35 near its dispensing end 42. See App. Br. 7
(citing Evans, col. 3, ll. 23-30). The Appellants also point out independent
claim 1 calls for a sweep elbow connected between the discharge outlet and
the outlet valve. Id.; see App. Br., Clms. App’x. Accordingly, the claimed
sweep elbow must connect to the claimed outlet valve. The Appellants
contend Evans’s “pinched hose portion cannot be both an elbow and an
outlet valve at the same time.” App. Br. 7.
The Appellants’ contention is persuasive. The Examiner’s findings
require hose 35 to be both the claimed sweep elbow and part of the claimed
outlet valve. Since the claimed sweep elbow must connect to the claimed
outlet valve, the Examiner’s finding would require us to find that hose 35
connects to itself. Such a finding is illogical and is not supported by a
preponderance of the evidence. Thus, the Examiner’s rejection of claim 1,
and its dependent claims, as anticipated by Coleman is not sustained.
Similar to independent claim 1, independent claims 6 and 12 each call
for a sweep elbow having an outlet connected to an outlet valve. See App.
Br., Clms. App’x. For similar reasons discussed with regard to claim 1, the
Examiner’s rejection of claims 6, and 12, and their dependent claims, as
anticipated by Evans is not sustained.
Appeal 2012-000987
Application 11/906,229

4
Obviousness over Evans and Coleman
Claim 20 depends from claim 12 (App. Br., Clms. App’x) and the
Examiner’s rejection relies on the inadequately supported finding discussed
above with regard to claim 12 (see Ans. 4). As such, the Examiner’s
rejection of claim 20 as unpatentable over Evans and Coleman is not
sustained.

Anticipation by Coleman
The Examiner’s rejection of independent claim 1 includes a finding
that Coleman’s elbow 66 constitutes the claimed sweep elbow of
independent claims 1, 6, and 12. Ans. 4 (citing Coleman, fig. 10). The
Appellants argue that Coleman lacks disclosure of “a sweep elbow having a
segment of a circle cross-sectional configuration at an outlet.” App. Br. 12,
Reply Br. 3. The Appellants’ contention is persuasive. Notably, the
Examiner has not made a finding that Coleman’s elbow 66 “ha[s] a segment
of a circle cross sectional configuration at an outlet,” as recited in claim 1
(App. Br., Clms. App’x). Thus, the Examiner’s rejection of claim 1, and its
dependent claims, as anticipated by Coleman is not sustained.
The Examiner’s rejection of independent claims 6 and 12 includes a
finding that Coleman’s interior surfaces are substantially even from the
container’s discharge outlet through the elbow 66 and then through the
valve, e.g., a conventional ball valve, 75. Ans. 4-5; see Coleman, col. 6, l.
67 – col. 7, l. 1. The Appellants argue “[t]here is no drawing showing the
interior of Coleman’s outlet valve” and “Coleman is void of any discussions
specifying any relationship between the bottom interior surface of the elbow
and a valve opening inside the outlet valve.” App. Br. 13; see Reply Br. 3.
Appeal 2012-000987
Application 11/906,229

5
The Appellants’ contention is persuasive. Notably, claims 6 and 12
recite “a bottom interior surface of the sweep elbow proximate the sweep
elbow outlet is substantially even with a valve opening inside the outlet
valve.” App. Br., Clms. App’x. Coleman does not disclose adequate details
to support a finding, by a preponderance of the evidence, that the
relationship between the bottom interior surface of elbow 66 proximate the
outlet of elbow 66 and the valve opening inside the outlet valve 75 is
substantially even. Thus, the Examiner’s rejection of claims 6 and 12, and
their dependent claims, as anticipated by Coleman is not sustained.

DECISION
We REVERSE the rejections of claims 1-20.

REVERSED

mls