Ex Parte Kole

Patent Trial and Appeal Board

Jul 11, 2017

13130613 (P.T.A.B. Jul. 11, 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.
13/130,613 05/23/2011 Ryan Kole 5202-004 9198
51500 7590 07/13/2017
PATZIK, FRANK & SAMOTNY LTD.
150 SOUTH WACKER DRIVE
SUITE 1500
CHICAGO, IL 60606
EXAMINER
MCCALISTER, WILLIAM M
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
07/13/2017 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):
ipdocket@pfs-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RYAN KOLE
Appeal 2016-000375
Application 13/130,613
Technology Center 3700
Before JILL D. HILL, THOMAS F. SMEGAL, and ERIC C. JESCHKE,
Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Ryan Kole (“Appellant”) seeks review under 35 U.S.C. § 134(a) of
the Examiner’s decision, as set forth in the Final Office Action dated July
10, 2014 (“Final Act.”), and as further explained in the Advisory Action
dated September 25, 2014 (“Adv. Act.”), rejecting claims 1—3, 10, and 25—
30.1 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.
1 Appellant identifies RK Inventions, LLC and Ryan Kole as the real
parties in interest. Appeal Br. 3.
Appeal 2016-000375
Application 13/130,613
BACKGROUND
The disclosed subject matter “relates ... to the handles associated
with valves coupled to water faucets, for the activation and deactivation of
the supply of water thereto.” Spec. 1,11. 10-12. Claim 1, the sole
independent claim, is reproduced below:
1. A handle for attachment to a water valve,
the handle comprising:
a handle body having a bottom region;
a first lever operably coupled to the handle
body; and
a second lever operably coupled to the
handle body;
wherein at least a portion of at least one of
the first lever and the second lever includes an
associated indicator designating that the associated
lever is to be used solely for one of activating and
deactivating the water valve.
REJECTION2
Claims 1—3, 10, and 25—30 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Metz (GB 188,536, issued Nov. 16, 1922) and Buffone
(US 4,429,855, issued Feb. 7, 1984).
2 The Examiner rejected claims 1—3 under 35 U.S.C. § 102(b) as
anticipated by Bradley (US 3,122,756, issued Mar. 3, 1964). See Final Act.
2—3. In the Answer, the Examiner withdraws this rejection. See Ans. 3—5.
2
Appeal 2016-000375
Application 13/130,613
DISCUSSION
Claims 1—3 and 25—30
For the claims in this group, Appellant argues the patentability of
independent claim 1 and does not separately argue claims 2, 3, and 25—30,
which depend from claim 1. See Appeal Br. 10. Thus, we address claim 1,
with claims 2, 3, and 25—30 standing or falling with claim 1. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2014).
The Examiner found that Metz discloses the “handle body,” “first
lever,” and “second lever” as recited more specifically in claim 1 and “also
discloses the intended use of operating the lower handle (c) if the hands are
dirty (i.e., to activate/open the valve, turning the faucet on), and operating
the upper handle (b) if the hands are clean (i.e., to deactivate/close the valve,
turning the faucet off).” Final Act. 4. The Examiner stated that “Metz does
not disclose the first lever and second lever to include indicator/indicia as
claimed” in the final clause of claim 1. Id. The Examiner found, however,
that “Buffone teaches that it was known in the art at the time of invention to
include directional indicia to ‘open’ (activate/tum on), and directional
indicia to ‘close’ (deactivate/tum off), a similar valve handle lever.” Id. at
4—5. According to the Examiner: “In conformance with Metz[’s] intended
use, and to indicate which direction to turn Metz’[s] handle levers, it would
have been obvious to include directional indicia to ‘open’ (activate/tum on)
Metz’[s] lower (first) handle lever, and directional indicia to ‘close’
(deactivate/tum off) Metz’[s] upper (second) handle lever.” Id. at 5.
First, Appellant states that “Metz discloses a water valve having a
shaft (a) upon which two handles (b, c) are mounted in a spaced, vertically
stacked orientation” and that, in Metz, “[e]ach handle includes four levers,
3
Appeal 2016-000375
Application 13/130,613
radiating outwardly and equidistantly spaced from each about a center of the
handle, apparently at 90, 180, 270, and 360 degree orientations.” Appeal Br.
11; see also Metz, Fig. Appellant argues that “Metz does not suggest or
disclose using different levers of the same handle solely for one of activating
and deactivating a water valve” but rather, “discloses the use of two separate
handles [b, c], one to be used when the hands are dirty, and the other to be
used when the hands are clean.” Id. (discussing Metz, 11. 30—37).
We are not apprised of error based on this argument. The Examiner
identifies (1) element a in Metz as the recited “handle body,” (2) element b
as the “first lever,” and (3) element c as the “second lever.” Final Act. 4. As
noted by Appellant (Appeal Br. 11) and the Examiner (Ans. 5), Metz
describes elements b and c as “handles.” Metz, 11. 27—28. This does not,
however, demonstrate error in the Examiner’s findings. During
examination, claims are given their broadest reasonable interpretation
consistent with the specification, reading the claim language in light of the
specification as it would be interpreted by one of ordinary skill in the art. In
re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983). Here, Appellant does not
propose a construction for “lever” and does not address the Examiner’s
construction of “lever” as a structure that is connected to and that pivots a
“handle body” to operate a valve. See Ans. 5 (“[T]he broadest reasonable
interpretations of the claim terms ‘first lever’ and ‘second lever’ are seen to
read on Metz’ [s] members B and C because members B and C are connected
to and pivot handle body member A to operate Metz’[s] valve (just as
[Appellant’s] levers 30 and 40 are connected to and pivot handle body
member 20 to operate [Appellant’s] valve).”).
4
Appeal 2016-000375
Application 13/130,613
The Specification supports the Examiner’s construction of the term
“lever.” See, e.g., Spec. 3,11. 7—8 (“An indicator is associated with at least
one lever to identify whether the lever is to be used solely to turn on, or
solely to turn off, an associated water valve.” (emphasis added)). Further, to
the extent defined in the Specification, the term “lever” equates to a
“grasping region” rather than a specifically shaped structure. See id., 11. 2—5
(“The present invention comprises a sanitary water faucet handle having
multiple levers, or grasping regions. Each grasping region includes an
associated indicator, identifying whether the particular grasping region is
intended for use in turning the faucet’s water supply on, or off.”).
Although Figure 5 of the Specification, for example, depicts each
“lever” as a single rigid bar, “the mere fact that the . . . drawings depict a
particular embodiment. . . does not operate to limit the claims to that
specific configuration.” Anchor Wall Sys., Inc. v. Rockwood Retaining
Walls, Inc., 340 F.3d 1298, 1306-07 (Fed. Cir. 2003); see also Response to
Notification of Non-compliant Appeal Br. 2 (filed March 31, 2015) (citing,
regarding claim 1, Figures 5 and 8 of the Specification as well as page 7,
lines 6—17 and page 8, lines 9—12). For these reasons, we are not apprised of
error in the Examiner’s identification of elements b and c in Metz as the
recited “first lever” and “second lever,” respectively.
Second, Appellant argues that “no mention is made in Metz of any
indicators whatsoever, let alone an indicator associated with any of the four
levers of either handle (b) or the four levers of separate handle (c).” Appeal
Br. 11. We are not apprised of error based on this argument because the
Examiner does not rely on Metz, but rather Buffone, regarding the
limitations referenced (recited in the final clause of claim 1). See Final Act.
5
Appeal 2016-000375
Application 13/130,613
4—5; see also In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.”).
Third, Appellant states, “As is best seen in Figs. 1, 5 and 6 of
Buffone, the arcuate OPEN and CLOSE rotational direction indicators are
disposed on the rear, as well as the front face of the circumferential portions
of the hand wheel” to “permit[] the indicators to be more readily viewed,
and the wheel to be operated, from an atypical vantage point.” Appeal Br.
12. According to Appellant, it is “apparent to one having ordinary skill in
the art that, as the proper directional operation of Buffone’s hand wheel may
be counterintuitive when viewed from this atypical orientation, directional
indicators have been added for clarification.” Id. Appellant argues that
“water valves typically do not include directional indicators, such as those
disclosed in Buffone, as the direction to turn a water valve is established by
well-known convention, and water valves are commonly viewed and
operated from only a single, facing orientation.” Id.
The Examiner responds that
Metz’fs] intended operation (using only the lower handle C if
the hands are dirty, and only the upper handle B if the hands are
clean) is analogously seen as not intuitive, and therefore
analogously [seen] as worthy of “clarification.” For this
purpose it is seen as obvious to clarify Metz’[s] intended use by
using indicators on Metz’[s] device.
Ans. 5—6. For the reasons stated by the Examiner as set forth above, we are
not apprised of error based on Appellant’s argument.
Fourth, Appellant argues that, contrary to the Examiner’s finding
(Final Act. 4—5), Buffone does not teach that “it was known in the art to
6
Appeal 2016-000375
Application 13/130,613
include directional OPEN and CLOSE indicia on a valve handle lever
similar to those disclosed in Metz.” Appeal Br. 13. According to Appellant,
“[t]he arcuate OPEN and CLOSE text and arrow indicators of Buffone are
all disposed along the same, common circumferential portion 25, which
surrounds all four ‘levers’ 28, 30, 32 and 34.” Id.', see also Reply Br. 4
(annotating Figure 4 of Buffone to identify elements 28, 30, 32, and 34 as
“levers”).
Applying the construction of “lever” discussed above in relation to
elements b and c of Metz—i.e., a structure that is connected to and that
pivots a “handle body” to operate a valve—we are not apprised of error in
the finding that the relied-upon indicators in Buffone are on a “lever.” See
Final Act. 4—5 (“Buffone teaches that it was known in the art at the time of
invention to include directional indicia to ‘open’ (activate/tum on), and
directional indicia to ‘close’ (deactivate/tum off), a similar valve handle
lever.” (emphasis added)); see also Buffone, col. 2,11. 16—29 (discussing the
connection between hand wheel 10 and valve member 3).
Fifth, Appellant argues that combining Metz and Buffone “would not
result in any separate OPEN or CLOSE indicators being on the levers of
Metz” as required by claim 1, “but would rather result[] in the arcuate OPEN
and/or CLOSE indicators being disposed on the center cap atop individual
handle (b) of Metz” as shown in an annotated version of the drawing of
Metz. Appeal Br. 14. According to Appellant, “such a combination would
not include an indicator associated with any particular lever, and certainly
would not designate that any lever is to be used solely for one of activating
and deactivating the water valve.” Id. at 15.
7
Appeal 2016-000375
Application 13/130,613
This argument does not apprise us of error because it does not address
the modified device as articulated by the Examiner, which includes the
“OPEN” indicia on element c of Metz and the “CLOSE” indicia on element
b. See Final Act. 4—5; Ans. 6.
Sixth, Appellant contends that placing
directional indicators (i.e., ON or OFF, each with associated
directional arrows) along the levers of either handle (b) or
handle (c) of Metz, as the Examiner appears to suggest in the
Final Office Action, rather than the cap atop handle (b) of Metz,
would be inoperative, as this would provide no clear indication
of which direction to turn the handles.
Appeal Br. 15. This argument does not apprise us of error because it does
not address the rejection as articulated by the Examiner. Here, Appellant
refers to the four protrusions of elements b and c in Metz as “levers.” See id.
The modified device does not include the indicia of Buffone on the
protrusions of either element b or element c of Metz, as asserted by
Appellant. Id. Rather, as noted regarding the previous argument, the
modified device includes the “OPEN” indicia on element c of Metz and the
“CLOSE” indicia on element b. See Final Act. 4—5; Ans. 6.
Seventh, Appellant argues that the “indicators of Buffone are
directional in nature, and not indicators of any purpose of a lever, as in
Appellant’s independent claim 1.” Appeal Br. 13; see also id. at 15—16
(“[A] person having ordinary skill in the art could only perceive such
combinations of text and arrows as being directional indicators, rather than,
as required in Appellant’s claims, indicators designating that the associated
lever is to be used solely for one of activating and deactivating a water
valve.”).
8
Appeal 2016-000375
Application 13/130,613
We are not apprised of error based on this argument because
nonobviousness cannot be established by attacking references individually
when the rejection is based on a combination of prior art. See In re Merck &
Co., 800 F.2d at 1097. Here, we agree with the Examiner that, in the context
of the modified device, (1) the “OPEN” indicia (of Buffone) on element c (of
Metz) would designate that structure for use in “activating ... the water
valve” and (2) the “CLOSE” indicia (of Buffone) on element b (of Metz)
would designate that structure for use in “deactivating the water valve.” See
Ans. 6 (stating that “the terms ‘open’ and ‘close’ are seen to clearly indicate
a purpose (specifically, the result of rotation)”), 7 (“The term ‘open’
unambiguously refers to activating a valve, and the term ‘close’
unambiguously refers to deactivating a valve.”).
Eighth, Appellant highlights aspects of the reasoning statement
provided by the Examiner, and argues that
the Examiner improperly conflates the teaching of Buffone,
which is directed to indicators identifying the directions in
which a valve handle is capable of operation (i.e., rotate
clockwise or counterclockwise), and further indicating the
function or result of such operation (i.e., to open or close), and
the teachings of Metz, namely, how multiple handles, each
capable of operating in multiple directions, should preferably
each be operated (i.e., only when hands are dirty, or only when
hands are clean).
Appeal Br. 15. Appellant argues that “there is simply no reasonable basis to
include the arcuate OPEN and CLOSE directional text and arrow indicators
of Buffone with the handles of Metz as convention alone establishes the
directions in which the handles of Metz are operable.” Id. at 13.
The Examiner responds that “there is no conflation of the . . . Metz
and Buffone teachings” because “Metz discloses the intent that only lever C
9
Appeal 2016-000375
Application 13/130,613
is used to open the valve (with dirty hands), and that only lever B is used to
close the valve (with clean hands)” and “Buffone teaches ‘open’ and
‘closed’ indicia that one of skill would readily apply to Metz’fs] device in
accordance with the claims and in accordance with Metz’fs] intended
operation of using only lever C to open the valve and only lever B to close
the valve.” Ans. 6.
We are not apprised of error because Appellant’s argument does not
identify faulty reasoning or factual findings underlying the rejection.
Instead, Appellant asserts it would not have been obvious to combine the
references as proposed because the relied-upon indicia from Buffone relate
to a “capability” whereas the disclosed intended use in Metz is a
“preference.” This does not, however, show error in the Examiner’s recited
reason to combine. See Final Act. 5; Ans. 6; see also KSR Int 7 Co. v.
Teleflex Inc., 550 U.S. 398, 420 (2007) (“[Fjamiliar items may have obvious
uses beyond their primary purposes, and in many cases a person of ordinary
skill will be able to fit the teachings of multiple patents together like pieces
of a puzzle.”).
For the reasons above, we sustain the rejection of independent claim
1. Claims 2, 3, and 25—30 fall with claim 1.
Claim 10
Claim 10 recites: “The invention according to claim 1, wherein the
handle is T-shaped.” Appeal Br. 18 (Claims App.). In the rejection, the
Examiner found that “Metz discloses wherein the handle is T-shaped
(member ‘b’ extends across member ‘a’, just as the horizontal component of
a ‘T’ extends across the vertical component).” Final Act. 5.
10
Appeal 2016-000375
Application 13/130,613
Appellant argues that, with this finding, “the Examiner appears to be
indicating that, when viewed from the side with a vertically-oriented shaft
(a). . . , the portion of the handle (b) and shaft (a) that is currently visible
has the appearance of a ‘T’, or that a portion of Metz’s handle is T-shaped.”
Appeal Br. 16. Appellant argues that claim 10 does not recite “that the
handle . . . has a T-shaped portion, a T-shaped region, a T-shaped cross-
section, or a T-shaped appearance from a particular side view” but rather
recites “that the handle is T-shaped.” Id.
The Examiner responds that “the term ‘T-shaped’ is taken by the
examiner to require a first, horizontal member extending across a second,
vertical member” and that “Metz discloses a horizontal member (e.g., B or
C) extending across a second, vertical member (A).” Ans. 7.
The record does not support the findings regarding claim 10. We first
construe the claim. With the term “the handle,” claim 10 refers back to
claim 1, which defines “the handle” as including, but not limited to: “[1] a
handle body having a bottom region; [2] a first lever operably coupled to the
handle body; and [3] a second lever operably coupled to the handle body”
(as well as “an associated indicator”). Thus, in light of claim 1, claim 10
requires that the “handle body,” “first lever,” and “second lever,” in
combination, form a T-shaped structure.3
In contrast, here, the Examiner finds that certain subsets of those three
structures form a T-shaped structure—specifically, that (1) the identified
“handle body” and identified “first lever” form a T-shaped structure (see
3 We do not address whether or how a “handle” with additional
structure (i.e., not required by claim 1) could fall within the scope of claim
10.
11
Appeal 2016-000375
Application 13/130,613
Final Act. 5; Ans. 7) and, in the alternative, (2) the identified “handle body”
and identified “second lever” form a T-shaped structure (see Ans. 7).
Because neither of these findings address the proper scope of claim 10, the
Examiner has not demonstrated that the prior art discloses the additional
limitation of that claim. See Reply Br. 7 (“The shape of an object is be
determined by the entirety of its structure, and not by ‘cherry picking’ only
portions of its structure in order to find a shape that is sought to be
described.”). Thus, we do not sustain the rejection of claim 10.
DECISION
We affirm the decision to reject claims 1—3 and 25—30, and we reverse
the decision to reject claim 10.
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-IN-PART
12