Ex Parte Kalley et alDownload PDFBoard of Patent Appeals and InterferencesSep 29, 201110093460 (B.P.A.I. Sep. 29, 2011) Copy Citation 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 Appeal 2009-014701 Application 10/093,460 2 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). Appeal 2009-014701 Application 10/093,460 3 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. Appeal 2009-014701 Application 10/093,460 4 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). Appeal 2009-014701 Application 10/093,460 5 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 Appeal 2009-014701 Application 10/093,460 6 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 Appeal 2009-014701 Application 10/093,460 7 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 Appeal 2009-014701 Application 10/093,460 8 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. Appeal 2009-014701 Application 10/093,460 9 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 Appeal 2009-014701 Application 10/093,460 10 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 Appeal 2009-014701 Application 10/093,460 11 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 Appeal 2009-014701 Application 10/093,460 12 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 Appeal 2009-014701 Application 10/093,460 13 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. Appeal 2009-014701 Application 10/093,460 14 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 peb Copy with citationCopy as parenthetical citation