Ex Parte Lundy et al

Board of Patent Appeals and Interferences

Aug 8, 2012

11101804 (B.P.A.I. Aug. 8, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL J. LUNDY and RONALD D. PIKE
____________

Appeal 2010-005661
Application 11/101,804
Technology Center 3700
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Before STEVEN D.A. McCARTHY, JAMES P. CALVE, and
RICHARD E. RICE, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of claims
1 and 3-12. App. Br. 3.1 Claim 2 has been canceled. We have jurisdiction
under 35 U.S.C. § 6.
We AFFIRM.

1 Refers to Appeal Brief filed on July 20, 2009.
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Application 11/101,804

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CLAIMED SUBJECT MATTER
Claim 1 represents the claimed subject matter on appeal:
1. A painter finishing bucket comprising:
a first vessel having an open top;
a second vessel having an open top and including a
flattened portion extending from proximate a bottom to
proximate a rim, an inner surface of the flattened portion being
textured to form a paint roller surface;
a bridge member coupled between the first vessel and the
second vessel; and
a grip extending from a bottom of the bridge member.

REJECTION
Claims 1 and 3-12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kent (US 6,062,389; iss. May 16, 2000) in view of Kohn
(US D477,702 S; iss. Jul. 22, 2003), and further in view of Bradley (US
6,264,026 B1; iss. Jul. 24, 2001).
ANALYSIS
Claims 1 and 3-12 as unpatentable over Kent, Kohn, and Bradley
Claim 1
The Examiner found that Kent discloses a painter finishing bucket
with a first vessel 50, a second vessel 30, and a bridge 70 coupled between
the first and second vessels, but lacks a grip extending from the bridge or a
textured, flattened portion as called for in claim 1. Ans. 3. The Examiner
found that Kohn discloses a textured, flattened portion and concluded that it
would have been obvious to modify Kent with this feature to facilitate the
removal of excess paint on a paint roller. Id. The Examiner also found that
Bradley discloses a bridge with such a grip portion having an open top and
concluded that it would have been obvious to modify Kent with a grip
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portion having an open top on the bridge to provide an alternate means to
carry the paint tray so the centrally positioned bridge enables both the first
and second vessels to counterbalance one another. Ans. 3-4. The Examiner
also concluded that it would have been obvious to include an open-top grip
on Kent to provide an additional receptacle and enable one-handed carrying
of the bucket so a user can access each vessel and the hollow grip handle
without obstruction from an erect bail handle, thereby giving a user multiple
handling options that suit different uses of the bucket. Ans. 6.
Appellants argue that Bradley relates to a food tray and is not in the
same field of endeavor of Appellants or reasonably pertinent to the problems
Appellants have addressed. App. Br. 8-9, 16. Appellants also argue that a
skilled artisan would not consider a food tray when designing a painter’s
finishing bucket. App. Br. 8-9. These arguments do not persuade us of error
in the Examiner’s finding that Bradley and Kent disclose compartmented
containers having two vessels separated by a bridge and are analogous as
receptacles. Ans. 4. Appellants claim a bucket comprising two vessels with
a bridge coupled therebetween as a way to contain and carry paint or other
fluids and different tools and implements. Spec. 1, l. 13 to 2, l. 16. We
agree with the Examiner that an inventor considering this problem would
have considered Bradley’s food, beverage, and utility tray, which has two
vessels coupled together by a bridge to contain different dishware, fluids,
and utensils. Col. 4, l. 49 to col. 5, l. 47.
Appellants also argue that the claimed vessels are designed to enclose
a volume completely and allow the retention of fluids, and Bradley’s plate
section 13 and cup holder 12 are not vessels as called for in claim 1. App.
Br. 9-11. This individual attack on the references is not persuasive because
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the Examiner relied on Kent to disclose first and second vessels. Ans. 3.
Appellants admit that the paint buckets of Kent and Kohn can be described
as vessels.2 App. Br. 10.
Appellants further argue that nothing in Bradley suggests a centrally
positioned bridge that enables the first and second vessels to counterbalance
one another. App. Br. 12-14. This argument is not commensurate with the
scope of claim 1, which does not call for a centrally positioned bridge that
allows the first and second vessels to counterbalance one another. Ans. 5. It
also does not address the Examiner’s finding that Kent discloses first and
second vessels with a centrally positioned bridge, which may be modified
with a grip portion as taught by Bradley. Ans. 3-4.
Appellants contend that incorporating Bradley’s hand grip and arm
rest into the dual bucket assembly of Kent would render Kent’s dual bucket
assembly unsatisfactory for its intended purpose because the vessels of Kent
are too closely spaced to allow access to a grip, and Kent teaches a bail that
is used to grip and hold the bucket assembly. App. Br. 14-15. As a result,
Appellants argue that a complete design change would be required to modify
Kent as suggested by the Examiner and neither Kent nor Kohn suggest a grip
or handle that can be situated between the buckets of Kent. App. Br. 16.
These arguments are not persuasive because a determination of obviousness
does not require an actual, physical substitution of elements or a showing

2 Appellants argue that a “vessel” is “a hollow or concave utensil, as a cup,
bowl, pitcher, vase, or the like used for holding liquids or other contents.”
App. Br. 9 (citing WEBSTER’S NEW UNABRIDGED DICTIONARY). We agree
with the Examiner that Bradley’s plate holder 13 and cup holder 12 can be
considered vessels because they hold liquids and other contents. See Ans. 4-
5; Bradley, col. 3, ll. 33-44.
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that features of a secondary reference may be bodily incorporated into the
structure of a primary reference or physically combined with another
reference. In re Mouttet, 2012 WL 2384056, at *5 (Fed. Cir. Jun. 26, 2012).
Nor do these arguments apprise us of error in the Examiner’s conclusion that
it would have been obvious to include an open grip on the bridge of Kent to
provide an additional receptacle for items and allow one-handed carrying of
the bucket so that a user can access each vessel (and the hollow grip)
without obstruction from an erect bail handle, and so that a user has multiple
handling options that suit different uses of Kent’s bucket. Ans. 6. As such,
we sustain the rejection of claim 1.
Claims 3-5
Appellants argue that claims 3-5 depend from claim 1 and are not
obvious for the same reasons as claim 1. Because we sustain the rejection of
claim 1, this argument is not persuasive. Appellants also argue that claim 5
claims “the bridge member is a trough shape” and nothing in Kent, Kohn, or
Bradley teaches a trough-shaped bridge coupling two vessels. App. Br. 16.
This argument does not apprise us of error in the Examiner’s finding that
Kent discloses a trough-shaped bridge as illustrated by the Examiner on
Figure 3 of Kent at page 7 of the Answer. See Ans. 6-7. The Examiner
found that Kent discloses a trough formed by horizontal member 76 and
adjacent opposing side walls extending upwardly from opposing sides of the
horizontal member. Ans. 7. Appellants disclose a preferred embodiment in
which bridge member 50 includes opposing sidewalls 54, 55 that extend
upwardly from opposing edges of a base 56 to form a trough. Spec. 8, ll. 1-
5; fig. 1. As such, we sustain the rejection of claims 3-5.

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Claim 6
Independent claim 6 recites a bucket with a first and second vessel
coupled together by a bridge member extending therebetween with a grip
extending from a bottom of the bridge member. Appellants argue that Kent
would require a major design change to integrate Bradley’s handle and arm
rest into Kent’s dual buckets and Bradley is non-analogous art. App. Br. 17-
18. These arguments are not persuasive for the reasons discussed supra for
claim 1. As such, we sustain the rejection of claim 6.
Claims 7-12
Appellants argue that claims 7-12 depend from claim 6 and are not
obvious for the same reasons as claim 6. App. Br. 18-19. Appellants also
argue that claim 7 is not obvious because it claims “wherein the bridge
member includes opposing sidewalls extending from opposing sides of a
base thereof, forming a trough” and nothing in Kent, Kohn, or Bradley
teaches such a trough. App. Br. 18. Because we sustain the rejection of
claim 6 and agree that Kent discloses a bridge member that forms a trough
of opposing sidewalls extending from opposing sides of a base as discussed
supra for claim 5, we sustain the rejection of claims 7-12.
DECISION
We AFFIRM the rejection of claims 1 and 3-12 under 35 U.S.C.
§ 103(a) as being unpatentable over Kent, Kohn, and Bradley.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED
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