Ex parte Elmore

Board of Patent Appeals and Interferences

Mar 24, 2000

08710853 (B.P.A.I. Mar. 24, 2000)

1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte ROBERT L. ELMORE
_____________
Appeal No. 1999-1784
Application 08/710,853
______________
ON BRIEF
_______________
Before COHEN, FRANKFORT and GONZALES, Administrative Patent
Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 10,
11, and 17 through 19. Claims 12 through 16 and 20 through
24, the only other claims remaining in the application, stand
withdrawn as being based upon a nonelected species, pursuant
to 37 C.F.R.
Appeal No. 1999-1784
Application 08/710,853
Appellant’s U.S. Patent No. 5,558,158, which matured1
from the parent application of the current application, claims
a method of supplying hygienic air. The present application
includes a disclaimer that the term of any patent shall not
extend beyond the expiration date of U.S. Patent No.
5,558,158.
2
§ 1.142(b).
Appellant’s invention pertains to a hygienic air handler
apparatus and to a method of supplying hygienic air. A basic 1
understanding of the invention can be derived from a reading
of exemplary claims 10 and 17, copies of which appear in the
APPENDIX to the main brief (Paper No. 9).
As evidence of obviousness, the examiner has applied the
documents listed below:
Berlant 3,827,862 Aug. 6,
1974
Pacosz 4,990,313 Feb. 5,
1991
The following rejection is before us for review.
Appeal No. 1999-1784
Application 08/710,853
3
Claims 10, 11, and 17 through 19 stand rejected under 35
U.S.C. § 103 as being unpatentable over Pacosz in view of
Berlant.
Appeal No. 1999-1784
Application 08/710,853
In our evaluation of the applied references, we have2
considered all of the disclosure of each document for what it
would have fairly taught one of ordinary skill in the art.
See In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA
1966). Additionally, this panel of the board has taken into
account not only the specific teachings, but also the
inferences which one skilled in the art would reasonably have
been expected to draw from the disclosure. See In re Preda,
401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
4
The full text of the examiner's rejection and response to
the argument presented by appellant appears in the answer
(Paper No. 10), while the complete statement of appellant’s
argument can be found in the main and reply briefs (Paper Nos.
9 and 11).
OPINION
In reaching our conclusion on the obviousness issues
raised in this appeal, this panel of the board has carefully
considered appellant’s specification and claims, the applied
patents, and the respective viewpoints of appellant and the2
examiner. As a consequence of our review, we make the
determinations which follow.
Appeal No. 1999-1784
Application 08/710,853
5
We affirm the rejection of claims 10 and 11.
Independent claim 10 is drawn to a hygienic air handler
apparatus comprising, inter alia, an indoor commercial and
residential air handler enclosure having interior surfaces,
with a dense, non-porous, highly reflective coating on the
interior surfaces.
We find that the Pacosz reference (column 2, lines 6
through 25) addresses an air-return system of an air-
conditioning unit that includes a housing 3 mounting a filter
7, a cooling coil 19, a drain pan 21, and a downstream blower
fan 5. As disclosed, interposed within the housing 3, between
the filter and cooling coil and pan, a ultraviolet device 11
is mounted in closest possible proximity to the cooling coil
and pan to retard, or otherwise destroy, the bacterial
accumulations and growth of mold spores or slime on and around
the wet cooling coil and pan, as well as dust mites and
airborne diseases from the return air, to purify the return
air, to eliminate viral causing bacteria, pollens, and
Appeal No. 1999-1784
Application 08/710,853
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pollutants.
Appeal No. 1999-1784
Application 08/710,853
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As to the Berlant patent, we find that it teaches an air
curtain having a sanitized air output to avoid contamination
via the spread of airborne bacteria. As depicted in Fig. 2,
the air curtain device includes a housing 16 supporting an air
inlet guide 54 and a screen assembly 68d including a filter
element 78. An elongated tubular ultraviolet light bulb 84 is
secured within the air inlet guide. As explained by the
patentee (column 3, lines 4 through 9),
The inside surfaces of the walls 56 and 58
of the guide are preferably coated with a
reflective substance, such as aluminum
paint of the type sold under the trademark
Alzak, which serves to reflect ultraviolet
rays and to intensify and control
radiation.
Additionally, it is noted that the filter element of Berlant
is coated or treated with germicidal or bacteriostatic
substances to protect the interior of the device from
contamination when the ultraviolet light source is not in use.
Appeal No. 1999-1784
Application 08/710,853
The test for obviousness is what the combined teachings3
of references would have suggested to one of ordinary skill in
the art. See In re Young, 927 F.2d 588, 591, 18 USPQ2d 1089,
1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d 413, 425, 208
USPQ 871, 881 (CCPA 1981).
8
Applying the test for obviousness, we reach the3
conclusion that it would have been obvious to one having
ordinary skill in the art, from a combined assessment of the
applied teachings, to coat surfaces of the housing 3 of
Pacosz, about the ultraviolet device 11, with a reflective
paint. From our perspective, one having ordinary skill in the
art would have been amply motivated to make the aforementioned
modification to gain the expected benefit of reflecting
ultraviolet rays to intensify and control radiation,
following the teaching of Berlant. For these reasons, we
support the rejection of claim 10. As to the content of claim
11, it is our opinion that applying primer before painting to
assure proper paint adherence would have been obvious as
simply the exercise of a well known practice. One of ordinary
skill would have been expected to rely upon known practices to
obtain
Appeal No. 1999-1784
Application 08/710,853
An obviousness question cannot be approached on the4
basis that an artisan having ordinary skill would have known
only what they read in references, because such artisan must
be presumed to know something about the art apart from what
the references disclose. See In re Jacoby, 309 F.2d 513, 516,
135 USPQ 317, 319 (CCPA 1962). Further, a conclusion of
obviousness may be made from common knowledge and common sense
of the person of ordinary skill in the art without any
specific hint or suggestion in a particular reference. See In
re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969).
9
expected results. Accordingly, we also affirm the rejection4
of claim 11.
We reverse the rejection of claims 17 through 19.
Claim 17 is drawn to a method of supplying hygienic air
comprising, inter alia, coating substantially all of an
interior of an indoor commercial and residential air handler
with a high density, non-porous, highly reflective coating.
Based upon our analysis of the applied prior art, the
evidence of obviousness would have only been suggestive of
applying reflective coating about the ultraviolet device of
Pacosz to reflect ultraviolet rays and enhance radiation,
i.e., upstream of the cooling coil 19. From our vantage
Appeal No. 1999-1784
Application 08/710,853
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point, absent appellant’s own teaching, the applied references
themselves would not have been suggestive of coating
“substantially all of an interior of an indoor commercial and
residential air handler”, as set forth in claim 17. For the
above reasons, it follows that the rejection of claim 17, as
well as of claims 18 and 19 dependent therefrom, must be
reversed.
This panel of the board has, of course, fully considered
each of the arguments advanced by appellant in the main and
reply briefs. However, for the reasons given above and below,
the arguments fail to convince us that claims 10 and 11 are
patentable. We disagree with appellant’s view that Pacosz is
not a relevant reference (reply brief, page 1). First, this
document, akin to appellant’s air handler (Fig. 2), provides a
housing for a filter, an ultraviolet device, a cooling coil, a
drain pan, and a fan. Second, it appears to us that Pacosz is
comparable to the prior art referenced by appellant in the
specification (page 3) as “a proposed solution” to the
moisture-mold growth problem in air handling systems. We are
also not in accord with the advocated view that Berlant
Appeal No. 1999-1784
Application 08/710,853
A reference must be considered not only for what it5
expressly teaches, but also for what it fairly suggests. See
In re Burckel, 592 F.2d 1175, 1179, 201 USPQ 67, 70 (CCPA
1979).
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teaches away from the present invention (reply brief, page 1).
In our opinion, appellant has, inappropriately, narrowly
focused only upon the specific structure of Berlant rather
than upon its overall teaching as it would have been perceived
by one versed in the art, i.e., the advantage of reflective
coating surfaces about an ultraviolet device to enhance
radiation. As explained above, and contrary to appellant’s5
view (main brief, page 11), the combined teachings of the
applied references would have provided ample motivation for
the proposed modifications, rendering the subject matter of
each of claims 10 and 11 unpatentable under 35 U.S.C. § 103.
In summary, this panel of the board has affirmed the
rejection of claims 10 and 11, but has reversed the rejection
of claims 17 through 19 under 35 U.S.C. § 103.
The decision of the examiner is affirmed-in-part.
Appeal No. 1999-1784
Application 08/710,853
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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-IN-PART
)
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES E. FRANKFORT )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
JOHN F. GONZALES )
Administrative Patent Judge )
Appeal No. 1999-1784
Application 08/710,853
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JAMES C. WRAY
1493 CHAIN BRIDGE ROAD
STE. 300
MCLEAN, VA 22101
ICC/dal
Appeal No. 1999-1784
Application 08/710,853
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