Kah, Carl L.C. et al.

Patent Trials and Appeals Board

Feb 3, 2020

14551881 - (D) (P.T.A.B. Feb. 3, 2020)

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.
14/551,881 11/24/2014 Carl L.C. Kah JR. 47587/0147 4894
1912 7590 02/03/2020
AMSTER, ROTHSTEIN & EBENSTEIN LLP
90 PARK AVENUE
NEW YORK, NY 10016
EXAMINER
GORMAN, DARREN W
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
02/03/2020 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):
PTODOCKET@ARELAW.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARL L.C. KAH JR. and CARL L.C. KAH III
Appeal 2019-002156
Application 14/551,881
Technology Center 3700
Before DANIEL S. SONG, MICHAEL J. FITZPATRICK, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, 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 28 and 29. 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(a). Appellant identifies the real party in interest as Carl L.C. Kah, Jr.
Appeal Br. 3.
Appeal 2019-002156
Application 14/551,881

2
CLAIMED SUBJECT MATTER
The claims are directed to a spray nozzle. Claim 28, reproduced
below, is illustrative of the claimed subject matter:
28. An adjustable spray nozzle assembly for an irrigation
system comprising:
a body having an inlet configured and operable for
attachment to a source of pressurized water and an outlet opening
configured and operable for emitting a stream of water; and
an adjustable deflector element mounted in a center of the
nozzle assembly such that a stream of water from the outlet
deflects off the deflector element at a desired elevation angle out
of the nozzle assembly;
the deflector element further comprising a mechanism
extending axially along a central axis of the nozzle assembly and
configured and operable for axial movement such that the
elevation angle of the stream of water leaving the spray nozzle is
adjusted.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Grundy US 5,031,840 July 16, 1991
Kah ’081 US 7,232,081 June 19, 2007
Kah ’456 US 8,047,456 Nov. 1, 2011
Kah ’986 US 8,893,986 Nov. 25, 2014
REJECTIONS
Claims 28 and 29 are rejected on the ground of nonstatutory double
patenting as being unpatentable over claims 1–20 of Kah ’081.
Claims 28 and 29 are rejected on the ground of nonstatutory double
patenting as being unpatentable over claims 1–13 of Kah ’456.
Claims 28 and 29 are rejected on the ground of nonstatutory double
patenting as being unpatentable over claims 1–9 of Kah ’986.
Appeal 2019-002156
Application 14/551,881

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Claims 28 and 29 are rejected under 35 U.S.C. §102(b) as being
anticipated by Grundy.
OPINION
Double Patenting
The Final Action includes three separate double patenting rejections
for claims 28 and 29. Final Act. 4–5. Although the Examiner’s Answer
does not list the doubling patenting rejections, it states that “[e]very ground
of rejection set forth in the Office action dated December 22, 2017 from
which the appeal is taken is being maintained by the examiner except for the
grounds of rejection (if any) listed under the subheading ‘WITHDRAWN
REJECTIONS.’” Ans. 3. There are no rejections listed as withdrawn in the
Examiner’s Answer. Further, our review of the Advisory Action entered
June 11, 2018 does not indicate that the double patenting rejections have
been withdrawn. Accordingly, we understand those double patenting
rejections to be pending.
Our rules state that Appellant’s “arguments shall explain why the
examiner erred as to each ground of rejection contested by appellant.” See
37 C.F.R. § 41.37(c)(1)(iv). “When the appellant fails to contest a ground of
rejection to the Board . . . the PTO may affirm the rejection of the group of
claims that the examiner rejected on that ground without considering the
merits of those rejections.” Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir.
2008). Accordingly, because there is no assertion of error by Appellant, we
summarily affirm the Examiner’s double patenting rejections.
Appeal 2019-002156
Application 14/551,881

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Anticipation
The Examiner finds that Grundy’s upper nozzle piece 6, deflecting
ring 50, and adjusting member 70 form the recited deflector, with deflecting
ring 50 and adjusting member 70 forming the deflector’s “mechanism
extending axially along a central axis of the nozzle assembly and configured
and operable for axial movement such that the elevation angle of the stream
of water leaving the spray nozzle is adjusted,” as recited in claim 28. Final
Act. 5–6. In response, “Applicant respectfully submits that elements 6, 50
and 70 are not a ‘deflector element’ as is required by claim 28” because
“[t]he elements . . . merely form an outlet as part of the nozzle through
which water exits the sprinkler.” Appeal Br. 6. Appellant further contends
that “[e]lements 50 and 70 . . . do not extend ‘axially along a central axis of
the nozzle assembly’” because “[b]oth of these elements . . . are ring
shaped.” Id. The Examiner has the better position.
Grundy’s Figure 1 is reproduced below, annotated to depict its central
axis.
Appeal 2019-002156
Application 14/551,881

5

Figure 1 depicts “a cross-sectional side elevation view of [Grundy’s]
sprinkler nozzle,” and includes our annotation (red line) indicating the
central axis of the sprinkler nozzle. Grundy 2:37–38. Grundy explains that
its nozzle 2 can be manipulated to control flow via “deflecting means . . .
compressing upper nozzle piece 6 against lower nozzle piece 4 to deform or
compress channels 26.” Id. at 2:60–63. “The deflecting means comprises an
annular deflecting ring 50 and a selectively rotatable adjusting member 70.”
Id. at 2:63–65. Grundy explains, for example, that “[d]ownward movement
of adjusting member 70 . . . forces deflecting ring 50 downwardly to
compress upper nozzle piece 6 against lower nozzle piece 4.” Id. at 5:26–
29.
We are apprised of no reason why Grundy’s nozzle piece 6 does not
have the structure required to be a deflector, as recited in claim 28.
Appellant does not allege any missing structure, but, rather, simply alleges
that Grundy labels element 6 as a nozzle piece. Appeal Br. 6. Indeed,
Appeal 2019-002156
Application 14/551,881

6
Grundy’s nozzle piece 6 is strikingly similar to what Appellant calls its
deflector. See Appeal Br. 5 (referring to element 17E in Figure 8A, for
example, as the deflector). Appellant’s Figure 8A is reproduced below.

Figure 8A is a side elevation view of Appellant’s spray nozzle and illustrates
the deflector 17E.
We are also not apprised of error in the Examiner’s finding that
Grundy’s deflecting ring 50 and adjusting member 70 “extend[] axially
along a central axis of the nozzle assembly.” We see no requirement in this
claim language that a solid mass intersect the central axis of the spray
nozzle, as Appellant appears to contend. Rather, because deflecting ring 50
and adjusting member 70 each have a central axis that is the same as the
central axis of the sprinkler nozzle, and have an axial extent, deflecting ring
50 and adjusting member 70 “extend[] axially along a central axis of the
nozzle assembly.”
Appeal 2019-002156
Application 14/551,881

7
For at least the reasons set forth above, we are not apprised of error in
the Examiner’s rejection of claim 28, or dependent claim 29, which
Appellant does not argue separately.
CONCLUSION
The Examiner’s rejections are affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
28, 29 n/a double patenting–
Kah ’081
28, 29
28, 29 n/a double patenting–
Kah ’456
28, 29
28, 29 n/a double patenting–
Kah ’986
28, 29
28, 29 102(b) Grundy 28, 29
Overall
Outcome
28, 29

TIME PERIOD FOR RESPONSE
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