Ex Parte Dunbar

Patent Trial and Appeal Board

Jan 31, 2017

13106525 (P.T.A.B. Jan. 31, 2017)

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.
13/106,525 05/12/2011 Douglas N. Dunbar 201990.05806 5483
64956 7590 02/02/2017
HAHN LOESER / LINCOLN
200 Public Square, Suite 2800
Cleveland, OH 44114
EXAMINER
EUSTAQUIO, CAL J
ART UNIT PAPER NUMBER
2683
NOTIFICATION DATE DELIVERY MODE
02/02/2017 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):
patents@hahnlaw.com
ip @ lincolnelectrie .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DOUGLAS N. DUNBAR
Appeal 2016-000972
Application 13/106,525
Technology Center 2600
Before CAROLYN D. THOMAS, MICHAEL M. BARRY, and
JOHN R. KENNY, Administrative Patent Judges.
KENNY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from rejections of claims
1, 3—22, 24—29, and 31—33, which constitute all pending claims. Final Act.
1; App. Br. 3. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal 2016-000972
Application 13/106,525
CLAIMED INVENTION
The Specification relates to welding helmets, methods, and kits
providing real-time fume exposure monitoring and warning capability.
Spec. 11. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A welding helmet providing real-time fume exposure warning
capability, said welding helmet comprising:
a welding headgear configured to be worn on a head of a
user to protect the user during a welding process;
an intelligent warning apparatus integrated with the
welding headgear and configured to communicatively interface
with an external aerosol monitoring device for receiving air
sample output data, said external aerosol monitoring device
configured to determine real-time aerosol mass concentration,
and capable of discriminating between various ranges of particle
size; and
an air-sampling pick-up and output port integrated with
the welding headgear and configured to connect to a proximal
end of an air sampling tube for sampling breathable air within
said welding headgear, wherein a distal end of said air sampling
tube is configured to connect to an air-sampling intake port of
said external aerosol monitoring device.
REFERENCES
Niemi US 4,293,757 Oct. 6, 1981
Cloutier US 4,721,517 Jan. 26, 1988
Saltzstein US 2003/0058097 A1 Mar. 27, 2003
Parks US 2005/0040945 A1 Feb. 24, 2005
Sekura US 2005/0041531 A1 Feb. 24, 2005
Duffy ’820 US 2008/0189820 A1 Aug. 14, 2008
Duffy ’489 US 2009/0065489 A1 Mar. 12, 2009
Finchum US 2010/0231394 A1 Sept. 16,2010
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Application 13/106,525
Liu et al., “Welding helmet airborne fume concentrations compared to
personal breathing zone sampling,” American Industrial Hygiene
Association Journal 56.3 (March 1995), p. 280. (“Liu”)
REJECTIONS
Claims 1—3, 5, 9-15, 18—20, and 22—26 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Duffy ’820 and Liu. Final
Act. 2.
Claim 4 stands rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Duffy ’820, Liu, and Sekura. Final Act. 11.
Claims 6 and 27 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Duffy ’820, Liu, and Saltzstein.1 Final Act.
14.
Claims 7, 16, and 28 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Duffy ’820, Liu, and Niemi. Final Act. 16.
Claims 8, 17, 29, and 33 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Duffy ’820, Liu, and Parks. Final
Act. 18.
Claim 21 stands rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Duffy ’820, Liu, and Cloutier. Final Act. 20.
Claim 31 stands rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Duffy ’820, Liu, and Duffy ’489. Final Act. 12.
1 The Final Action indicates that claim 6 is subject to two § 103 rejections.
Id. at 2, 14. The Final Action, however, specifically analyzes the
obviousness of claim 6 over the combination of Duffy ’820, Liu, and
Saltzstein. Id. at 14—15. Therefore, we address and affirm that rejection of
claim 6.
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Application 13/106,525
Claim 32 stands rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Duffy ’820, Liu, Niemi, and Finchum. Final Act.
21.
ANALYSIS
Claims 1, 3, 5, 6, 9—15, 18—20, 22, and 24—26
The Examiner finds that Duffy ’820 discloses a welding helmet
providing real-time fume exposure warning capability, welding headgear,
and an intelligent warning apparatus, as recited in claim 1. Final Act. 2—3.
The Examiner combines Duffy ’820 with Liu to satisfy other limitations in
the claim. Id. at 2—5.
Appellant argues the Examiner erred in rejecting claim 1 because Liu
does not teach or suggest an “external aerosol monitoring device configured
to determine real-time aerosol mass concentration, and capable of
discriminating between various ranges of particle size,” as recited in claim 1.
App. Br. 16—19; Reply Br. 3—5. First, Appellant argues Liu does not teach or
suggest a device capable of discriminating between various ranges of
particle size because Liu determines only elemental metal concentrations.
App. Br. 17—18; Reply Br. 3^4. Appellant argues that particle size cannot be
determined from elemental metal concentrations because particles can exist
as multiple compounds and more than one molecule. App. Br. 17—18; Reply
Br. 3^4. Second, Appellant argues that neither Liu nor Duffy ’820 teaches or
suggests determining real-time aerosol mass concentration because Liu
performs its aerosol analysis by shipping samples to a laboratory for analysis
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Application 13/106,525
by a spectrometer, and Duffy ’820 does not perform the recited real-time
analysis. App. Br. 18—19; Reply Br. 4—5.
We are not persuaded by these arguments. First, Appellant presents
no persuasive arguments or support for the contention that Liu cannot
distinguish molecules using elemental analysis. App. Br. 17—18; Reply Br.
3^4. As the Examiner finds, Liu reports data for concentrations of iron
oxide and zinc oxide fumes using elemental analysis and thus uses elemental
analysis to distinguish iron oxide from zinc oxide. Final Act. 4; Ans. 5; Liu
1 (referring to zinc-oxide and iron oxide fumes) and 2 (discussing data
regarding those fumes). If iron oxide and zinc oxide are the known fumes
coming from a particular welding operation, there is no apparent reason why
such elemental analysis could not, as Liu indicates, distinguish the two
oxides by distinguishing the iron and zinc elements in those oxides.
Further, relying on the well-known periodic table, the Examiner
explains how distinguishing between these two oxides distinguishes particle
size to an ordinarily skilled artisan. Ans. 5—6. Appellant presents no
persuasive arguments or evidence indicating why that explanation is wrong.
Reply Br. 3^4. Appellant repeats the argument that molecules differ from
elemental particles, but that argument does not explain why an elemental
analysis cannot determine iron oxide and zinc oxide particle concentrations
for a given process, as Liu indicates it can. Id.', Liu 1—2. Appellants do not
persuade us of error in the Examiner’s finding that this teaches or suggests
discriminating between various ranges of particle size, as recited.
Second, Appellant argues that Liu’s aerosol analysis is not a real-time
analysis and that Duffy ’820’s real-time aerosol analysis is not of aerosol
mass concentration. App. Br. 18—19; Reply Br. 4—5. This argument,
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Application 13/106,525
however, attacks the references individually when the rejection is based on
their combination. Final Act. 2—3, 24; Ans. 4—6. As the Examiner finds,
Duffy ’820 teaches or suggests real-time analysis of hazardous gases and Liu
teaches or suggests determining aerosol mass concentration. Final Act. 2—3,
24; Ans. 4—6, citing Duffy ’820 9, 18; Liu 1—2. Combined, these
references teach or suggest the recited real-time analysis. In re Mouttet, 686
F.3d 1322, 1332-33 (Fed. Cir. 2012).
Appellant also argues that combining Duffy ’820’s helmet and Liu’s
spectrometer would render Duffy ’820’s helmet unsatisfactory for its
intended purpose. App. Br. 25—28. We are not persuaded by that argument
because the Examiner does not bodily combine Liu’s spectrometer with
Duffy ’820’s helmet. “The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the structure of the
primary reference. . . . Rather, the test is what the combined teachings of
those references would have suggested to those of ordinary skill in the art.”
In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted); see also
Mouttet, 686 F.3d at 1332—33. The Examiner combines Liu’s teachings of
monitoring iron oxide and zinc oxide fumes with Duffy ’820’s teachings
regarding welding helmets. Final Act. 1—5; Ans. 13.
Accordingly, we sustain the rejection of claim 1 and of claims 3,5,9—
15, 18—20, 22, and 24—26, not separately argued. App. Br. 16—19.
Claim 4, 6, and27
Appellant argues that claims 4, 6, and 27 are patentable for the same
reasons as claims 1 and 22. App. Br. 19, 21. In addition, Appellant argues
that Sekura, which the Examiner relies on to reject claim 4, and Saltzstein,
which the Examiner relies on to reject claims 6 and 27, are nonanalogous art.
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App. Br. 19, 21, and 30-32. In particular, Appellant argues that Sekura is
directed to a medication regimen and Saltzstein is directed to obtaining
status information from a medical device and, therefore, neither is
reasonably pertinent to the Appellant’s problem of providing responsive
fume exposure detection. Id.', Reply Br. 7—8. We are not persuaded by these
arguments. For the reasons provided in the Answer, which we adopt, we
agree with the Examiner that the references are reasonably pertinent to the
problem faced by Appellant. Answer 23—24; see also the Adoption section
below. Accordingly, we sustain the rejections of claims 4, 6, and 27.
Claims 7, 16, and 28
Appellant argues that Niemi does not teach or suggest the external
ventilation system recited by claims 7, 16, and 28 because Niemi’s
ventilation system is an internal ventilation system that ventilates its helmet.
App. Br. 21. Appellant argues that the recited external ventilation system
ventilates the environment in which the helmet exists, but not the helmet
itself. Reply Br. 6—7. Appellant relies on the Specification for this proposed
construction, arguing the disclosed ventilation system is controlled by an
external warning station. Id. We are not persuaded by this argument
because, while we interpret claims in light of the Specification, we cannot
read limitations from the Specification into these claims. See, e.g., E-Pass
Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003) (properties
of preferred embodiments described in the specification which are not
recited in a claim do not limit the reasonable scope of the claim). The
claims recite an external ventilation system, and as the Examiner sets forth,
Niemi discloses a ventilation system that is external to the helmet. Ans. 9,
citing Niemi Fig. 7.
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Accordingly, we sustain the rejections of claims 7, 16, and 28.
Claims 8, 17, 29, and 33
Appellant argues that the cited prior art does not teach or suggest the
power shutoff recited by claims 8, 17, 29, and 33 and that Parks, which is
used to reject these claims is nonanalogous art. App. Br. 22—24, 30-31;
Reply Br. 7. We are not persuaded by these arguments for the reasons set
forth by the Examiner, and we adopt the Examiner’s findings and rationale
set forth in the Final Action and the Answer for the involved limitations and
for Parks. Final Act. 18—20; Ans. 10—11, 23, see also the Adoption section
below.
Accordingly, we sustain the rejection of claims 8, 17, 29, and 33.
Claim 21
Appellant provides the same arguments for claim 21 as for claim 1.
App. Br. 24. Accordingly, we sustain the rejection of claim 21.
Claim 31
Appellant argues that the cited prior art, and Duffy ’489 in particular,
do not teach or suggest the limitation of “said plurality of pre-defmed
warning operating modes correlate to a particular welding process by
including parameter values specific to said particular welding process.”
App. Br. 20—21. The Examiner explains how Duffy ’489 discloses a
particular welding process with parameter values specific to that process.
Ans. 8. The Examiner, however, does not explain how the pre-defmed
warning operating modes taught or suggested by the cited prior art would
correlate to that process disclosed in Duffy ’489 or why an ordinarily skilled
artisan would correlate them to that process. Id. Accordingly, we do not
sustain the rejection of claim 31.
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Application 13/106,525
Claim 32
We are not persuaded by Appellant’s arguments regarding claim 32
and adopt the Examiner’s findings and rationale in the Final Action and the
Answer regarding the limitations added by claim 32 to claim 7. Final Act.
21—22; Ans. 11—12; see also the Adoption section below. Accordingly, we
sustain the rejection of claim 32.
Hindsight
Appellant also argues that the Examiner relies on impermissible
hindsight in rejecting the pending claims, but provides only conclusory
arguments regarding the alleged use of impermissible hindsight. App. Br.
32—34; Reply Br. 10. Accordingly, Appellants do not persuade us of the use
of any impermissible hindsight. “Any judgment on obviousness is in a sense
necessarily a reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level of ordinary
skill at the time the claimed invention was made and does not include
knowledge gleaned only from applicant’s disclosure, such a reconstruction is
proper.” In re McLaughlin, 433 F.2d 1392, 1395 (CCPA 1971).
Adoption
For claims 1, 3—22, 24—29, 32, and 33, we adopt the findings and
rationale set forth by the Examiner in the Final Action and the Answer for
the rejection of those claims, except to the extent the findings or rationales
conflict with the above analysis and except the analysis provided by the
Examiner in paragraph 15 of the Answer (at pp. 6—7, regarding the claim
term “warning capability”), which we do not address because it is not
necessary for this resolution of this Appeal.
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Appeal 2016-000972
Application 13/106,525
DECISION
We affirm the rejections of claims 1, 3—22, 24—29, 32, and 33.
We reverse the rejection of claim 31.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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