Ex Parte Macler

Patent Trial and Appeal Board

Sep 29, 2017

12533914 (P.T.A.B. Sep. 29, 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.
12/533,914 07/31/2009 Jeffrey E. Macler 119/1685US 8520
22822 7590 10/03/2017
LEWIS RICE LLC
ATTN: BOX IP DEPT.
600 Washington Ave.
Suite 2500
ST LOUIS, MO 63101
EXAMINER
JACYNA, J CASIMER
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
10/03/2017 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):
IPDEPT@LEWISRICE.COM
KDAMMAN@LEWISRICE.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY E. MACLER
Appeal 2015-006988
Application 12/533,914
Technology Center 3700
Before JENNIFER D. BAHR, STEFAN STAICOVICI, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Jeffrey E. Macler (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner’s final decision rejecting claims 1—4, 6—12, 14, and 16—20.1
We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 Claims 5, 13, and 15 have been canceled. Appeal Br. 27, 28 (Claims
App.).
Appeal 2015-006988
Application 12/533,914
INVENTION
Appellant’s invention relates to “to the field of fluid dispensing
systems wherein a bagged fluid, such as water, is dispensed via a spiked
water dispensing device.” Spec. 11.
Claims 1,3, and 9 are independent. Claim 1 is illustrative of the
claimed subject matter and is reproduced below with emphasis on the claim
language at the center of this dispute:
1. A method for providing potable fluids, the method
comprising:
providing a bag of potable fluid; and a spiked fluid
dispensing device, wherein said spiked fluid dispensing device is
comprised of a shaft, a spiked tip and a dispensing cover;
removing a patch from an exterior surface of said bag of
potable fluid to reveal a sanitized area on said exterior surface;
attaching a stabilizing grommet to said sanitized area
after said patch is removed;
puncturing said bag of potable fluid through a central
opening in said stabilizing grommet with said spiked fluid
dispensing device; and
dispensing fluid from said bag of potable fluid;
wherein once said bag is punctured by said spiked fluid
dispensing device, said bag forms a seal around said shaft of said
spiked fluid dispensing device to prevent leakage.
Appeal Br. 26 (Claims App.).
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Application 12/533,914
REJECTIONS2
I. The Examiner rejected claims 3, 4, 6, and 9—11 under 35 U.S.C.
§ 102(b) as anticipated by Gaubert (US 4,314,654, iss. Feb. 9,
1982)
II. The Examiner rejected claims 1, 2, 7, 16, 17, 19, and 20 under
35 U.S.C. § 103(a) as unpatentable over Gaubert and Stem (US
6,082,584, iss. July 4, 2000).
III. The Examiner rejected claims 8 and 12 under 35 U.S.C.
§ 103(a) as unpatentable over Gaubert and Drennow (US
7,011,233 B2, iss. Mar. 14, 2006).
IV. The Examiner rejected claim 14 under 35 U.S.C. § 103(a) as
unpatentable over Gaubert and Py (US 8,348,104 B2, iss. Jan.
8, 2013).
V. The Examiner rejected claim 18 under 35 U.S.C. § 103(a) as
unpatentable over Gaubert, Stem, and Drennow.
ANALYSIS
Rejection I—Anticipation of Claims 3, 4, 6, and 9—11
Claims 3, 4, 6
For claim 3, the Examiner finds Gaubert discloses each of the
stmctures and steps recited for the claimed method for providing potable
fluids. Final Act. 4—5. Appellant asserts Gaubert is missing multiple
elements claim 3 recites. Appeal Br. 14—16. In particular, Appellant argues
2 The Examiner has withdrawn all rejections of claims 9—12, 14, and 16
under 35 U.S.C. § 112 and, therefore, those rejections are not before us in
this appeal. Ans. 5.
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Application 12/533,914
Gaubert does not disclose, “revealing a sanitized part of an exterior surface
of a bag filled with potable fluid,” as claim 3 recites. Id. at 15—16.
The Examiner finds, “removing element 14 is ‘revealing a sanitized
part of an exterior surface of a bag’ 11 as claimed. In particular the portion
to be punctured which is within the confines of the grommet as defined by
the grommet flange 46a.” Ans. 5—6. Appellant challenges this finding and
“asserts that because element 46a is ‘heat sealed’ to the bag, it does not
reveal a sanitized portion of the bag as contended by the Examiner.” Appeal
Br. 16. We agree.
Gaubert teaches that the invention, in general, includes “a carton
having a flexible plastic lining pouch, the pouch having a dispensing fitting
bonded to one wall. An opening in this fitting is normally closed by a
sealing membrane which when disrupted permits discharge of liquid.”
Gaubert, col. 2,11. 5—8. Gaubert also describes the dispensing fitting (or
coupling fitting 26) as providing “an opening that is normally closed by a
sealing membrane.” Id. at col. 2,11. 25—26; Abstract. Describing an
embodiment of this dispensing fitting 26, Gaubert states it is “formed to
enable ready attachment to the housing and to have flexible sealing
engagement with the tap when the latter is in dispensing position.” Gaubert,
col. 4,11. 25—28. Fitting 26 has an annular portion 46 from which flange 46a
extends. Id. at col. 4,11. 28—29, Figs. 1^4. “The flange 46a and preferably
the continuous surface of the base portion 46 are bonded (e.g., heat sealed)
to the wall of the bag.” Id. at col. 4,11. 28—31 (emphasis added). Further,
Gaubert’s claim 1 recites “a flexible plastic lining pouch” and “a fitting
bonded to one wall of the [pouch], the fitting having an opening
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Application 12/533,914
therethrough and a sealing membrane normally closing the opening.'1'’ Id. at
col. 8,11. 61-65.
Included in the carton is a tap to dispense the fluid within the pouch.
The body of the tap, which is included in the carton to dispense the fluid in
the pouch, cooperates with fitting 26. Id. at col. 4,11. 50-52. The tap body
includes a “piercing end” that is “adapted to pierce the sealing closure of the
dispensing fitting!'’ Id. at col. 6,11. 61—62 (emphasis added, describing the
embodiment of Figs. 11—25). In operation, Gaubert explains,
When pressed against the plastic film as illustrated in FIG. 3, the
film is pierced in two laterally spaced places by points 52, and as
the tap continues to move into the fitting 26 to its final position,
the cutting edges sever the film to form upper and lower film
portions or flaps 54 and 55 which are out of the way and do not
block the flow passages through the tap.
Id. at col. 4,1. 63—col. 5,1. 2.
The above description persuades us that a preponderance of the
evidence does not support the Examiner’s finding that removing element 14
from the carton of Gaubert reveals a sanitized part of an exterior surface of
the pouch; in particular, an area within the confines of the dispensing fitting
26 as defined by the flange 46a. Gaubert teaches that, within the area
between flange 46a, there is a sealing member (i.e., a plastic film that is a
continuous surface of the base portion 46) that conceals the liquid filled
pouch until it is pieced by the piecing end of the tap. Thus, as Appellant
argues, the removal of element 14 does not “reveal” the liquid filled pouch
at all because, even after removing element 14, the dispensing fitting’s
sealing member provides cover for the liquid filled pouch. Therefore, we do
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Application 12/533,914
not sustain the Examiner’s rejection of claim 3, as well as claims 4 and 6
depending therefrom.
Claims 9—11
Rather than a method, claim 9 describes a “system for providing a
transportable potable fluid.” Appeal Br. 27 (Claims App.). This system
recites, inter alia,
a spiked fluid dispensing device . . . attached to [the] bag under
a patch which is attached to an exterior surface of [the] bag, [the]
spiked fluid dispensing device not puncturing [the] bag . . .
wherein a user removes [the] patch to free [the] spiked fluid
dispensing device and punctures [the] bag with [the] spiked fluid
dispensing device at [the] exterior surface where [the] patch was
removed.
Id. (emphasis added). Finding Gaubert discloses each limitation of the
system, the Examiner finds that the readily removable portion 14 of the
carton wall in Gaubert evidences the removable patch claim 9 recites. Final
Act. 4—5. The Examiner explains element 14 of Gaubert is attached to the
bag holding potable fluid via its connection to the carton, which is directly
attached to the exterior of the bag. Ans. 7. Appellant challenges this finding
“because element 14 of Gaubert [itself] is not, and cannot be, attached to an
exterior surface of the [bag].” Appeal Br. 14. Thus, resolution of this
challenge depends on claim interpretation and, more specifically, on whether
claim 9 requires the patch to be attached directly to the bag.
The Federal Circuit has recently described the correct inquiry for
determining the broadest reasonable construction as follows:
The correct inquiry in giving a claim term its broadest reasonable
interpretation in light of the specification is not whether the
specification proscribes or precludes some broad reading of the
claim term adopted by the examiner. And it is not simply an
interpretation that is not inconsistent with the specification, ft is
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Application 12/533,914
an interpretation that corresponds with what and how the
inventor describes his invention in the specification ....
In re Smith,___ F.3d____, 2017 WL 4247407, at * 5 (Fed. Cir. Sept. 26,
2017). Applying this inquiry to this case, we determine the Examiner erred
by interpreting claim 9 as broadly covering patches that are not connected
directly to the exterior surface of the bag holding the potable fluid.
Within the context of claim 9, and in view of the Specification, the
reasonable interpretation of “a patch which is attached to an exterior surface
of [the] bag” requires the patch to connect directly to an exterior surface of
the bag. We note claim 9 describes first removing the patch and
subsequently puncturing the bag “at [the] exterior surface where [the] patch
was removed.” The clear implication of this express language is that the
spiked dispensing device will pierce the bag at the same location on the
exterior surface of the bag from which the patch was removed.
Additionally, the claim describes the patch itself and its connection with the
exterior surface of the bag as the structure holding the spike dispensing
device to the bag’s exterior prior to being used to puncture the bag.
Consistent with this understanding, the Specification describes removing the
patch 411 “on the bag” as a means for providing a sanitized exterior surface
of the bag, moreover, as “generally functioning] as a secondary barrier to
possible contaminates that may make their way onto the bag (205) exterior
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during manufacture and/ or transport.” Spec. ]Hf 62, 83, Figs. 1—5 (emphasis
added).
Therefore, because the Examiner’s determination Gaubert anticipates
claim 9 relies on an unreasonably broad interpretation, we do not sustain the
rejection of claim 9, as well as claims 10 and 11 depending therefrom.
Rejection II — Obviousness of Claims 1, 2, 7, 16, 17, 19, and 20
We do not sustain the Examiner’s rejection of claims 1 and 17 for the
following reasons. First, the methods are limited to the specific order
written. Claims 1 and 17 specifically recites, “attaching a stabilizing
grommet to [the] sanitized area after [the] patch is removed” and “after said
overwrap is removed, attaching the stabilizing grommet to the exterior wall
of said bag of potable fluid,” respectively. (Emphasis added). This
language is an express representation that the steps are to be performed in
the recited order.
Consistent with this understanding, the Specification describes a
deliberateness to the order of the disclosed method claimed. First, the
Specification states, “prior to attachment of the grommet (406) to the surface
of the bag (205), a user would sanitize the outer surface of the bag (205) in
the area of proposed attachment.” Spec. 1 83 (emphasis added). A user may
sanitize the outer surface of the bag by removing a patch (i.e., revealing) on
the bag provided for sanitary reasons. Id. “Once the stabilizing grommet
(406) is attached to the bag,” the Specification teaches a spiked dispensing
device is attached to the bag by using the spike portion of the dispenser to
puncture the bag through the opening of the stabilizing grommet. Id. | 84.
The Specification describes the stabilizing grommet as having a number of
advantages, including providing a stable defined surface to hold, which
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Application 12/533,914
enables the user to more easily puncture the bag with a spiked dispenser
device and, “as the area of attachment can be sanitized prior to attachment of
the grommet (406), and the grommet (406) defines a particularly small area
inside the circular opening (304) for perforation, a user can be assured that
contamination is less likely to occur during perforation.” Id. 1 85. Notably,
both of these advantages depend on the stabilizing grommet being attached
prior to puncturing, and the second advantage also depends on providing a
specific sanitized area on the surface of the bag before attaching the
grommet. Finally the Specification states, “[o]nce inserted into the bag
(205), the spiked fluid dispensing device (508) can be used to access the
water, or other liquid, housed inside the bag.” Id. 1 87.
The Examiner does not cite any evidence that supports a finding that
Gaubert discloses the sequence of steps as written in claims 1 and 17. In
fact, Gaubert discloses having the grommet (i.e., the coupling fitting 26)
attached to the bag prior to it being exposed by removing portion 14 of the
carton wall. See Gaubert, col. 4,11. 25—49, Figs. 1—4. Although the
Examiner finds Stem discloses a grommet that can be removed and attached
(Final Act. 5), the Examiner offers no evidence or technical explanation why
a skilled artisan would have changed the order of the steps Gaubert
discloses.
Second, the Examiner determines it would have been obvious “to
provide the system of Gaubert with a separately attached grommet as, for
example, taught by Stem.” Final Act. 5. The Examiner states the reason a
skilled artisan would have modified Gaubert to include a separately attached
grommet is to “provide a centering mechanism to better secure the spike to
the bag attachment fitting.” Id. This rationale, however, lacks a rational
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Application 12/533,914
underpinning because the Examiner has offered no evidence of any
recognized deficiencies with the dispensing fitting 26 that Gaubert discloses,
which already provides a centering functionality for the tap. Gaubert
teaches that the structure of the dispensing fitting 26 provides “some self-
aligning action . . . which aids in insuring an effective seal about the tap.”
Gaubert, col. 5,11. 2—6. The Examiner does not provide any evidence or
technical reasoning why a skilled artisan would find the centering
mechanism of Stem would “better secure” the piecing end of tab in Gaubert
to the pouch.
Therefore, for the foregoing reasons, we do not sustain the Examiner’s
rejection of claims 1 and 17, as well as claims 2, 7, and 20 depending
therefrom.
Claim 16 depends from claim 9. Therefore, we also do not sustain the
rejection of claim 16 because the Examiner does not rely on Stem to cure the
deficiencies we discussed above (see supra, Rejection I) for claim 9.
Rejections III—V— Obviousness of Claims 8, 12, 14, and 18
Claims 8, 12, 14, and 18 each depend from a claim (i.e., either claim
1, 9, or 17) that we have determined was improperly rejected by the
Examiner (see supra, Rejections I and II). The Examiner does not rely on
either Py or Drennow to cure the deficiencies. Therefore, we do not sustain
the Examiner’s rejection of claims 8, 12, 14, and 18.
DECISION
We reverse the Examiner’s rejection of claims 1—4, 6—12, 14, and 16—
20.
REVERSED
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