Ex Parte Salemme

Board of Patent Appeals and Interferences

Jan 9, 2012

11012560 (B.P.A.I. Jan. 9, 2012)

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.
11/012,560 12/15/2004 James L. Salemme T-736 (Z-03599) 7531
27752 7590 01/10/2012
THE PROCTER & GAMBLE COMPANY
Global Legal Department - IP
Sycamore Building - 4th Floor
299 East Sixth Street
CINCINNATI, OH 45202
EXAMINER
JACYNA, J CASIMER
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
01/10/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JAMES L. SALEMME
____________________

Appeal 2010-000462
Application 11/012,560
Technology Center 3700
____________________

Before: LINDA E. HORNER, STEFAN STAICOVICI, and
CHARLES N. GREENHUT, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-000462
Application 11/012,560
2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
12, 17-22, 24, and 28-33. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to a system for dispensing multi-component
products. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A pressurized dispensing system for dispensing a multi-
component product, comprising:
an outer body defining a first chamber constructed to
contain a first component of said product;
an inner container, disposed within said body, defining a
second chamber constructed to contain a second component of
said product and maintain said second component separate from
said first component;
a dispensing head, in fluid communication with said first
and second chambers, through which the product is dispensed;
and
a valve assembly, including a valve stem constructed to
move between a closed position, in which said first and second
chambers are sealed, and an open position, in which said first
and second components flow simultaneously from said first and
second chambers to said dispensing head, a valve body
surrounding at least a portion of the valve stem, and a scaling
member constructed to provide a seal between the valve stem
and an inner wall of the valve body, the sealing member
including two portions having different outer diameters,
wherein the outer body comprises a flexible bag and the
valve body includes raised ridges extending from an outer
surface of the valve body to prevent the outer body from
collapsing against the outer surface of the valve body, and
wherein the valve body includes upper openings, and the ridges
extend longitudinally along at least a portion the length of the
valve body adjacent the upper openings.
Appeal 2010-000462
Application 11/012,560
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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Nissen
Webster
Marraffino
Lo
Laauwe
Steiman
Perusco
Bourque
US 3,241,722
US 3,465,918
US 3,642,173
US 3,682,355
US 3,788,521
US 3,951,310
US 4,095,724
US 6,923,342 B2
Mar. 22, 1966
Sep. 9, 1969
Feb. 15, 1972
Aug. 8, 1972
Jan. 29, 1974
Apr. 20, 1976
Jun. 20, 1978
Aug. 2, 2005

REJECTIONS
Claims 20-22 stand rejected under 35 U.S.C. § 102(b) as anticipated
by Webster. Ans. 3.
Claims 30 and 31 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Webster and Bourque. Ans. 4.
Claims 1-11, 19 and 24 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Marraffino, Lo and Nissen. Ans. 5.
Claim 12 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Marraffino, Lo, Nissen and Steiman. Ans. 6.
Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Marraffino, Lo, Nissen, Perusco and Laauwe. Ans. 6-7.
Claims 1-5, 7-12, 19, 24, 28, 29, 32 and 33 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Bourque, Lo, Nissen and Marraffino.
Ans. 7.

Appeal 2010-000462
Application 11/012,560
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OPINION
Rejections of claims 20-22 as anticipated by Webster and of claims 30 and
31 as unpatentable over Webster and Bourque are affirmed.
Appellant argues the rejection of claims 20-22 as anticipated by
Webster as a group and argues claims 30 and 31 only based upon their
dependence from claim 20. Br. 5-7. Thus, our resolution of the issue raised
by Appellant concerning the Examiner’s rejection of claim 20 as anticipated
by Webster will be dispositive regarding claims 21, 22, 30 and 31 as well.
The sole issue raised by Appellant concerning this rejection is:
when looking at Fig. 1 of Webster [], the lower portion of valve
plug 48 seals against the valve stem, which is opposite of what
is recited in claim 20—a lower portion [of a sealing member]
that includes . . . an inner diameter that is greater than that of
the upper portion so that the inner wall of the lower portion is
spaced from and does not seal against the valve stem.
Br. 6. Appellant concludes “valve plug 48 has a lower portion that seals
against the valve stem and therefore ‘is not spaced from and does not seal
against the valve stem,’ as is recited in rejected claim 20.” Br. 6-7. Appellant
does not contest the Examiner’s other factual findings or claim
interpretations concerning the rejection of claim 20 and we adopt them as
our own.
The Examiner interprets Webster’s valve plug 48 as the claimed
“sealing member” and the wall of the valve plug bounding the longitudinal
ends of slot 68 as “the inner wall of the lower portion [that] is spaced from
and does not seal against the valve stem.” Ans. 3. According to the
Examiner, as viewed in Webster’s Figure 3, these walls are spaced from and
do not seal against Webster’s valve stem 32. Ans. 9. We agree.
Appeal 2010-000462
Application 11/012,560
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Initially, we note a potential source of confusion arises from the fact
that an element of the limitation argued by Appellant, the inner wall of the
lower portion of the sealing member, lacks proper antecedent basis in the
claim. The claim sets forth an inner wall of the valve body and an inner
diameter of a lower portion of the sealing member but the inner wall of the
lower portion of the sealing member is first introduced in the argued
limitation. While this renders the claim somewhat unclear, for purposes of
this appeal we interpret “the inner wall” as referring to “the inner diameter”
of the lower portion of the sealing member, and these terms as
interchangeable.1
Appellant contends that Figure 1 of Webster shows that the valve plug
has a lower portion, the walls bounding the lateral sides of groove 68, that
seal against the valve stem. Br. 6. While the Examiner, citing Figure 4 of
Webster, disputes Appellant’s characterization of Webster’s Figure 1 (Ans.
9), our resolution of this issue is of no consequence. Even if Appellant’s
interpretation of Webster’s Figure 1 is accurate, the fact that Webster’s valve
plug includes a wall or diameter that seals against the valve stem does not
preclude Webster from also including a wall or diameter that does not. The
latter is all that is required to meet the claim. Appellant argued against the
walls bounding the lateral sides of slot 68 – structure not relied upon by the
Examiner – but has not advanced any arguments to demonstrate why the
structure actually relied upon by the Examiner – the walls bounding the
longitudinal ends of slot 68 – does not meet the limitation in question.
Accordingly, Appellant’s argument is not persuasive.

1 Correction is recommended in any further prosecution.
Appeal 2010-000462
Application 11/012,560
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Rejections of claims 1-11, 19 and 24 as unpatentable over Marraffino, Lo
and Nissen; of claim 12 as unpatentable over Marraffino, Lo, Nissen and
Steiman; of claims 17 and 18 as unpatentable over Marraffino, Lo, Nissen,
Perusco and Laauwe; and of claims 1-5, 7-12, 19, 24, 28, 29, 32 and 33 as
unpatentable over Bourque, Lo, Nissen and Marraffino are affirmed.
Appellant argues the rejection of claims 1-11, 19 and 24 as
unpatentable over Marraffino, Lo and Nissen as a group and argues the
rejection of claim 12 as unpatentable over Marraffino, Lo, Nissen and
Steiman and of claims 17 and 18 as unpatentable over Marraffino, Lo,
Nissen, Perusco and Laauwe based only on dependence. Br. 7-12. Appellant
argues the rejection of claims 1-5, 7-12, 19, 24, 28, 29, 32 and 33 as
unpatentable over Bourque, Lo, Nissen and Marraffino as a separate group
but raises the same issues as raised concerning the rejection of claims 1-11,
19 and 24 as unpatentable over Marraffino, Lo and Nissen. Cf. Br. 12-13 and
Br. 7-12. In each case, Appellant only argues limitations appearing in
independent claims 1 and 24. Since the issues raised by Appellant are
substantially the same for each group, we address Appellant’s arguments
concerning the rejection based on Marraffino, Lo and Nissen, and the
rejection based on Bourque, Lo, Nissen and Marraffino together.
Appellant correctly points out that claim 1 is directed to an
arrangement wherein the outer body defining a first chamber comprises a
flexible bag2 and claim 24 is directed to a bag-in-bag arrangement. Br. 9, 12.
The Examiner does not dispute this interpretation. Appellant also correctly
points out that neither base reference, Marraffino or Bourque discloses such

2 We note that claim 11 may raise issues of double inclusion. We offer no
opinion on this issue and leave it for consideration by the Examiner in a
manner consistent with MPEP § 2173.05(o) and the precedent cited therein.
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Application 11/012,560
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arrangements. Br. 10, 12. The Examiner recognizes that neither Marraffino
nor Bourque discloses such arrangements. Ans. 5, 8.
The Examiner correctly found, based on Lo, that arrangements
wherein an outer and/or inner chamber-defining body comprise a collapsible
flexible bag were well known in the art. Ans. 5, 8 citing Lo (bags 29, 32 in
the Figure 5 embodiment described at col. 4, l. 48-col. 5, l. 7). In comparison
to the device of Marraffino, wherein the propellant and one of the discharged
fluids are stored together, Lo’s bag-in-bag arrangement would allow for the
propellant and two discharged materials to be stored separately. See
Marraffino col. 2, ll. 4-9; Lo col. 4, ll. 48-51. Thus, the use of Lo’s bag-in-
bag arrangement in Marraffino’s device amounts to applying a known
technique to a known device to yield predictable results, and, therefore,
would have been obvious to one of ordinary skill in the art. Contra Br. 11.
Bourque discloses both a multi-chamber 16, 18/bag 14 arrangement
and an arrangement using two separate bags 114A, 114B to maintain
separation of a product’s components until dispensing. Figs. 4, 6. While
Bourque does not specifically suggest a bag-in-bag arrangement, Bourque
expressly suggests that other types of bag systems and valve lobe 50, 52
positions may be employed. Col. 5, ll. 35-51. Thus, use of Lo’s bag-in-bag
arrangement in Bourque’s device amounts to substituting similar elements
which were known to perform similar functions, and, therefore, would have
been obvious to one of ordinary skill in the art.
In each of these rejections, the Examiner also correctly found that
Nissen demonstrates that using tapered ribs 34, or “raised ridges,” in order to
prevent blockage of an outlet orifice 32 in a collapsible dispensing container
22 was known in the art. Ans. 5, 8, 10. Appellant contends that since
Marraffino does not disclose a flexible outer bag there would be no reason to
Appeal 2010-000462
Application 11/012,560
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incorporate “raised ridges” to prevent such a bag from collapsing against the
valve opening. Br. 10-11. This is an argument against the combination of
Marraffino and Nissen where the rejection is predicated upon the
combination of Marraffino, Lo and Nissen. The Examiner’s position is that
when incorporating the teachings of Lo, related to the bag-in-bag
arrangement, into the device of Marraffino, one of ordinary skill in the art
would also incorporate Nissen’s ridges in an appropriate orientation and
location in order to prevent blockage of the container exit orifice. Ans. 10.
Appellant does not present any arguments that demonstrate error in this
conclusion and we adopt it as our own.
Appellant also argues that even if Lo’s outer bag were incorporated,
the presence of Marraffino’s dip tube would prevent a collapse thereof. Br.
11. This is an argument against a specific structural feature of Marraffino
that the Examiner, citing figures 5 and 6 of Lo, demonstrated would not be
essential if Marraffino’s device were modified as suggested by the
Examiner. See Ans. 10. “Combining the teachings of references does not
involve an ability to combine their specific structures.” In re Nievelt, 482
F.2d 965, 968 (CCPA 1973). Additionally, “Appellant submits that the
Bourque arrangement would not encounter the problem associated with a
flexible outer bag collapsing on the outer surface of a valve body to which
an inner bag is connected.” Br. 13. First, Appellant did not provide any
evidence or technical reasoning to support this assertion. Second, similarly
to the argument addressed above, Appellant is attacking the combination of
Bourque and Nissen where the rejection is predicated on the combination of
Bourque, Lo, Nissen and Marraffino. Third, even if Appellant’s assertion is
correct, if Bourque’s bags do not collapse in the valve region it would
appear to be due to threads 84 on the valve body 36 which engage threads 80
Appeal 2010-000462
Application 11/012,560
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on the neck 82 of the bag 14. Whether we regard it as a predictable
improvement resulting from incorporating a known technique, or as
substituting one known arrangement for another in order to yield similar
results, we agree with the Examiner’s conclusion that it would have been
obvious to incorporate the teachings of Lo and Nissen into the devices of
Marraffino or Bourque in the manner proposed by the Examiner.
Accordingly, we agree with the Examiner that the subject matter defined by
claims 1 and 24 would have been obvious to one of ordinary skill in the art.

DECISION
The Examiner’s rejections of claims 1-12, 17-22, 24, and 28-33 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)(1)(iv).

AFFIRMED

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