PAULSON MANUFACTURING CORPORATION

Patent Trials and Appeals Board

Apr 1, 2021

2020003220 (P.T.A.B. Apr. 1, 2021)

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.
15/993,248 05/30/2018 Roy PAULSON 2351-30 2491
616 7590 04/01/2021
THE MAXHAM FIRM
225 E. Third Avenue
Escondido, CA 92025
EXAMINER
DECKER, PHILLIP
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
04/01/2021 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):
LKAISER@MAXHAMFIRM.COM
LMAXHAM@MAXHAMFIRM.COM
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROY PAULSON

Appeal 2020-003220
Application 15/993,248
Technology Center 3700
____________

Before JUSTIN BUSCH, AMEE A. SHAH, and ROBERT J. SILVERMAN,
Administrative Patent Judges.

SILVERMAN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision rejecting claims 1–26. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
Paulson Manufacturing Corporation. Appeal Br. 3.
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ILLUSTRATIVE CLAIM
1. A device for use with a safety face shield assembly,
the device comprising:
a hood configured to cover at least the head of a wearer
and incorporating the safety face shield, the hood and safety
face shield being formed of materials that protect the wearer
from arc-flashes, said hood having an opening in at least one
location;
a ventilation device mounted in said opening, said
ventilation device having a periphery, said hood being secured
to the periphery of said ventilation device, said ventilation
device comprising:
a first plate having a first plurality of slots therethrough;
and
a second plate having a second plurality of slots
therethrough;
said first and second plates being arranged in face-
to-face relationship with said slots in said first and
second plates being in offset registration so that there is
no direct fluid flow route through the slots in said front
and back plates, thereby providing a semi-tortuous path
for ventilation between internal and external sides of said
hood, said ventilation device being formed of materials
that block arc-flashes, the semi-tortuous path thereby
protecting the wearer from an external arc-flash.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Brown US 1,400,860 Dec. 20, 1921
Latour US 3,139,503 June 30, 1964
Clark US 3,575,170 Apr. 20, 1971
Roh US 6,019,421 Feb. 1, 2000
McKinney et al.
(“McKinney”)
US 6,302,785 B1 Oct. 16, 2001
Cunningham et al.
(“Cunningham”)
US 7,357,135 B2 Apr.15, 2008

REJECTIONS
I. Claims 1–3, 12–14, 17, 18, 21, and 24 are rejected under
35 U.S.C. § 103 as unpatentable over Cunningham, Roh, and Latour.
II. Claims 4, 6, and 15 are rejected under 35 U.S.C. § 103 as
unpatentable over Cunningham, Roh, Latour, and Brown.
III. Claims 5, 7–9, and 16 are rejected under 35 U.S.C. § 103 as
unpatentable over Cunningham, Roh, Latour, Brown, and McKinney.
IV. Claims 10, 11, 19, 20, 22, 23, 25, and 26 are rejected under
35 U.S.C. § 103 as unpatentable over Cunningham, Roh, Latour, and Clark.
FINDINGS OF FACT
The findings of fact relied upon, which are supported by a
preponderance of the evidence, appear in the following Analysis.
ANALYSIS
The Appellant argues that the Roh, Latour, Brown, McKinney, and
Clark references constitute non-analogous art, such that they may not be
used in the obviousness rejections. See Appeal Br. 10–18. In addition, the
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Appellant argues that the cited references fail to teach or suggest various
limitations of particular claims in the Appeal. See id. at 18–26.
Below, we address the analogous-art issues, followed by the
remaining arguments presented.
Analogous Art
Our reviewing court has held that a reference qualifies as prior art for
an obviousness determination only when it is “analogous” to the claimed
subject matter at issue. In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011).
“Prior art is analogous if it is from the same field of endeavor or if it is
reasonably pertinent to the particular problem the inventor is trying to
solve.” Circuit Check Inc. v. QXQ Inc., 795 F.3d 1331, 1335 (Fed. Cir.
2015). A reference is analogous if either of these two tests is met. Scientific
Plastic Prods., Inc. v. Biotage AB, 766 F.3d 1355, 1359 (Fed. Cir. 2014).
Whether a reference qualifies as analogous prior art is a question of fact. In
re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004).
As to the “field of endeavor,” the Appellant contends: “the field is
safety devices where life and death are issues,” emphasizing that “[a]rc-
flashes pose a human safety hazard that is real and the repercussions have
been experienced many times by workers in areas where high power
electrical circuits exist.” Appeal Br. 10.
In support of this position — and, ultimately, the argument that the
Roh, Latour, Brown, McKinney, and Clark references do not satisfy the
“field of endeavor” test — the Appellant refers to Appendix III to the
Appeal Brief, which the Appellant characterizes as “several short
explanations of what an arc-flash actually is” and that “describe the context
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in which the inventor was operating.” Appeal Br. 10–11. Appendix III
identifies these items as follows:
l. The Basics of Arc Flash — GE Industrial Solutions
2. Arc Flash — Wikipedia
3. What Causes an Arc Flash and What Kind of Injuries can
Arc Flash Cause?
4. Other physical injuries from being blown off ladders, into
walls, etc.
Id. at 34. The pages attached to the Appeal Brief, in Appendix III, appear to
provide quotations, with the pages corresponding to the first three
enumerated items including undated URL identifiers. Id. at 35–39.2
The Examiner objects to the inclusion of Appendix III in the Brief,
stating that “it comprises evidence that is not already of record in the
application, and it is not proper to submit new evidence into the Brief.”
Answer 3 (citing 37 C.F.R. § 41.37(c)(2) (“A brief shall not include any new
or non-admitted amendment, or any new or non-admitted affidavit or other
Evidence.”))
In response to the Examiner’s evidentiary point, the Appellant states
that the contents of Appendix III were “introduced during prosecution of this
patent application on 17 December 2018.” Reply Br. 1.
Indeed, the Appellant’s filing entitled “Amendment (or) Response to
Non-Final Rejection” (dated December 17, 2018) includes (on un-numbered
pages following page 18 thereof) what appear to be the contents of
Appendix III. However, the Appellant has not provided identifying

2 The pages of Appendix III are not numbered, except for the page
identifying the contents thereof (Appeal Br. 34). We refer to the pages of
Appendix III, as if numbered consecutively thereafter.
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information for these items, as prescribed by 37 C.F.R. § 1.98(b)(5): “Each
publication listed in an information disclosure statement must be identified
by publisher, author (if any), title, relevant pages of the publication, date,
and place of publication.”3
The limited information that the Appellant has provided, in regard to
the items in Appendix III, impairs their evaluation. The inclusion of URLs
does not wholly rectify such incompleteness, as internet-based sources are
notoriously mutable. For example, Wikipedia, which the Appellant cites
(see Appeal Br. 34, 36) is a source that “anyone can edit” and its contents
“can be fixed or improved later.” Badasa v. Mukasey, 540 F.3d 909, 910
(8th Cir. 2008) (quoting Wikipedia: Introduction, http://en.wikipedia.org/
wiki/Wikipedia:Introduction (last visited August 7, 2008)); see also Lee F.
Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J.L. &
Tech. 1, 3 (2009) (“The impermanence of Wikipedia content, which can be
edited by anyone at any time, and the dubious quality of the information
found on Wikipedia raises a number of unique concerns.”)
The Examiner raises additional concerns, relating to the field of
endeavor to be considered, for assessing analogous art:
The present application is classified in USPC 454
“Ventilation,” not personal protective equipment for exposure
to electric-arc flashes. Appellant’s statements about the
knowledge of a PHOSITA is not supported by evidence on the

3 Although § 1.98 and its companion section, 37 C.F.R. § 1.97, articulate the
manner for submitting “information known to be material to patentability of
any claim issued in a patent,” “[t]here is no duty to submit information
which is not material to the patentability of any existing claim.” 37 C.F.R.
§ 1.56. Although this Decision does not address the potential materiality of
the items in Appendix III, the Appellant “affirms the value of their teaching
for the relevant context of the claims in this application.” Reply Br. 1.
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record, and Examiner does not agree that a PHOSITA would
have the knowledge of speed, temperature, and devices stated
by the Appellant.
Answer 4.
The predecessor of our reviewing court has expressed skepticism
about the role of classifications, for assessing whether prior art would be
analogous, explaining that “[s]uch evidence is inherently weak . . . because
considerations in forming a classification system differ from those relating
to a person of ordinary skill seeking [a] solution for a particular problem.”
In re Mlot-Fijalkowski, 676 F.2d 666, 669 n.5 (CCPA 1982). Although the
Court of Customs and Patent Appeals regarded “the diverse Patent Office
classification of the references to be some evidence” for an analogous-art
inquiry, the Court “consider[ed] the similarities and differences in structure
and function of the inventions disclosed in the references to carry far greater
weight.” In re Ellis, 476 F.2d 1370, 1372 (CCPA 1973).
Regarding classification data as non-dispositive is consistent with the
Federal Circuit’s explanation that the field of endeavor is determined “by
reference to explanations of the invention’s subject matter in the patent
application, including the embodiments, function, and structure of the
claimed invention.” Bigio, 381 F.3d at 1325. Further, the Specification’s
characterization of the technical “field,” along with the subject matter of the
claims in the Appeal, weigh in favor of regarding the field of endeavor as
that of protective garments. Notably, the Specification states:
The present apparatus relates generally to the field of
safety devices which protect people from injury arising from
electric-arc discharges and more particularly to protective
clothing, such as hoods and shrouds, which may be used
together with safety helmets and face shields, for example.
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Spec. 1.
However, the second analogous-art inquiry — i.e., whether a
reference is “reasonably pertinent to the particular problem the inventor is
trying to solve,” Circuit Check, 795 F.3d at 1335 — casts a wider net.
Indeed, under this inquiry, there may be “significant differences” between
the claimed subject matter and an analogous prior art reference. Donner
Tech., LLC v. Pro Stage Gear, LLC, 979 F.3d 1353, 1361 (Fed. Cir. 2020).
Such an analogous reference need only be “reasonably pertinent to one or
more of the particular problems to which the claimed inventions relate.” Id.
In this regard, matters of “[v]entilation” — which the Examiner would
regard as the relevant field of endeavor (see Answer 4) — are fundamental
to the Appellant’s concerns. Notably, the Specification is entitled
“Ventilation Devices for Arc-Protective Garments” and addresses concerns
about “[l]ack of adequate ventilation” in protective hoods:
When situational conditions or regulations so require,
protective hoods are employed to protect the user’s neck and
upper shoulder area from arc-flash damage. Lack of adequate
ventilation is a typical consequence of the fact that hoods must
be tightly sealed to the user’s helmet, or face shield, or both,
and envelope [sic] at least part of the user’s upper body. Under
typical working conditions, the upper body and head of the
user, being closely confined, can become uncomfortably hot
and humid, and subject to build-up of CO2, due to inadequate
provisions for air to easily exhaust from the hood. It has been
difficult to ventilate such protective clothing because of the
potential arc-flash energy that could penetrate the clothing
through openings intended to provide ventilation.
Spec. 1–2. Further, each of the independent claims (claims 1, 12, 21,
and 24) includes “a ventilation device” among the recited limitations, with
claims 12 and 24 reciting “[a] ventilation device” in the respective claim
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preambles. In addition, the Appeal Brief acknowledges that the named
inventor is “intimately aware of the safety requirements, as well as the need
for adequate ventilation so that the user’s discomfort is reduced as much as
possible.” Appeal Br. 11. Thus, even though the Appellant’s field of
endeavor may be accurately characterized as protective devices, or
protective garments, the issue of ventilation is central enough to the
Appellant’s goals, as well as the claims themselves, that the problems of
providing adequate ventilation should be considered, in regard to whether a
prior art reference is within an analogous art.
In view of the foregoing determinations, we address each of the prior
art references that the Appellant regards as non-analogous.
Roh
Roh is entitled “Protective Cover for Baby Seats.” Roh, Title Page.
The Appellant contends that “Roh is an irrelevant and non-analogous
document,” because “[t]o protect a person working in an environment where
they risk instant disfigurement or death via an arc-flash, a PHOSITA would
not look to ‘a protective [mesh] cover for baby seats.’” Appeal Br. 13.
The Examiner maintains that Roh is “reasonably pertinent to the
problem faced by the inventor,” because the reference concerns problems of
ventilation. Answer 6. Indeed, Roh’s ventilation techniques — rather than
protection in highly threatening conditions — are the teachings in Roh that
the Examiner relies upon. See Final Act. 4, Answer 6–7. Therefore, we are
not persuaded of error in the Examiner’s determination that Roh is an
analogous art reference.
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Latour
Latour is entitled “Extinguishing Device for Electrical Arcs.” Latour
col. 1, ll. 2–3. The Appellant contends that the “purpose” of the Latour
reference “bears no relationship to Applicant’s claimed invention,”
pronouncing it to be “non-analogous and not relevant.” Appeal Br. 14. The
Appellant states that “Latour relates to a circuit breaker in what might be
more of a lab experimental apparatus,” pointing out that “[i]t has structure
for establishing an arc between two plates and having an arc extinction
chamber incorporated with the arc generating plates.” Id. at 14–15.
According to the Appellant, “[a] PHOSITA would not look to Latour to
solve the purposes of the subject invention because the ‘extinguishing’ of
confined electrical arcs is not in any way related to the lifesaving blocking of
arc-flashes.” Id. at 14. The Appellant further argues:
Latour has absolutely no relation to a ventilation device. It
absolutely does not block arc-flashes. It does not and cannot
protect a wearer from an external arc-flash. It is a circuit
breaker, not a ventilation device. It does not block externally
generated arc-flashes, it extinguishes internally generated
electrical arcs. Electrical arcs are not arc-flashes, as is readily
understood by a PHOSITA.
A circuit breaker to “extinguish” an electrical arc has no
relationship to blocking the deadly occurrence of an arc-flash.
The later [sic] happens and is not in any way extinguished. The
damage has already been done. One cannot turn off an arc-
flash.
Id. at 15.
The Examiner (Answer 10–11) disputes the Appellant’s position that
Latour’s disclosure, which concerns “electrical arcs,” is not related to
addressing the recited “arc-flash[es]” (Appeal Br. 14). In regard to any
distinction between an “electrical arc” and the claimed “arc-flash,” the
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Examiner points out that the Specification “uses the terms ‘arc-flash,’
electric-arc,’ and ‘electrical-arc-flash’ synonymously in the Background of
the Invention.” Answer 11 (citing Spec. 1, ll. 8–24). In addition, as to the
Appellant’s argument (Appeal Br. 14) that Latour discloses “extinguishing”
electrical arcs — whereas the claims refer to “block[ing]” arc-flashes — the
Examiner takes the position that “if an arc has been extinguished, it has been
blocked from passing through the structure.” Answer 10.
Notwithstanding the questionable evidentiary status of the information
that the Appellant has provided in Appendix III, the definitions of an “arc
flash” provided therein are consistent with Latour. Latour states that its
technology “relates to extinguishing devices for electrical arcs drawn
between separable contact members located in an arc formation chamber of
an electrical circuit breaker.” Latour col. 1, ll. 9–12. Similarly, one of the
Appendix III sources states that “[a]n arc flash happens when electric current
flows through an air gap between conductors.” Appeal Br. 37 (citing
arcadvisor.com/faq/what-is-arc-flash); see also id. at 35 (citing The Basics of
Arc Flash — GE Industrial Solutions) (“An Arc Flash occurs during a fault,
or short circuit condition, which passes through this arc gap.”); id. at 36
(citing Arc flash — Wikipedia) (“An arc flash (also called a flashover) is the
light and heat produced as part of an arc fault, a type of electrical explosion
or discharge that results from a connection through air to ground or another
voltage phase in an electrical system.”)
We agree with the Examiner that the Appellant does not adequately
distinguish Latour’s “electrical arcs” from the claimed “arc-flashes,” in a
manner indicating that Latour would not have seemed reasonably pertinent
to the problems addressed in the claims. In particular, Latour’s disclosure of
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“extinguishing devices for electrical arcs” (Latour col. 1, ll. 9–10) would be
relevant to the handling of “arc-flashes,” because the Specification indicates
that that “electric arcs” and “arc-flashes” are fundamentally related, if not
identical. For example, the Specification blurs any such distinction, in
referring to “the field of safety devices which protect people from injury
arising from electric-arc discharges,” “[e]lectrical-arc-flash hazards,”
“[e]lectric-arcs or flashes [that] can result from short circuits,” and
describing “[e]lectric-arcs [as] hav[ing] extremely high temperatures and
near explosive power” followed by characterizing “[t]he energy of an arc-
flash” as “very intense and of very short duration.” Spec. 1.
Brown
The Brown reference is entitled “Ventilator” and “relates to
improvements in ventilators that are so constructed as to permit the passage
of air but to prevent the passage of water therethrough.” Brown 1, ll. 9–12.
The Appellant argues that Brown “is addressed to an upright
shipboard pipe-type ventilator” and its “purpose is to exhaust air and to
prevent intake of water.” Appeal Br. 15. The Appellant argues that Brown
“is a completely spurious document and has no value with regard to
Applicant’s purpose, teachings, or claims” and “[w]hatever Brown shows is
completely from way out and would not logically be looked to for any
detailed structure.” Id. at 15. See also id. at 22.
According to the Examiner, “Brown is reasonably pertinent to a
problem faced by the inventor by teaching details of a ventilation device that
also filters out unwanted matter.” Final Act. 11. See also Answer 12.
We agree with the Examiner. As discussed above, problems of
achieving adequate ventilation are central to the claimed subject matter (an
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issue that Brown undisputedly addresses), such that Brown is reasonably
pertinent to the problem that the claims address. Notably, the Examiner
relies upon Brown for particular features relating to the purpose of mounting
mutually facing ventilation plates in a manner that provides a sufficiently
spaced orientation that permits airflow. See Final Act. 12 (the peripheral rim
of Brown “provide[s] a spacer that keeps the airway open instead of the
possibility of collapsing and blocking the airflow”). These features are
recited in claims 4, 5, 7, 15, and 16. See, e.g., claim 4, Appeal Br. 28
(reciting “said first plate is formed with a peripheral rim that is thicker than a
central portion of said first plate which central portion faces said second
plate, thereby permitting air flow in a semi-tortuous path from the slots in
one of said first and second plates to and through the slots in the other of
said first and second plates.”) “[T]he purposes of both the invention and the
prior art are important in determining whether the reference is reasonably
pertinent to the problem the invention attempts to solve,” such that where, as
here, “a reference disclosure has the same purpose as the claimed invention,
the reference relates to the same problem, and that fact supports use of that
reference in an obviousness rejection.” In re Clay, 966 F.2d 656, 659 (Fed.
Cir. 1992).
McKinney
The McKinney reference is titled “Foundation Vent With Improved
Net Free Ventilation Area.” McKinney, Title Page. In critiquing the
McKinney reference, the Appellant states:
This is a building foundation vent and has been cited as
somehow relevant to Applicant’s clothing which blocks deadly
arc-flashes. This building foundation vent uses a mesh over
rectangular grid members (vertical and horizontal grill
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members), a structure that is not within any wording of
Applicant’s claims.
Appeal Br. 15; see also id. at 23 (“[H]ow does a net free ventilation area in a
building foundation (or crawl space) have anything to do initially with
ventilating gear that protects a worker from serious injury or death from an
arc-flash which is the clear focus and subject of the presently claimed
invention?”)
In terms of whether McKinney might be reasonably pertinent to a
problem facing the inventor, the Appellant focuses on whether certain
aspects of McKinney (a “building foundation vent [that] uses a mesh over
rectangular grid members (vertical and horizontal grill members)”) is
“within any wording of Applicant’s claims.” Appeal Br. 15.
However, the Appellant does not address the features of McKinney
that the Examiner regards as relevant to the Appellant’s claimed subject
matter. According to the Examiner, “McKinney is reasonably pertinent to a
problem faced by the inventor by teaching details of vent design.” Final
Act. 14. For example, the Examiner relies upon McKinney for teaching the
recited “stand-offs” of, e.g., claim 5, which “maintain spacing between the
facing surfaces of said first and second plates.” See id. Indeed, McKinney’s
“plurality of standoffs of the form of projecting posts 71” (McKinney col. 6,
ll. 44–45) accomplish a similar end — i.e., improved airflow (id. col. 6, l. 53
– col. 7, l. 4). Accordingly, the Appellant does not persuade us that
McKinney is non-analogous art. See Clay, 966 F.2d at 659.
Clark
The Clark reference is titled “Breather Assembly For A Sealed
Container.” Clark, Title Page. The Appellant states: “Clark discloses a
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bedside body fluid drainage bag for a catheter system which has a breather
assembly to permit passage of gas and resist the passage of liquid
therethrough.” Appeal Br. 15. The Appellant argues:
The Examiner has determined that a breather assembly for a
bedside drainage bag is analogous (reasonably pertinent?) art to
a life-saving arc-flash protective device. Once again, an
inventor seeking to protect workers from an arc-flash event
would absolutely not look to a bedside drainage bag for an idea
to solve life threatening problems engendered by an external
arc-flash.
Id. at 25.
Here, the Appellant acknowledges that the Examiner might consider
Clark to be reasonably pertinent to a problem facing the inventor. See
Appeal Br. 25. Yet, to the extent that the Appellant addresses this issue, the
Appellant refers only to “life threatening problems engendered by an
external arc-flash” — rather than any problems relating to ventilation.
By contrast, the Examiner states: “Clark is reasonably pertinent to a
problem faced by the inventor by teaching details of securing a ventilation
device onto a flexible material.” Final Act. 17.
The Appellant does not meaningfully address the Examiner’s position
that Clark is reasonably pertinent to ventilation problems facing the inventor,
as manifest in the claims. Therefore, the Appellant does not persuade us of
error in the Examiner’s determination that Clark constitutes analogous art.
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Arguments for Particular Claims4
Independent Claims 1, 12, 21, and 24
Independent claims 1, 12, 21, and 24 stand rejected as obvious over
the combination of Cunningham, Roh, and Latour. The Appellant argues
these claims as a group. Appeal Br. 18–21. We select claim 1 for analysis.
See 37 C.F.R. § 41.37(c)(1)(iv).
The Appellant disputes the Examiner’s reliance on Cunningham, in
regard to the limitations of a “hood and safety face shield being formed of
materials that protect the wearer from arc-flashes” and a “ventilation device
. . . formed of materials that block arc-flashes.” Appeal Br. 18–19. The
Appellant argues that, although Cunningham teaches a protective hood,
Cunningham “did not contemplate the known blast energy from an arc-
flash” — a failing allegedly shown by Cunningham’s implementation of a
metal shield having an eye slot, which (according to the Appellant) “negates
any possibility that the teaching of Cunningham can be adequate for arc-
flash protection.” Id. at 19 (citing Cunningham col. 4, ll. 36–37). The
Appellant contends that “[s]uch an eye slot would make the wearer’s eyes,
as well as his life, vulnerable to an arc-flash” and “a metal shield is the
absolute last material that would be part of any arc-flash protective hood.”
Id.
In response, the Examiner’s Answer (pages 14–15) points out that
Cunningham presents the metal-shield/eye-slot embodiment as “an alternate
form,” and also discloses versions employing a different form of eye shield,

4 We address the arguments in the order presented by Appellant in the
Appeal Brief (pages 18–26).
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which explicitly provide arc-flash protection, as described in the following
excerpt from Cunningham:
In one form, shield 50 is constructed of plastic or another
material that withstands heat or the desired environment. For
one example, transparent shield 50 can preferably withstand 40
cal/cm2 Arc Rating (although the incident energy produced near
the transparent shield 50 is expected to be less than 40 cal/cm2).
Cunningham col. 4, ll. 30–36. Notably, the “Arc Rating” practices and units
described in Cunningham correspond to what the Appellant provides in the
Specification:
[F]ace shields employing generally transparent windows
comprised of compositions which have the ability for the user
of the shield to see the workspace and, at the same time, have
the ability to substantially block harmful radiation, are
available. These devices are designed to provide protection
against the thermal, optical, and mechanical hazards generated
by arc-flash events. The protective compositions are referred to
as energy absorbing materials and are classified by their calorie
ratings, that is, the level of energy they have been tested or
certified for.”
Spec. 1.
Further, as to the sufficiency of the materials disclosed in
Cunningham, the Answer states that the “Examiner relied on Cunningham
disclosing NOMEX material, col. 3 lines 41–46, as being the same as the
acceptable material recited in the specification of the present invention.”
Answer 14; see also id. at 5. The Appellant’s implementation of NOMEX,
as a suitable material, is described in the Specification, on pages 7 and 8.
The Appellant also disputes the Examiner’s combination of Roh’s
infant-carrier ventilation structure with Cunningham’s protective garment,
because the distinct demands of the two references “are not a matter of
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degree but of total difference,” pointing out that an arc flash “is an energy
blast of immense instantaneous power.” Appeal Br. 19–20.
Yet, the Examiner does not rely upon Roh for its capacity to withstand
the power of an arc-flash, but for a type of structure (slotted members in
offset registration) that permits ventilation, while also providing occlusion.
See Final Act. 3–4; Answer 15–16. As the Examiner explains, “a blast of
power,” e.g., from an arc flash, “is analogous to, if not the same as, light”
and Roh’s device blocks (or “significantly attenuate[s]”) light. Answer 15
(citing Roh col. 12, ll. 11–21, Fig. 2k).
Therefore, the Appellant does not persuasively argue for any
impropriety in combining the teachings of Cunningham and Roh.
The Appellant also disputes the Examiner’s reliance on Latour,
reprising arguments raised concerning whether Latour is drawn from
analogous art. See Appeal Br. 20–21. The Appellant argues that the
electrical arcs, discussed in Latour, “bear[ ] no conceptual or physical
resemblance to an arc-flash” and “there is no evidence in Latour that it
contemplates, or is in any way capable of blocking arc-flashes.” Id. at 20.
The Examiner likens the effect of Latour’s arc-extinguishing
configuration of insulating members, shown in Figure 4 thereof, to the
claimed “plate[s]” of the “ventilation device” that “provid[e] a semi-tortuous
path.” See Answer 11–12. In Latour, an electrical arc is constrained in the
form of a semi-tortuous path between legs 18 and 19 of opposing conductive
members 16, whereby “the current intensity” weakens and “the arc column
diameter decreases.” See Latour col. 2, ll. 42–63, Figs. 3, 4. Elsewhere,
Latour describes the disclosed device as “conduct[ing] the arc drawn
between the insulating plates in such a manner as to turn the arc to form
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expanding curved or looped configurations within the narrow spaces
between the insulating plates.” Latour, col. 1, ll. 33–36. Such “curved or
looped configurations within the narrow spaces between the insulating
plates” (id.) may be regarded as teaching or suggesting claim 1’s recited
implementation of a “semi-tortuous path.”
In view of the foregoing, the Appellant does not persuade us of error
in the rejection of independent claim 1. Therefore, we sustain the rejection
of independent claims 1, 12, 21, and 24 under 35 U.S.C. § 103.
Dependent Claims 2 and 13
With regard to dependent claims 2 and 13 — each of which adds, to
the respective base claim, the limitation “wherein said first plurality of slots
differs in number from said second plurality of slots” — the Appellant re-
argues the position that Roh is non-analogous art. See Appeal Br. 21.
For the reasons provided above, this argument does not persuade us of
error. Therefore, we sustain the rejection of claims 2 and 13 under
35 U.S.C. § 103.
Dependent Claims 3 and 14
With regard to dependent claims 3 and 14 — each of which adds, to
the respective base claim, the limitation “wherein said first plurality of slots
is equal in number to said second plurality of slots” — the Appellant relies
upon “the arguments set out above with respect to claims 1 and 2.” See
Appeal Br. 21–22.
In view of the reasons provided above, this argument does not
persuade us of error. Therefore, we sustain the rejection of claims 3 and 14
under 35 U.S.C. § 103.
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Dependent Claims 17 and 18
As to dependent claims 17 and 18, the Appellant states: “Claims 17
and 18 are addressed to the alternative mentioned on page 4, lines[ ]18–20
where the plates are stated to be a single plate or ‘more than one plate.’”
Appeal Br. 22. No other explanation or argument is provided.
“A statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.” 37 C.F.R.
§ 41.37(c)(1)(iv). Accordingly, we sustain the rejection of claims 17 and 18
under 35 U.S.C. § 103.
Dependent Claims 4 and 15
Each of dependent claims 4 and 15 adds, to the respective base claim,
the limitation:
wherein said first plate is formed with a peripheral rim that is
thicker than a central portion of said first plate which central
portion faces said second plate, thereby permitting air flow in a
semi-tortuous path from the slots in one of said first and second
plates to and through the slots in the other of said first and
second plates.
Claims 4 and 15 stand rejected as obvious over Cunningham, Roh, Latour,
and Brown, with Brown’s Figure 3 embodiment teaching the claimed
relationship of the “peripheral rim” “permitting air flow in a semi-tortuous
path from the slots in one of said first and second plates to and through the
slots in the other of said first and second plates.” Final Act. 12.
Disputing the rejection of claims 4 and 15, the Appellant reprises the
non-analogous art position, discussed above. Appeal Br. 22. In addition, the
Appellant states:
Even if, for the sake of argument, rim 13 of “first plate
10” of Brown accomplishes what the Examiner says, there is no
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possibility that the inventor would have any motivation to take
apart a ship vent in an effort to solve a part of the problem of
saving lives in an arc-flash environment.
Id.
Notwithstanding the particular aquatic environment referenced by the
Appellant, Brown’s teachings apply in other contexts. According to Brown,
the disclosed “ventilator is particularly useful on ships for the purposes
described, but obviously it may be put to other uses if desired.” Brown 2, ll.
115–18. Indeed, the Examiner points out that “[a]lthough Brown is in the
field of ventilators that filter out water on the deck of a ship, it is reasonably
pertinent because it teaches details of baffle filter construction.” Answer 12.
Thus, the Examiner determines, a reason to combine Brown’s teaching of a
“peripheral rim,” together with the other references cited in the rejection,
would have existed at the relevant time, “in order to provide a spacer that
keeps the airway open instead of the possibility of collapsing and blocking
the airflow.” Final Act. 12.
In view of the foregoing, the Appellant does not persuade us of error
in the rejection of dependent claims 4 and 15, such that we sustain the
rejection under 35 U.S.C. § 103.
Dependent Claim 6
Dependent claim 6 recites:
6. The device recited in claim 1, wherein said first
plurality of slots defines a first plurality of lands therebetween,
and said second plurality of slots defines a second plurality of
lands therebetween.
In addressing the rejection of claim 6, the Appellant returns, again, to the
non-analogous art argument, for the Brown reference, stating: “Brown is
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simply far from being anything that would be employed by the inventor in
solving the problem addressed by the rather elegantly simple and well-
defined structure of claim 6.” Appeal Br. 22–23. The Appellant further
asserts: “Without a liberal application of hindsight, the inventor would not
be searching for something, whether or not of logical interest, to learn how
to construct plates having slots separated by lands.” Id. at 23.
We understand the Appellant to be reprising the non-analogous art
argument addressed above. The Examiner regards the Appellant’s argument
likewise. See Answer 17.
In view of the referenced analysis of the analogous-art issue, in regard
to the Brown reference, the Appellant does not persuade us of error in the
rejection of claim 6. Therefore, we sustain the rejection of claim 6 under
35 U.S.C. § 103.
Dependent Claim 5
Claim 5 recites: “The device recited in claim 4, wherein said central
portion of said first plate is formed with a plurality of stand-offs which are in
the plane of said peripheral rim.”
The Appellant’s argument refers only to the Examiner’s application of
the McKinney reference, although the Appellant does not dispute the
Examiner’s findings, regarding McKinney’s teachings. Indeed, the Appeal
Brief states: “Applicant does not doubt that stand-offs and rims in the same
plane have existed, possibly in myriad areas of endeavor.” Appeal Br. 23.
Yet, the Appellant contends, “[t]here can be no logical case made that
the inventor would be motivated to employ some different and unrelated
ventilation structure from a building crawl space to help solve the problem
before him.” Appeal Br. 23.
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Therefore, the Appellant’s position essentially repeats the non-
analogous art argument, in regard to McKinney, which is addressed above.
Accordingly, the Appellant does not persuade us of error in the
rejection of dependent claim 5, such that we sustain the rejection under
35 U.S.C. § 103.
Dependent Claim 7
Claim 7 recites:
7. The device recited in claim 5, wherein said first
plurality of slots defines a first plurality of lands therebetween,
and said second plurality of slots defines a second plurality of
lands therebetween and wherein said plurality of stand-offs are
formed on said first plurality of lands to maintain spacing
between the facing surfaces of said first and second plates.
In addressing the propriety of the rejection of claim 7, the Appellant repeats
the non-analogous art issue, regarding several of the cited references:
The inapplicability of Roh, Latour, Brown, and
McKinney has already been quite logically and forcefully
made, by application of simple logic and relevance. It is not
seen that further discussion of the very specific structure of
claim 7, with respect to these wholly non-analogous references,
can enhance the already clear distinction of all of the claims
from the only analogous reference, Cunningham.
Appeal Br. 24.
In view of our analysis of the non-analogous art issues, discussed
above, the Appellant does not persuade us of error in the rejection of
claim 7, such that we sustain the rejection of claim 7 under 35 U.S.C. § 103.
Dependent Claim 8
Claim 8 recites:
8. The device recited in claim 6, and further comprising
a first plurality of bridges in said first plurality of slots between
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each two of said lands defining each said slot, said first
plurality of bridges connecting adjacent lands of said first
plurality of lands.
As seen in Figure 5 of the Appellant’s Specification, the depicted
embodiment includes bridges 41, 42 that connect adjacent lands (i.e., the
regions of plates 12, 13 between the slots therethrough). Figure 5 illustrates
these features and is reproduced below:

Figure 5 is an exploded perspective view of a ventilation device. Spec. 3.
Claim 8 stands rejected as obvious over the combination of
Cunningham, Roh, Latour, Brown, and McKinney.
In addition to questioning whether McKinney constitutes analogous
art (an issue addressed above), the Appellant contends that McKinney’s grill
members 68 “do not separate elongated slots into two parts”; rather, “[t]he
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grill members are merely part of an open grid made of planar members 67,
68, over which the mesh screen is applied in part to keep rodents out.”
Appeal Br. 24 (citing McKinney col. 1, l. 35).
However, in the analysis of claim 8, the Examiner does not rely upon
McKinney for teaching the claimed “slots” (or the “lands” therebetween),
which Roh teaches (see Final Act. 4 (citing Roh Figs. 2i–2k)), but only the
“bridges” (see id. at 15 (citing McKinney Fig. 6)). Accordingly, the
Appellant’s position amounts to attacking the McKinney reference
individually, rather than in the manner it is relied upon in the rejection —
i.e., in combination with Roh (among the other references). See In re Keller,
642 F.2d 413, 426 (CCPA 1981) (“[O]ne cannot show non-obviousness by
attacking references individually where, as here, the rejections are based on
combinations of references.”)
Therefore, the Appellant does not persuade us of error in the rejection
of dependent claim 8, such that we sustain the rejection under 35 U.S.C.
§ 103.
Dependent Claim 9
Claim 9 recites:
9. The device recited in claim 6, and further comprising
a second plurality of bridges in said second plurality of slots
between each two of said lands defining each said slot, said
second plurality of bridges connecting adjacent lands of said
second plurality of lands.
With regard to claim 9, the Appellant does not dispute any of the
Examiner’s findings, other than raising, again, the issue of whether
McKinney constitutes analogous art. Appeal Br. 24 (“It is a clear fact that
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no aspect of McKinney can be of any use in protecting a worker from an arc-
flash.”)
In view of our analysis of the analogous-art issue, above, we sustain
the rejection of claim 9 under 35 U.S.C. § 103.
Dependent Claim 16
Claim 16 depends from claim 15, which depends (in turn) from claim
12, with claim 16 adding the limitation: “wherein said central portion of
said first plate is formed with a plurality of stand-offs which are
substantially equal in thickness to said peripheral rim.”
The Appellant states:
There does not seem to be any value in separately arguing the
details of claim 16 when claims 12 and 15 have already been
discussed in detail. The building vent of McKinney simply
cannot logically lend itself to an inventor seeking a structure to
prevent deaths from an arc-flash event.
Appeal Br. 24
In view of the absence of any such separate argument, we sustain the
rejection of claim 16 under 35 U.S.C. § 103.
Dependent Claims 10 and 19
Each of claims 10 and 19 adds, to its respective base claim, the
limitation: “wherein said first plate is formed with a peripheral groove in the
surface facing away from said second plate.”
The Examiner finds that Clark discloses the claimed disposition of a
peripheral groove, in element 42 shown in Figure 2 thereof. Final Act. 17.
As described in Clark, element 42 is a “weld” that “extends around the outer
periphery of breather element 28 and provides a continuous seal between
housing members 32, 34 and the retaining ring 30.” Clark col. 3, ll. 17–19.
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Figure 2 of Clark, which includes numeral references to element 42, is
reproduced below:

Clark’s Figure 2 is a partial cross-sectional view of a breather assembly. Id.
col. 1, ll. 72–73.
Disputing the rejection of claims 10 and 19 (argued together), the
Appellant argues that Clark’s “numeral 42 is a peripheral electronic weld
(not a groove at all).” Appeal Br. 25.
Nevertheless, as the Examiner finds (see Final Act. 17, Answer 18),
weld 42 forms a depression — which is manifest in the cross-sectional
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drawing of Clark’s Figure 2 — such that Clark teaches the recited
“peripheral groove.” Indeed, drawings, like reference disclosures in any
other form, are “evaluat[ed] and appl[ied] . . . on the basis of what they
reasonably disclose and suggest to one skilled in the art.” In re Aslanian,
590 F.2d 911, 914 (CCPA 1979) (quoting In re Baum, 374 F.2d 1004, 1009
(CCPA 1967)). See also In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972)
(“Description for the purposes of anticipation can be by drawings alone as
well as by words.”) (quoting In re Bager, 47 F.2d 951, 953 (CCPA 1931)).
Accordingly, the Appellant does not persuade us of error, such that we
sustain the rejection of claims 10 and 19 under 35 U.S.C. § 103.
Dependent Claims 11 and 20
Claim 11 recites:
11. The device recited in claim 10, wherein said
ventilation device is mounted in said opening by stitches
through said peripheral groove in said first plate, through said
second plate, and through the hood material.
In rejecting claim 11, the Examiner relies upon Cunningham for the recited
“stitches.” Final Act. 18 (citing Cunningham Fig. 5).
Disputing the rejection, the Appellant argues (referring to the
argument presented for claim 10, addressed above): “Since there is no such
groove in Clark, it adds nothing to the stitches shown in Cunningham.”
Appeal Br. 25.
Because the Appellant’s argument, concerning claim 10’s “peripheral
groove,” is unpersuasive, the Appellant’s argument for claim 11 is likewise
unpersuasive.
The Appellant states that claim 20 “is parallel to claim 11” (Appeal
Br. 25), which we understand to mean that the Appellant relies upon the
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argument presented for claim 11. Therefore, we are not persuaded of error
in the rejection of claim 20.
Accordingly, we sustain the rejection of claims 11 and 20 under
35 U.S.C. § 103.
Dependent Claim 22
Claim 22 depends from claim 21, adding the limitation: “wherein said
first plate is formed with an inside surface and an outside surface and a
peripheral groove in one said surface.” As to the rejection of claim 22, the
Appellant states:
Claim 22 depends from independent claim 21, which
introduced the slotted plate and baffle plate structure, adding
the peripheral groove 81 of FIGs. 12A–12E. Since claim 21
has been discussed, with its relationship to claim 1, there is no
need to further distinguish claim 22 from the references cited.
Appeal Br. 26.
Thus, we understand that the Appellant does not separately argue
claim 22.
Accordingly, for the reasons discussed, above, regarding independent
claim 21, we sustain the rejection of claim 22 under 35 U.S.C. § 103.
Dependent Claims 23, 25, and 26
The Appellant summarizes the limitations of claims 23, 25, and 26
(see Appeal Br. 26), but does not articulate any argument for error in the
rejection of these claims.
“A statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.” 37 C.F.R.
§ 41.37(c)(1)(iv). Accordingly, we sustain the rejection of claims 23, 25,
and 26 under 35 U.S.C. § 103.
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CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 12–14,
17, 18, 21,
24
103 Cunningham, Roh,
Latour
1–3,
12–14, 17,
18, 21, 24

4, 6, 15 103 Cunningham, Roh,
Latour, Brown
4, 6, 15
5, 7–9, 16 103 Cunningham, Roh,
Latour, Brown,
McKinney
5, 7–9, 16
10, 11, 19,
20, 22, 23,
25, 26
103 Cunningham, Roh,
Latour, Clark
10, 11, 19,
20, 22, 23,
25, 26

Overall
Outcome
1–26

TIME PERIOD FOR RESPONSE
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