Ex Parte Klaassen et al

Patent Trial and Appeal Board

Jun 2, 2016

12294783 (P.T.A.B. Jun. 2, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/294,783 05/17/2010
93726 7590 06/06/2016
EPA - Bozicevic Field & Francis LLP
Bozicevic, Field & Francis
1900 University Ave
Suite 200
East Palo Alto, CA 94303
FIRST NAMED INVENTOR
Frank Olaf Klaassen
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ARSI-043 2841
EXAMINER
CONLEY, SEAN EVERETT
ART UNIT PAPER NUMBER
1799
NOTIFICATION DATE DELIVERY MODE
06/06/2016 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):
docket@bozpat.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK OLAF KLAASSEN, SANDER ALBERT
ALMA, CAROLUS BORROMEUS H. MUSTERS, PAUL
PLANTINGA, and CORNELIS PIETER TIMMERMAN
Appeal2015-000576
Application 12/294,783
Technology Center 1700
Before GEORGE C. BEST, BRIAND. RANGE, and
DEBRA L. DENNETT, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 32-36, 38, 41--44, and 52-54. We have
jurisdiction. 35 U.S.C. § 6(b).
We REVERSE.
1 According to the Appellants, the real party in interest is Infection Control
B.V. Appeal Br. 3.
Appeal2015-000576
Application 12/294,783
STATE~vfENT OF THE CASE
Appellants describe the present invention as a method for disinfecting
a space (for example, a hospital room) and objects within a space by
vaporizing disinfecting liquid with ultrasonic sound waves. Spec. 2:8-26.
Claim 32, reproduced below, is the only independent claim on appeal and is
illustrative of the claimed subject matter:
32. A method for disinfecting a space and the objects present
therein, which method comprises at least the following steps of:
(a) determining a first value of the relative humidity of
the air in the space;
(b) vaporizing a disinfecting liquid comprising
hydrogen peroxide at a concentration ranging from
1 to 10 vol.% in the space and thereby increasing
the relative humidity to provide a homogenous
distribution of the disinfecting liquid in the space
until a predetermined second value of the
relative humidity of the air in the space is
reached; and
( c) maintaining the relative humidity of the air at the
second value for a predetermined time by means of
vaporizing the disinfecting liquid,
wherein the vaporizing of the disinfecting liquid takes
place by means of ultrasonic sound waves.
Appeal Br.2 12 (Claims Appendix) (emphases added).
2 In this decision, we refer to the Final Office Action appealed from, mailed
August 15, 2013 ("Final Act."), the Appeal Brief filed April 11, 2014
("Appeal Br."), and the Examiner's Answer mailed July 31, 2014 ("Ans.").
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Appeal2015-000576
Application 12/294,783
REFERENCES
The Examiner relied upon the prior art below in rejecting the claims
on appeal:
Adiga et al.
(hereinafter "Adiga")
Centanni et al.
(hereinafter "Centanni")
Y ehuda et al.
(hereinafter "Y ehuda")
Shigihara et al.
(hereinafter "Shigihara")
US 2004/0005240 Al Jan. 8, 2004
US 2005/0019206 Al Jan. 27, 2005
US 2005/0284822 Al Dec. 29, 2005
US 2008/0289971 Al Nov. 27, 2008
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. The Examiner rejected claims 32-36, 38, 41--44, and 52
under 35 U.S.C. § 103 as unpatentable over Yehuda in view of Adiga. Final
Act. 3.
Rejection 2. The Examiner rejected claim 53 under 35 U.S.C. § 103
as unpatentable over Y ehuda in view of Adiga and further in view of
Shigihara. Final Act. 5.
Rejection 3. The Examiner rejected claim 54 under 35 U.S.C. § 103
as unpatentable over Y ehuda in view of Adiga and further in view of
Centanni. Final Act. 3.
ANALYSIS
The Examiner's rejection relies on Yehuda as a primary reference.
Yehuda teaches a method of preventing potato dehydration by applying
hydrogen peroxide and storing the potatoes at high humidity. Yehuda i-fi-f 11
and 38. For example, Yehuda teaches introducing a hydrogen peroxide-
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Application 12/294,783
metal ion fog into a potato storage room thereby raising the relative
humidity. Id. at i-f 107. Yehuda also notes that its technique could be used,
much like the claimed technique of the instant application, for treating a
surgical operating room. Id. at i-f 134.
Claim 32 of the instant application requires "vaporizing a disinfecting
liquid comprising hydrogen peroxide ... until a predetermined second
value of the relative humidity of the air in the space is reached .... "
(Emphasis added.) In other words, a value for relative humidity is
predetermined and vaporization of the liquid comprising hydrogen peroxide
continues until that value is reached. Appellants argue that Y ehuda does not
teach or suggest this element. See, e.g., Appeal Br. 5 and 8. We agree.
The Examiner cites i-f 107 of Y ehuda as teaching this element. Final
Act. 3; Ans. 3. The paragraph describes Y ehuda' s "Example 1" experiments
as follows:
In several experiments conducted in a storage room containing
hundreds of metric tons of potatoes, a hydrogen peroxide-metal ion
solution was introduced with a fogger overnight until a relative
humidity level of 80-99% was attained.
Y ehuda i-f 107 (emphasis added). The Examiner appears to interpret this
paragraph as stating that the solution was introduced with a fogger until a
predetermined value of 80-99% humidity was reached. Ans. 3. While this
reading is plausible, the paragraph is more naturally understood as
explaining that in each of "several experiments" the fogger was utilized
overnight, and for each experiment, the relative humidity was somewhere
between 80% and 99% in the morning. The Y ehuda experiments are best
understood as increasing relative humidity but not precisely controlling
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Application 12/294,783
relative humidity. Thus, we do not read this sentence as teaching vaporizing
the solution until a predetermined relative humidity value is reached.
The evidence cited by the Examiner establishes that high humidity is a
goal ofYehuda (see, e.g., Yehuda i-fi-16, 11-13, 97-100) and Yehuda's
hydrogen peroxide solution fogger raises humidity (see, e.g., id. at i-f l 07),
but the Examiner does not demonstrate by a preponderance of the evidence
that Y ehuda teaches preselecting a relative humidity value and vaporizing a
solution comprising hydrogen peroxide until that value is reached.
Although not cited by the Examiner, Y ehuda' s Example 18 and
Example 19 describe experiments where storage conditions were maintained
at 90% relative humidity. Yehuda i-fi-f 121and123. These paragraphs
suggest raising humidity to a predetermined value and maintaining that
value, but they do not suggest that the humidity is raised or maintained by
"vaporizing a disinfecting liquid comprising hydrogen peroxide" as required
by claim 32. Rather, the paragraphs suggest the high humidity is maintained
in some other manner because the humidity maintenance occurs "[a]fter
preliminary treatment with the active [hydrogen peroxide-containing]
solution." Y ehuda i-fi-f 121 and 123. Thus, these paragraphs also do not
persuade us that Y ehuda teaches or suggests claim 3 2' s recitation of
"vaporizing a disinfecting liquid comprising hydrogen peroxide ... until a
predetermined second value of the relative humidity of the air in the space is
reached."
The Examiner cites Adiga as disclosing vaporizing by means of
ultrasonic sound waves, cites Shigihara as teaching an ultrasonic head
having ceramic elements, and cites Centanni as disclosing a visual indicator
for vaporized hydrogen peroxide. Final Act. 4--6. The Examiner does not
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Application 12/294,783
contend that Adiga, Shigihara, or Centanni relate to the "predetermined
second value of the relative humidity" of claim 32 discussed above.
Accordingly, we do not sustain the Examiner's obviousness rejection
of independent claim 32. For the reasons discussed above, we also do not
sustain the rejection of claims 33-36, 38, 41--44, and 52-54 because those
claims all depend from claim 32.
DECISION
For the above reasons, we reverse the Examiner's rejection of claims
32-36, 38, 41--44, and 52-54
REVERSED
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