Ex Parte Koch

Board of Patent Appeals and Interferences

Jun 27, 2011

10477301 (B.P.A.I. Jun. 27, 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.
10/477,301 05/20/2004 Hubert Koch KOCH H 2 PCT 5698
25889 7590 06/27/2011
COLLARD & ROE, P.C.
1077 NORTHERN BOULEVARD
ROSLYN, NY 11576
EXAMINER
PAIK, SANG YEOP
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
06/27/2011 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 HUBERT KOCH
____________

Appeal 2009-012600
Application 10/477,301
Technology Center 3700
____________

Before JAMES DONALD SMITH, Chief Administrative Patent Judge and
JENNIFER D. BAHR and LINDA E. HORNER, Administrative Patent
Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-012600
Application 10/477,301

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STATEMENT OF THE CASE
Hubert Koch (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner‟s decision rejecting claims 63-70, 72, and 76-78. We have
jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We REVERSE.
THE INVENTION
Appellant‟s invention relates to a mobile flue gas generator for
simulating a real flue gas for use in testing a flue gas indicator, such as a
hazard detector. Spec. 1. Claim 76, reproduced below, is representative of
the subject matter on appeal.
76. A mobile hazard detector tester comprising:
a housing including an electrical heating means, a supply
means, and blowing means, the supply means arranged to
supply a test medium to the heating means,
wherein the heating means is arranged to heat the test
medium in order to produce a flue gas, and the blowing means
is adapted to provide a circulation of air in the tester and release
the generated flue gas from the tester through an opening in
order to perform a test on a hazard detector,
wherein the tester further comprises a battery to provide
power to the electrical heating means and blowing means,
an accumulation chamber for at least temporarily
accumulating the generated flue gas, and
means for metering the volume of flue gas emitted from
the accumulation chamber and supplied to the hazard detector,
and
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at least one of the supply means, blowing means and
metering means is arranged to be plugged into the housing with
a positive-lock or friction-lock connection so as to be releasably
attached to the housing and
the supply means and blowing means are positioned
within the housing.
THE EVIDENCE
The Examiner relies upon the following evidence:
McIntire US 2,662,332 Dec. 15, 1953
Swiatosz „119 US 4,326,119 Apr. 20, 1982
Swiatosz „341 US 4,439,341 Mar. 27, 1984
Cirillo US 4,570,851 Feb. 18, 1986
Ohayon US 5,810,253 Sep. 22, 1998
Hutchinson US 6,393,212 B1 May 21, 2002
Strauss US 6,543,247 B2 Apr. 8, 2003
THE REJECTIONS
Appellant seeks review of the following rejections:
1. The Examiner rejected claims 63, 67, 68, 72, 76, and 78 under
35 U.S.C. § 103 as being unpatentable over McIntire, Swiatosz „119,
and Hutchinson.
2. The Examiner rejected claims 64, 65, 69, and 70 under 35 U.S.C.
§ 103 as being unpatentable over McIntire, Swiatosz „119,
Hutchinson, and Cirillo or Strauss.
3. The Examiner rejected claim 66 under 35 U.S.C. § 103 as being
unpatentable over McIntire, Swiatosz „119, Hutchinson, and
Swiatosz „341.
4. The Examiner rejected claim 77 under 35 U.S.C. § 103 as being
unpatentable over McIntire, Swiatosz „119, Hutchinson, and Ohayon.
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CONTENTIONS AND ISSUE
The Examiner found that McIntire discloses the structure of the tester
called for in claim 76, except for: (1) a battery to power the heating means;
and (2) means for metering the volume of gas emitted from the accumulation
chamber. Ans. 3. The Examiner found it would have been obvious to
modify the structure of McIntire to have a battery, as taught in Swiatosz
„119, and to use a means to intermittently emit a controlled amount of gas,
as taught in Hutchinson, to result in the claimed tester. Ans. 4.
Appellant contends that “[t]he Examiner has articulated no objective
teaching of the prior art, or knowledge generally available to one of ordinary
skill in the art, which would lead an individual to make the proposed
modifications.” Br. 13. Appellant further contends that “the Examiner
incorrectly relied on hindsight” for the obviousness rejections and that one
of ordinary skill in the art in the field of hazard detector testers would not
have combined the teachings of McIntire, Swiatosz „119 and Hutchinson in
the manner proposed. Br. 14, 19.
The issue presented by this appeal is whether the Examiner articulated
an adequate reason based on a rational underpinning to explain why a person
having ordinary skill in the art at the time of Appellant‟s invention would
have been led to modify the structure of McIntire with the teachings of
Swiatosz „119 and Hutchinson to result in the tester of claim 76.
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FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence.
1. McIntire discloses a compact and portable insecticide fogger,
comprising a casing 10, an insecticide reservoir tank 19, a needle
valve 23 seated in the open end of a dispenser tube 24, a heated
rectangular plate 30 for vaporizing the insecticide dispensed from
dispenser tube 24, a vaporizing chamber 32, a heating element 44,
an electric blower 48, a mixing tube 62, and an exhaust tube 66.
McIntire, col. 1, ll. 1-6, 29, 36, 41-42, 53-55; col. 2, ll. 1-3, 15, 20,
38, 45-46; figs. 1, 2.
2. McIntire discloses that when the device is connected to a power
source, the blower forces air through mixing tube 62 and by
aspiration draws vapors of insecticide from within the chamber 32,
where adjustment of the proper feed of insecticide is made by
setting the needle valve 23, and the blower air and vapors mixed in
tube 62 are blown into and out of exhaust tube 66 in a fine mist or
fog. McIntire, col. 3, ll. 18-31.
3. McIntire does not disclose any structure that performs the function
of metering the volume of flue gas emitted from an accumulation
chamber.
4. Hutchinson discloses a compact, small volume steam generating
system, such as is used for steam cleaning equipment. Hutchinson,
col. 1, ll. 13-14 and 27-28.
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5. Hutchinson‟s steam generating system includes the use of a
variable pressure open-ended pressure-regulating control valve on
the steam output port: (1) to allow the pressure and flow volume
of the steam output to be controlled while providing for an always
“open” flow through the system; (2) for further regulation of the
overall vapor/steam dwell time for the formation of the steam at
the output in the steam support tube; and (3) to control output
pressure of the steam cleaning jet as required by each cleaning
situation and environment. Hutchinson, col. 4, ll. 7-17; col. 8,
ll. 20-39; fig. 4.
ANALYSIS
Independent claim 76 calls for a hazard detector tester including
“means for metering the volume of flue gas emitted from the accumulation
chamber and supplied to the hazard detector.” Appellant stated in the Brief
that the means for metering the volume of flue gas may be “a sensor 71 for
sensing whether a certain volume of flue gas 25 has been generated and is
present in the accumulation chamber 42, so that the flue gas may be
provided to the hazard detector 30, 21” or may also be “in the form of a flap
or valve provided in the accumulation chamber 42.” Br. 5-6 (citing Spec.
11, ll. 1-11; Spec. 12, ll. 12-25; and fig. 7).
McIntire discloses a compact and portable insecticide fogger that is
structurally similar to Appellant‟s hazard detector tester in certain respects
but lacks any structure that performs the function of metering the volume of
flue gas emitted from an accumulation chamber. Facts 1-3. Hutchinson
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discloses various advantages of using a pressure-regulating control valve in
a small volume steam generating system. Facts 4, 5. The Examiner‟s
rejection of claim 76 states that “in view of Hutchinson, [it would have been
obvious to one of ordinary skill in the art to] further adapt McIntire with a
means to intermittently emit a controlled amount of gas when a desired
amount of pressure or amount is accumulate[d] in the accumulation
chamber.” Ans. 4. This statement explains the functioning of the pressure-
regulating control valve when applied to the insecticide fogger of McIntire,
but it fails to articulate an adequate reason why one having ordinary skill in
the art of hazard detector testing would have been led to add this
functionality to McIntire‟s system.
In particular, the Examiner failed to provide an adequate articulation
of why a person of ordinary skill in the field of insecticide foggers would
have had a reason, based on a problem or need in that field, to meter the gas
emitted from the fogger such that a structure capable of use as a hazard
detector tester would result. Further, assuming that a person having ordinary
skill in the art of hazard detector testers was attempting to adapt the
insecticide fogger of McIntire for use in testing hazard detectors, we agree
with Appellant that the cited prior art references fail to show that metering
was known in the field of hazard detector testers. Br. 18. As such, no
evidence exists in the record that metering of flue gas was known or desired
in this art such that a person having ordinary skill in the art would have been
led by Hutchinson to modify McIntire‟s device to allow for metering of the
gas in exhaust tube 66. Accordingly, the Examiner‟s rejection, which
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proposes to add metering of flue gas to McIntire‟s insecticide fogger for the
purpose of addressing the Appellant‟s need for a mobile hazard detector
tester, appears to be based on hindsight.
The Examiner‟s rejections of claims 63-70, 72, 77, and 78 are based
on the same deficiency in reasoning as discussed supra with regard to the
rejection of claim 76. As such, we cannot affirm the Examiner‟s rejection of
claims 63-70, 72, and 76-78.
CONCLUSION
The Examiner failed to articulate an adequate reason based on a
rational underpinning to explain why a person having ordinary skill in the art
at the time of Appellant‟s invention would have been led to modify the
structure of McIntire with the teachings of Swiatosz „119 and Hutchinson to
result in the tester of claim 76.
DECISION
The decision of the Examiner to reject claims 63-70, 72, and 76-78 is
REVERSED.
REVERSED

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