Ex Parte Porter

Patent Trial and Appeal Board

Dec 12, 2017

13000048 (P.T.A.B. Dec. 12, 2017)

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.
13/000,048 02/24/2011 Patrick Porter 95-282 1209
126540 7590 12/12/2017
Edward Stemberger
Manelli Selter PLLC
10560 Main Street, Suite PH6
Fairfax, VA 22030
EXAMINER
LOEPPKE, JANIE MEREDITH
ART UNIT PAPER NUMBER
3754
MAIL DATE DELIVERY MODE
12/12/2017 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 PATRICK PORTER
____________________

Appeal 2016-008149
Application 13/000,048
Technology Center 3700
____________________

Before JENNIFER D. BAHR, DANIEL S. SONG, and KEN B. BARRETT,
Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Patrick Porter (Appellant)1 appeals under 35 U.S.C. § 134(a) from the
Examiner’s decision, set forth in the Final Action (Mar. 18, 2015, hereinafter
“Final Act.”) and repeated in the Answer (June 28, 2016, hereinafter
“Ans.”), rejecting claims 13 and 15–20, which are the only claims pending
in the application. Final Act. 2–6; Ans. 2–6. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

1 The Appeal Brief (Dec. 15, 2015, hereinafter “Appeal Br.”) identifies
WASHROOM-WIZARD LTD. as the real party in interest. Appeal Br. 1.
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Application 13/000,048

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THE CLAIMED SUBJECT MATTER
Claim 13, reproduced below, is illustrative of the claimed subject
matter.
13. An extraction system for removing unpleasant odor, and
comprising:
a centrifugal fan having an axis and being constructed and
arranged to provide an axial-in, tangential-out airflow,
a housing mounting the fan, the housing having front and
rear walls and walls interconnecting the front and rear walls, the
fan being mounted with the axis perpendicular to the rear wall,
the depth of the housing from the front to the rear wall being
substantially less than distances in all directions across the front
and rear walls, whereby the housing is shallow from front to rear,
the rear wall being constructed and arranged to be mounted to a
confronting surface selected from a building wall and an internal
surface of a water cistern,
an air inlet for the fan located in the front wall of the
housing for receiving odor-laden air in confronting relation to the
fan axis,
an absorbent filter unit located within said housing
downstream of the fan, and positioned to receive air exiting
tangentially from the fan for discharge to atmosphere via the
absorbent filter unit, the absorbent filter unit comprising an
absorbent carbon filter mass, and
a perfume source also located within said housing,
whereby air discharged to atmosphere is both substantially free
of said odor and scented,
the absorbent carbon filter mass being removable from the
housing independently of the perfume source for regeneration by
heating, and the perfume source being located within an
accessible chamber within the housing for removal and
replacement of the perfume source when spent.

REJECTIONS
I. Claims 13 and 15 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Iantorno (US 2008/0127403 A1, published June
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Application 13/000,048

3
5, 2008) and Ellinger (US 2007/0256219 A1, published Nov. 8,
2007).
II. Claims 16–18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Iantorno, Ellinger, and Poirier (US 5,394,569,
issued Mar. 7, 1995).
III. Claims 16, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Iantorno, Ellinger, and Romagna
(US 2002/0166162 A1, published Nov. 14, 2002).

DISCUSSION
Rejection I
The Examiner’s rejection of independent claim 13, as well as claim
15, which depends from claim 13, is predicated in pertinent part on the
Examiner’s determination that it would have been obvious to include in
Iantorno’s fan assembly a carbon filter unit and perfume source such as
those taught by Ellinger to enhance the air with filtering and create a
pleasant environment for the user as evidenced by Ellinger. Ans. 4.
Iantorno’s ventilating fan is adapted for use as a “bathroom-ventilating fan
exhausting through an external wall of a high rise building.” Iantorno ¶ 2
(emphasis added); see also id. ¶ 17 (disclosing back draft damper 6 at outlet
collar 7 for protecting the upstream environment (i.e., the interior room)
from the outside elements when the fan is not running). The Examiner’s
stated rationale for making the combination lacks rational underpinnings
because Iantorno’s fan exhausts the air out of the building, not back into the
enclosed space of a bathroom, like Ellinger (¶ 62, Figs. 1, 4), where the user
would smell the air. See Appeal Br. 7 (arguing same). Given Iantorno’s
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expressed concern for reducing flow losses downstream of the fan and
maximizing fan performance to be able to overcome winds and pressure
differences between outside and inside the building, a person having
ordinary skill in the art would not have been inclined to add an absorbent
charcoal filter, which would introduce a flow loss, downstream of the fan to
make the exhausted air, which will be quickly dispersed outside the building,
more pleasant-smelling. See Iantorno ¶ 5–7; Appeal Br. 6.
For the above reasons, we do not sustain the rejection of claims 13
and 15 under 35 U.S.C. § 103(a) as unpatentable over Iantorno and Ellinger.

Rejection II
The Examiner’s application of Poirier does not make up for the
aforementioned deficiency in the combination of Iantorno and Ellinger.
Poirier, like Iantorno, teaches evacuating the stale air from the toilet bowl to
a remote location outside the room, such as outside of the dwelling, in
contrast to prior venting systems, which filtered the air and returned it into
the room. Poirier 1:5–7, 5:40–45, Figs. 2, 3, 3a, 5. Accordingly, we do not
sustain the rejection of claims 16–18 under 35 U.S.C. § 103(a) as
unpatentable over Iantorno, Ellinger, and Poirier.

Rejection III
In rejecting claims 16, 19, and 20, the Examiner determines it would
have been obvious to locate Iantorno’s extraction system, as modified in
view of Ellinger to incorporate a charcoal filter and perfume source, on a
vertical wall surface to which a urinal is mounted, between the urinal outlet
and the water trap, because “this is a common location for extraction
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systems as evidenced by the teachings of Romagna.” Ans. 6 (citing
Romagna, Fig. 20).
In contesting the rejection of claim 16, Appellant begins by
incorporating the arguments asserted against the rejection of claim 13.
Appeal Br. 8–9. Thus, we address each of these in turn.
Appellant argues that the rear wall of Iantorno’s fan could not be
mounted to a wall because the fan is intended to vent through an exterior
wall of the building and would typically be mounted in a bathroom ceiling.
Appeal Br. 4–5. This argument is unavailing because it attacks Iantorno
individually, rather than in combination with Romagna. Nonobviousness
cannot be established by attacking the references individually when the
rejection is predicated upon a combination of prior art disclosures. See In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642
F.2d 413, 425 (CCPA 1981). Although Iantorno discloses using the
ventilation fan for venting air through an exterior wall of a high rise
building, Romagna teaches filtering and venting fan exhaust within the
bathroom. Romagna, Fig. 20, ¶ 36.
Appellant argues that Ellinger teaches providing the absorbent
charcoal filter upstream, not downstream, of the fan, and takes issue with the
Examiner’s rationale that the decision of whether to locate the filter
upstream or downstream of the fan is an engineering design choice or mere
rearrangement of parts producing expected results without altering the
function of the device and involving only routine skill in the art. Appeal Br.
5–6; see Ans. 4. However, Appellant does not provide any evidence or
persuasive technical reasoning to explain why the particular location of the
filter, either upstream or downstream of the fan, would materially alter the
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functioning of the system or involve more than routine skill in the art.
Moreover, Romagna makes clear that the fan and filter can be placed at any
of various locations in the system, and specifically depicts an arrangement in
which filter 60 is disposed downstream of fan 37. Romagna ¶ 36; Fig. 20.
Further, locating a filter downstream of the fan at a location adjacent channel
55 as taught by Romagna would render it easily accessible for replacement
at appropriate intervals of time. See id. Thus, a filter so located would not
be difficult or impossible to access once mounted, as Appellant contends
(Appeal Br. 7).
Appellant also contends that a person having ordinary skill in the art
would avoid placing a filter in Iantorno’s fan assembly because doing so
would result in a significant pressure drop/flow loss. Appeal Br. 6. This
argument fails to take into account the combination of Iantorno, Ellinger,
and Romagna set forth by the Examiner. Although any additional pressure
losses may be detrimental in a ventilation system as taught by Iantorno in
which the air is exhausted to the exterior of a high-rise building in view of
wind and pressure differential, Appellant does not explain why such flow
losses would be of significant concern in the urinal application taught by
Romagna.
Appellant also argues that one of ordinary skill in the art would not go
to the expense of providing a filter and perfume to treat air that is to be
exhausted to the exterior of a high rise building because no one could smell
such an exhaust. Appeal Br. 7. This argument is unavailing in the
combination of Iantorno’s fan with Romagna set forth by the Examiner, in
which the air is exhausted within the bathroom. See Romagna, Fig. 20.
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Additionally, Appellant submits that Iantorno’s fan is not suited for
the purpose taught by Romagna because Iantorno’s 100 CFM flow rate is
unsuitable for exhausting air in an area of the lavatory unit, and reducing the
air flow rate would destroy Iantorno’s invention. Appeal Br. 9. Appellant
provides no objective evidence to support the assertion that the air flow rate
of Iantorno’s fan would be unsuitable for the application taught by
Romagna. Accordingly, Appellant’s argument is entitled to little, if any,
weight. Moreover, as the Examiner points out (Ans. 10), Iantorno
contemplates a variety of speeds, including one or more lower speeds, and
Appellant provides no evidence or technical reasoning to show that
Iantorno’s fan is incapable of producing air flow that is acceptable for the
use taught by Romagna and proposed in the rejection.
For the above reasons, Appellant’s arguments fail to apprise us of
error in the rejection of claim 16 as unpatentable over Iantorno, Ellinger, and
Romagna.
With respect to claims 19 and 20, which depend from claim 16,
Appellant reiterates the argument that one of ordinary skill in the art would
not use Iantorno’s ventilation fan in the application taught by Romagna (in a
urinal) due to the high flow rates required by Iantorno. Appeal Br. 9. This
argument fails to apprise us of error in the rejection for the same reasons
discussed above in connection with claim 16.
Accordingly, we sustain the rejection of claims 16, 19, and 20 under
35 U.S.C. § 103(a) as unpatentable over Iantorno, Ellinger, and Romagna.
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Application 13/000,048

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DECISION
The Examiner’s decision rejecting claims 13 and 15 under
35 U.S.C. § 103(a) as unpatentable over Iantorno and Ellinger is
REVERSED.
The Examiner’s decision rejecting claims 16–18 under
35 U.S.C. § 103(a) as unpatentable over Iantorno, Ellinger, and Poirier is
REVERSED.
The Examiner’s decision rejecting claims 16, 19, and 20 rejected
under 35 U.S.C. § 103(a) as unpatentable over Iantorno, Ellinger, and
Romagna 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART