Ex Parte May et al

Patent Trials and Appeals Board

Feb 19, 2019

12362062 - (D) (P.T.A.B. Feb. 19, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/362,062 01/29/2009
30662 7590 02/19/2019
Schacht Law Office, Inc.
310 E. Magnolia Street
Suite 201
BELLINGHAM, WA 98225
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Richard J. May
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
505505.00055 9368
EXAMINER
LE,HUYEND
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
02/19/2019 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 PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD J. MAY, PHILIP J. BL YSKAL, and
GEORGE CLARK
Appeal2017-003404
Application 12/362,062 1
Technology Center 3700
Before PHILIP J. HOFFMANN, BRADLEY B. BAY AT, and
AMEE A. SHAH, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's rejection of claims 1-16, 18-26, 28--43, 59, and 60. We have
jurisdiction under 35 U.S.C. § 6(b ). Appellants argued before the Board on
February 11, 2019.
We REVERSE.
1 Appellants identify "James Alexander Corporation" as the real party in
interest. Appeal Br. 3.
Appeal2017-003404
Application 12/362,062
According to Appellants, "[ t ]he invention relates ... to a dispenser for
a flowable material or substance[,] and[,] more particularly, to a dispenser
having a membrane having enhanced rupturing characteristics for allowing a
flowable substance to be contained and dispensed as desired." Spec. ,r 3.
Claims 1, 34, 43, 59, and 60 are the independent claims on appeal. Below,
we reproduce claim 59 as illustrative of the appealed claims.
59. A dispenser for dispensing a flowable material, the
dispenser comprising:
a container having an outer wall and a membrane
collectively defining a first chamber configured to contain a
flowable material, the membrane extending from the outer wall
at an angle, wherein the angle is in the range from
approximately 20° to 22.5°, the membrane having a thickness
and a weld seam, the weld seam having a thickness less than the
thickness of the membrane, wherein the weld seam thickness is
in the range of approximately .003 inches to .004 inches.
REJECTIONS AND PRIOR ART
The Examiner rejects the claims as follows 2 :
I. Claims 1-14, 18-26, 28--40, 3 43, 59, and 60 under
35 U.S.C. § 103(a) as unpatentable over Haber et al.
(US 5,490,736, iss. Feb. 13, 1996) (hereinafter "Haber") and
Song (US 3,567,061, iss. Mar. 2, 1971); and
2 We combine two rejections from the Final Office Action.
3 Although the Examiner appears to reject claims 28 and 29, we are unable
to locate the Examiner's specific findings regarding these claims. Final
Office Action 2--4.
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Appeal2017-003404
Application 12/362,062
II. Claims 15, 16, 41, and 42 under 35 U.S.C. § 103(a) as
unpatentable over Haber, Song, and Baumann (US 3,684,136,
iss. Aug. 15, 1972).
ANALYSIS
Reiection I
As set forth above, independent claim 59 recites "a container having
an outer wall and a membrane collectively defining a first chamber
configured to contain a flowable material, ... the membrane having a
thickness and a weld seam." Appeal Br., Claims App. Each of independent
claims 1, 34, 43, and 60 includes a similar recitation. Id.
In support of the independent claims' rejection, the Examiner relies on
Haber's score line to disclose the claimed weld seam, and on Song's
disclosure of forming a score line during a molding process. See, e.g., Final
Action 2 (citations to Haber and Song omitted); see, e.g., Answer 7-8
( citations omitted). Appellants argue that the Examiner errs because both
Haber and Song disclose score lines, and "[ r ]egardless of whether [a] score
line is formed from a removal of material or formed in an injection molding
process, the resulting score lines do not result from the abutment of flow
fronts that are required to form the claimed weld seam." Reply Br. 5.
"Accordingly, the claimed weld seam is structurally different from the score
lines disclosed by the prior art." Id. Based on our review of the record, the
Examiner does not support adequately that either Haber's or Song's score
line corresponds to the claimed weld seam.
Appellants' Specification consistently describes a weld seam as
formed by abutting flow fronts. See, e.g., Spec. ,r 25 ("As explained in
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Appeal2017-003404
Application 12/362,062
greater detail below, the mold segments 60, 62 are formed together that abut
to form a weld seam 40."), ,r 26 ("As shown in FIGS. 5 and 7, adjacent mold
segments 60, 62 from an injection molding process abut with one another to
form the weld seams 40."), ,r 30 ("As will be described in greater detail
below, and as generally shown in FIGS. 5-6, and 14--16, a first segment 60
of injected molded material abuts a second segment 62 of injected molded
material to form the weld seam 40."), ,r 44 ("The material continues to flow
into the membrane space 108 and then the adjacent mold segments 60, 62
abut at the interface area 64 to form the weld seams 40."). Further,
Appellants' Specification differentiates a weld seam from other "rupturable
members," including members that are rupturable after "scoring." Id. ,r 26;
see also id. ,r 47 ("In addition, because the membrane 34 is molded to have
the weld seams, radial depressions, or bands, an additional manufacturing
step such as scoring to create a weakened rupturable member is
unnecessary. . . . It is also understood that in certain embodiments of the
multi-chambered dispenser, the rupturable member could be other than a
weld seam if desired. For example, a scored line could be provided, a
frangible seam, or other rupturable member."). Thus, the broadest,
reasonable interpretation of the claim term "weld seam" includes a structure
formed by abutting flow fronts, which is distinct from a score line. This
interpretation is also entirely consistent with the Declaration of Angela C.
McIntosh, dated December 17, 2014. See, e.g., Declaration ,r,r 9-10, 16.
Because the Examiner does not demonstrate that either Haber or Song
discloses a structure formed by abutting flow fronts, we agree with
Appellants that neither reference discloses the claimed weld seam. Thus, we
do not sustain the Examiner's obviousness rejection of any of independent
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Appeal2017-003404
Application 12/362,062
claims 1, 34, 43, 59, and 60, or of dependent claims 2-14, 18-26, 28-33,
and 35--40.
Rei ection II
Claims 15, 16, 41, and 42 depend from independent claims 1 and 34.
The Examiner does not rely on Baumann to remedy the above-discussed
deficiency in the rejection of claims 1 and 34. Thus, we do not sustain the
Examiner's obviousness rejection of claims 15, 16, 41, and 42.
DECISION
We REVERSE the Examiner's obviousness rejections of claims 1-16,
18-26, 28--43, 59, and 60.
REVERSED
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