Ex Parte Schwarzwald

Board of Patent Appeals and Interferences

Jun 29, 2009

10225881 (B.P.A.I. Jun. 29, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DETLEF SCHWARZWALD
__________

Appeal 2009-002088
Application 10/225,881
Technology Center 1700
___________

Decided:1 June 30, 2009
___________

Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
TERRY J. OWENS, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-002088
Application 10/225,881

A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision
rejecting claims 2, 5-10, 12-16, 23, and 25 under 35 U.S.C § 103(a) as
unpatentable over the combination of Iida2 and Long.3 We have jurisdiction
under 35 U.S.C. § 6(b). We REVERSE.
Claim 25, reproduced below, is the only independent claim on appeal.
An apparatus for receiving samples, comprising a vessel
having a wall defining an inner space for receiving a sample, a
bottom having at least one aperture communicating with the
inner space, and a step formed at the bottom, the wall of the
vessel having a deformed area spaced from the step and formed
as a mechanical and/or thermal deformation; and a membrane
located in the vessel for closing the aperture, the membrane
having an inner side facing the inner space of the vessel, an
opposite outer side facing the bottom, and a circumferential side
extended between the inner and outer sides, the membrane
being retained between the step and the deformed area of the
wall, with the step engaging the outer side of the membrane and
the deformed area engaging the inner side of the membrane.

App. Br. 11-12, Claims Appendix (emphasis added).4
B. ISSUE
The sole issue on appeal is5: Has the Appellant shown reversible
error in the Examiner’s finding that Iida discloses a vessel comprising a
membrane retained between a step at the bottom of the vessel and a
deformed area formed in the wall of the vessel, “with the step engaging the

2 US 6,550,901 B2 issued to Iida on April 22, 2003.
3 US 6,161,927 issued to Long on December 19, 2000.
4 Appeal Brief dated January 9, 2008.
5 The rejection of claims 2, 5-10, 12-16, 23, and 25 under 35 U.S.C. § 112,
second paragraph has been withdrawn by the Examiner. See Examiner’s
Answer dated May 1, 2008 (“Ans.”), at 2.
2
Appeal 2009-002088
Application 10/225,881

outer side of the membrane and the deformed area engaging the inner side of
the membrane”?
C. FINDINGS OF FACT
Iida Figure 1 illustrates an ink tank cartridge. Iida 3:51-53. Figure 1
is reproduced below:

Iida Figure 1 depicts an ink cartridge.
Iida discloses that membrane valve seat 3 is placed on a step 7 formed
in a lower portion of the container 1. Membrane valve seat 3 is maintained
in a stretched state by a valve assembly 9 which engages and holds the
periphery of membrane valve seat 3 against step 7. Iida 5:10-14.
Preferably, membrane valve seat 3, valve body support member 11,
and valve body 8 are assembled with and fixed to valve assembly 9 prior to
the final construction of container 1, and are incorporated into container 1 by
placing the entire assembly on step 7 at one time. Iida 5:48-52.

3
Appeal 2009-002088
Application 10/225,881

D. ANALYSIS
The Examiner found that the membrane of Iida is retained between a
first step (7 in Ida Figure 1) that engages the outer side of the membrane and
a second, higher step that adjoins the first step. According to the Examiner,
the second step contacts the edge or lateral side of the membrane, and
therefore, also engages the inner side of the membrane.6 Ans. 4, 6.
The Appellant argues that no portion of the vessel wall in Iida engages
the inner side of the membrane. Rather, according to the Appellant, the
inner side of the membrane is engaged by the valve assembly 9. Supp. App.
Br. 47; Reply Br. 2.8
The Appellant’s position is supported by the record. Indeed, Iida
discloses that the valve assembly 9, not a portion of the vessel wall, engages
the inner side of the membrane. See Iida 5:10-14; Iida Fig. 1.
In sum, the Appellant has shown reversible error in the Examiner’s
finding that Iida discloses a vessel comprising a membrane retained between
a step at the bottom of the vessel and a deformed area formed in the wall of
the vessel, “with the step engaging the outer side of the membrane and the
deformed area engaging the inner side of the membrane.”
E. DECISION
The rejection of claims 2, 5-10, 12-16, 23, and 25 under 35 U.S.C
§ 103(a) as unpatentable over the combination of Iida and Long is reversed.

REVERSED

6 According to claim 25, the “inner side” of the membrane faces the inner
space of the vessel and is opposite the outer side of the membrane.
7 Communication dated February 19, 2008.
8 Reply Brief dated June 23, 2008.
4
Appeal 2009-002088
Application 10/225,881

ssl
DAVID TOREN, ESQ.
ABELMAN FRAYNE & SCHWAB
666 THIRD AVENUE
NEW YORK, NY 10017-5621

5