Ex Parte Welbourne

Board of Patent Appeals and Interferences

Jan 17, 2012

11318279 (B.P.A.I. Jan. 17, 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.
11/318,279 12/22/2005 Stephen B. Welbourne SWN 301B 4443
78569 7590 01/17/2012
Dascenzo Intellectual Property Law, P.C.
522 SW 5th Ave
Suite 925
Portland, OR 97204-2126
EXAMINER
PARSLEY, DAVID J
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
01/17/2012 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 STEPHEN B. WELBOURNE
__________

Appeal 2010-008588
Application 11/318,279
Technology Center 3600
__________

Before TONI R. SCHEINER, FRANCISCO C. PRATS, and
STEPHEN WALSH, Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-6, 10, and 18-24, directed to an animal-activated feeding system.
The claims have been rejected as anticipated and obvious. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
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STATEMENT OF THE CASE
Claims 1-6, 10, and 18-24 are pending and on appeal; claims 7-9 and
11-17 are also pending, but have been withdrawn from consideration (App.
Br. 2). Claims 1, 2, and 18 are representative of the subject matter on appeal
(emphasis added):
1. An animal-activated feeding system for dispensing a liquid feed to a
vessel, the feeding system comprising:
a self-sealing valve assembly adapted to deliver a flow of the liquid
feed and further adapted to be selectively configured between at least a
sealed configuration and a dispensing configuration, wherein the valve
assembly is biased to the sealed configuration and comprises:
a valve body defining a feed flow path including an outlet flow
path, wherein the valve body comprises an outlet defining the outlet
flow path and configured to dispense the feed into the vessel;
a valve member configured to selectively obstruct the feed flow
path; and
a feed-flow activation member coupled to the valve member,
upwardly extending generally away from the valve body, and
configured to be selectively positioned between a sealed position and
a range of activated positions, wherein in the sealed configuration of
the valve assembly, the activation member is positioned in the sealed
position to prevent the flow of liquid feed from passing the valve
member, wherein in the dispensing configuration of the valve
assembly, the activation member is positioned within the range of
activated positions to permit the flow of liquid feed to pass the valve
member, and further wherein the feed-flow activation member has a
central axis; and
wherein the outlet flow path has a central axis within a plane
generally perpendicular to the central axis of the activation member
when the activation member is in the sealed position, and further
wherein the outlet is adapted to dispense the feed in a discrete
stream into the vessel.
2. The system of claim 1, wherein the valve body includes a plurality of
spaced-apart outlets, and further wherein each outlet defines an outlet flow
path and is configured to dispense feed into the vessel.
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18. The system of claim 1, wherein the system further comprises a
buoyant activation restriction mechanism slidingly coupled relative to the
activation member, and configured to be selectively positioned, in response
to a level of the feed within the vessel, between a range of neutral positions
and a range of engagement positions, wherein in the range of neutral
positions, the restriction mechanism is adapted to permit activation of the
activation member, wherein in the range of engagement positions, the
restriction mechanism is distal to the valve member from the range of
neutral positions and is adapted to restrict activation of the activation
member, and further wherein the restriction mechanism is configured to be
urged away from the valve member and toward the range of engagement
positions in response to higher levels of feed in the vessel.
The Examiner rejected the claims as follows:
Claims 1-6, 10, and 18-22 under 35 U.S.C. § 102(b) as anticipated by
Nilsen (US 3,941,094, March 2, 1976);
Claim 23 under 35 U.S.C. § 103(a) as unpatentable over Nilsen and
Wostal (US 4,538,791, September 3, 1985); and
Claim 24 under 35 U.S.C. § 103(a) as unpatentable over Nilsen,
Wostal, and Dutter (US 5,839,466, November 24, 1998).
Findings of Fact
1. Nilsen discloses “a valve actuator-float for animal waterers . . .
[with] a positive shut-off of the water supply thereto” (Nilsen, col. 2, ll. 6-8).
“[T]he actuator-float X . . . is an inverted chamber that opens downwardly so
as to entrap a volume of air sufficient for floatation of the shut-off valve . . .
and involves an actuator body that enables the animal to pivot the valve . . .
with consequent release of water on demand” (id. at 2, ll. 62-68). Nilsen‟s
Figure 5, reproduced immediately below, is a cross-sectional elevation of
actuator-float X:
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Figure 5 depicts Nilsen‟s actuator-float X, with valve pin 30, baffle 50, and
peripheral lip 51 (id. at col. 3, l. 65; col. 4, ll. 41-42).
2. Nilsen teaches that “the valve pin 30 presents a straight and
upstanding shaft-like part that normally extend[s] along the axis of the body
15 projecting through the port 19 with clearance so as to permit a rocking
movement” (Nilsen, col. 4, ll. 6-10). As Nilsen explains,
The valve seal 40 is an annular part that surrounds the
valve pin 30 . . . . [T]he outer diameter of the valve seal 40 is
substantially smaller than the inner diameter of chamber 18
surrounding the valve seat 20, in order to establish a flow
restricting passage of annular configuration. And, as a result
of the valve seat and valve seal closeness . . . there is a lifting
and centering action as water expells upwardly through the
annular orifice existing between the valve seat 20 and valve pin
30, as well as a centering action when the valve seal 40 engages
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on the cone-shaped valve seat 20. As a result, the valve pin 30
is biased and centered as and when water pressure is applied.
The baffle 50 is a plate-like part that slips over the valve
pin 30 to overlie the top 21 of the body 15. In practice, the
baffle 50 is a disc of plastic material adapted to seal with the
top 21 when engaged therewith and to diffuse water discharged
when valve V is opened. To this end the baffle 50 has a
downwardly disposed peripheral lip 51 that engages the top 21
along a line of contact circumscribing the port 19. In practice,
the said slip fit permits the baffle 50 to drop freely onto the top
21, and alternatively to lift off the top when [the] flow of water
occurs.
(Id. at col. 4, ll. 11-47 (italics added).)
3. Figure 15 of the present Specification, reproduced immediately
below, is a schematic cross-sectional elevation of a self-sealing valve
assembly 18 that meets the limitations of the claims, including feed outlet(s)
28, and a buoyant activation restriction mechanism 168, slidingly coupled to
an activation member 54:

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Figure 15 of the present Specification depicts valve body 40, with a self-
sealing valve assembly 18, including outlet(s) 28, a buoyant activation
restriction mechanism 168, slidingly coupled to an activation member 54,
and an upper cavity 112 in the form of a float chamber, or annular space,
170, which is configured to retain the restriction mechanism 168 within the
valve body (Spec. 8: 15-17; 13: 7-12, 22-23; 34: 6-14).
Figure 3 of the Specification is a cross-sectional elevation showing a
self-sealing valve assembly 18 in relation to the feeding vessel 16, and also
showing feed outlet(s) 28, and outlet flow path(s) 30:

Figure 3 of the Specification is a cross-sectional elevation showing a self-
sealing valve assembly 18 in relation to the feeding vessel 16, and also
showing feed outlet(s) 28, and outlet flow path(s) 30.
4. The Specification teaches that
A system 10 may be adapted to provide a means for
ejecting, or at least one outlet 28 adapted to eject the feed, or
other fluid, 12 into the vessel, or other cup. The outlet(s) or
means for ejecting may be adapted to eject the liquid feed
laterally into the vessel along a substantially horizontal locus or
loci, and may define at least a portion of at least one outlet flow
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path 30. Stated in slightly different terms, the valve assembly
may be adapted to eject fluid, or feed 12 substantially laterally
into the vessel generally without a substantial upward or
downward component to the trajectory at which the liquid feed
is ejected from the outlet(s). In other words, outlet(s) 28 may
define outlet flow path(s) 30 and may be configured to dispense
the feed in a confined, or discrete, stream into the vessel.
(Spec. 11: 22 -12: 7.)
5. Ordinary definitions of the word “discrete” include:
“constituting a separate entity : individually distinct ” and “consisting of distinct or unconnected elements :
NONCONTINUOUS” (www.merriam-webster.com/dictionary/discrete, accessed
January 5, 2012).
6. Figure 7 of the Specification is a cross-sectional plan view of an
embodiment of a valve body that meets the limitations of the claims, in this
case the valve body has three flow paths 30 and three outlets 28, taken along
a plane generally bisecting the flow paths and outlets:

Figure 7 of the Specification is a cross-sectional plan view of a valve body
with three flow paths 30 and three outlets 28, taken along a plane generally
bisecting the flow paths and outlets (Spec. 22: 15-18).
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7. With respect to the restriction mechanism 168 shown in Figure
15 above, the Specification teaches that it rises (floats) with the level of feed
in the vessel 16, and restricts the motion of the activation member 54 when it
reaches the engaged position (Spec. 36; 12-19; 38: 1-2). In Figure 15, the
engaged position is shown at 368 in dashed lines (id. at 35: 17-20).
ANTICIPATION
Discussion
In rejecting claims 1-6, 10, and 18-22 as anticipated by Nilsen, the
Examiner finds, in relevant part, that Nilsen discloses an animal-activated
feeding system “wherein the feed-flow activation member [30] has a central
axis . . . [and] wherein the outlet flow path has a central axis within a plane
generally perpendicular to the central axis of the activation member . . . and
further wherein the outlet is adapted to dispense the feed in a discrete stream
into the vessel” (Ans. 4). The Examiner finds that Nilsen‟s “system further
comprises a buoyant restriction mechanism - at 50,51, slidingly coupled to
the activation member - at 30 . . . [and] adapted to permit activation of the
activation member” (id.).
However, we agree with Appellant that Nilsen does not disclose an
outlet flow path with a central axis within a plane generally perpendicular to
the central axis of the activation member, which is adapted to dispense the
feed in a discrete stream into the vessel, as required by claim 1 and its
dependent claims (see App. Br. 12-14). According to Nilsen, when the
valve of its waterer is open, “water expels upwardly” in an annular
configuration through the annular orifice between the valve seat and the
valve pin 30 (i.e., water is expelled from the outlet parallel to the valve pin)
(FF2). While it is true that baffle 50 subsequently diffuses the water into an
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annular plane generally perpendicular to the central axis of the valve pin,
there is no “central axis” within the annular plane (only an axis
perpendicular to the annular plane, and therefore parallel to the central axis
of the valve pin). Moreover, one of ordinary skill in the art would not have
considered Nilsen‟s annular plane or sheet of water to be a “discrete stream”
as that term is used in the Specification and claims, nor for that matter, as it
is used the ordinary sense - as an individually distinct entity or consisting of
unconnected elements (FFs 4, 5). Therefore, we agree with Appellant that
Nilsen‟s waterer is not “adapted to dispense the feed in a discrete stream into
the vessel,” as required by claim 1.
We also agree with Appellant that Nilsen does not disclose a buoyant
activation restriction mechanism slidingly coupled relative to the activation
member, which is adapted to restrict activation of the activation member
when in an engaged position, as required by claims 18-22 (see Reply Br. 3-
4). It is true that Nilsen‟s baffle 50 is buoyant, and it is slidingly coupled to
the valve pin 30 (FFs 1, 2). However, the Examiner has not explained, and
we do not see, how it is adapted to restrict activation of the valve pin in any
way (contrast Nilsen‟s baffle 50 with the instant restriction mechanism 168
that essentially locks activation element 54 in place when the restriction
mechanism is in an engaged position (FFs 3, 7)).
Accordingly, we will reverse the rejection of claims 1-6, 10, and 18-
22 as anticipated by Nilsen, as all of the claims rejected on this ground
require one or both of these features, which Nilsen does not disclose.
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OBVIOUSNESS
Discussion
The Examiner‟s rejection of claim 23 as unpatentable over Nilsen and
Wostal is premised, at least in part, on the Examiner‟s finding that “Nilsen
discloses a laterally ejecting fluid flow control system . . . comprising at
least one laterally facing hole . . . between 15 and 51 in figure 5” (Ans. 6).
The Examiner acknowledges that “Nilsen does not disclose means for
ejecting the fluid comprising a laterally facing hole extending through the
nipple housing” (id. at 7). However, the Examiner finds that Wostal
discloses a “laterally facing hole extending through [a] nipple housing” (id.),
and concludes that it would have been obvious “to take the device of Nilsen
and add the laterally facing hole in the nipple housing of Wostal, so as to
allow for liquid feed to be dispensed entirely into the vessel during use” (id).
However, we agree with Appellant that “the Examiner‟s proposed
combination fails to disclose, teach or suggest “„a means for ejecting fluid
comprising at least one laterally facing hole extending through the nipple
housing and configured to laterally eject fluid to a vessel generally without a
substantial upward or downward component‟” as required by claim 23
(App. Br. 20. (emphasis omitted)). Nilsen discloses an open annular area
between 15 and 51 in Figure 5, not a laterally facing hole. To the extent
Wostal does disclose a “laterally facing hole extending through [a] nipple
housing” (Ans. 7), the Examiner has not adequately explained why one of
ordinary skill in the art would have modified the open annular area of
Nilsen‟s waterer to have a laterally facing hole in the first place.
[An invention] composed of several elements is not proved
obvious merely by demonstrating that each of its elements was,
independently, known in the prior art. . . . [I]t can be important
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to identify a reason that would have prompted a person of
ordinary skill in the relevant field to combine the elements in
the way the claimed new invention does.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
With respect to the Examiner‟s rejection of claim 24 (which depends
from claim 23) as unpatentable over Nilsen, Wostal, and Dutter, apart from
the deficiencies discussed above, we agree with Appellant that the references
neither teach nor suggest “a float . . . slidingly coupled to . . . the rod means
and configured to rise with the fluid and restrict rod means motion and to
lower with the fluid and allow rod means motion” (App. Br. 23 (emphasis
omitted)) for the reasons set forth on pages 23-25 of the Appeal Brief.
SUMMARY
The rejection of claims 1-6, 10, and 18-22 under 35 U.S.C. § 102(b)
as anticipated by Nilsen is reversed.
The rejection of claim 23 under 35 U.S.C. § 103(a) as unpatentable
over Nilsen and Wostal is reversed.
The rejection of claim 24 under 35 U.S.C. § 103(a) as unpatentable
over Nilsen, Wostal, and Dutter is reversed.

REVERSED

cdc