DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114 was filed in this application after a decision by the Patent Trial and Appeal Board, but before the filing of a Notice of Appeal to the Court of Appeals for the Federal Circuit or the commencement of a civil action. Since this application is eligible for continued examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on 27 October 2025 has been entered.
Response to Amendment
This office action is responsive to the amendment filed on 27 October 2025. As directed by the amendment: claims 1, 2, 7 & 8 have been cancelled, claims 3-6 were cancelled by previous amendments, and claims 9-15 have been added. Thus, claims 9-15 are presently pending in this application.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the following must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
A sprayer connected to the inner chamber (claim 9);
The tank having a maximum fill marking which indicates a highest level to which the inner chamber of the tank is to be filled (claim 15)
Note: similar objections were presented in a previous Final rejection dated 10/03/2022, though applicant cancelled the limitations in the subsequent amendment. As set forth in 37 CFR 1.83(a), conventional features disclosed in the description and claims, where their detailed illustration is not essential for a proper understanding of the invention, should be illustrated in the drawing in the form of a graphical drawing symbol or a labeled representation (e.g., a labeled rectangular box).
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 9, 10 & 13-15 are objected to because of the following informalities:
Claim 9, line 18: “wherein;” appears it should read “wherein:”
Claim 9, lines 27-28: “interior chamber” should read “inner chamber”;
Claim 10, line 1: “leakage chamber” should read “leakage collection chamber”
Claim 13, line 2: “the fluidic connection” lacks proper antecedent basis;
Claim 9 recites that the outlet port is fluidly connected to the inner chamber, but does not necessarily recite a “fluid connection” element;
Claim 13, line 2: “the collection chamber outlet port” should read “the leakage collection chamber outlet port”;
Claim 13, lines 2-3: “interior chamber” (recited twice) should read “inner chamber”;
Claim 14, line 1: “the collection chamber outlet port” should read “the leakage collection chamber outlet port”;
Claim 14, line 2: “trough” should read “through”;
Claim 15, line 1: “maximum fill making” should read “maximum fill marking”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 9-15 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 9 recites “a leakage collection chamber which consists of a space between the inner and outer walls of the piston body” (lines 7-8) and “the flexing seal member prevents fluid from exiting the leakage collection chamber, thereby preventing fluid from collecting in contact with the flexing seal member” (lines 21-23).
In applicant’s accompanying remarks filed 10/27/2025, applicant states “All present claims require the leakage collection chamber to consist of a space between the inner and outer walls of the piston body. This precludes any leak collection chamber in which a wall or a surface of the chamber actually consists of or comprises…any portion of the flexing seal member”.
As set forth in MPEP § 2163(I)(B), the written description requirement prevents an applicant from claiming subject matter that was not adequately described in the specification as filed. New or amended claims which introduce elements or limitations that are not supported by the as-filed disclosure violate the written description requirement. While there is no in haec verba requirement, newly added claims or claim limitations must be supported in the specification through express, implicit, or inherent disclosure. The fundamental factual inquiry is whether the specification conveys with reasonable clarity to those skilled in the art that, as of the filing date sought, the inventor was in possession of the invention as now claimed.
A review of the specification as originally filed reveals the following pertinent sections:
Regarding the leakage collection chamber: “The combination of the cylinder wall 61, the internal wall 75 and the external wall 79 of the piston define a leak collection chamber 81, which collects any liquid leaking from the piston” (para. 29);
Regarding the flexing seal member: “The accordion 53 may be manufactured of any adequately flexible and durable material such as rubber or elastomer that is resistant to weather conditions and to any chemicals that the sprayer may be used to deliver… As shown, the first attachment 150 attaches the bottom end portion 1002 of the accordion 53 to the lower part and compresses it against the external wall of the piston 79. The second attachment 151 attaches the upper end portion 1000 of the accordion to the upper part and compresses it against the wall of the cylinder 63. In this manner, the sealing accordion 53 reduces frictional wear on the cylinder 63 by preventing any abrasive matter from entering and causing excessive wear on the walls of the cylinder 63” (para. 34);
“Also, the sealing accordion 53 (Figure 2) prevents any liquid that leaks past the piston 51… from exiting the collection chamber.” (para. 35)
The corresponding figures (e.g., figs. 2 & 3) show the arrangements as described in paragraphs 29 & 34: the piston walls define a collection chamber 81, and the flexing seal member is attached to the outer wall of the piston on a lower and an outer wall of the cylinder on the upper end. It is noted, however, that the upper end of the collection chamber (as defined by the piston) is clearly shown to be open to and in fluid communication with the interior of the flexing seal member (as would otherwise be required to allow the “pumping” effect of the seal member to discharge leakage from the collection chamber to the outlet port).
A person having ordinary skill in the art would have recognized that the flexing seal member as shown and described would not necessarily be capable of preventing fluid from leaving the space between the inner and outer piston walls (i.e., “collection chamber” defined by the piston walls), but could serve to contain any overflow from that space, preventing leakage from the device to the exterior environment.
Thus, when presented with the apparent contradictory statements in the specification of: 1) the collection chamber being “defined” by the piston walls, and 2) the flexing seal member preventing any liquid that leaks past the piston from exiting the collection chamber, said person having ordinary skill in the art would have reasonably interpreted the “collection chamber” to include both the space “defined” by the piston walls and the volume within the flexing seal member. When the “collection chamber” is interpreted in this manner, the apparent contradiction resolves: the collection chamber remains defined (i.e., at least at its lower end) by the piston, and the flexing seal member is capable of preventing liquid from exiting the collection chamber.
Alternatively, if the collection chamber were to be strictly defined to “consist” of the space between the piston walls, the arrangement of the flexible seal member as shown could be understood as preventing leakage of fluid from the collection chamber to the exterior environment, but not necessarily preventing leakage from the collection chamber into the flexible seal member itself. As such, the statement wherein the flexing seal member “prevents any liquid that leaks past the piston 51… from exiting the collection chamber” would likely have been seen as an informal, aspirational (but technically imprecise) statement of intended purpose rather than as an accurate description of a required capability. In this context, this informal, aspirational statement would not be appropriate to use as a claimed functional limitation since its use in a claim might be seen to require a technical function which exceeds the capabilities of applicant’s own disclosed embodiments.
The original specification also does not appear to provide any support for the limitation wherein the flexing seal member preventing fluid from exiting the leakage collection chamber thereby prevents “fluid from collecting in contact with the flexing seal member”.
In applicant’s accompanying remarks, applicant further states that the present claims requiring the flexing seal member to prevent fluid from exiting a leakage collection chamber that “consists of” a space between the inner and outer walls of the piston body “prevents fluid (e.g., agricultural chemicals) from collecting in contact with the seal member and causing softening or damage to the flexing seal member, which may be formed of rubber or other elastomeric material”.
The background section of the original specification, when describing certain prior art devices, states that “in all of these systems [i.e. the identified prior art systems, as understood], an intense use or the aggressive effect of certain kinds of chemicals can cause some of the components to wear out due to friction or softening, and as a consequence there may be leaks of liquids through the bottom part of the sprayer, thus wetting the operators back and damaging the environment” (para. 4).
The specification does not specifically identify which “components” would wear out due to friction or softening but, from context, this was likely intended to refer to the pistons (i.e., piston rings / seals) and/or diaphragms of the pumping devices.
The background section continues on (in paragraphs 5-6) to explain subsequent improved systems disclosed in certain Mexican patents and patent applications (as understood, by the same inventor listed in this application) which prevent such leaks by collecting the leaked liquid and returning it to the tank. Paragraph 7 describes the instant invention as an improvement over these prior art device by using the flexible accordion to avoid “grazing the cylinder, thus increasing its duration and its pumping capacity”.
As previously noted, the written description explains that “the accordion 53 may be manufactured of any adequately flexible and durable material such as rubber or elastomer that is resistant to weather conditions and to any chemicals that the sprayer may be used to deliver…” (para. 34).
Thus, while the original specification teaches that certain components of prior art devices (not explicitly specified, but reasonably interpreted as being pump pistons or diaphragms or seals therefor) may leak due to softening or friction after intense use or when used with certain aggressive chemicals, there does not appear to be any clear disclosure that the flexing seal member of the instant invention, which is disclosed as being made of a material resistant to any such chemicals, would necessarily suffer from the same softening.
Furthermore, because the flexing seal member is only understood to be capable of preventing fluid from exiting the leakage collection chamber if the collection chamber is seen to include the flexing seal member (or is otherwise only capable of containing overflow from the collection chamber to prevent leakage to the exterior, but not preventing leakage from the collection chamber into the flexing seal member), it does not appear that the flexing seal member, insofar as it may be capable of preventing fluid from exiting the collection chamber, is sufficiently disclosed as capable of doing so in a manner which prevents fluid from collecting in contact with the flexing seal member.
As such, there does not appear to be sufficient disclosure that the flexing seal member is capable of preventing fluid from collecting in contact with the flexing seal member as claimed.
In view of the above, the specification as originally filed does not appear to provide sufficient support for the combination of limitations now presented in claim 9 wherein the leakage collection chamber “consists of” a space between the inner and outer walls of the piston body and wherein the flexing seal member prevents fluid from exiting the leakage collection chamber, thereby preventing fluid from collecting in contact with the flexing seal member.
Examination Note: the focus above has been on the flexing seal member preventing fluid in the collection chamber from exiting to the exterior environment, i.e., through the exterior gap between the piston exterior and the cylinder wall. However, the flexing seal member is also reasonably incapable of preventing fluid from exiting through the collection chamber outlet port; see related 35 U.S.C. 112(b) rejection.
Claim 13 recites that “ascending movement of the piston expels fluid from the leakage collection chamber, through the leakage collection chamber outlet port, through said fluidic connection and out of an opening in an upper end of the syphon tube without allowing the fluid to reside in contact with the flexing seal member”.
While the specification as originally filed may support the limitation wherein “ascending movement of the piston expels fluid from the leakage collection chamber, through the leakage collection chamber outlet port, through said fluidic connection and out of an opening in an upper end of the syphon tube”, there does not appear to be sufficient written description support as originally filed for the additional limitation wherein such action is performed “without allowing the fluid to reside in contact with the flexing seal member”.
There does not appear to be any explicit disclosure of this feature in the specification and, while the flow path from the collection chamber through the outlet port and fluidic connection to the opening in the syphon tube does not include a portion in which the fluid contacts the flexing seal member, as previously mentioned, it does not appear that the device would necessarily be able to prevent fluid from contacting the flexing seal member, nor is that a stated feature of the device.
To illustrate the issue by way of example, it is noted that fluid leaks into the collection chamber via leakage between the piston head and cylinder wall, and is intended to be removed via the outlet port by pumping action of the piston and/or the flexing seal member upon ascending movement of the piston. However, if the leakage past the piston is severe such that the leakage during the descending movement is more than can be removed during the ascending movement, accumulation of the leaked fluid could conceivably overflow the collection chamber, where it would eventually come into contact with the flexible seal member, which would prevent further leakage to the environment. Similarly, if the device were to be tilted or reoriented to a horizontal or partially inverted position (e.g., if the user sets down the system on its side rather than its bottom), then any remaining fluid in the leakage collection chamber could conceivably drain, as by gravity, out of the collection chamber and collect in the flexible seal member which, as before, would prevent further leakage to the environment.
In either case, subsequent operation of the device such that ascending movement of the piston expels fluid from the leakage collection chamber as claimed would not necessarily prevent fluid from residing in contact with the flexing seal member.
As a result, the claims contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims recited in the section heading above but not specifically discussed are rejected due to dependency upon at least one rejected claim.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 9-15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 9 recites “a leakage collection chamber which consists of a space between the inner and outer walls of the piston body” (lines 7-8) and “the flexing seal member prevents fluid from exiting the leakage collection chamber, thereby preventing fluid from collecting in contact with the flexing seal member” (lines 21-23), which raises several issues.
As set forth in MPEP § 2173.03, a claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty.
As detailed in the related grounds of rejection under 35 U.S.C. 112(a) above, the limitation wherein the leakage chamber “consists of a space between the inner and outer walls of the piston body” and the limitation wherein “the flexing member prevents fluid from exiting the leakage collection chamber” appear to be conflicting limitations, causing the scope of the claim to take on an unreasonable degree of uncertainty.
The specification discloses that the leakage collection chamber is “defined” by the inner and outer walls of the piston body, but it does not necessarily state that the leakage collection chamber “consist of” the space between the inner and outer walls of the piston body as is now claimed. However, in the sprayer device disclosed by applicant, the upper end of the collection chamber (as defined by the piston walls) is clearly shown to be open to and in fluid communication with the interior of the flexing seal member (as would otherwise be required to allow the “pumping” effect of the seal member to discharge leakage from the collection chamber to the outlet port). So, while the flexing seal member could serve to contain any overflow from the space between the inner and outer piston walls, preventing leakage from the device to the exterior environment, it does not appear that the flexing seal member would be capable of preventing fluid from leaving the space between the inner and outer piston walls (i.e., into the flexing seal member itself).
In other words, while the flexing seal member could be said to prevent fluid from exiting the leakage collection chamber if said leakage collection chamber is defined to include both the space between the inner and outer walls of the piston body and the inner volume of the flexing seal member, the same would not be true if the leakage collection chamber is defined so as to “consist of” the space between the inner and outer walls of the piston body (i.e., excluding the inner volume of the flexing seal member), as the flexing seal member cannot reasonably prevent fluid from exiting the space and passing into the flexing seal member itself.
Additionally, regardless of whether the collection chamber is considered to consist of the space defined by the piston walls or is considered to include both that space and the inner volume of the flexing seal member, as the flexing seal member cannot reasonably prevent fluid from exiting the space and passing into the flexing seal member itself, it is unclear how the flexing seal member could be seen to prevent fluid from collecting in contact with the flexing seal member. It is further noted that this feature is not one which appears to be mentioned in the original specification.
Finally, with regard to the limitation wherein “the flexing seal member prevents fluid from exiting the leakage collection chamber”, while this was likely intended to mean that the flexing seal member prevents fluid from exiting, i.e., through the gap between the outer piston wall and the exterior of the chamber wall, that is not actually stated in the claim, so the limitation might instead be seen as requiring the flexing seal member to prevent fluid from exiting the leakage collection chamber in any manner, including preventing fluid from exiting the leakage collection chamber through the leakage collection chamber outlet port, causing the claim to take on an unreasonable degree of uncertainty.
Claim 9 further recites “the flexing seal member provides a cushioning effect which deters damage to pump components as the piston reaches a furthest extent of ascending movement”, which renders the claim indefinite.
As set forth in MPEP § 2173.05(a)(I), claim language may not be "ambiguous, vague, incoherent, opaque, or otherwise unclear in describing and defining the claimed invention." In re Packard, 751 F.3d 1307, 1311, 110 USPQ2d 1785, 1787 (Fed. Cir. 2014).
In the instant case, the phrase “deters damage to pump components” is ambiguous, vague, opaque, or otherwise unclear for several reasons:
The term “deters damage” is a relative term which renders the claim indefinite. The term “deters damage” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Additionally, it is unclear what elements are included with the scope of the term “pump components”. While the claim recites “a pump assembly” comprising a “cylindrical piston chamber” and “a piston”, it is unclear if the term “pump components” is intended to include these elements and/or whether other elements, recited or unrecited, are intended to be encompassed by the term.
Claim 13 recites “ascending movement of the piston expels fluid from the leakage collection chamber, through the leakage collection chamber outlet port, through said fluidic connection and out of an opening in an upper end of the syphon tube without allowing the fluid to reside in contact with the flexing seal member”.
As set forth in MPEP § 2173.05(g), there is nothing inherently wrong with defining some part of an invention in functional terms. Functional language does not, in and of itself, render a claim improper. However, notwithstanding the permissible instances, the use of functional language in a claim may fail "to provide a clear-cut indication of the scope of the subject matter embraced by the claim" and thus be indefinite. In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). For example, when claims merely recite a description of a problem to be solved or a function or result achieved by the invention, the boundaries of the claim scope may be unclear. Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1255, 85 USPQ2d 1654, 1663 (Fed. Cir. 2008) (noting that the Supreme Court explained that a vice of functional claiming occurs "when the inventor is painstaking when he recites what has already been seen, and then uses conveniently functional language at the exact point of novelty") (quoting General Elec. Co. v. Wabash Appliance Corp., 304 U.S. 364, 371 (1938)).
In the instant case, while it is understood that ascending movement of the piston can expel fluid from the leakage collection chamber, through the outlet port, through said fluidic connection, and out of an opening in an upper end of the syphon tube, it is unclear how to interpret the additional limitation wherein this function is performed “without allowing the fluid to reside in contact with the flexing seal member”.
There does not appear to be any explicit disclosure of this feature in the specification and, while the flow path from the collection chamber through the outlet port and fluidic connection to the opening in the syphon tube does not include a portion in which the fluid contacts the flexing seal member, as previously mentioned, it does not appear that the device would necessarily be able to prevent fluid from contacting the flexing seal member, nor is that a stated feature of the device.
While removing liquid from the collection chamber via the outlet port might reduce the likelihood of leaked fluid entering the flexing seal member, and therefore performing such an action without allowing fluid to reside in contact with the flexing seal member might be an aspirational / intended purpose of the action (even though not explicitly stated in the original specification), it remains unclear how the device is to supposed to achieve this result during the ascending movement of the piston which expels fluid from the leakage collection chamber.
Alternatively, this limitation might be seen as in improper method step of using the device. That is, while the device is not inherently configured to prevent fluid from residing in contact with the flexing seal member, it is understood that the device could be used (i.e., through careful handling / orientation, and when leakage past the piston is low) in a manner which may prevent fluid from entering the flexing seal member whereby ascending movement of the piston expels fluid from the leakage collection chamber, through the outlet port, through the fluidic connection, and out of an opening in an upper end of the syphon tube without allowing the fluid to reside in contact with the flexing seal member (i.e., “without allowing the fluid to reside in contact with the flexing seal member” being a result of the method of using the device rather than an inherent function of the device). However, as set forth in MPEP § 2173.05(p)(II), a single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b).
Claims recited in the section heading above but not specifically discussed are rejected due to dependency upon at least one rejected claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 9-14 (as understood) are rejected under 35 U.S.C. 103 as being unpatentable over Wirz ‘707 (US 6,412,707) in view of Lucien at al. (US 3,208,760; hereafter Lucien) and Wirz ‘853 (US 5,335,853).
Regarding claim 9, Wirz ‘707 discloses (figs. 1-3) a sprayer device (11) comprising:
a tank (13) having an inner chamber (see fig. 1);
a sprayer (incl. valve 129; see fig. 1) connected to the inner chamber (via hose 127); and
a pump assembly (see fig. 2) for pumping fluid out of the tank and through the sprayer, said pump assembly comprising a cylindrical piston chamber (65) having a piston chamber wall (63) with an inner surface (i.e., a radially inner surface of wall 63) and an outer surface (i.e., a radially outer surface of wall 63), and a piston (51) which comprises a piston head (77) and a piston body (incl. 75 & 79), wherein the piston body has an inner wall (75), an outer wall (79) and a leakage collection chamber (81) which consists of a space between the inner and outer walls of the piston body (col. 3, lines 25-28: “The combination of the cylinder wall 63, the inner wall 75, and the outer wall 79 defines a primary leak collection chamber 81 which collects any liquid that may leak from the piston”);
a bottom portion of the piston chamber wall being inserted into an open upper end of the leakage collection chamber (see fig. 2), and the piston head being inserted into the piston chamber in abutting contact with the inner surface of the piston chamber wall (as shown);
the piston being connected to pump handle (117; see fig. 3) such that up and down movement of the pump handle causes alternating ascending and descending movement of the piston (see col. 5, lines 8-15; fig. 1 vs fig. 2);
a leakage collection chamber outlet port (103; see fig. 1) located in an outer wall (i.e., an outer wall 37 of a pressure vessel / pump component) and fluidly connected to the inner chamber of the tank (via hose 55, port / duct 105, and the syphon tube shown in fig. 1); and
a flexing seal member (53) which has an upper end portion attached to an outer surface (i.e., attached to outer wall 37) and a bottom end portion attached to the outer wall (79) of the piston (as shown in fig. 2);
wherein:
fluid which leaks between the piston head and the inner surface of the piston cylinder is received within the leakage collection chamber (col. 4, lines 52-53);
the flexing seal member (53) prevents fluid from exiting the pump assembly to the surrounding environment (i.e., the flexing seal member prevents fluid from exiting the secondary leakage collection chamber);
the flexing seal member provides a cushioning effect which deters damage to pump components as the piston reaches a furthest extent of ascending movement (see below), and
ascending movement of the piston expels fluid from the leakage collection chamber (81), through the leakage collection chamber outlet port (103; via secondary collection chamber 101), and into the interior chamber of the tank (see col. 4, line 52 – col. 5, line 7).
Regarding the limitation the flexing seal member provides a cushioning effect which deters damage to pump components as the piston reaches a furthest extent of ascending movement, attention is drawn to figures 1 & 2, wherein figure 1 shows a short configuration corresponding to a maximum ascended position of the piston, while figure 2 shows a long configuration corresponding to a descended position of the piston. As shown in figure 2, the flexing seal member is relatively elongated such that, when it transitions to the short configuration as shown in figure 1, the seal member is configured to compress (see more compact shape / tighter folds, etc. in fig. 1 vs fig. 2). As understood, because the seal member is formed of a resilient material (e.g., rubber), this gradual compression of the seal member would create some degree of increased resistance to further compression, thereby providing a cushioning effect as the piston ascends to a furthest extent of travel (as in fig. 1). See also MPEP § 2114(I).
Moreover, as understood, applicant’s specification suggests that this cushioning effect via increased resistance is attributed to the compression of the material which is used to form the seal member (para. 42), and that the seal member may be “any adequately flexible and durable material such as rubber or elastomer…” (para. 41). Wirz ‘707 similarly discloses that the seal member is formed of “a suitably flexible and resilient material…preferably, the bellows is constructed using rubber that is weather and chemical resistant” (col. 4, lines 11-15).
Finally, it does not appear that applicant’s disclosure attributes the function of compression and providing increased resistance for cushioning to any special or unique configuration of the seal member bellows. However, if not already seen as such, when the seal member is formed to be a tubular seal member (as set forth below, in view of Lucien), the resulting seal member would appear to be substantially identical to the claimed seal member.
Wirz ‘707 does not explicitly disclose the additional limitations wherein the leakage collection chamber outlet port is located in the outer wall of the piston; wherein the upper end portion of the flexing seal member is attached to the outer surface of the piston chamber; or wherein the flexing seal member prevents fluid from exiting the leakage collection chamber, thereby preventing fluid from collecting in contact with the flexing seal member.
Lucien teaches (figs. 1 & 2) a device (V1) comprising:
a cylindrical piston chamber (45) having a piston chamber wall (40) with an inner surface (i.e. a radially inner surface of 40) and an outer surface (i.e. a radially outer surface of 40), and a piston (35) which comprises a piston head (i.e., portion indicated at 35) and a piston body (i.e., 32), wherein the piston body has an inner wall (see "Inner Wall" in annotated partial fig. 2, below), an outer wall (“Outer Wall”, below) and a leakage collection chamber (“Chamber”, below) defined in a space between the inner and outer walls of the piston body;
a leakage collection chamber outlet port (“Port”) located in the outer wall of the piston (see fig. 2; the port extends from a bottom end of the chamber towards a bottom corner of the outer wall, and exits laterally through the outer wall) and fluidly connected (by way of a duct 181) to a tank (col. 2, lines 13-18); and
a flexing seal member (“Seal Member”, below; see col. 2, line 15: “shock-absorber jacks comprising bellows”) which has an upper end portion (“Upper End”) attached to the outer surface of the piston chamber and a bottom end portion (“Bottom End”) attached to the outer wall of the piston (as shown);
wherein fluid which leaks between the piston head and the inner surface of the piston cylinder is received within the leakage collection chamber (col. 2, lines 10-18).
Regarding the flexing seal member, Lucien suggests that the device shown comprises bellows (see col. 2, line 15). As set forth in MPEP § 2125(I), when the reference is a utility patent, it does not matter that the feature shown is unintended or unexplained in the specification. The drawings must be evaluated for what they reasonably disclose and suggest to one of ordinary skill in the art. See also MPEP § 2144.01.
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In the instant case, the figures of Lucien, in combination with the associated description, reasonably disclose and/or suggest to a person having ordinary skill in the art that the seal member shown is a tubular sealing bellows (i.e., a type of flexing seal member). In other words, when considering the disclosure of Lucien, said person of ordinary skill in the art would reasonably infer that the seal member shown is a tubular sealing bellows (a flexing seal member).
Regarding the limitation wherein the leakage collection chamber outlet port is located in the outer wall of the piston, it is first noted that figure 2 of Lucien clearly shows the leakage collection chamber outlet port being disposed in a wall of the piston defining the leakage collection chamber and, further, is reasonably seen as depicting the port as being located in the outer wall of the piston (i.e., at least at the terminal portion thereof). Moreover, even in the event that the port of Lucien is seen to be disposed in, i.e., a lower wall of the piston body rather than an outer wall, it is noted that the original leakage collection chamber outlet port of Wirz ‘707 is already disclosed as being generally arranged on an outer wall (i.e., radially / horizontally extending, rather than vertically extending, etc.).
Nevertheless, to promote compact prosecution, the following additional teaching is provided.
Wirz ‘853 teaches a sprayer device comprising:
a tank (10 / 11) having an inner chamber (12);
a sprayer (84) connected to the inner chamber (via hose 83); and
a pump assembly for pumping fluid out of the tank and through the sprayer, said pump assembly comprising a cylindrical piston chamber (42), a piston (37), and a leakage collection chamber (57) which consists of a space between an inner wall and an outer wall of a body (i.e., a cap body 52);
a leakage collection chamber outlet port (58; “horizontal passage 58) located in the outer wall of the body defining the leakage collection chamber and fluidly connected to the inner chamber of the tank (via hose 60 & fitting 61)
wherein fluid which leaks between the piston and the inner surface of the piston cylinder is received within the leakage collection chamber (see col. 5, lines 40-44); and movement of the piston expels fluid from the leakage collection chamber, through the leakage collection chamber outlet port, and into the interior chamber of the tank (see col. 5, lines 34-39).
As can be seen from fig. 2 of Wirz ‘853, and similar to the arrangement of Lucien, the leakage collection chamber outlet port is located near the bottom of the outer wall which defines the leakage collection chamber. As would be understood by a person having ordinary skill in the art, locating an outlet / drain near the bottom of a collection chamber avoids / minimizes dead space below the outlet which might otherwise retain stagnant fluid and/or accumulate debris.
As set forth in MPEP § 2141.03(I), "A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton." KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007). "[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle." Id. at 420, 82 USPQ2d 1397. Office personnel may also take into account "the inferences and creative steps that a person of ordinary skill in the art would employ." Id. at 418, 82 USPQ2d at 1396.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Wirz ‘707 such that the leakage collection chamber outlet port is located in the outer wall of the piston (i.e., the outer wall which defines the leakage collection chamber), in view of the teachings of Lucien and/or Wirz ‘853, as the use of a known technique (e.g., locating a leakage collection chamber outlet port for an annular leakage collection chamber at/near a bottom region of the outer wall which defines the collection chamber, as in Lucien and/or Wirz ‘853) to improve a similar device (the device of Wirz ‘707) in the same way (e.g., by providing the return port directly through the piston wall into the leak collection chamber and, in particular, near a bottom of the collection chamber, more of the leaked fluid can be returned to the tank, as the return port is located at a lower point in the system as compared to the original configuration of Wirz ‘707, where fluid would need to accumulate to a large enough volume to reach the port / duct in a second collection chamber before it could be returned to the tank; moreover, in the configurations of Lucien and Wirz ‘853, gravity could assist in collecting the leaked fluid near the return port; and the “dead space” volume is minimized, which may minimize areas where debris could potentially accumulate below the level of the outlet port).
Examination Note: to promote compact prosecution, it is noted that providing piston/cylinder leakage collection chamber outlet ports in an outer wall which defines the collection chamber is otherwise known. See, e.g., US 4,463,663 to Hanson Jr., et al.
It would have been further obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Wirz ‘707 such that the upper end of the flexing seal member is attached to the outer surface of the piston chamber, whereby the flexing seal member is provided as a tubular sealing bellows which has an upper end portion attached to the outer surface of the piston chamber and a bottom end portion attached to the outer wall of the piston, in view of the teachings of Lucien, as the simple substitution of one known arrangement (i.e. the seal member shape and attachment arrangement of Wirz ‘707) for another (the seal member shape and attachment arrangement of Lucien) to yield predictable results (e.g., enabling the piston outer wall to be sealed to the piston chamber wall prior to mating with the lower end of the container 35, and/or allowing the piston outer wall to remain sealed to the piston chamber wall upon removal, etc.), or otherwise as the use of a known technique (providing a flexing seal member in the form of a tubular seal member attached to an outer wall of a piston at one end and the outer surface of the piston chamber wall at the other end, to protect / seal the space between the piston and the cylinder, as in Lucien) to improve a similar device (e.g. the device of Wirz ‘707, having a piston / cylinder sealing arrangement) in the same way.
Examination note: to further promote compact prosecution, it is noted that sealing arrangements wherein a flexing seal member is attached to an outer wall of a piston at a lower end and an outer surface of a piston chamber at the other end, in general, are well known in the art. See, e.g., US 3,088,726 to Dangauthier, US 3,807,717 to Ito and US 4,214,775 to Taft).
When the device of Wirz ‘707 is modified as set forth above such that the leakage collection chamber outlet port is located in the outer wall of the piston and such that the upper end portion of the flexing seal member (i.e., provided as tubular sealing bellows) is attached to the outer surface of the piston chamber, the resulting device reasonably reads on the additional limitations wherein the flexing seal member prevents fluid from exiting the leakage collection chamber, thereby preventing fluid from collecting in contact with the flexing seal member (i.e., the flexing seal member, in the form of tubular bellows sealing, having an upper end portion attached to the outer surface of the piston chamber and a bottom end portion attached to the outer wall of the piston, would “prevent fluid from exiting the leakage collection chamber, thereby preventing fluid from collecting in contact with the flexing seal member”, in at least the same manner as applicant’s disclosed embodiments), and wherein ascending movement of the piston (i.e., causing a reduction in the volume of the collection chamber as the lower end of the chamber wall moves further into the collection chamber) expels fluid from the leakage collection chamber, through the leakage collection chamber outlet port (now located in the outer wall of the piston), and into the interior chamber of the tank (i.e., via the hose 55, port / duct 105, and the syphon tube as otherwise shown in fig. 1 of Wirz ‘707).
As a result, all of the limitations of claim 9 are met, or are otherwise rendered obvious.
Regarding claim 10, the device of Wirz ‘707, as modified above, reasonably reads on or otherwise renders obvious the additional limitations wherein the leakage chamber outlet port is located in a side of the piston outer wall, below the attachment of the bottom end portion of the flexing seal member to the outer wall of the piston.
In particular, Lucien (in fig. 2) reasonably depicts the bottom end portion of the flexing seal member to be attached to an upper side portion of the outer wall of the piston and the leakage chamber outlet port to be located in a lower side portion of the piston outer wall, whereby the leakage chamber outlet port is located in a side of the piston outer wall, below the attachment of the bottom end portion of the flexing seal member to the outer wall of the piston.
Similarly, the original configuration of Wirz ‘707 shows the bottom end portion of the flexing seal member to be attached to an upper side portion of the outer wall of the piston and, as previously explained, Wirz ‘853 depicts the chamber outlet port as being located near a lower side portion of the outer wall defining the collection chamber.
Stated differently, as the attachment of the bottom end portion of the flexing seal member to the outer wall of the piston in the device of Wirz ‘707 is at an upper side portion of the outer wall, when the device of Wirz ‘707 is modified in view of Lucien and Wirz ‘853 as set forth for claim 9 above such that the leakage chamber outlet port is at/near a bottom side region of the outer wall, the resulting combination would reasonably reads on the additional limitation wherein the leakage chamber outlet port is located in a side of the piston outer wall, below the attachment of the bottom end portion of the flexing seal member to the outer wall of the piston.
Regarding claim 11, the device of Wirz ‘707, as modified above, reads on the additional limitation wherein the flexing seal member (i.e., a flexible sealing bellows) is configured to compress, fold, evert or bunch during ascending movement of the piston (i.e., the flexible sealing bellows would be configured to at least compress and/or bunch during the ascending movement of the piston; the pleats thereof might also be reasonably seen as folding during the ascending movement).
Regarding claim 12, the device of Wirz ‘707, as modified above, reads on the additional limitation wherein the flexing seal member elongates during descending movement of the piston and shortens during ascending movement of the piston (i.e., see fig. 1 vs fig. 2 of Wirz ‘707; the seal member is compressed when the piston is in the uppermost position in fig. 1 and elongated when the piston is in a lowered position in fig. 2; thus, the seal member would elongate during descending movement of the piston and shorten during ascending movement).
Regarding claim 13, the device of Wirz ‘707, as modified above, reads on the additional limitations wherein the fluidic connection between the collection chamber outlet port (i.e., as located at a lower end of the piston outer wall, in view of Lucien and/or Wirz ‘853) and the interior chamber of the tank includes a syphon tube (see fig. 1) positioned within the interior chamber of the tank; and,
ascending movement of the piston expels fluid from the leakage collection chamber, through the leakage collection chamber outlet port, through said fluidic connection (i.e., hose 55, port / duct 105, and the syphon tube) and out of an opening in an upper end of the syphon tube without allowing the fluid to reside in contact with the flexing seal member (i.e., as modified, with the outlet port located in a bottom side portion of the outer wall of piston, the flow path from the leakage collection chamber, through the outlet port, through said fluidic connection and out of the opening in the upper end of the syphon tube would not include any portion where the leaked fluid passes through or otherwise resides in contact with the flexing seal member, and therefore would read on this limitation in at least the same manner as applicant’s disclosed embodiments).
Regarding claim 14, the device of Wirz ‘707, as modified above, reads on the additional limitations wherein the collection chamber outlet port (i.e., 103 of Wirz ‘707, as modified to be located at a lower end of the piston outer wall, in view of Lucien and/or Wirz ‘853; generally corresponding to port 58 of Wirz ‘853) is connected to a hose (i.e., 55 in fig. 1 of Wirz ‘707; see also hose 60 of Wirz ‘853) which is connected to a port (i.e., incl. at least the lower connection portion of the fitting 105 to which the hose 55 is connected via a hose clamp in fig. 1 of Wirz ‘707) which leads through a duct (e.g., the portion of fitting 105 downstream from the initial hose connection portion, which passes through the tank wall; and/or the widened portion of 105 configured to receive the bottom end of the syphon tube; and/or the internal flow path of the one-way valve 111 at the entrance to the syphon tube, etc.) into the syphon tube (see fig. 1 of Wirz ‘707).
Claim 15 (as understood) is rejected under 35 U.S.C. 103 as being unpatentable over Wirz ‘707 in view of Lucien and Wirz ‘853 as applied to claim 13 above, and further in view of Leer et al. (US 2006/0255181 A1; hereafter Leer).
Regarding claim 15, with respect to the phrase “maximum fill line marking which indicates a highest level to which the inner chamber of the tank is to be filled with liquid”, as set forth in MPEP § 2114(II), a claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim.
In the instant case, in view of applicant’s disclosed embodiments, the term “maximum fill line marking which indicates a highest level to which the inner chamber of the tank is to be filled with liquid” appears to be a marking which indicates a maximum intended fill level rather than a maximum possible fill level. While the marking may be intended to indicate a maximum fill level, a user could potentially overfill the tank (e.g., inadvertently).
In any case, Wirz ‘707 further discloses the tank (13) having an upper interior portion (107) which is above a fill level of the of the fluid, such that the upper end of the syphon tube is not submerged (col. 4, lines 32-47). A person having ordinary skill in the art would understand or otherwise reasonably infer that such a fill level would be a highest level to which the inner chamber of the tank is to be filled with liquid (i.e., so as to avoid submerging the upper end of the syphon tube).
Wirz ‘707 does not explicitly disclose the limitation wherein the tank has a maximum fill marking to indicate the highest level to which the inner chamber of the tank is to be filled with liquid, wherein the opening in the upper end of the syphon tube is located above said maximum fill marking.
Leer teaches (figs. 1 & 2) a sprayer device (10) comprising a tank (12, incl. body 18) and a pump assembly (14), the tank portion having a marking (i.e., fill line 11) indicating a level to which the inner chamber of the tank is to be filled with liquid (see para. 24).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Wirz ‘707 (as otherwise modified above) such that the tank has a maximum fill marking which indicates the highest level to which the inner chamber of the tank is to be filled with liquid, wherein the opening in the upper end of the syphon tube is located above said maximum fill marking, in view of the teachings of Leer, to inform a user as to the manufacturer’s intended maximum volume of fluid in the tank (e.g., to aid during refilling of the tank and/or to provide a convenient reference datum for estimating subsequent fluid usage), as is known in the art, or otherwise as the use of a known technique (i.e., providing such a maximum fill marking) to improve a similar device (i.e., the sprayer device of Wirz ‘707) in the same way.
Response to Arguments
Applicant's arguments filed 10/27/2025 have been fully considered.
As a preliminary comment, it is noted that applicant’s new claims have necessitated corresponding new grounds of rejection in this action. While the grounds of rejection for independent claim 9 remain similar to those previously presented (i.e., based on Wirz ‘707 in view of Lucien), additional teachings in view of Wirz ‘853 have been provided to promote compact prosecution.
In response to applicant's arguments against the references individually (e.g., the discussion of the original configuration of Wirz ‘707 and certain details of the device of Lucien), one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
As set forth in the corresponding grounds of rejection, while the original configuration of Wirz ‘707 required a two-stage pumping of the leaked fluid from the primary collection chamber up to the secondary collection chamber before it could be removed through the outlet port, once modified in view of Lucien and/or Wirz ‘853 to have the outlet port formed directly in a lower side portion of the piston outer wall, and to have the upper end of the flexing seal member attached to the piston chamber outer wall, this would no longer be the case, as fluid in the primary collection chamber would be directly discharged through the outlet port, as in applicant’s disclosed embodiments.
Regarding applicant’s argument that “nothing in Wirz ‘707 provides any motivation for anyone to relocate the leakage outlet port to the outer wall of the piston such that fluid would drain directly from the primary collection chamber”, this argument is not found to be persuasive, since Wirz ‘707 was not relied upon alone for this limitation. Instead, the grounds for rejection in this action rely upon Wirz ‘707 in combination with Lucien, which discloses a leakage outlet port on an outer wall of a piston defining a collection chamber and, in that respect, are similar to the grounds of rejection affirmed in the August 2025 decision by the Patent Trial and Appeal Board in this application.
Additionally, with respect to the new limitation wherein the leakage outlet port is in the outer wall of said piston, while Lucien is reasonably seen as teaching a leakage outlet port to be located in the outer wall of said piston (i.e., see fig. 2; the port extends from a bottom end of the chamber towards a bottom corner of the outer wall, and exits laterally through the outer wall), to promote compact prosecution, the grounds of rejection in this action further incorporate teachings of Wirz ‘853, directed to a sprayer device which teaches an outlet port formed directly in an outer wall of a structure forming an annular collection chamber.
It is also noted that applicant’s amendments which seek to define the leakage collection chamber to “consist of” a space between the inner and outer walls of the piston body, when presented in combination with the limitations wherein the flexing seal member “prevents fluid from exiting the leakage collection chamber, thereby preventing fluid from collecting in contact with the flexing seal member” have raised a number of issues under 35 U.S.C. § 112(a) and (b), as set forth in this action.
With respect to applicant’s remarks that the device of Wirz ‘707 resulted in “softening or damage to the leak barrier 53”, while the original specification teaches that certain components of prior art devices (not explicitly specified, but reasonably interpreted as being pump pistons or diaphragms or seals therefor) may leak due to softening or friction after intense use or when used with certain aggressive chemicals, there does not appear to be any clear disclosure that the flexing seal member of the Wirz ‘707 (or the corresponding flexing seal member of the instant application), which is disclosed as being made of a chemical resistant material, would necessarily suffer from the same softening.
Furthermore, there does not appear to be anything in applicant’s specification as originally filed to suggest that fluid is necessarily prevented from contacting the flexing seal member. Rather, a person skilled in the art would reasonably understand that the flexing seal member is provided to prevent debris from entering the space between the piston and the chamber and also to prevent any leakage from the leakage collection chamber from leaking further into the environment. See related 35 U.S.C. 112(a) rejections in this action.
Regarding applicant’s argument that Wirz ‘707 does not disclose any cushioning effect, this argument is not found to be persuasive. Even if Wirz ‘707 does not explicitly disclose such an effect, the grounds of rejection in this action provide appropriate technical reasoning to suggest that the underlying structure would provide at least some level of cushioning effect. In particular, because the flexing seal member is gradually compressed as the piston reaches a furthest extent of ascending movement and because the seal member is formed of a resilient material (e.g., rubber), this gradual compression of the seal member would create some degree of increased resistance to further compression, thereby providing a cushioning effect as the piston ascends to a furthest extent of travel (as in fig. 1). See also MPEP § 2114(I).
Moreover, as understood, applicant’s specification suggests that this cushioning effect via increased resistance is attributed to the compression of the material which is used to form the seal member (para. 42), and that the seal member may be “any adequately flexible and durable material such as rubber or elastomer…” (para. 41). Wirz ‘707 similarly discloses that the seal member is formed of “a suitably flexible and resilient material…preferably, the bellows is constructed using rubber that is weather and chemical resistant” (col. 4, lines 11-15).
Applicant argues that “the leak barrier 53 of the sprayer device described in Wirz ‘707 did not perform any such function”. While the examiner appreciates that, as the inventor of this application was also the inventor named in Wirz ‘707, applicant may have understanding of the capabilities of the prior art. However, applicant has not provided any objective evidence nor articulated technical reasoning to support of this statement. As set forth in MPEP § 716.01(c)(I), to be of probative value, any objective evidence should be supported by actual proof. Additionally, as set forth in MPEP § 716.01(c)(I & II), arguments presented by the applicant cannot take the place of evidence in the record.
Furthermore, even if the original flexing seal member of Wirz ‘707 does not provide such a cushioning effect, when the seal member is formed to be a tubular seal member (in view of Lucien), the resulting seal member would appear to be substantially identical to the claimed seal member.
It is also noted that applicant’s disclosure does not appear to attribute the cushioning effect to any special or unique configuration of the seal member bellows.
Conclusion
The prior art made of record in the attached PTO-892 and not relied upon is considered pertinent to applicant's disclosure.
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/Richard K. Durden/Examiner, Art Unit 3753
/KENNETH RINEHART/Supervisory Patent Examiner, Art Unit 3753