Ex Parte Kristensson et al

Patent Trials and Appeals Board

Jun 19, 2019

13514440 - (D) (P.T.A.B. Jun. 19, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/514,440 06/07/2012 Dan Allan Robert Kristensson
22850 7590 06/21/2019
OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET
ALEXANDRIA, VA 22314
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.
439089US 9384
EXAMINER
LOUIS,LATOYAM
ART UNIT PAPER NUMBER
3785
NOTIFICATION DATE DELIVERY MODE
06/21/2019 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):
patentdocket@oblon.com
OBLONPAT@OBLON.COM
iahmadi@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAN ALLAN ROBERT KRISTENSSON,
PAL MARTIN SVENSSON, and MARK KORNFELD
Appeal 2018-008409
Application 13/514,440
Technology Center 3700
Before WILLIAM A. CAPP, BRANDON J. WARNER, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 13, 14, 18-22, and 24-31 under 35 U.S.C. § 112, second
paragraph, as indefinite; and claims 13, 14, 18-22, and 24-32 as
unpatentable under 35 U.S.C. § 103(a) over Schmid (US 2006/0079170 Al,
pub. Apr. 13, 2006), Kristensson (WO 2008/136740 Al, pub. Nov. 13,
2008), Pariseau (US 5,951,394, iss. Sept. 14, 1999), and Genco
(US 5,431,599, iss. July 11, 1995). We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
Appeal 2018-008409
Application 13/514,440
PROCEDURAL POSTURE
Appellants' invention relates to Temperature controlled Laminar
Airflow ("TLA") air treatment systems. Spec. 1. The application currently
under appeal was before us in a previous appeal. See In re Kristensson,
Appeal No. 2017-002750, 2017 WL 1493361 (PTAB April 20, 2017) (the
"Previous Appeal"). In the Previous Appeal, we affirmed the Examiner's
decision rejecting all of the then-pending claims over Schmid, Kristensson,
Pariseau, and Genco, the same four references relied on by the Examiner in
the Section 103 rejection currently under appeal.
Following the Previous Appeal, Appellants filed a request for
continued examination ("RCE") accompanied by an amendment. See RCE
filed June 26, 2017. Thereafter, the Examiner, once again, rejected all
pending claims under Section 103 as unpatentable over Schmid, Kristensson,
Pariseau, and Genco. See Non-Final Action dated Sept. 21, 2017.
Appellants subsequently filed another amendment to the claims on
December 21, 2017. See Amendment dated Dec. 21, 2017. The Examiner
thereafter issued a Final Rejection on March 21, 2018, from which the
instant appeal is taken. See Final Action.
Although the language of claim 13, as amended, is not identical to
claim 13 as presented in the Previous Appeal, we note, as a practical matter,
that the claims are substantially similar, if not identical, in scope. For
example, Appellants amended the claim so that air, instead of merely
descending, now descends "downwardly." Similarly, the sleeping person is
now sleeping "while lying on a bed." Claim 13, as presented in the current
appeal, is reproduced below and is considered illustrative of the subject
matter on appeal.
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Application 13/514,440
13. A method of treating allergic asthma and/or rhinitis in a
person in need thereof comprising the step of supplying treated
air to said person in a sleep state while lying on a bed such that
exposure of the person, at the person's nose and mouth, to
allergens and other airborne fine particles larger than 0.5 µm, is
reduced by at least 95%, wherein said supplying treated air
compnses:
delivering treated air into a zone around the person's nose
and mouth at a downwardly descending air flow greater than the
flow of ascending warm convection currents from the person's
body, without imposing a draft onto the person in said zone, in
such a way as to substantially avoid in-mixing of ambient air
surrounding said zone into said zone, by controlling a
temperature of said treated air such that said treated air is
maintained at a temperature of 0.5 to 1 °C cooler than the ambient
air surrounding said zone, and said treated air is delivered such
that it descends downwardly as substantially laminar airflow,
wherein said treated air is provided by a temperature
controlled laminar airflow device comprising at least one of each
of (1) an air inlet, (2) a filter, (3) a blower, ( 4) an air-
temperature adjustment system, (5) an air-temperature control
system capable of determining ambient air-temperature at a level
of the person's nose and mouth, wherein said air-temperature
control system comprises a control unit and two sensors where a
first sensor is situated such that it is in an air-stream of said
downwardly descending treated air while a second sensor is
situated in a manner so as to determine ambient air-temperature
as measured at a level of the person's personal breathing zone
but outside the air-stream of said downwardly descending treated
air, and wherein said control unit communicates with said air-
temperature adjustment system to maintain the temperature of
said downwardly descending treated air relative to said ambient
air-temperature, ( 6) an air supply nozzle, and (7) a housing,
thereby breaking the flow of warm body convection
currents ascending into the zone around the person's nose and
mouth based on temperature measurements of the ambient air
outside the air-stream of said treated air in said zone at the level
of the person's nose and mouth.
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Application 13/514,440
OPINION
Section 112 Indefiniteness
The Examiner rejects claim 13 as indefinite because the phrase "the
flow of ascending warm convection currents from the person's body" lacks
antecedent basis. Final Action 2. The remaining claims in this ground of
rejection are rejected based on their dependency from claim 13. Id.
Appellants argue that the claim is not indefinite. Appeal Br. 13-15.
In the Answer, the Examiner states that it is unclear whether "the flow"
refers back to the previously claimed descending air flow. Ans. 12.
A claim is properly rejected as indefinite under 35 U.S.C. § 112,
second paragraph, if, after applying the broadest reasonable interpretation in
light of the specification, the metes and bounds of a claim are not clear
because the claim "contains words or phrases whose meaning is unclear." In
re Packard, 751 F.3d 1307, 1310, 1314 (Fed. Cir. 2014) (per curiam)
(approving, for pre-issuance claims, the standard from MPEP § 2173.05( e ));
see also Ex parte McAward, Appeal No. 2015-006416, 2017 WL 3669566,
at *5 (PTAB Aug. 25, 2017) (precedential) (adopting the approach for
assessing indefiniteness approved by the Federal Circuit in Packard).
However, a claim lacking explicit antecedent basis is not necessarily
indefinite when the scope of the claim is reasonably certain to those of
ordinary skill in the art. Energizer Holdings, Inc. v. Int 'l Trade Comm 'n,
435 F.3d 1366, 1370-71 (Fed. Cir. 2006); see also MPEP § 2173.05( e ).
Here, claim 13 recites a flow that is "descending" and a flow that is
"ascending." Claims App. The flow that is descending is "greater than" the
flow that is ascending. Id. A person of ordinary skill is unlikely to confuse
the descending flow with the ascending flow.
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Application 13/514,440
Consequently, we do not sustain the Examiner's Section 112
indefiniteness rejection of claim 13. The remaining claims in the rejection
stand with claim 13.
Claim 13
Unpatentability of Claims 13, 14, 18-22, and 24-32
over Schmid, Kristensson, Pariseau, and Genco1
The Examiner finds that Schmid discloses the invention substantially
as claimed except for an air-temperature adjustment system and explicit
disclosure of laminar air flow. Final Action 3-4. The Examiner relies on
Kristensson as disclosing laminar air flow and a temperature control system.
Id. at 4-5. The Examiner concludes that it would have been obvious to a
person of ordinary skill in the art at the time of the invention to use laminar
flow and a temperature control system. Id. at 5. According to the Examiner,
a person of ordinary skill in the art would have done this to reduce
turbulence. Id.
The Examiner relies on Pariseau and Genco as disclosing an air-
temperature control system with two sensors, where a first sensor is located
in the treated air and a second sensor is located in ambient air. Id. at 5-6.
The Examiner concludes that it would have been obvious to a person of
ordinary skill in the art at the time the invention was made to further modify
Schmid to include a two-sensor control system to provide enhanced control
and stability. Id. at 6.
1 Due to the substantial similarity between the claims, the applied art, issues,
and arguments raised in the Previous Appeal, the reader is referred to our
Decision in the Previous Appeal (In re Kristensson, Appeal No. 2017-
002750, 2017 WL 1493361 (PTAB April 20, 2017)) for additional
discussion and analysis.
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Application 13/514,440
Appellants argue that Schmid' s downward clean air flow is
insufficient to break or displace the ascending flow of warm body
convection currents from the person's body while lying on a bed as claimed.
Appeal Br. 12.
In response, the Examiner points out that the rejection is not based on
Schmid alone, but on a combination of Schmid and Kristensson. Ans. 12.
The Examiner finds that Kristensson teaches that air that is approximately
one degree Centigrade (C) cooler than surrounding ambient air "sinks
slowly." Id. (citing Kristensson, p. 4, 11. 4-5). The Examiner reasons that,
since Appellants' invention is directed to overcoming the rising current of
warm air from a person's body by using slowly descending cooler air,
Appellants do not explain how their invention is distinguishable from the
combination of Schmid and Kristensson. Id.
In reply, Appellants argue that the prior art does not recognize the
"critical problem" of ascending convection currents. Reply Br. 3.
Appellants argue that the Examiner "refuses" to accept the fact that the
source of problematic allergens and airborne particles is the bedding, not the
ambient air. Id. at 5. This argument is unpersuasive as the invention and
modified Schmid both feature bedding and both are directed to breathing
conditioned air regardless of the source of airborne allergens and particles.
Schmid is directed to a system that improves the air quality in a
person's breathing environment. Schmid, Abstract.
The delivery system is positioned so that it sends conditioned
air around a person's head and into their personal breathing
zone. The air delivered by the delivery system creates a zone of
conditioned air around the person's head. Allergens and other
harmful particles are prevented from entering the zone of
conditioned air.
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Application 13/514,440
Id. ,i 11. Schmid's air is conditioned by filtering and cooling the air. Id.
,i,i 13-14. The delivery system is arranged near a person's head to deliver
conditioned air while the person is laying down. Id. ,i,i 12-14. The
conditioned air creates a zone of conditioned air around the person's head,
thereby improving the quality of the air that is breathed and preventing the
person from breathing ambient air containing allergens. Id. The
embodiments depicted in Figures 8, 9, 10, and 14B direct air in a downward,
descending direction over a bed. See Schmid, Figs. 8-10, 14B.
Given that Schmid teaches creation of a zone of conditioned air
around a person's head, Appellants' argument to the effect that Schmid's
downward clean air flow is insufficient to break or displace the ascending
flow of warm body convection currents from the person's body while lying
on a bed as claimed (Appeal Br. 12), to be persuasive, would require an
evidentiary showing that Schmid's device is inoperative. Appellants'
unsubstantiated attorney argument on this point is no substitute for
competent evidence. See In re Cole, 326 F.2d 769, 773 (CCPA 1964)
( explaining that statements by counsel in a brief cannot take the place of
evidence).
Furthermore, Kristensson discloses a ventilating device that prevents
pollutant particles from entering a workplace region. See Kristensson, p. 1,
11. 10-14. The air supply units are configured so that outlet velocity persists
only for a few decimeters such that downward flow thereafter is dependent
on lower temperature. Id. at p. 1, 11. 22-27. Clean air intended to constitute
the clean air zone is one to two degrees Centigrade lower than surrounding
air such that air in the clean air zone sinks slowly downwards. See id. at
p. 4, 11. 3-4. According to Kristensson, this creates sufficient velocity with
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Application 13/514,440
less turbulence and secondary air flows resulting in a work environment that
is quiet and free from drafts. Id. at p. 4, 11. 7-13.
By way of comparison, Appellants' claim 13 delivers descending air
flow that overcomes warm convection currents from a person's body
without imposing a draft while avoid in-mixing of ambient air. Claims App.
Appellants' treated air is maintained at a temperature that is one-half to one
degree Centigrade cooler than ambient air. Claims App.
Appellants' argument that the applied art does not recognize the
"critical problem" of ascending air flow is not persuasive. Schmid
recognizes the importance of delivering conditioned air to personal breathing
zones to improve health, comfort, and alleviate asthma. Schmid ,i,i 2-3. In
analyzing obviousness, we do not look "only to the problem the patentee
was trying to solve." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418-20
(2007). This follows from the prospect that a skilled artisan need not be
motivated to combine the prior art for the same reason as an inventor. In re
Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006).
Appellants present neither evidence nor persuasive technical
reasoning to rebut the Examiner's position that downwardly directing cooled
air as taught by Schmid at the velocity and temperature taught by
Kristensson would overcome ascending warm convection currents without
imposing a draft. Appellants' lengthy and vociferous attorney arguments,
spanning pages 11 to 25 of the Appeal Brief, are insufficient to rebut the
Examiner's findings. See Icon Health & Fitness, Inc. v. Strava, Inc., 894
F.3d 1034, 1043 (Fed. Cir. 2017) (explaining that unsworn attorney
argument is not evidence). In particular, Appellants present no evidence that
the downward air flow of their invention, in terms of temperature and
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Application 13/514,440
velocity, is distinguishable from the downward air flow in the Examiner's
proposed combination of Schmid and Kristensson. Thus, the Examiner's
findings of fact in regard to Schmid and Kristensson are supported by a
preponderance of the evidence.
Next, Appellants argue that Pariseau and Genco do not relate to their
invention. Appeal Br. 34-36. Appellants argue that the Examiner's
proposed modification of Schmid based on the teachings of Genco and
Pariseau are "strained at best." Id. at 34.
In response, the Examiner points out that Kristensson, and not Genco
or Pariseau, is relied on disclosing the use of temperature to maintain a
stable, descending air flow. Ans. 18. Kristensson teaches that
clean air intended to constitute the clean air zone will be at such
a lower temperature, e.g. l-2°C lower, than air surrounding the
clean air zone that clean air in the clean air zone sinks slowly
downwards .... The higher density of the cooler air is thus
used for controlling the downward velocity.
Kristensson, p. 4, 11. 3-7.
We view Appellants' arguments regarding Pariseau and Genco as
little more than a rehash of substantially similar arguments that we fully
considered and found unpersuasive in the Previous Appeal. See Previous
Appeal, 2017 WL at *2-4, 8. Those substantially similar, if not identical,
arguments are equally unpersuasive when advanced against the slightly
amended claim 13 of the instant appeal.
Pariseau is directed to an environmental control system that monitors
and controls differential air pressure and/or temperature between any two
environments. See Pariseau, col. 5, 1. 42 - col. 6, 1. 17. Genco is directed to
an environmental control for a series of modular, connectable isolation
chambers. Genco, col. 2, 11. 27-30. Genco's system employs monitoring
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Application 13/514,440
and control equipment, including a plurality of sensors located inside and
outside of a chamber that are used to determine pressure, temperature, and
humidity differentials within and without the chamber. Genco, Fig. 2, col. 5,
11. 20-32.
A reference qualifies as prior art for an obviousness determination
when it is analogous to the claimed invention. Innovention Toys, LLC. v.
MGA Ent., Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011). Pariseau and Genco
qualify as analogous art because they both come from the same field of
endeavor, namely, air treatment systems, as the application under appeal.
See In re Bigio, 381 F.3d 1320, 1325-26 (Fed. Cir. 2004) (finding a
reference is in the same field of endeavor due to similarity with the structure
and function of the claimed invention).
Furthermore, it is common sense that familiar items may have obvious
uses beyond their primary purposes, and a person of ordinary skill often will
be able to fit the teachings of multiple patents together like pieces of a
puzzle. KSR, 550 U.S. at 420. "A reference may be read for all that it
teaches, including uses beyond its primary purpose." In re Mouttet, 686
F.3d 1322, 1331 (Fed. Cir. 2012), citing KSR, 550 U.S. at 418-21. A person
of ordinary skill in the art would be readily able to adapt a known
temperature control system from either Pariseau or Genco to a TLA product
application. See KSR, 550 U.S. at 417 (explaining that if a technique has
been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill).
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Furthermore, Appellants' challenge to Pariseau and Genco is viewed
as an individual attack on isolated references in a rejection based on a
combination of references. It is well settled that non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA
1981). In view of the foregoing, we reject Appellants' contentions that
Pariseau and Genco were not properly applied as prior art in the Examiner's
rejection.
Finally, Appellants cite generally to case law for the proposition that
obviousness is not established if a combination of references would entail a
substantial reconstruction and redesign of the elements shown in the primary
reference and change its principle of operation. Appeal Br. 37, citing In re
Ratti, 270 F.2d 810, 813 (CCPA 1959). However, Appellants do not direct
us to any feature of Schmid that would require a substantial reconstruction
or redesign resulting in a change of principle of operation. Merely citing
case law, without any accompanying effort to relate and apply the principles
of case law to the facts of the case, does not suffice to apprise us of
Examiner error.
Similarly, Appellants cite case law for the proposition that one cannot
use hindsight reconstruction in an obviousness analysis. Appeal Br. 37-38,
citing In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988). However, in the
instant case, the Examiner provides adequate non-hindsight rationale to
support the rejection. See Final Action 5-6. A hindsight argument is of no
moment where the Examiner provides a sufficient, non-hindsight reason to
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Application 13/514,440
combine the references. In re Cree, Inc., 818 F.3d 694, 702 n.3 (Fed.
Cir. 2016).
In view of the foregoing discussion, we determine that the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion ofunpatentability is well-founded.
Accordingly, we sustain the Examiner's unpatentability rejection of
claim 13.
Claims 26, 27, 31, and 32
Claims 26, 27, and 31 depend, directly or indirectly, from claim 13.
Claims App. Claim 32 is an independent claim. Id. Appellants argue these
claims as a group. Appeal Br. 25-33. We select claim 26 as representative.
See 37 C.F.R. § 41.37(c)(l)(iv).
Claim 26 depends from claim 13 and adds the limitation: "wherein
the ascending flow of the warm convection currents from the person's body
is over 0.1 mis and the temperature of the ascending warm convention
currents is greater than the ambient air-temperature surrounding said zone at
the level of the person's nose and mouth by as much as 2°C." Claims App.
The Examiner finds, in essence, that the limitations added by claim 26
amount to little more than describing phenomena that naturally occur when
an average adult body with a normal body temperature sleeps in a room with
an average room temperature. Final Action 8.
Appellants devote eight pages of the Appeal Brief to a lengthy
discourse regarding the temperature and velocity of ascending air flows that
emanate from a human body. Appeal Br. 25-33. However, Appellants offer
no probative evidence to dispute the Examiner's finding that the temperature
and flow velocity limitations of claim 26 merely reflect natural occurring
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phenomena that arise from a human body sleeping at average room
temperature. Id.
Schmid discloses that:
The invention comprises a blower unit, a delivery system that
delivers air provided by the blower unit to a person's breathing
zone, and a conduit that interconnects the blower unit and the
delivery system for directing air from the blower unit to the
delivery system. The delivery system is positioned so that it
sends conditioned air around a person's head and into their
personal breathing zone. The air delivered by the delivery
system creates a zone of conditioned air around the person[']s
head. Allergens and other harmful particles are prevented from
entering the zone of conditioned air, so that the air being
breathed in by the person is substantially the conditioned air
delivered by the delivery system.
Schmid ,i 11. Appellants' argument is to the effect that, since Schmid does
not explicitly recite the temperature and air flow parameters of claim 26, a
person of ordinary skill in the art reading Schmid would have been ignorant
of the environmental parameters that attend upon a human body sleeping at
room temperature. However, it is well settled that an 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 (CCPA 1962). Schmid
delivers "conditioned air around a person's head." Schmid ,i 11. Schmid
prevents allergens and other harmful particles "from entering the zone of
conditioned air." Id. In Schmid, the air that is breathed "is substantially the
conditioned air delivered by the delivery system." Id.
Schmid teaches that:
For a system that is designed with the delivery system located
above and directing delivered air downward toward a person's
head, for example the system 74 illustrated in FIG. 8, the
blower unit and motor should be designed to add little or no
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heat to the air that is drawn in from the floor. As a result, the
cooler floor air would be delivered above the person's head and
move downward toward the person's head because the air is
cooler than the surrounding ambient air. Movement of the
cooler air toward the person will help to create the desired clean
air envelope, and may reduce the horsepower requirements of
the motor.
Schmid ,-J 97. Schmid achieves essentially the same result as Appellants'
invention in essentially the same manner, namely, by discharging slowly
descending cool air from above the sleeping person. We are not persuaded
by Appellants' conclusory argument that Schmid operates in a manner that
ignores the environmental parameters in which it operates because such
parameters are not explicitly recited therein.
We do not view Appellants' explicit recital of otherwise naturally
occurring phenomena in claim 26 as imparting patentability to the invention.
It is well settled that: "a claim to a product does not become nonobvious
simply because the patent specification provides a more comprehensive
explication of the known relationships between the variables and the
affected properties." In re Applied Materials, Inc., 692 F.3d 1289, 1297
(Fed. Cir. 2012).
In view of the foregoing, we sustain the Examiner's unpatentability
rejection of claims 26, 27, 31, and 32.
Claims 14, 18-22, 24, 25, and 28-31
These claims depend, directly or indirectly, from claim 13 and are not
separately argued. Claims App. We sustain the Examiner's rejection of
claims 14, 18-22, 24, 25, and 28-31. See 37 C.F.R. § 41.37(c)(l)(iv)
(failure to separately argue claims).
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DECISION
The Examiner's decision to reject claims 13, 14, 18-22, and 24-31 as
indefinite under Section 112 is REVERSED.
The Examiner's decision to reject claims 13, 14, 18-22, and 24-32 as
unpatentable under Section 103 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l )(iv).
AFFIRMED
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