Ex Parte Lavender

Patent Trial and Appeal Board

Jan 25, 2018

13429833 (P.T.A.B. Jan. 25, 2018)

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.
13/429,833 03/26/2012 Richard Jerald Lavender 22517-P41049US00 3447
1059 7590 01/26/2018
BERESKIN & PARR LLP/S.E.N.C.R.L., s.r.l.
40 KING STREET WEST
40th Floor
TORONTO, ON M5H 3Y2
CANADA
EXAMINER
MCALLISTER, STEVEN B
ART UNIT PAPER NUMBER
3749
MAIL DATE DELIVERY MODE
01/26/2018 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICHARD JERALD LAVENDER
____________

Appeal 2017-004395
Application 13/429,833
Technology Center 3700
____________

Before STEVEN D.A. McCARTHY, LYNNE H. BROWNE, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s decision1 rejecting claims 1–4 and 6 under 35 U.S.C. § 103(a) as
unpatentable over Naoki (JP 2004-340395A2; published Dec. 2, 2004) and
Matthews (US 2,479,387; issued Aug. 16, 1949). We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appeal is taken from the Final Office Action dated March 31, 2016.
2 We refer to the DERWENT English translation provided in the record.
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CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
1. A ventilator for a beauty salon, comprising:
an overhead canopy assembly for location above a chair
for accommodating a client receiving beauty treatment, the
canopy assembly including fan means for directing air in a
downward flow towards the client in the chair, so as to entrain
contaminants emanating from materials used in the beauty
treatment; and,
suction means for drawing away the downward flow of air
from the canopy assembly and entrained contaminants, the
suction means having at least one inlet positioned to draw the
flow of air and contaminants away from the client’s face so as to
minimize exposure of the client to the contaminants;
whereby, in use, contaminated air is directed down to the
suction means which pulls the contaminated air away from the
client.

ANALYSIS
Regarding independent claim 1, the Examiner finds, inter alia, that
although Naoki’s ventilator includes a suction means, as claimed, Naoki
fails to disclose an overhead canopy assembly, and the Examiner relies on
Matthews for disclosing an overhead canopy assembly, as claimed. Final
Act. 2–4. The Examiner reasons that it would have been obvious “to have
modified Naoki with Matthews,” or more particularly,
to combine the sterilizing and dust collecting device for a chair
of Naoki with the apparatus for drying hair of Matthews . . . to
provide proper suction all around a client’s head and shoulders
while sitting in a chair so that all contaminants around the client’s
head and shoulders are removed from the vicinity thus allowing
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the client to breath better and more clearly without contaminants
nearby.
Id. at 4.
Appellant argues that “the proposed modification of Naoki in view of
Matthews would destroy the intended purpose of N[ao]ki.” Br. 6. In
support, Appellant submits that “Naoki discloses a sterilizing device (1) for
a hospital lobby chair (2),” the purpose of which is “to recirculate a pocket
of air which encapsulates a seated user (3) to prevent infectious bacteria and
dust from spreading from the seated user (3) to others nearby, and from
others nearby.” Id. at 5 (citing Naoki, Abstract, ¶ 13). Appellant contends
that Matthews’ “motor blower assembly (39) draws room air from air intake
louvers (37) and blows the drawn room air out through drying hood (75),”
such that adding Matthews’ overhead canopy assembly to Naoki “would
blow potentially diseased room air from a second air inlet (for the new motor
blower) through the drying hood onto the seated user, thereby destroying the
purpose of Naoki to avoid such exposure.” Id. at 6.
Matthews’ expressly recognizes that prior art driers are “unsanitary,
inasmuch as they generally recirculate unfiltered air over and over again,
with the addition after each use of the moisture from the previous customer’s
hair.” Matthews 2:6–10. Thus, an object of Matthews’ apparatus is “the
sanitary and economic feature of using filtered dry air for every hair drying.”
Id. at 2:25–26. Matthews’ apparatus is arranged “such that upon operation
of the blower, air is drawn in through louvers 37, chamber 17 and ports 25
into compartment 19, thence into the blower inlet 43, and is delivered
through blower outlet 42, hose 45 and standard 27 to the air distributor 3.”
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Id. at 3:22–26. Matthews discloses that “annular air filter 65 is also
provided in chamber 17 for filtering the air.” Id. at 4:13–15.
Thus, Matthews teaches filtering air received in louvers 37 prior to
discharge from air distributor 3 of Matthews’ overhead canopy assembly.
Further, Naoki depicts and discloses blowing purified air “to [a] portion
above the chair and below the seat,” such that Matthews’ overhead canopy
assembly would supplement the purified air blown above Naoki’s chair.
Naoki, Abstract (emphasis added), Fig. 1 (depicting air flow upwardly from
between the back of the chair and the wall, and over the top of the back of
the chair at reference numeral 1, such that air is blown downwardly and
forwardly over the head of a person seated in the chair). Accordingly, we
are not persuaded that inclusion of Matthew’s overhead canopy assembly on
Naoki’s chair would blow potentially diseased room air on the user.
Appellant also contends that Matthews’ motor blower 39 “acts to
blow fast moving air,” and therefore, adding Matthews’ overhead canopy
assembly to Naoki’s chair “would discharge fast moving air towards the
seated user, and in so doing entrain the potentially diseased, surrounding
room air.” Br. 7. Appellant submits that Naoki’s fan 10 “does not suffer
from this entrainment problem,” because fan 10 “is directed at the floor,
whereupon the blown air is immediately slowed and spreads in all
directions,” thereby preventing any potential for fan 10 to entrain room air.
Id.
We are not persuaded by Appellant’s argument because, as discussed
supra, similar to Matthews, Naoki discloses blowing purified air towards a
seated user, from above the seated user. Contrary to Appellants’ contention,
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Matthews teaches maintaining a sanitary air flow, as discussed supra, and
discloses controlling the air circulated by the overhead canopy assembly, for
example, by teaching that “air distributor 3 may be adjusted vertically to any
desired position” (Matthews 3:46–48) and that the dry, filtered air flow from
blower 41 is variable (id. at 6:18–33 (disclosing that air from air distributor
3 may be “in small individual streams” or in “a single concentrated stream of
air.”).
Finally, Appellant contends that modifying Naoki’s chair to include
Matthews’ downward and forward air stream from an overhead canopy
assembly would create air flow “across the seated user,” which (i) “would
disrupt Naoki’s closed circuit air pocket by acting against the air flow
moving rearwardly across the users face toward the air inlet (7);” or (ii)
“would push potentially diseased air from the user’s recirculating air pocket
away from air inlet (7) into the surrounding room.” Br. 7–8. However, as
discussed supra, Naoki depicts a forward and downward airflow, and
Matthews discloses distributing sanitary (or filtered) air. Moreover,
Matthews discloses a similar closed circuit for filtered air about the head of
the person seated in the chair, in that Matthews’ louvers 37 (i.e., for air
intake) are similarly positioned as Naoki’s “external air intake (7).” Naoki,
Abstract, Fig. 1; cf. Matthews, Fig. 1.
In sum, we are not persuaded by Appellant’s arguments that the
Examiner’s proposed modification to Naoki destroys the intended purpose of
Naoki.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1. Appellant chose not to present separate arguments for the
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patentability of claims 2–4 and 6, which depend from claim 1, and therefore,
we also sustain the Examiner’s rejection of claims 2–4 and 6 for the reasons
stated supra. Br. 8.
DECISION
We affirm the Examiner’s rejection of claims 1–4 and 6.
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