Ex Parte Wilmoth

Board of Patent Appeals and Interferences

Aug 13, 2008

10751359 (B.P.A.I. Aug. 13, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte RICHARD C. WILMOTH
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Appeal 2008-1426
Application 10/751,359
Technology Center 3700
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Decided: August 13, 2008
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Before MURRIEL E. CRAWFORD, JENNIFER D. BAHR, and ANTON
W. FETTING, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Richard C. Wilmoth (Appellant) appeals under 35 U.S.C. § 134 from
the Examiner’s decision rejecting claims 1-3, 5-7, 10, 11, and 14-16. Claims
4, 8, 9, 12, 13, and 17, the only other pending claims, have been objected to
as depending from rejected base claims but have been indicated as allowable
Appeal 2008-1426
Application 10/751,359

if re-written in independent form. We have jurisdiction over this appeal
under 35 U.S.C. § 6 (2002).
The Invention
Appellant’s claimed invention is directed to compartment pressure
relief valves that operate irrespective of gravity (Specification 2, ¶ [0001]).
Such valves are used in vehicles to allow air pressure, built up in the vehicle
compartment from running of an air conditioner or shutting of a door, to
escape the compartment to ensure a comfortable environment (Specification
2, ¶ [0002]). Claim 1, the only independent claim involved in this appeal,
reads as follows:1
1. An orientation independent compartment air
pressure relief valve comprising:
a. a housing, said housing comprising a
throughflow channel for allowing fluid
communication from an intake of said channel to
an exhaust of said channel; and
b. a sealing flap secured to said housing such that
said sealing flap closes said exhaust of said
channel and is adapted to flexibly open in response
to pressure, said sealing flap comprising a
relatively pliable layer oriented toward said intake
and a relatively rigid layer oriented toward said
exhaust, whereby said relatively rigid layer
operates to close said sealing flap irrespective of
said pressure relief valve's orientation with respect
to gravity.

1 Appellant attempted to amend claims 1, 3, 7, 9-11, 13, and 16 subsequent
to the Final Rejection in an Amendment filed March 16, 2006, but that
amendment was denied entry by the Examiner (Advisory Action mailed
April 20, 2006).
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Application 10/751,359

The Rejections
The following rejections are before us for review.
Claims 1-3, 5-7, 11, 14, and 15 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Gies (US 5,355,910, issued Oct. 18, 1994) in
view of Klomhaus (US 5,194,038, issued Mar. 16, 1993).
Claim 16 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Gies in view of Klomhaus and Barton (US 6,210,266 B1, issued Apr. 3,
2001).
Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Gies in view of Klomhaus and Oppermann (US 6,609,535 B2, issued
Aug. 26, 2003).
OPINION
At issue in this appeal is whether the combined teachings of Gies and
Klomhaus establish that a valve as recited in claim 1 “whereby said
relatively rigid layer operates to close said sealing flap irrespective of said
pressure relief valve’s orientation with respect to gravity” would have been
obvious at the time of Appellant’s invention. See Appeal Br. 14-16.2
Gies teaches a vehicle compartment relief valve including a valve flap
22 and a main frame assembly 12. The main frame assembly 12 comprises a
peripheral flat frame 14, a flange section 16, and an inwardly extending lip
20 about the end of flange 16 providing a valve seat for valve flap 22. (Col.
3, ll. 13-21.) The frame assembly 12 is mounted such that the frame 14 is
essentially vertically oriented and the valve flap 22 is inclined from the
vertical “so that under the influence of gravity, it assumes the normally
closed position shown solid” (col. 3, ll. 30-35; fig. 2). The valve flap 22 of

2 We refer in this opinion to the Appeal Brief filed April 23, 2007.
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Application 10/751,359

Gies comprises a first sheet of relatively flexible elastomeric material 24 and
a second strip 40 of rigid plastics material (col. 3, ll. 41-43 and col. 4, ll. 1-
3). Sheet 40 adds rigidity to the lower section of valve flap 22 and prevents
warping and flexing of the valve flap (col. 4, ll. 18-20).
Gies expressly teaches a valve that is closed “under the influence of
gravity” and thus, as conceded by the Examiner (Answer 33), does not teach
a valve in which “said relatively rigid layer operates to close said sealing
flap irrespective of said pressure relief valve’s orientation with respect to
gravity,” as called for in claim 1.
Klomhaus discloses a one-way passenger compartment relief valve
having a flap 44 having a plastic connecting portion or living hinge
integrally molded with the valve frame. Klomhaus teaches molding the flap
in a position projecting through the air passageway of the valve frame, as
shown in Figures 1-3, and then swinging the flap from the initial molded
position to the operative position shown in Figure 5. In this operative
position it overlies the outside face 20 of the frame and covers the air
passageway. The flap portion 44 is elastically loaded by the swinging from
the initial molded position to the operative position to bias or urge the flap to
the closed position with the flap covering the air passageway. (Klomhaus,
col. 1, ll. 35-53 and col. 2, ll. 41-63.) Klomhaus teaches that the living hinge
of flap portion 44 will yield to an increase in air pressure in the passenger
compartment to open the flap to vent air but otherwise biases the flap against
the outer surface of the frame to the closed position (col. 2, l. 63 to col. 3, l.
2). According to Klomhaus, “[i]n this respect it is assisted by the gravity of

3 We refer in this opinion to the Examiner’s Answer, mailed August 13,
2007.
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the flap lying against the downwardly and outwardly sloping partition 16 of
the frame” (col. 3, ll. 2-4; fig. 5). The elasticity of the flap will cause it to
spring back to its normal shape (i.e., covering the air passageway) after
being deformed.
We agree with Appellant that Klomhaus also does not teach a valve
having structure that “operates to close said sealing flap irrespective of said
pressure relief valve’s orientation with respect to gravity,” as called for in
claim 1. All Klomhaus teaches is a flap integrally connected via a live hinge
to the frame and elastically loaded to bias the flap to the closed position such
that, when the valve is oriented such that the valve seat (partition 16) is in a
downwardly and outwardly sloping orientation relative to the hinge, as
depicted in Figure 5, the elastic loading assisted by gravity will cause the
flap to spring back to its closed position. Klomhaus does not specifically
address whether the spring bias caused by the elastic loading is sufficiently
strong to operate to close the flap when the valve is oriented differently than
as depicted in Figure 5, such as an orientation rotated 90 degrees clockwise
from that depicted in Figure 5, wherein gravity would contribute a force in
the opening direction, rather than in the closing direction.
In rejecting claims under 35 U.S.C. § 103(a), the examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). See also In re Piasecki, 745
F.2d 1468, 1472 (Fed. Cir. 1984). It is incumbent upon the examiner to
establish a factual basis to support the legal conclusion of obviousness. See
In re Fine, 837 F.2d, 1071, 1073 (Fed. Cir. 1988). In so doing, the examiner
is expected to make the factual determinations set forth in Graham v. John
Deere Co., 383 U.S. 1, 17 (1966), viz., (1) the scope and content of the prior
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art; (2) the differences between the prior art and the claims at issue; and (3)
the level of ordinary skill in the art. In addition to these factual
determinations, the examiner must also provide “some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with
approval in KSR Int’l. Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007)).
Only if this initial burden is met does the burden of coming forward with
evidence or argument shift to the appellant. See Oetiker, 977 F.2d at 1445.
See also Piasecki, 745 F.2d at 1472. Obviousness is then determined on the
basis of the evidence as a whole and the relative persuasiveness of the
arguments. See Oetiker, 977 F.2d at 1445; Piasecki, 745 F.2d at 1472.
Both Gies and Klomhaus teach valves specifically oriented so that
gravity will assist in returning the flap to its closed position. Neither Gies
nor Klomhaus teaches a valve constructed so that a relatively rigid layer of
the valve flap operates to close said sealing flap irrespective of said pressure
relief valve’s orientation with respect to gravity and neither reference
expresses any concern about closure of the valve irrespective of the valve’s
orientation. Consequently, it would be speculative at best to conclude that
combining the two-layer flap arrangement of Gies with the spring-biased
live hinge arrangement of Klomhaus would yield a valve having a flap the
relatively rigid layer of which operates to close said sealing flap irrespective
of said pressure relief valve’s orientation with respect to gravity. Rejections
based on 35 U.S.C. § 103 must rest on a factual basis. In making such a
rejection, the examiner has the initial duty of supplying the requisite factual
basis and may not, because of doubts that the invention is patentable, resort
to speculation, unfounded assumptions or hindsight reconstruction to supply
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deficiencies in the factual basis. In re Warner, 379 F.2d 1011, 1017 (CCPA
1967). The only teaching to construct a compartment pressure relief valve
having a flap constructed to close irrespective of the valve’s orientation with
respect to gravity comes from Appellant’s disclosure and not from the
applied prior art. We thus conclude, as does Appellant, that the Examiner’s
rejection of independent claim 1, and claims 2, 3, 5-7, 11, 14, and 15
depending from claim 1, as unpatentable over Gies and Klomhaus is
grounded in part on impermissible hindsight and cannot be sustained.
Barton, like Gies and Klomhaus, also teaches a valve flap assembly
designed for use in an orientation wherein the valve flaps slope downwardly
from the hinged edges of the flaps in the closed position with the flaps
resting on the valve seats (col. 5, ll. 13-16)4, such that the flaps will be
closed under the influence of or with the assistance of gravity, and thus does
not remedy the deficiency of the combination of Gies and Klomhaus. The
Examiner relies on Barton for its teaching of heat staking and not for any
teaching that would overcome the deficiency in the Gies and Klomhaus
combination. Thus, for the reasons discussed above, the rejection of claim
16, which depends indirectly from claim 1, as unpatentable over Gies in
view of Klomhaus and Barton also cannot be sustained.

4 Barton points out that the disclosed embodiment is intended for installation
in a generally vertical panel (col. 5, ll. 13-15). While Barton teaches that it
is also possible to design a valve according to the Barton invention for
installation in a panel oriented horizontally or at any angle (col. 5, ll. 17-19),
we find this teaching conveys that any such valves according to Barton’s
invention will be designed so that when installed in the orientation for which
they are intended the valve flaps will slope downwardly from the hinged
edges of the flaps in the closed position with the flaps resting on the valve
seats.
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The Examiner does not rely on Oppermann for any teaching that
would overcome the deficiency of the combination of Gies and Klomhaus
discussed above. Therefore, the rejection of claim 10, which depends from
claim 1, as unpatentable over Gies in view of Klomhaus and Oppermann
also cannot be sustained.
DECISION
The decision of the Examiner to reject claims 1-3, 5-7, 10, 11, and 14-
16 is reversed.

REVERSED

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Application 10/751,359

LV:

LANIER FORD SHAVER & PAYNE P.C.
P O BOX 2087
HUNTSVILLE, AL 35804-2087

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