Ex Parte Newton

Patent Trial and Appeal Board

Jul 9, 2018

14356756 (P.T.A.B. Jul. 9, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/356,756 05/07/2014 Robert K. Newton
87059 7590 07/11/2018
Cantor Colburn LLP - Carrier
20 Church Street, 22nd Floor
Hartford, CT 06103
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.
PA-0012776-US-AA 1987
EXAMINER
MELARAGNO, MICHAEL
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
07/11/2018 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):
usptopatentmail @cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT K. NEWTON
Appeal2017-008881
Application 14/356,756
Technology Center 3700
Before: DANIEL S. SONG, CHARLES N. GREENHUT, and
SEAN P. O'HANLON, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant, Carrier Corp., the real party in interest (App. Br. 1 ),
appeals under 35 U.S.C. § 134 from a rejection of claims 1 and 4--12. We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
Appeal2017-008881
Application 14/356,756
CLAIMED SUBJECT MATTER
The claims are directed to a dual valve injector assembly for
dispensing a food product. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A dual valve injector assembly comprising:
a base;
a passageway in the base for receiving a food product;
a first draw valve in the base in communication with the
passageway and a first spout, the first spout dispensing the food
product at a first draw rate;
a first draw handle for actuating the first draw valve to
supply the food product to the first spout, the first draw handle
mounted to the base;
a second draw valve in the base in communication with the
passageway and a second spout, the second spout dispensing the
food product at a second draw rate; and
a second draw handle for actuating the second draw valve
to supply the food product to the second spout, the second draw
handle mounted to the base;
wherein the second draw rate is lower than the first draw
rate.
REFERENCES
The prior art relied upon by the Examiner is:
Cieslak
Keyes
Feola
us 1,630,924
us 3,989,492
us 5,957,040
REJECTIONS
May 31, 1927
Nov. 2, 1976
Sept. 28, 1999
Claims 1, 4--6, and 8-12 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Feola and Keyes.
Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Feola, Keyes, and Cieslak.
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Appeal2017-008881
Application 14/356,756
OPINION
Claims 1, 4--6, and 8-11 are argued as a group under 37 C.F.R.
§ 4I.37(c)(l)(iv) for which claim 1 is representative. Claim 12 contains
more detail regarding the specific draw rates selected but is otherwise argued
based on the same arguments set forth regarding claim 1. App. Br. 6-8.
Claim 7 is argued based only on dependency. App. Br. 8.
In arguing against the rejection of claim 1 Appellant asserts that the
Examiner's reliance on "design choice ... to adjust the flow rate of one or
both spouts depending on the amount of food product an individual pastry
requires" is improper. App. Br. 4. This argument is premised on the
assertion that the Examiner erroneously "states that Feola discloses a timer
to adjust draw rate." App. Br. 4--5. However, the Examiner points out in the
Answer that, according to the Final Rejection, it was not Feola's timer that
was relied upon to adjust the draw rate. Ans. 2; Final Act. 2-3. Rather, the
Examiner relied on the adjustable aperture or iris in Feola. Final Act. 2-3
( citing Feola col. 5, 11. 21-26). Appellant does not present any arguments
addressing the Examiner's reliance on Feola's adjustable aperture as
providing a means to select the desired draw rates of the respective
dispensers. The Examiner's position in this regard stands uncontroverted.
Appellant correctly draws a distinction between volume, as would be
controlled by a timer, and draw rate. App. Br. 5. However this argument is
presented due to a misunderstanding of the Examiner's position, which
never relied on volume as an equivalent to draw rate. Appellant's argument
against the Examiner reliance on "design choice" is based on "the claimed
structure and the function it performs [being] different from the prior art."
App. Br. 5---6. However, as both structures function to control draw rates,
and we are not informed of any specific structural distinctions recited in the
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Appeal2017-008881
Application 14/356,756
claims, any difference in the particular draw rate selected is simply a
difference in degree not a difference in kind. The Examiner relied on the
express teachings of Feola regarding an iris, a structure for adjusting the
draw rate, and only relied on "design choice" regarding the selection of a
particular draw rate with the iris. Appellant points out Feola is silent as to
selecting particular draw rates but does not present any specific arguments to
inform us as to why the simple selection of different rates ( claim 1 ), or
particular different rates (claim 12), by using a structure, an iris, designed to
provide that exact capability would not have been an obvious matter of
design choice determined based on the requirements of each individual
pastry as the Examiner reasoned. Final Act. 2-3.
For the foregoing reasons we sustain the Examiner's rejections.
DECISION
The Examiner's rejections are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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