Ex Parte Kalley et al

Board of Patent Appeals and Interferences

Sep 29, 2011

10093460 (B.P.A.I. Sep. 29, 2011)

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.
10/093,460 03/11/2002 Terrence D. Kalley 14919.0002 C2 4620
7590 09/29/2011
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
EXAMINER
LEE, SHUN K
ART UNIT PAPER NUMBER
2884
MAIL DATE DELIVERY MODE
09/29/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte TERRENCE D. KALLEY, RICHARD C. CAVESTRI, and
ROBERT L. MINIUTTI
____________________

Appeal 2009-014701
Application 10/093,460
Technology Center 2800
____________________

Before HOWARD B. BLANKENSHIP, THU A. DANG,
and DEBRA K. STEPHENS, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

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I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 4, 7, 8, 11, 14, 15, 18, and 21-25. Claims 2, 3, 5, 6, 9, 10, 12, 13,
16, 17, 19, and 20 have been cancelled (App. Br. 1). We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
Appellants’ invention is directed to a light source for examining leak
detection sites in heating, ventilating, and air conditioning systems using a
fluorescent dye; wherein, the system includes eyewear having a filter lens
that restricts the detection of wavelengths of light emitted from the light
source and permits only light of certain wavelengths to pass for detection by
a user (Abstract; Spec. 14:10-15).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary1:
1. A system for identifying a leak in a climate control
system comprising:

a naphthalimide dye, and

a light source for emitting light comprising:

a low voltage lamp configured to emit light from
the light source; and

1 We have edited the formatting of the claim to correct for typographical
errors, by reference to the previously presented claim 1 (Amendment dated
April 14, 2008, p.2).
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an eyewear filter for restricting observation of emitted
light from the light source such that no light from the light
source passes through the eyewear filter to enhance detection of
fluorescence of a naphthalimide dye at a leak site of the climate
control system

wherein the eyewear filter transmits only wavelengths longer
than the wavelengths emitted by the light source,
wherein the light source emits substantially no light at the
emission wavelength, the lamp is electrically connected to a
battery within the light source, and the battery is a rechargeable
battery.

C. REJECTION
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Rios US 4,983,846 Jan. 08, 1991
Cooper US 5,650,563 Jul. 22, 1997
(hereinafter “Cooper ‘563”)
Cooper US 5,816,692 Oct. 06, 1998
(hereinafter “Cooper ‘692”)

Spectronics Corp., Spectroline® Fluorescent Leak Detection Products
1-24 (ca. 1995).

Claims 1, 4, 7, 8, 11, 14, 15, 18, and 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Cooper ‘563 in view of Spectronics and
Rios.
Claims 22-25 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cooper ‘563 in view of Spectronics, Rios, and Cooper
‘692.

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II. ISSUES
The dispositive issues before us are whether the Examiner has erred in
determining that the combination of:
1. Cooper ‘563, Spectronics, and Rios teaches or would have
suggested “eyewear filter [that] transmits only wavelengths longer than the
wavelengths emitted by the light source” and “wherein the light source emits
substantially no light at the emission wavelength” (claim 1, emphasis
added); and
2. Cooper ‘563, Spectronics, Rios, and Cooper ‘692 teaches or would
have suggested “wherein the light source has an average light power density
in the ultraviolet wavelength region of at least 0.1 m W/cm2 or in the blue
wavelength region of at least 0.75 mW/cm2 at a distance of two feet or more
from the light outlet” (claim 22, emphasis added).

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Cooper ‘563
1. Cooper ‘563 is directed to method of introducing leak detection
dye into an air conditioning or refrigeration system; wherein, an effective
amount of a fluorescent dye compound is infused into the lubricating oil or
mixture of the oil with the refrigerant such that, when the system is exposed
to UV light, even a small deposit of the dye compound fluoresces a brilliant
yellow-green to allow visual detection of the leak (col. 1, ll. 38-51 and col.
5, ll. 65-67).
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Spectronics
2. Spectronics is directed to fluorescent leak detection lamp kits
including an eyewear filter (UVS-40 fluorescence-enhancing glasses and
UVS-30 and UVG-50 UV Absorbing glasses) and a lamp having a dichroic
filter lens that produces significantly more leak detection light for faster,
more reliable leak detection and provides superior compatibility with all
fluorescent dyes so that they glow more brightly, making leaks easier to see
(p.4-5 and 20).
3. A small amount of florescent dye is added to an air
conditioning, refrigeration or industrial fluid system and allowed to
circulate; wherein, the dye escapes with the system’s refrigerant or fluid at
all leak sites, such that when the system is scanned with a lamp, the dye
fluoresces brilliantly to pinpoint the exact source of every leak (p. 2).
4. The lamp transmits both UV and blue light; wherein, the yellow
and green leak detection dyes fluoresce brightly when the lamp scans the
system (p. 7)
Rios
5. Rios is directed to a portable fingerprint detection method that
uses a light source and a light intensifier to detect the wavelength-shifted
reflections from fluorescent substances; wherein, the light source is a
halogen lamp powered by batteries (Abstract; col.3, ll. 33-41 and col. 4, ll.
27-31).
Cooper ‘692
6. Cooper ‘692 discloses that a compact lamp must be capable of
radiating UVA radiant flux sufficient to produce, at a distance of about eight
to thirty inches from the lamp, a fluorescent response in the detector material
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to re-radiate sufficient lumens to be easily sighted by the inspector (col.1, ll.
45-50).
Merriam-Webster On-line Dictionary
7. A filter is a device or material for suppressing or minimizing
waves or oscillations of certain frequencies (as of electricity, light, or sound)
(Merriam-Webster, Inc., © 2011).

IV. ANALYSIS
Claims 1, 4, 7, 8, 11, 14, 15, 18, and 21
Appellants do not provide a separate argument with respect to
independent claims 1 and 8 (App. Br. 4-6). Further, Appellants provide a
similar argument with respect to independent claim 15 (App. Br. 6).
Appellants do not provide arguments with respect to dependent claims 4, 7,
11, 14, 18 and 21. Accordingly, we select claim 1 as being representative of
the claims. See 37 C.F.R. § 41.37(c)(1)(vii).
Appellants contend that neither Cooper, Spectronics, nor Rios teach
an “eyewear filter for restricting observation of emitted light from the light
source to enhance detection of fluorescence of a naphthalimide dye at a leak
site of the climate control system wherein the eyewear filter transmits only
wavelengths longer than the wavelengths emitted by the light source” or “a
combination of the eyewear filter and a light source that emits substantially
no light at the emission wavelength” (App. Br. 6). Appellants argue further
that “UVG-50 goggles … are used to ‘absorb ultraviolet light’”; therefore,
“[a] person of skill in the art would not be motivated to use such goggles as
there is no indication that such goggles in the Spectronics brochure are
eyewear filters that transmit only wavelengths longer than the wavelength
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emitted by the light source” (App. Br. 5). Appellants also argue that
Spectronics brochure does not “identify the wavelengths that its UV source
produces and makes no mention of wavelengths that its eyewear transmits”
which is supported by a declaration previously submitted (id.). Finally,
Appellants contend that, since “Rios teaches a device and a method for
detecting fluorescent evidence such as fingerprints using light sources and
filters and focuses on the use of such devices in the field of law
enforcement[,] . . . . [a] person of skill in the art would not look to Rios to
arrive at a system and a method for detecting a leak in a climate control
system as” claimed (App. Br. 6).
However, the Examiner finds that the “Spectronics Brochure teaches
or suggests that the ‘UVG-50 UV-Absorbing Goggles’ does pass the
‘yellow-green fluorescent glow’ since the wearer of the ‘UVG-50 UV-
Absorbing Goggles’ sees the ‘yellow-green fluorescent glow’” (Ans. 9,
emphasis omitted). The Examiner notes that “[i]t is important to recognize
that both yellow and green wavelengths are longer than ultraviolet
wavelengths” (id.). Thus, “the Spectronics Brochure teaches or suggests that
the ‘UVG-50 UV-Absorbing Goggles’ does pass only wavelengths (i.e.,
yellow green wavelengths) longer than the wavelengths (i.e., ultraviolet
wavelengths) emitted by the light source (id.). The Examiner also finds that
“the declaration under 37 CFR 1.132 filed 14 October 2005 is insufficient to
overcome the rejection” since Appellants do “not provide any explanation
nor factual evidence that the statement ‘[t]he UVG-50 UV-Absorbing
Goggles absorb ultraviolet light’ … would suggest to a person skilled in the
optics art that the UVG-50 UV-Absorbing Goggles transmits selected
ultraviolet wavelengths” (Ans. 10, emphasis omitted). Finally, the Examiner
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finds that “Rios is in the field of Appellants’ endeavor (i.e., methods and
devices for fluorescence detection)” and, therefore, is proper for reliance
“upon as a basis for rejection of the claimed invention” (Ans. 11-12).
To determine whether the combined teaching of Cooper ‘563,
Spectronics, and Rios teach or would have suggested a system “wherein the
eyewear filter transmits only wavelengths longer than the wavelengths
emitted by the light source” and “wherein the light source emits substantially
no light at the emission wavelength” as recited in claim 1, we give the claim
its broadest reasonable interpretation consistent with the Specification. See
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). However, we will not
read limitations from the Specification into the claims. In re Van Geuns,
988 F.2d 1181, 1184 (Fed. Cir. 1993).
Claim 1 does not place any limitation on what “transmits” and
“emission wavelength” mean, include, or represent. We read “transmits”
broadly by giving it its ordinary meaning as passes. Thus, we give “wherein
the eyewear filter transmits only wavelengths longer than the wavelengths
emitted by the light source” its broadest reasonable interpretation as the
eyewear filter that passes light having a wavelength longer than the light
emitted by the light source, as consistent with the Specification and as
specifically defined in claim 1.
Further, since “emission wavelength” has no definition in the claim
other than that “the light source substantially emits no light at the emission
wavelength” and does not even have an antecedent basis, we read it broadly
as the wavelength at which the light source substantially emits no light, as
consistent with the Specification and as specifically defined in claim 1.
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Cooper ‘563 is directed to a method of introducing leak detection dye
into an air conditioning or refrigeration system; wherein, an effective
amount of a fluorescent dye compound is infused into the lubricating oil or
mixture of the oil with the refrigerant such that, when the system is exposed
to UV light, even a small deposit of the dye compound fluoresces brilliant
yellow-green to allow visual detection of the leak (FF 1).
In addition, Spectronics is directed to fluorescent leak detection lamp
kits including a lamp and an eyewear filter (UVS-40 fluorescence-enhancing
glasses and UVS-30 and UVG-50 UV Absorbing glasses), which together
make the light emitted due to the fluorescence of the fluorescent dye at leaks
within the system easier to see (FF 2). After a small amount of fluorescent
dye is added and allowed to circulate through the system, a user may scan
the system with a lamp that transmits ultraviolet (UV) or blue light and may
view through the eyewear the light emitted from the yellow and green leak
detection dyes which fluoresce brightly (FF 3 and 4). Since, by definition, a
filter is a device or material for suppressing or minimizing waves or
oscillations of certain frequencies (as of electricity, light, or sound) (FF 7),
we find that the eyewear filter of Spectronics at least suggests an eyewear
filter that enhances and transmits only light from the yellow and green
regions of the optical spectrum emitted as a result of the fluorescence of the
fluorescent dye, while the eyewear suppresses the UV or blue light emitted
by the lamp. Further, we agree with the Examiner’s finding that since light
emitted by the excitation of the yellow and green leak detection dyes
correspond to wavelengths of 570-590 nm (for the yellow region) and 490-
570 nm (for the green region), that the Spectronics’ eyewear filter at least
suggests that wavelengths of light permitted to pass through the eyewear
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filter are longer than ultraviolet light emitted by the lamp which ranges from
4-380 nm (Ans. 3). Moreover, since Spectronics only discloses that the
lamp emits UV or blue light, we find that the leak detection system of
Spectronics at least suggests that the lamp does not emit light in the yellow
and green regions of the optical spectrum such that false reads of leak
detection will not occur when the lamp scans the system (FF 2-4 and 7).
In addition, Rios is directed to a portable fingerprint detection method
that uses a light source and a light intensifier to detect the wavelength-
shifted reflections from fluorescent substances; wherein, the light source is a
halogen lamp powered by batteries (FF 5).
In view of our claim construction above, we find that the combination
of Cooper ‘563, Spectronics, and Rios at least suggests providing a system
“wherein the eyewear filter transmits only wavelengths longer than the
wavelengths emitted by the light source” and “wherein the light source emits
substantially no light at the emission wavelength,” as specifically required
by claim 1.
Our reviewing Court has held that “[i]n order to rely on a reference as
a basis for rejection of the applicant's invention, the reference must either be
in the field of the applicant's endeavor or, if not, then be reasonably pertinent
to the particular problem with which the inventor was concerned.” In re
Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992).
Accordingly, we agree with the Examiner’s explicit motivation that
combining the references would be obvious since “Rios is in the field of
Appellants’ endeavor (i.e., methods and devices for fluorescence detection)”
and, therefore, is proper for reliance “upon as a basis for rejection of the
claimed invention” (Ans. 11-12). The Supreme Court has stated that “[t]he
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combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Thus, we find no error in the Examiner’s finding that the combination
of Cooper ‘563’s system for leak detection using fluorescent dye compound
in the system’s fluid with the fluorescence enhancing spectacles or UV
absorbing goggles, as disclosed in Spectronics, and the halogen lamp source
of Rios produces a “system wherein the eyewear filter transmits only
wavelengths longer than the wavelengths emitted by the light source” and
“wherein the light source emits substantially no light at the emission
wavelength” which would be obvious (Ans.12; FF 1, 2, 4, and 5).
Therefore, we find that Appellants have not shown that the Examiner
erred in rejecting independent claims 1, 8, and 15 and claims 4, 7, 11, 14, 18
and 21 depending from claims 1, 8, and 15 under 35 U.S.C. § 103(a) over
Cooper ‘563 in view of Spectronics and Rios.
Claims 22-24
Appellants do not provide a separate argument with respect to claims
22-24 (App. Br. 4-6). Accordingly, we select claim 22 as being
representative of the claims.
Appellants contend that Cooper ‘692 states that “a compact lamp must
be capable of radiating UVA radiant flux sufficient to produce, at a distance
of about eight to thirty inches from the lamp, a fluorescent response in the
detector material to re-radiate sufficient lumens to be easily sighted by the
inspector” (col. 1, ll. 45-49); therefore, “Cooper [‘692] does not motivate a
person of skill in the art to use a light source which has an average light
power density in the ultraviolet wavelength region of at least 0.1 mW/cm2 or
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in the blue wavelength region of at least 0.75 mW /cm2 at a distance of two
feet or more from the light outlet as described in claims 22-24” (App. Br. 7-
8).
However, the Examiner finds that Appellants “did not provide any
evidence of unexpected results when the claimed average light power
density is at least 0.1 mW/cm2 (in the ultraviolet wavelength region) at a
distance of two feet or more from the light outlet” (Ans.16-17, emphasis
omitted). The Examiner notes that Cooper ‘692 teaches that “‘a lamp for the
inspection for leaks must be capable of radiating UV radiant flux sufficient
to produce, at a distance of about eight to thirty inches from the lamp, a
fluorescent response in the detector material to reradiate sufficient lumens to
be easily sighted by the inspector” and, therefore, “the cited prior art clearly
teaches the UV radiant flux is a result-effective variable that can be
optimized or selected through routine experimentation” (Ans. 17).
Claim 22 recites inter alia “wherein the light source has an average
light power density in the ultraviolet wavelength region of at least 0.1
mW/cm2 or in the blue wavelength region of at least 0.75 mW/cm2 at a
distance of two feet or more from the light outlet.”
Cooper ‘692 discloses that the source lamp must be capable of
radiating UVA radiant flux sufficient to produce a fluorescent response at a
distance of about eight to thirty inches from the lamp (FF 6).
Our reviewing Court has held that, in “cases in which the difference
between the claimed invention and the prior art is some range or other
variable within the claims[, ] . . . . the applicant must show that the particular
range is critical, generally, by showing that the claimed range achieves
unexpected results relative to the prior art range” In re Woodruff, 919 F.2d
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1575, 1578 (Fed. Cir. 1990). We agree with the Examiner that the
Appellants have not made such a showing (Ans. 16-17).
We are also in agreement with the Examiner that, since Cooper ‘692
discloses that the radiant flux of lamp must be sufficient to produce a
fluorescence response at a distance of approximately 8 to 30 inches (which
overlaps the claimed range), it is reasonable to conclude that one of ordinary
skill in the art could modify the lamp of Cooper ‘692 such that the average
light power density for the UV light is at least 0.1 mW/cm2 and the UV light
emits UVA radiant flux sufficient to produce a fluorescent response at a
distance of two feet or more (Ans. 14). We are satisfied that one of ordinary
skill in the art would have needed to resort to no more than routine
experimentation to determine the claimed power density to produce
fluorescence response as claimed.
Accordingly, we find that Appellants have not shown that the
Examiner erred in rejecting independent claims 22-24 under 35 U.S.C. §
103(a) over Cooper ‘563 in view of Spectronics, Rios, and Cooper ‘692.
Claim 25
Appellants argue that claim 25 is patentable over the cited prior art for
the same reasons asserted with respect to claim 22 (App. Br. 9).
As noted supra, however, we find that Cooper ‘692 at least suggests
all the features of claim 22. We therefore affirm the Examiner’s rejection of
claim 25 under 35 U.S.C. § 103 for the same reasons expressed with respect
to parent claim 22, supra.

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V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 1, 4, 7, 8, 11, 14, 15, 18, and 21-
25 under 35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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