Ex Parte Obrsit et al

Patent Trial and Appeal Board

Dec 22, 2015

12804307 (P.T.A.B. Dec. 22, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/804,307 07/19/2010
7590 12/22/2015
Francis C Hand, Esq,
c/o Carella, Byrne, Cecchi, Olstein,
Brody & Agnello
5 Becker Farm Road
Roseland, NJ 07068
FIRST NAMED INVENTOR
Manfred Obrsit
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.
9745
EXAMINER
BUECHNER,PATRICKM
ART UNIT PAPER NUMBER
3754
MAILDATE DELIVERY MODE
12/22/2015 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 MANFRED OBRSIT, JOSEF ETTLIN, and
SASAN HABIBI-NAINI
Appeal2013-008923
Application 12/804,307
Technology Center 3700
Before LINDA E. HORNER, JILL D. HILL, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Manfred Obrsit et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner's decision rejecting claims 1-3, 5, and 8-15 under
35 U.S.C. § 103(a) as unpatentable over Reusser (US 2008/0123465 Al;
pub. May 29, 2008) and Giannuzzi (US 5,242,082; iss. September 7, 1993). 1
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Claims 4, 6, and 7 have been canceled, and claim 16 has been withdrawn
from consideration. Final Action, dated October 15, 2012.
Appeal2013-008923
Application 12/804,307
CLAIMED SUBJECT MATTER
Appellants' claimed subject matter relates to "an apparatus for the
storage and metering of a plurality of components which should be mixed
with one another directly before use and should be supplied to an application
in a mixed state." Spec. 1. Claim 1 is the sole independent claim on appeal
and is reproduced below.
1. An apparatus comprising
a first storage region for the reception of a first
component:
a second storage region for the reception of a second
component, said second storage region being disposed opposite
said first storage region;
a film between said first storage region and said second
storage region for separating the first component from the
second component;
a first discharge passage for communicating with said
first storage region;
a second discharge passage for communicating with said
second storage region;
a common mixing passage in communication with each
of said first discharge passage and said second discharge
passage;
a line-shaped kinking site arranged between said first and
second storage regions and said first and second discharge
passages;
a parting element extending from at least one of said first
discharge passage and said second discharge passage, said
parting element extending beyond said kinking site in a
direction of a respective one of said first storage region and said
second storage region, said parting element including a pair of
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Application 12/804,307
arms extending from said kinking site in a direction of a
respective one of said first storage region and said second
storage region wherein at least one of said pair of arms forms a
tip having a cutting edge facing said film.
Appeal Br., Claims App. 1.
ANALYSIS
Independent claim 1 calls for a parting element including a pair of
arms where the pair of arms form a tip having a cutting edge facing said
film. Appeal Br., Claims App. 1. The Examiner determined that Reusser
discloses the apparatus of claim 1 except that the pairs of arms (101 and 102
and 103 and 104) on the parting elements of Reusser do not form a tip
having a cutting edge facing the film. Final Act. 3--4 (relying on the
embodiment depicted in Figures 28-31 of Reusser).
The Examiner found that "Giannuzzi teaches such a configuration of a
cutting tip (blades 28, 30)" and determined that it would have been obvious
to "provide the cutting tip (blades 28, 30) of Giannuzzi to the apparatus of
Reusser in order to slit open the foil packs." Id. at 4 (citing Giannuzzi,
col. 5, 11. 31-34). In the Examiner's Answer, the Examiner further explains
that "the rejection merely states that it would be obvious to provide the
configuration of a cutting tip, and not specifically the metal blades, of
Giannuzzi to the apparatus of Reusser." Ans. 6; see also id. at 7 ("Thus,
fork-shaped extensions 99, 100 of Fig. 31 of Reusser are retained, and a
cutting edge provided thereto, as taught by Giannuzzi"). The Examiner also
explains that "the provision of the configuration of a cutting tip of Giannuzzi
to the apparatus of Reusser continues to perform the cutting function,
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Application 12/804,307
regardless of the pushing versus flexing distinction identified by
Appellant[s]." Id. at 7.
Reusser discloses guide channels 99 and 100 having crosspieces 101,
102 and 103, 104, respectively. Reusser, para. 74. Reusser discloses that
the crosspieces 101, 102, 103, and 104 are "used as opening pins." Id.
Specifically, Reusser explains:
Id.
To open the separating films 12 and 12 ', the discharge duct 6 is
bent up and down in the area of the S-shaped indentations 95
and 94, respectively, so that the crosspieces 101, 102 of the
upper guide channel open the separating film 12 of the lower
chamber 5, while the crosspieces 103, 104 of the lower guide
channel 100 open the separating film 12' of the upper
chamber 5 '.
Giannuzzi discloses a double-barreled epoxy injection gun with
detachable caps 23, 24 having cutting elements or blades 28, 30 mounted
across a port in each cap. Giannuzzi, col. 1, 11. 15-16; col. 3, 11. 13-17;
col. 5, 11. 24-31; Fig. 4. Each cutting element 28, 30 has a tip. Id., Fig. 4.
Foil packs 20, 21 containing two separate epoxy components are loaded into
the barrels, and pistons 41, 42 are advanced in the barrels to press the packs
20, 21 against the cutting elements 28, 30 to pierce an opening in the front
end of each pack. Id., col. 3, 11. 17-19; col. 5, 11. 21-23 and65-68; col. 6, 11.
51-56; Figs. 2, 4.
The Examiner's articulated reason to modify the apparatus of Reusser
with the cutting blades of Giannuzzi is in error for two reasons. First, as
noted by Appellants, Reusser's crosspieces 101, 102, 103, and 104 "are used
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Application 12/804,307
as opening pins to open the separating films 12, 12' of the foil type
container." Reply Br. 3--4 (citing Reusser, para. 74). The Examiner has not
provided an adequate explanation of why one of ordinary skill in the art
would have been led, in light of the teachings of Reusser and Giannuzzi, to
add another cutting means (i.e., the cutting elements 28, 30 of Giannuzzi) to
the apparatus of Reusser, which already has its own means of opening the
separating films. The Examiner's stated reason to combine, i.e., "in order to
slit open the foil packs," is not explained adequately because Reusser has no
foil packs, and Reusser already discloses a means to open the separating
films.
Second, as argued by Appellants, the Examiner fails to explain
adequately how the cutting elements of Giannuzzi would be incorporated
into the apparatus of Reusser to perform the cutting function. Reply Br. 4.
The cutting blades 28 and 30 of Giannuzzi perform the cutting function
when the foil packs 20, 21 are pressed against the tip of each cutting blade
28 and 30. In Reusser, however, the opening of the separating films 12, 12'
is accomplished by bending the discharge duct 6 up and down. If the cutting
blades 28 and 30 of Giannuzzi were added to the ends of the crosspieces
101, 102, 103, and 104, the tips of the cutting elements 28 and 30 would not
be facing the film. The Examiner has not identified which portion of the
cutting elements of Giannuzzi would correspond to the claimed "cutting
edge facing said film" or otherwise explained adequately how the cutting
elements of Giannuzzi would operate to cut the separating films 12, 12'
when the discharge duct 6 is bent up and down. Compare Spec. 7
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Appeal2013-008923
Application 12/804,307
(describing the arms having "a cutting edge facing the film"); Fig. 6
(showing the cutting edges 17 along the top of arms 15 and 16 and along the
bottom of arms 13 and 14).
For these reasons, we do not sustain the rejection of claim 1, and its
dependent claims 2, 3, 5, and 8-15, under 35 U.S.C. § 103(a) as
unpatentable over Reusser and Giannuzzi.
DECISION
The decision of the Examiner to reject claims 1-3, 5, and 8-15 is
REVERSED.
REVERSED
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