Ex Parte Streciwilk

Patent Trial and Appeal Board

Mar 21, 2013

10806499 (P.T.A.B. Mar. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ERIC J. STRECIWILK
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Appeal 2011-000933
Application 10/806,499
Technology Center 3700
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Before LINDA E. HORNER, BRETT C. MARTIN, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GERSTENBLITH, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Eric J. Streciwilk (“Appellant”) appeals under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 3, 4, 10, 11, 16, and 19-21. We
have jurisdiction under 35 U.S.C. § 6(b).
The Claimed Subject Matter
Claims 3 and 16 are independent. Claim 3 is illustrative of the
claimed subject matter and is reproduced below.
3. A floor care cleaning apparatus, comprising:
a nozzle assembly including a housing defining an
agitator cavity;
a canister assembly connected to said nozzle assembly;
a suction generator carried by one of said nozzle
assembly and said canister assembly;
a dirt collection vessel carried by one of said nozzle
assembly and said canister assembly; and
an agitator cavity fitting received in said agitator cavity
of said nozzle assembly, said agitator cavity fitting including, at
least one mounting lug, at least one connector, a cooperating air
guide and a conduit, said conduit defining an intake port:
said housing being further characterized by including at
least one receiver receiving said at least one mounting lug, at
least one slot receiving said at least one connector and a
channel for receiving said air guide.
Claim 16 is also directed to a floor care cleaning apparatus having a
an agitator cavity fitting including a mounting connector, a mounting lug, a
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cooperating air guide and a conduit, and a housing which includes a channel
receiving the air guide.
References
The Examiner relies upon the following prior art references:
Tschudy Re. 31,095 Dec. 7, 1982
McCormick US 6,226,832 B1 May 8, 2001

Rejection
The Examiner makes the following rejection:
I. Claims 3, 4, 10, 11, 16, and 19-21 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Tschudy and McCormick.

SUMMARY OF DECISION
We REVERSE.

OPINION
The Examiner determined that Tschudy and McCormick render
obvious the subject matter of claims 3, 4, 10, 11, 16, and 19-21. Ans. 3-4.
The Examiner found that Tschudy discloses most of the elements of the
claims, but “does not specifically disclose the use of a lug.” Id. at 4. The
Examiner, however, found that McCormick discloses a vacuum in which a
lug is used to secure the agitator shield to the nozzle. Id. The Examiner also
found that it would have been obvious to one of ordinary skill in the art to
“have used a lug to secure the agitator shield to the nozzle of Tschudy’s
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apparatus so as to facilitate the removal of the inner shield from the nozzle
assembly.” Id.
Appellant asserts several arguments, including that the Examiner
erred by finding that suction connection 46 of Tschudy discloses the
connector and channel elements of the claims. Reply Br. 3; see App. Br. 16-
18.
The claims are directed to a floor care cleaning apparatus (e.g.,
vacuum) comprising, inter alia, “a nozzle assembly including a housing
defining an agitator cavity.” The housing is expressly required to include “a
channel for receiving said air guide.” The Examiner first found that element
46 of Tschudy disclosed “a connector.” Ans. 3. The Examiner later
characterized element 46 as “channel portion (46).” Id. at 4. In response to
Appellant’s argument regarding element 46, the Examiner stated that
channel portion 46 “is connected with the agitator housing that comprises a
channel that has grooved sections therein that are considered to be air
guides.” Id.
We acknowledge, as Appellant has rightly stated, that the Examiner’s
rejection is less than clear. On the one hand, the Examiner found that
element 46 of Tschudy discloses the claimed “connector,” while on the other
hand, the Examiner found that element 46 discloses a “channel portion.”
The Examiner’s response to Appellant’s argument on this point similarly
lacks clarity. For example, it is not clear whether the Examiner is relying
upon element 46 as the “channel that has grooved sections therein that are
considered to be air guides” or whether the Examiner is relying upon a yet-
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to-be-identified channel in the agitator housing. See Ans. 4. In either
circumstance, however, the Examiner has not shown by a preponderance of
the evidence that Tschudy discloses a “channel for receiving [an] air guide”
as required by the claims. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir.
1985) (“preponderance of the evidence is the standard that must be met by
the PTO in making rejections”); see also In re Oetiker, 977 F.2d 1443, 1449
(Fed. Cir. 1992) (Plager, J., concurring) (“In rejecting an application, factual
determinations by the PTO must be based on a preponderance of the
evidence, and legal conclusions must be correct.”) (citation omitted).
First, Tschudy discloses that element 46 is a tubular formed suction
connection. Tschudy, col. 3, ll. 27-28. Assuming the first option for
interpreting the Examiner’s rejection, as mentioned above, the Examiner has
failed to identify where Tschudy teaches that element 46 has grooves.
Second, Tschudy teaches that the agitator housing 28 includes an internal
cylindrical surface 40 that has an edge, lip, and groove. Id. at col. 3, ll. 17-
29. Tschudy also teaches that the lip, ledge 50, and reversed helixed agitator
64 tend to move air along the groove in the agitator housing toward tubular
formed suction connection 46. Id. at col. 3, ll. 23-29. Even accepting the
Examiner’s finding that the grooved section is considered to be an air guide,
the groove is disclosed as molded in the agitator housing 28, not received
within a channel of connection 46.
Accordingly, we do not sustain the rejection.

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DECISION
We reverse the Examiner’s decision rejecting claims 3, 4, 10, 11, 16,
and 19-21.

REVERSED

JRG