Gary Follett

Patent Trials and Appeals Board

Aug 23, 2019

15039937 - (D) (P.T.A.B. Aug. 23, 2019)

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.
15/039,937 05/27/2016 Gary Follett 74608US02 (U300259US2) 9199
87059 7590 08/23/2019
Cantor Colburn LLP - Carrier
20 Church Street, 22nd Floor
Hartford, CT 06103
EXAMINER
MALKOWSKI, KENNETH J
ART UNIT PAPER NUMBER
2884
NOTIFICATION DATE DELIVERY MODE
08/23/2019 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):
usptopatentmail@cantorcolburn.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GARY FOLLETT
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Appeal 2018-007682
Application 15/039,937
Technology Center 2800
____________

Before JAMES C. HOUSEL, MICHAEL G. McMANUS, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

HOUSEL, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1–4, 6–11, 13, and 14.2 We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.3

1 Appellant is the Applicant, Detector Electronics Corporation, which is
identified in the Appeal Brief as the real party in interest. Appellant’s
Appeal Brief (“Br.”) filed January 22, 2018, p. 2.
2 The Examiner has withdrawn the rejections of claims 15–18. Examiner’s
Answer (“Ans.”) dated April 25, 2018, p. 3. These claims, therefore, are not
before us on appeal.
3 Our Decision additionally refers to the Specification (“Spec.”) filed May
27, 2016 and the Examiner’s Final Office Action (“Final Act.”) dated July
20, 2017.
Appeal 2018-007682
Application 15/039,937

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STATEMENT OF THE CASE
The invention relates to a flame detector including an ultraviolet
(“UV”) sensor to detect UV radiation emitted by a flame and a testing
apparatus to periodically test the flame detector, wherein the testing
apparatus includes a UV light emitting diode (“UVLED”) emitter to emit a
test signal and a mirror to reflect the test signal to the UV sensor. Spec. ¶ 5.
The flame detector is tested by transmitting a test signal from the emitter
which is reflected by the mirror to the UV sensor and evaluating the
reflected test signal received at the UV sensor. Id. ¶ 6. In one embodiment,
the emitter emits a test signal at a wavelength between 220–240 nM. Id. ¶ 7.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter claimed.
1. A flame detector comprising:
an ultraviolet (UV) sensor to detect UV radiation emitted by a
flame; and
a testing apparatus to periodically test function of the flame
detector, including:
a UV light emitting diode (UVLED) emitter to emit a test
signal; and
a mirror to reflect the test signal emitted from the UVLED
emitter to the UV sensor;
wherein the UVLED emitter transmits the test signal at a
wavelength between 220 nM and 240 nM.

REJECTIONS
The Examiner maintains, and Appellant requests review of, the
following grounds of rejection under 35 U.S.C. § 103:
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Application 15/039,937

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1. Claims 1–4, 7–11, and 14 as unpatentable over Laluvein4 in
view of Huseynov5 and Oda;6 and
2. Claims 6 and 13 as unpatentable over Laluvein in view of
Huseynov and Oda, and further in view of Kiarostami.7

ANALYSIS
Appellant argues claims 1 and 8 together, but do not otherwise
separately argue the remaining claims or rejections on appeal. Therefore,
claims 2–4, 6–11, 13, and 14 stand or fall with claim 1, which we select as
representative in our opinion below. 37 C.F.R. § 41.37(c)(1)(iv).
After review of the Examiner’s and Appellant’s opposing positions,
the applied prior art, and Appellant’s claims, we determine that the
Appellant’s arguments are insufficient to identify reversible error in the
Examiner’s obviousness rejections. In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011). Accordingly, we affirm the stated obviousness rejections for
substantially the fact findings, conclusions of law, and rebuttals to
arguments well expressed by the Examiner in the Final Office Action and
the Answer. We offer the following for emphasis only.
The Examiner finds that Laluvein discloses a flame detector
substantially as recited in claim 1 except for a teaching that the sensor is a
UV sensor and the emitter is a UVLED. Final Act. 2–3. However, the

4 Laluvein et al., US 2009/0127464 A1, published May 21, 2009
(“Laluvein”).
5 Huseynov et al., US 7,202,794 B2, published April 10, 2007
(“Huseynov”).
6 Oda et al., JP2005-195257 A, published July 21, 2005 (“Oda”).
7 Kiarostami, US 2005/0140514 A1, published June 30, 2005
(“Kiarostami”).
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Application 15/039,937

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Examiner finds that Laluvein discloses that the sensor and emitter can
operate on any common wavelength. Id. at 3. Also, the Examiner finds that
UV sensors were known in the art and cites to Huseynov for teaching a
flame detector that detects electromagnetic radiation from a flame, wherein
the sensor may detect radiation in the UV range of about 200–260 nm. Id.
The Examiner finds that Huseynov teaches that this range is a region where
flames have strong radiation, but where construction of a practical field
instrument to detect this radiation is possible because the atmosphere filters
solar UV radiation sufficiently. Id. Therefore, the Examiner concludes that
it would have been obvious to modify Laluvein’s sensor and emitter to
detect and emit, respectively, UV radiation in the range of about 200–260
nm in view of Huseynov’s teachings.
The Examiner further finds that LED light sources were well known
in the art, and cites to Oda for teaching a flame detector comprising a UV
sensor and emitter, wherein the emitter is a UVLED. Final Act. 3. The
Examiner finds that LED’s are known to have various benefits including low
power consumption, high longevity, compactness, and low heat dissipation.
Id. Therefore, the Examiner concludes that it would have been obvious to
modify Laluvein’s emitter as a UVLED to obtain these known benefits. Id.
Appellant argues that Huseynov fails to teach an emitter or test
apparatus for the periodic testing of flame detection systems. Br. 5.
Appellant asserts that Huseynov fails to address the problems related to
typical UV flame detection and testing systems which Appellant’s invention
solved. Id. at 5–6. Appellant, therefore, contends that an ordinary artisan
would not look to Huseynov when solving problems of flame detector
testing. Id. at 6.
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This argument is not persuasive of reversible error in the Examiner’s
obviousness rejection of claim 1. As the Examiner states, Huseynov was not
relied on to teach an emitter or the test apparatus for periodic testing of the
flame detector. Ans. 4. Such argument fails to address the rejection which
relied on Huseynov for its teaching that UV flame detectors were known in
the art. Thus, pointing out that each reference does not disclose an element
of the claim is not helpful in identifying reversible error by the Examiner
when the Examiner is not relying on the reference for teaching that claim
element. One cannot show nonobviousness by attacking references
individually when the rejection is based on a combination of references. In
re Keller, 642 F.2d 413, 425 (CCPA 1981).
Indeed, as the Examiner finds, Laluvein’s disclosure of the flame
detector contemplates wavelengths of electromagnetic radiation other than
infrared, and Huseynov teaches that flame detectors may comprise sensors
for detecting electromagnetic radiation in visible, infrared, or UV
wavelengths. Therefore, the Examiner has provided sufficient rational
underpinning within the prior art for the conclusion that it would have been
obvious to modify Laluvein’s flame detector to include a UV sensor and
emitter. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.”), quoted with
approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Moreover, as the Examiner finds, Huseynov is directed to analogous
prior art, being from the same field of endeavor—flame detectors—as
Appellant’s claimed invention as well as Laluvein. A reference is analogous
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art if it is either in the field of the applicant’s endeavor, or is reasonably
pertinent to the particular problem with which the inventor was concerned.
Kahn, 441 F.3d at 987. Although Appellant asserts that Huseynov fails to
address the problems related to typical UV flame detection and testing
systems which Appellant’s invention solved, we note that, in determining
whether a claim would have been obvious, “neither the particular motivation
nor the avowed purpose of the [applicant] controls.” KSR, 550 U.S. at 419.
Appellant next argues that Oda fails to disclose transmission of a test
signal at a wavelength between 220–240 nm. Br. 6. This argument is not
persuasive of reversible error because it also fails to address the rejection
which relied on Huseynov for its teaching that UV flame detectors were
known in the art using a wavelength between 200–260 nm and Oda for its
teaching that UVLED’s were known in the art for use in flame detectors.8
Again, pointing out that each reference does not disclose an element of the
claim is not helpful in identifying reversible error by the Examiner when the
Examiner is not relying on the reference for teaching that claim element.
Keller, 642 F.2d at 425.

8 Appellant does not challenge the Examiner’s finding that Huseynov
teaches use of UV between 200–260 nm, nor the obviousness of the claimed
UV wavelength range. Nonetheless, we note that our reviewing court has
consistently held that obviousness typically exists when a claimed range
overlaps or is entirely within the range disclosed in the prior art, absent
evidence of unexpected results. See E.I. DuPont de Nemours & Co. v.
Synvina C.V., 904 F.3d 996 (Fed. Cir. 2018) (“[A] prima facie case of
obviousness typically exists when the ranges of a claimed composition
overlap the ranges disclosed in the prior art.” (quoting In re Peterson, 315
F.3d 1325, 1329 (Fed. Cir. 2003))).
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DECISION
Upon consideration of the record, and for the reasons given above and
in the Final Office Action and the Examiner’s Answer, the decision of the
Examiner rejecting claims 1–4, 6–11, 13, and 14 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)(1)(iv).

AFFIRMED