NUVINAIR, LLC

Patent Trials and Appeals Board

Apr 1, 2022

2021000382 (P.T.A.B. Apr. 1, 2022)

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. 15/895,510 02/13/2018 Kyle Bailey ANUVI.0101DIV1-C1 5306 22858 7590 04/01/2022 CARSTENS & CAHOON, LLP P.O. Box 802334 DALLAS, TX 75380-2334 EXAMINER CHORBAJI, MONZER R ART UNIT PAPER NUMBER 1798 NOTIFICATION DATE DELIVERY MODE 04/01/2022 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): eofficeaction@appcoll.com patents@CCLAW.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KYLE BAILEY and RYAN WOOD Appeal 2021-000382 Application 15/895,510 Technology Center 1700 Before ADRIENE LEPIANE. HANLON, N. WHITNEY. WILSON, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s January 7, 2020 decision to finally reject claims 1-23 (“Final Act.”). We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as NuVinAir, LLC (Appeal Br. 3). Appeal 2021-000382 Application 15/895,510 2 CLAIMED SUBJECT MATTER Appellant’s disclosure is directed to a system and method for cleaning surfaces of an interior cabin space (Abstract). Claim 1, reproduced below from the Claims Appendix, is illustrative of the claimed subject matter: 1. A method for cleaning surfaces within an environment of a microbial or viral contamination, the method comprising: placing an apparatus in the environment that has surfaces having a microbial or viral contamination, the apparatus comprising: a container having therein water with a solid or a gel pa[c]k that upon contact with water releases a gaseous cleaning agent upward and out of the container; closing off the environment having the surfaces with the microbial or viral contamination; agitating the water within the container of the apparatus with an impeller configured to cause the water to form a vortex, the agitating causing the solid or gel pack to release a gaseous cleaning agent into the water, the vortex generating an air-borne spray comprising water and the gaseous cleaning agent from the container, the air-borne spray spreading into the closed environment to coat the contaminated surfaces therein; allowing the gaseous cleaning agent of the air-borne spray to dwell on the contaminated surfaces for an effective time to reduce the microbial or viral contamination on the surfaces; and allowing access to the closed environment after elapse of a period of time sufficient for a concentration of the gaseous cleaning agent in the environment has reduced to a safe limit. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Takeuchi et al. US 2013/0028787 A1 January 31, 2013 Burt et al. US 2013/0079733 A1 March 28, 2013 Appeal 2021-000382 Application 15/895,510 3 REJECTION Claims 1-23 are rejected under 35 U.S.C. § 103 as unpatentable over Burt in view of Takeuchi. OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“Filing a Board appeal does not, unto itself, entitle an appellant to de novo review of all aspects of a rejection. If an appellant fails to present arguments on a particular issue - or, more broadly, on a particular rejection - the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection.”), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”)). Appellant argues the claims together (Appeal Br. 19). Accordingly, we focus our analysis on the rejection of claim 1 over Burt in view of Takeuchi. The remaining claims will stand or fall with claim 1. The Examiner’s findings are set forth at pages 3-5 of the Final Action. The Examiner finds that Burt discloses a method for cleaning microbially- or virally-contaminated surfaces within an environment (Final Act. 3). The Examiner finds that Burt discloses an apparatus having “a container having therein water with a solid or a gel pak [sic] (Fig. 20M) that upon contact with water [0010, 0038, 0040] releases a gaseous cleaning agent” (Final Act. 3). The Examiner further finds that Burt discloses vibrating plates which “are deemed to agitate the aqueous solution within Appeal 2021-000382 Application 15/895,510 4 atomizing chamber 45 in Fig. 18A[] of the apparatus causing the solid or gel pack to release a gaseous cleaning agent into the water” (Final Act. 3). The Examiner further finds that Burt does not disclose the steps of “allowing access to the closed environment after elapse of a period of time sufficient for a concentration of the gaseous cleaning agent in the environment [to be] reduced to a safe limit” or “agitating the water within the container of the apparatus with an impeller configured to cause the water to form a vortex, the agitating causing the solid or gel pack to release a gaseous cleaning agent into the water” (Final Act. 4). The Examiner finds that the step of allowing access to the closed environment after the concentration of the disinfectant is within safe limits would have been obvious to prevent injury to nearby people (Final Act. 4-5). The Examiner finds that Takeuchi discloses an ozone sterilization method where a vortex pump having an impeller is used in order to provide a high sterilizing effect with less ozone (Final Act. 5). Therefore, according to the Examiner, it would have been obvious to add Takeuchi’s vortex pump or impeller to Burt’s method in order to provide a high sterilizing effect that is obtained with less ozone (id.). Appellant argues that the following features would not have been obvious in view of the cited art: • agitating the water within the container of the apparatus with an impeller configured to cause the water to form a vortex • the agitating causing the solid or gel pack to release a gaseous cleaning agent into the water • the vortex generating an air-borne spray comprising water and the gaseous cleaning agent from the container • the air-borne spray spreading into the closed environment to coat the contaminated surfaces therein Appeal 2021-000382 Application 15/895,510 5 (Appeal Br. 9). Appellant further contends that in the claimed method, the impeller forms a vortex, causes the solid or gel pack to release a gaseous cleaning agent into the water, and the vortex generates an air-borne spray comprising water and the gaseous cleaning agent which exits the container and spreads into the closed environment (Appeal Br. 16). Appellant argues that the combination of Burt and Takeuchi does not teach this feature (id.). Appellant’s argument is persuasive of reversible error. As explained by Appellant (Appeal Br. 14), Takeushi’s impeller is used to dissolve and/or disperse ozone gas in water (Takeushi ¶¶ 82, 197), not to cause a solid or gel pack to release a gaseous cleaning agent. In the case of Takeushi, the gaseous cleaning agent is ozone, which is generated prior to any contact with Takeushi’s impeller (Takeushi Figs. 1, 4, ¶¶ 79-82, 197). Moreover, Takeushi does not describe the creation of a vortex when its impeller is in use,2 much less a vortex which generates an air-borne spray comprising water and expelling gaseous cleaning agent from the container. The Examiner finds that both “both the stirrer and the vortex pump [of Takeushi] are causing mixing of the liquid like the vibrating member in the Burt reference” and, therefore, a person of skill in the art would “readily recognize operating Takeuchi[‘s] impeller in a manner that satisfies the 2 Takeushi describes the use of a “vortex pump” (e.g. Takeushi ¶ 197). However, Appellant argues - and the Examiner does not contest - that the word “vortex pump” was erroneously translated from Japanese and would normally be called a “centrifugal pump,” which has internal turbine vanes which rotate and create a suction side (lower pressure) and an output side (higher pressure) (Appeal Br. 14). The Examiner does not dispute this interpretation, and finds that it is impeller 17 from Takeushi Fig. 1 (as opposed to vortex pump 48 from Fig. 4) which corresponds to the claimed “impeller configured to cause the water to form a vortex.” Appeal 2021-000382 Application 15/895,510 6 objective of Burt” so as to ensure that “the generation of an aerosolized mist is improved with the addition of the impeller” (Ans. 9). These findings are not supportive of the obviousness rejection because as discussed below, Burt’s vibrating member does not mix the liquid, but only serves to aerosolize it. Moreover, to the extent that the rejection relies on a finding that Takeuchi teaches that creation of a vortex might provide a higher sterilizing effect (Ans. 9), Takeuchi explicitly discloses that its improved sterilization is the result of the other components of its solution, and not greater agitation of the ozone solution (Takeuchi ¶¶ 13-19). Thus, the preponderance of the evidence of record does not support a finding that either Burt or Takeuchi, alone or in combination, suggests creating a vortex which generates an air-borne spray comprising water and expelling gaseous cleaning agent from the container. Thus, we must reverse the rejection. Moreover, the Examiner has not made any findings that Burt (or Takeushi) teaches the step “the agitation causing the solid or gel pack to release a gaseous cleaning agent into the water.” The Examiner finds that Burt’s vibrating plates 22 from Fig. 18A “are deemed to agitate the aqueous solution within atomizing chamber 47 in Fig. 18A[]of the apparatus causing the solid or gel pack to release a gaseous cleaning agent into the water” (Final Act. 3). However, Burt makes clear that the treatment composition (TC) which is brought into contact with Burt’s vibrating plates already contains the gaseous cleaning agent and is not altered or changed after being placed into contact with the vibrating plates (see, Burt, ¶ 131). Similarly, in Takeushi, the ozone is generated in a separate ozone generator (Takeushi, ¶ 197), not because of agitation of a solid or gel pack by the impeller. Appeal 2021-000382 Application 15/895,510 7 Thus, the evidence of record does not support a finding that the art teaches or suggests a step in which “the agitating [by the impeller] caus[es] the solid or gel pack to release a gaseous cleaning agent into the water.” In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988). The Examiner has the initial burden of establishing a prima facie case of obviousness based on an inherent or explicit disclosure of the claimed subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability.”). To establish a prima facie case of obviousness, the Examiner must show that each and every limitation of the claim is described or suggested by the prior art or would have been obvious based on the knowledge of those of ordinary skill in the art. Fine, 837 F.2d at 1074 (Fed. Cir. 1988). In this case, as set forth above, the Examiner has not shown that each of the claimed steps is taught or suggested by the prior art or would have been obvious to one of ordinary skill in the art. Accordingly, we reverse the rejection. CONCLUSION The Examiner’s rejection is reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-23 103 Burt, Takeuchi 1-23 Appeal 2021-000382 Application 15/895,510 8 REVERSED