FLOW CONTROL LLC.

Patent Trials and Appeals Board

Jul 29, 2021

2021000584 (P.T.A.B. Jul. 29, 2021)

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.
14/733,481 06/08/2015 Christopher H. VERDUGO 911-005.074-2FFLJX0010US0 8393
4955 7590 07/29/2021
WARE, FRESSOLA, MAGUIRE & BARBER LLP
BRADFORD GREEN, BUILDING 5
755 MAIN STREET
MONROE, CT 06468
EXAMINER
BERTHEAUD, PETER JOHN
ART UNIT PAPER NUMBER
3746
NOTIFICATION DATE DELIVERY MODE
07/29/2021 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mail@warefressola.com
uspatents@warefressola.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER H. VERDUGO, MANUEL VILLAGOMEZ, and
HUMBERTO V. MEZA
Appeal 2021-000584
Application 14/733,481
Technology Center 3700
Before BENJAMIN D. M. WOOD, LISA M. GUIJT, and
LEE L. STEPINA, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–22. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Xylem IP Holdings Inc. as the real party
in interest. Appeal Br. 2.
Appeal 2021-000584
Application 14/733,481
2
CLAIMED SUBJECT MATTER
Appellant’s disclosure is directed to a pump for controlling discharge
of syrup from a syrup bag to a fluid dispenser. Spec. 3:10–11.
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A single piston pump comprising:
a liquid housing configured with a liquid chamber having
a combination of a single piston/diaphragm assembly and a
spring arranged therein to respond to a suction stroke and draw
liquid into the liquid chamber, and configured to respond to a
pressure stroke and provide the liquid from the liquid chamber,
the spring being arranged between the single piston/diaphragm
assembly and the liquid housing; and
a gas housing having a slide valve housing, and being
configured with a first gas chamber and a second gas chamber
fluidically coupled together, the gas housing having a slide valve
assembly arranged therein, the slide valve assembly having an
actuator assembly with a slide block arranged and configured in
the slide valve housing to slide between a first position and a
second position,
the actuator assembly configured to
respond to a suction-to-pressure stroke force at a
conclusion of the suction stroke,
rotate and change from a suction stroke state to a
pressure stroke state to slide the slide block from the first
position to the second position and to allow gas to flow
through the slide valve housing from the first gas chamber
to the second gas chamber, and
provide the pressure stroke so the liquid is provided
from the liquid chamber, and the actuator assembly also
configured to
respond to a pressure-to-suction stroke force at a
corresponding conclusion of the pressure stroke,
rotate and change from the pressure stroke state to
the suction stroke state to slide the slide block from the
second position to the first second position and to allow
Appeal 2021-000584
Application 14/733,481
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gas to flow from the second gas chamber to atmosphere
from the gas housing, and
provide the suction stroke so the liquid is drawn into
the liquid chamber.

Appeal Br. 15–16 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Du ’906 US 5,083,906 Jan. 28, 1992
Du ’439 US 5,833,439 Nov. 10, 1998
REJECTION
Claims 1–22 are rejected under 35 U.S.C. § 103 as unpatentable over
Du ’906 and Du ’439.
OPINION
Appellant does not make arguments for the patentability of claims 2–
22 aside from those made for claim 1. See Appeal Br. 7. Accordingly,
claims 2–22 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Du ’906 discloses many of the elements
recited in claim 1, including a slide valve assembly (elements 30, 32, and 44
of Du ’906). Final Act. 2–3. However, the Examiner finds that Du ’906’s
slide valve assembly does not comprise:
a slide block arranged to slide between the first position and the
second position, the actuator assembly configured to rotate and
change from a suction stroke state to a pressure stroke state to
slide the slide block from the first position to the second position,
or the actuator assembly configured to rotate and change from
the pressure stroke state to the suction stroke state to slide the
slide block from the second position to the first second position.
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Application 14/733,481
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Id. at 3–4. Rephrasing the finding of deficiencies in Du ’906, the Examiner
states, “[t]he slide valve specifically comprising a slide block and the
actuator assembly being configured to rotate and change between strokes are
the only modifications that need to be made to Du ’906 in order to meet the
claim language.” Final Act. 10.
To address the deficiencies in Du ’906’s disclosure, the Examiner
finds Du ’439 discloses, among other things,
an actuator assembly (62, 75) with a slide block 54 arranged and
configured in the slide valve housing 52 to slide between a first
position and a second position, the actuator assembly (62, 75)
configured to respond to a suction-to-pressure stroke force at a
conclusion of the suction stroke, rotate and change (the rotation
of the actuator elements 62 and 75 is clearly shown in Figs. 5 and
6) from a suction stroke state to a pressure stroke state to slide
the slide block 54 from the first position to the second position
and to allow gas to flow through the slide valve housing 52 from
the first gas chamber 17 to the second gas chamber (chamber on
left side of 28 within cylinder 20).
Id. at 4 (emphasis added); see also id. at 5 (citing Du ’439, Figs. 5, 6). Thus,
in Du ’439, the Examiner finds the slide block and rotational functionality
that are missing from Du ’906.
Based on these findings, the Examiner reasons it would have been
obvious “to have replaced the slide valve assembly of Du ’906 by
implementing the slide valve assembly of Du ’439 because the slide block
valve structure of Du ’439 is simply a variant to the slide spool valve
structure shown in Du ’906.” Id. at 5. The Examiner takes the position that
“[i]t is well known in the art to swap out one valve structure for another
depending on a pump apparatus’ application.” Id. at 10.
Referring to the functional language relating to the suction stroke in
claim 1, Appellant argues:
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Application 14/733,481
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the Du ’906 combination of elements 30, 32 and 44 is not
configured to respond to a suction-to-pressure stroke force at a
conclusion of a suction stroke, rotate and change from a single
piston suction stroke state to a single piston pressure stroke state
to allow gas to flow from a first gas chamber to a second gas
chamber through a slide valve assembly, and provide a pressure
stroke so liquid is provided from a liquid chamber, as claimed.
Appeal Br. 9. Appellant continues this line of discussion until the middle of
page 10 of the Appeal Brief, also referring to similar functional language
relating to the pressure stroke of the recited pump. Appellant states, “none
of [Du ’906’s] elements 30, 32 and 44 are configured to rotate and change to
or from any single piston pump stroke state, or between any combination of
single piston pump stroke states, as claimed.” Id. at 10. At the end of this
discussion, Appellant appears to admit that the Examiner does not rely on
Du ’906 to teach that its actuator assembly rotates and changes to/from one
stroke state to another. See id. In other words, Appellant’s discussion up to
this point does not traverse any of the Examiner’s findings regarding Du
’906.
Appellant next describes the operation of Du ’439’s pump and asserts
that:
[i]n contrast to the claimed invention having an actuator
assembly configured to rotate and change the single piston pump
from its single piston pump pressure stroke state to its single
piston pump suction stroke state, Du ’439 discloses that its
double piston pump always operates in both double piston
pressure stroke states and double piston suction stroke states,
since one of the dual piston/diaphragm arrangements 22, 26; 24,
28 always operates in a double piston pressure stroke state and
the other of the dual piston/diaphragm arrangements 22, 26; 24,
28 always operates a double piston suction stroke state, and vice
versa.
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Application 14/733,481
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Appeal Br. 11 (emphasis added). Thus, Appellant’s argument emphasizes
the fact that Du ’439’s pump is a double piston pump, and claim 1 recites a
single piston pump.
Appellant summarizes its argument as follows:
In effect, Du ’439’s double piston pump always operates in both
double piston pressure stroke states and double piston suction
stroke states; while Du ’906’s single piston pump does not rotate
and change either from a single piston pressure stroke state to a
single piston suction stroke state, as claimed, or from a single
piston suction stroke state to a single piston pressure stroke state,
as also claimed, and vice versa.
Appeal Br. 12. In other words, Appellant argues that Du ’439’s pump is a
double piston pump. Next, Appellant points out that Du ’906 fails to
disclose certain structure the Examiner finds is disclosed by Du ’439.
In response, the Examiner characterizes Appellant’s argument as an
attack on the references individually rather than as the rejection proposes to
combine them. See Ans. 11. The Examiner then reiterates how the rejection
of claim 1 applies the teachings of Du ’906 and Du ’439 as follows:
Du ’906, discloses nearly every limitation of independent [claim
1] regarding the slide valve assembly and how it operates with a
single piston. The only modifications that need to be made to Du
’906 in order to meet the claim language are the slide valve
specifically comprising a slide block and the actuator assembly
being configured to rotate and change between strokes.
Ans. 12. The Examiner describes this modification as “merely replacing the
slide spool valve assembly [of Du ’906] with the slide block valve assembly
of Du ’439.” Id.
In the Reply Brief, Appellant reproduces the arguments from the
Appeal Brief, stating “none of the elements 30, 32 and 44 in Du ’906 are
Appeal 2021-000584
Application 14/733,481
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configured to rotate and change the Du ’906 single piston pump from its
single piston pump suction stroke state to its single piston pump pressure
stroke state, and vice versa.” Reply Br. 4; see also id. at 5, 10, 11.
We agree with the Examiner that Appellant’s argument amounts to an
attack on the references individually, which does not address the
combination of the disclosures of Du ’906 and Du ’439 proposed in the
rejection. Specifically, Appellant’s argument in the Appeal Brief does not
contest any of the Examiner’s findings of fact regarding the teachings of Du
’906 and Du ’439 and does not assert error in the Examiner’s rationale for
combining the teachings. The Examiner relies on Du ’439 to teach the slide
block and rotation limitations in claim 1. See Final Act. 3–5. The Examiner
finds Du ’906 discloses a single piston pump and does not rely on Du ’439
to teach this feature. Id. at 2. Appellant’s mere identification of the fact that
Du ’439 discloses a double piston pump and that claim 1 recites a single
piston pump does not apprise us of Examiner error. In particular, the fact
that Du ’439 uses a double piston pump does not speak for itself in relation
to the Examiner’s rejection, and Appellant’s argument in the Appeal Brief
does not explain why this characteristic of Du ’439’s pump is pertinent to
how the Examiner proposes to modify the single piston pump disclosed by
Du ’906.
In the Reply Brief, Appellant makes various new arguments, some of
which Appellant attempts to characterize as being in response to the
Examiner’s Answer. For example, Appellant repeatedly states “[a]t the
conclusion of the pressure stroke and at the start of the suction stroke [in Du
’906], the gas is in and exhausted from the chamber 18, not any second
chamber, as claimed.” Reply Br. 5, 6, 8, 12, 13. In another example,
Appellant contends, “Du ’906 does not disclose, teach or suggest that its
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Application 14/733,481
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single piston pump has two different gas chambers.” Id. at 8, 12. In another
example, Appellant argues “Du ’439’s reciprocating pumping technique
would not work in a single piston pump, because Du ’439’s discloses that
each double piston pressure stroke state alternately activates a respective
double piston suction stroke state, and vice versa.” Id. at 9. Further,
according to Appellant, “there is nothing on the record to support the
conclusion that the slide block valve structure of [Du ’439] is simply a
variant to the slide spool valve structure shown in Du ’906.” Id. at 14.
All of these arguments could have been made in the Appeal Brief,
allowing the Board to have the opportunity to consider a response from the
Examiner. Specifically, the Examiner’s findings regarding Du ’906’s
disclosure of first and second gas chambers as claimed are set forth on pages
2–3 of the Final Office Action. The Examiner’s proposed modification to
Du ’906’s pump is set forth on pages 5 and 10 of the Final Office Action.
The Examiner’s statement that Du ’439’s slide block structure is a variant of
the slide spool valve in Du ’906 is made on pages 5, 8, and 10 of the Final
Office Action. Thus, contrary to Appellant’s various characterizations, the
arguments noted above are not responsive to any new findings or reasoning
expressed for the first time in the Examiner’s Answer.2 Appellant does not
show good cause for delaying the presentation of the new arguments made
in the Reply Brief. Accordingly, we will not consider Appellant’s belated
arguments. See Ex parte Borden, 2010 WL 191083 at *2 (BPAI 2010)
(informative) (“The reply brief is not an opportunity to make arguments that

2 The fact that some of the Examiner’s findings and reasoning set forth in the
Final Office Action may be reiterated in the Examiner’s Answer does not
make Appellant’s argument relating to these findings or reasoning
responsive to an argument raised in the Examiner’s Answer.
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Application 14/733,481
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could have been made during prosecution, but were not. Nor is the reply
brief an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner’s rejections, but were not.”);
see also 37 C.F.R. § 41.41(b)(2) (“Any argument raised in the reply brief
which was not raised in the appeal brief, or is not responsive to an argument
raised in the examiner’s answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the present
appeal, unless good cause is shown.”).
We have considered all of Appellant’s timely arguments in support of
the patentability of claim 1, but find them unavailing. Accordingly, we
sustain the rejection of claims 1–22.
CONCLUSION
The Examiner’s decision to reject claims 1–22 is affirmed.

DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–22 103 Du ’906, Du ’439 1–22

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED