Ex parte Sells

Board of Patent Appeals and Interferences

Jul 22, 1998

08269916 (B.P.A.I. Jul. 22, 1998)

Application for patent filed June 30, 1994.1
We note the examiner’s statement on page 1 of the answer (Paper No. 7)2
of the conditions incident to the allowability of claim 3.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte GARY L. SELLS
_____________
Appeal No. 96-3745
Application 08/269,9161
______________
ON BRIEF
_______________
Before COHEN, MEISTER and CRAWFORD, Administrative Patent
Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1, 3
and 12. Claims 14, 15, and 26 through 29 stand allowed. 2
Appeal No. 96-3745
Application 08/269,916
2
Claims 2, 4 through 11, and 16 through 25, the only other
claims
remaining in the application, stand withdrawn from
consideration pursuant to 37 CFR 1.142(b).
Appellant’s invention pertains to a ventilating device
for a roof. An understanding of the invention can be derived
from a reading of exemplary claim 1, a copy of which appears
in “EXHIBIT A” appended to the main brief (Paper No. 6).
As evidence of obviousness, the examiner has applied the
documents listed below:
Garries et al. 4,899,647 Feb.
13, 1990
(Garries)
Sells 5,092,225 Mar. 03,
1992
The following rejections are before us for review.
Claims 1, 3, and 12 stand rejected under 35 U.S.C. § 112,
second paragraph, as being indefinite.
Appeal No. 96-3745
Application 08/269,916
The final rejection of claim 3 on this same ground was withdrawn by the3
examiner in the answer (pages 6 and 7).
In our evaluation of the applied patents, we have considered all of the4
disclosure thereof for what it would have fairly taught one of ordinary skill
in the art. See In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966).
Additionally, this panel of the board has taken into account not only the
specific teachings, but also the inferences which one skilled in the art would
reasonably have been expected to draw from the disclosure. See In re Preda
401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
3
Claims 1 and 12 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Sells in view of Garries.3
The text of the examiner's rejections and response to the
argument presented by appellant appears in the final rejection
and answer (Paper Nos. 4 and 7), while the statement of
appellant’s argument can be found in the main and reply briefs
(Paper Nos. 6 and 9).

OPINION
In reaching our conclusion on the issues raised on
appeal, this panel of the board has carefully considered
appellant’s specification and claims, the applied patents,4
and the respective viewpoints of appellant and the examiner.
Appeal No. 96-3745
Application 08/269,916
4
As a consequence of our review, we make the determinations
which follow.
The indefiniteness issue
We reverse the examiner’s rejection of claims 1, 3, and
12 under 35 U.S.C. § 112, second paragraph.
We certainly understand the examiner’s point of view as
regards the presence of informalities in the claims. However,
we
do not view the specified informalities as being of such
character as to prevent the claimed subject matter from being
understood, when read in light of the underlying disclosure.
More specifically, while “said ridge board” (claim 1, lines 3
and 9) is inconsistent with the earlier recited “ridge member”
(claim 1, line 1), it is apparent that these recitations
address the same disclosed element. Further, read in light of
the underlying disclosure, it is apparent that the content of
claim 12 further defines the earlier recited “vent parts” of
the cover (claim 1, line 5). While inconsistent, it is also
Appeal No. 96-3745
Application 08/269,916
It is expected that the noted informalities will be rectified during5
any further prosecution before the examiner.
5
apparent that “said cover plate” (claim 12, lines 5 and 6) and
the earlier recited “a cap plate” (claim 12, line 3) address
the same component. As to the asserted confusion between “a
cap plate” (claim 12, line 3) and the “cover” of claim 1, we
understand the specified cap plate as a component of the
cover. In light of the above, we determine that the metes and
bounds of appellant’s invention are determinable,
notwithstanding claim informalities therein.5
The obviousness issue
We affirm the rejection of claims 1 and 12 under 35
U.S.C. § 103.
Claim 1 is drawn to a ventilating device for a roof
having a longitudinally extending ridge member supported by
transversely spaced inclined rafters, with a vent opening in
the roof extending longitudinally along the ridge member, the
Appeal No. 96-3745
Application 08/269,916
Appellant has made it clear (specification, pages 1 and 4) that a roof6
ventilating device including a pair of vent parts was known in the art when
6
ventilating device including a cover for the vent opening, the
cover including a pair of longitudinally extending vent parts
defining a plurality of vent passages. The device further
includes an elongated, longitudinally extending moveable
member movable between an inactive position permitting
communication through the passages and an active position
closing the passages in response to wind in excess of
predetermined ambient wind speed.
Dependent claim 12 sets forth, inter alia, that the cover
includes a sheet of perforated material, with longitudinally
extending perforated side walls cooperating with a roof and a
cover plate to define compartments within one of which the
movable member is movable to engage one of the side walls.
The patent to Sells (Figures 1 and 3) is representative
of the knowledge in the art, at the time of appellant’s
invention, of ridge vents for a roof. More specifically,6
Appeal No. 96-3745
Application 08/269,916
the application was filed; U.S. Patent No. 3,949,657).
7
Sells teaches baffles 22 (perforated with air flow holes 24)
interposed between a cover plate 20 and a roof, and defining
compartments therewith as depicted.
The Garries patent discloses a ventilator system for a
building attic. While the patentee in the preferred form of
the invention provides a ventilator system at one or both ends
of a roof gable, it is expressly indicated (column 4, lines 58
through 60) that
the same principles are equally applicable
to cupolas and ridge vent type ventilator
systems used to vent the ridgeline of a
roof.
In particular, Garries teaches (column 2, lines 20 through 31,
and column 7, lines 20 through 35) those having ordinary skill
in the ventilator art to include a flapper valve 55 in an air
passage to prevent water blow-through under higher than normal
wind conditions or when the ventilator is subjected to high
wind gusts.
Appeal No. 96-3745
Application 08/269,916
The test for obviousness is what the combined teachings of references7
would have suggested to one of ordinary skill in the art. See In re Young,
927 F.2d 588, 591, 18 USPQ2d 1089, 1091 (Fed. Cir. 1991) and In re Keller, 642
F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981).
8
Applying the test for obviousness, we conclude that it7
would have been obvious to one having ordinary skill in the
art, from a combined assessment of the applied prior art, to
provide a known ridge vent with flapper valves. It is clear
to this panel of the board that the incentive on the part of
one having ordinary skill in the art for making this
modification would have simply been to gain the expected
benefit of same, i.e., the well known benefit of preventing
the entry of water under higher than normal wind conditions.
For these reasons, we determine that claims 1 and 12 are
unpatentable under 35 U.S.C. § 103.
The argument presented by appellant does not persuade us
that the content of claims 1 and 12 is patentable. The
circum-stance that the Garries patent (main brief, pages 5 and
6) is viewed as being addressed to a different type of vent
device makes it quite apparent to us that appellant failed to
recognize
Appeal No. 96-3745
Application 08/269,916
9
the express disclosure by Garries of the applicability of the
invention to ridge vent type ventilators, that disclosure
being noted earlier in this opinion. It follows that,
contrary to appellant’s position (main brief, page 7, and
reply brief, page 2), the applied patents would have clearly
been suggestive of their combination, without hindsight
reliance upon appellant’s disclosure. Again contrary to the
view of appellant (main brief, page 7), the modified roof
ridge vent of Sells would include an elongated longitudinally
extending movable member that extends along a vent part
substantially parallel to a ridge board (member). As to the
remarks of appellant regarding claim 12 (main brief, pages 7
and 8), it is clear to us that the inclusion of the flapper
valves of Garries within compartments defined between an
exterior panel and interior baffle would have been suggestive
to one of ordinary skill in the art of the positioning of
flapper valves in the compartments present in the Sells
configuration. The examiner has appropriately pointed out to
appellant (answer, page 5) that the test for obviousness is
not based upon a determination of whether features of one
reference can be bodily incorporated into another to yield a
Appeal No. 96-3745
Application 08/269,916
As seen in Figure 3, for example, the member does not seat against the8
ends of the passages, to close the passages, in the closed or active position
(specification, page 2).
10
claimed
invention. Appellant also seeks to distinguish the present
invention from the “progressive closing” of the flapper valve
of Garries (main brief, pages 8 and 9). As explained, infra,
claim 1 is not distinguished as argued. As indicated by
Garries (column 7, lines 49 through 68), above the wind speed
of 30 m.p.h. the flapper valves move upward to progressively
close off air passages. Claim 1 calls for movement of the
member between inactive and active positions in response to
wind in excess of a predetermined ambient wind speed, but does
not preclude a progressive closing. The understanding we
derive from appellant’s specification and, for example,
original claim 2, is that the movable member is not an
exclusively two-position (passages open or passages closed )8
member that is responsive to a single critical activation
pressure to instantaneously switch the member from its open
Appeal No. 96-3745
Application 08/269,916
11
(inactive) position to its closed (active) position, but is a
member urged toward its active position under the pressure of
the wind.
In summary, this panel of the board has:
reversed the rejection of claims 1, 3, and 12 under 35
U.S.C. § 112, second paragraph, as being indefinite; and
affirmed the rejection of claims 1 and 12 under 35 U.S.C.
§ 103 as being unpatentable over Sells in view of Garries.
The decision of the examiner is affirmed-in-part.
AFFIRMED-IN-PART
)
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JAMES M. MEISTER )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
Appeal No. 96-3745
Application 08/269,916
12
)
MURRIEL E. CRAWFORD )
Administrative Patent Judge )
Appeal No. 96-3745
Application 08/269,916
13
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