Ex Parte Xiao et al

Patent Trials and Appeals Board

Jan 28, 2019

14447922 - (D) (P.T.A.B. Jan. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/447,922 07/31/2014
14941 7590 01/30/2019
HONEYWELL/WICK PHILLIPS
Honeywell International Inc
115 Tabor Road
PO Box 377
MORRIS PLAINS, NJ 07950
FIRST NAMED INVENTOR
Lei Xiao
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
H0043587 _5706-29300 7838
EXAMINER
AYAD,TAMIR
ART UNIT PAPER NUMBER
1726
NOTIFICATION DATE DELIVERY MODE
01/30/2019 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):
patentservices-us@honeywell.com
wppatents@wickphillips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LEI XIAO, STEVEN LESLIE SCORFIELD, and
JOHN CHAPPLES
Appeal 2018-004675
Application 14/44 7,922
Technology Center 1700
Before LINDA M. GAUDETTE, N. WHITNEY WILSON, and
LILAN REN, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
December 5, 2016, decision finally rejecting claims 1-15 and 21-25 ("Final
Act."). We have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We reverse.
1 Appellant is the Applicant Life Safety Distribution AG. The real party in
interest is identified as Life Safety Distribution GmbH. (Appeal Br. 4).
Appeal 2018-004675
Application 14/447,922
CLAIMED SUBJECT MATTER
Appellant's disclosure is directed to a gas sensor having a filter which
includes two or more chemicals that are incompatible or cross-reactive
(Spec. ,r 11 ). The two chemicals are physically separated by a gas
permeable, inert barrier. The claimed invention is set forth in representative
claim 1, which is reproduced below from the Claims Appendix of the
Appeal Brief:
1. A gas sensor comprising:
a housing;
an opening in the housing;
a plurality of electrodes disposed within the housing;
a filter disposed within the housing between the opening
and the plurality of electrodes, wherein the filter comprises two
or more chemicals that are cross-reactive; and
a barrier disposed between at least two of the two or
more chemicals within the filter, wherein the barrier is a gas
permeable, inert barrier.
REJECTIONS
I. Claims 1-10 and 21-23 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Capetanopolous2 in view of Azarian. 3
II. Claims 11-15 and 24--25 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Capetanopolous in view of Azarian and further in view of
Jolson. 4
2 Capetanopolous et al, US 5,560,810, issued October 1, 1996.
3 Azarian et al., US 6,238,467 Bl, issued May 29, 2001.
4 Jolson et al., US 5,338,429, issued August 16, 1994.
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Appeal 2018-004675
Application 14/447,922
DISCUSSION
The Examiner finds that Capetanopolous teaches each of the
limitations of claim 1, except that it "does not explicitly disclose the filter
comprises two or more chemicals that are cross-reactive; a barrier disposed
between at least two of the two or more chemicals within the filter, wherein
the barrier is a gas permeable, inert barrier" (Final Act. 3--4, citing
Capetanopolous 1:29, 1:35-36, 2:66, 3:3, 3: 11, FIG. 1). The Examiner
further finds that Azarian discloses a filter comprising activated carbon and
potassium permanganate, and further discloses a barrier between the
chemicals within the filter, wherein the barrier is a gas permeable, inert
barrier (Final Act. 4, citing Azarian 8: 11-22, 8:34--9: 16). The Examiner
determines that it would have been obvious to form the filter in
Capetanopolous so "that it includes the chemicals disclosed by Azarian,
because ... each adsorbent selectively removes different contaminants as
they pass through the filter" (id.).
As a preliminary matter, we construe the claim terms "cross-reactive"
and "inert barrier." The Examiner construes these terms based on their
broadest reasonable interpretation (Ans. 9). The Examiner determines that
the term "cross-reactive" is broad enough into include any interaction
between atoms or molecules of different chemicals, including van der Waals
forces (id.). The Examiner also determines that the phrase "inert barrier"
includes barriers which are unmoving, motionless, inanimate, still,
stationary, or static (id.).
It is well established that during prosecution, "the PTO must give
claims their broadest reasonable construction consistent with the
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Application 14/447,922
specification . ... Therefore, we look to the specification to see if it provides
a definition for claim terms, but otherwise apply a broad interpretation." In
re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007)
( emphasis added) ( citation omitted). In this instance, we agree with
Appellant that in view of the Specification, the term "cross-reactive" means
chemicals which would chemically react with each other. This is supported
by the Specification, which discusses that one of the objects of the claimed
invention is to increase the lifespan of gas sensors which can be shortened
by the chemical reaction of different components with each other (Spec.
§ 7). Similarly, the term "inert barrier" is properly construed in claim 1 to
mean a barrier which physically separates the components of the sensor and
is chemically inert (see Spec. ,r 13 ("A number of materials could, in
principle, be used as the inert barrier provided that they meet the criteria of
being chemically inert and possess sufficient porosity so as not to
significantly restrict gas flow through the filter compartment." ( emphasis
added))).
Applying the broadest reasonable interpretations of "cross-reactive"
and "inert barrier," Appellant argues that the cited art does not teach or
suggest an inert barrier disposed between two or more chemicals within the
filter, as recited in claim 1 (Appeal Br. 15, 17). The Examiner finds that this
feature is taught by Azarian based on the following argument:
Azarian ... discloses "suitable filter materials for the present
invention include such filter media as filter papers or filter
membranes such as ePTFE, polypropylene, or polyethylene
membranes, non-wovens or scrims (e.g., polyester or
polyolefins ), or cast polymeric membranes, or some
combination of filter materials." Additionally, with regard to
the above disclosed filter membranes, Azarian discloses in
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Appeal 2018-004675
Application 14/447,922
column 7 line 60 through column 8 line 6: "Further, the
adsorbent may comprise one or more adsorbent materials, such
as finely divided forms of activated carbon (powder, granules,
beads, etc.), activated carbon fabric, paper, or fibers, or may be
a filled matrix such as a scaffold of porous polymeric material
compounded with adsorbents that fill the void spaces. Other
possibilities include adsorbent impregnated non-wovens or
beads on a scrim where the non-woven or scrim may be
cellulose or polymeric and may include latex or other binders,
porous castings or tablets of adsorbents and fillers that are
polymeric or ceramic, as well as encapsulated adsorbents such
as finely divided adsorbent in a pouch of porous membrane or
other air-permeable material. The adsorbent may also be a
mixture of different types of adsorbents." This teaching of
Azarian discloses encapsulated adsorbents in a pouch of porous
membrane or other air-permeable material which meets the
requirement for the claim limitation "gas permeable", and the
disclosure of Azarian specifying that the adsorbent may be a
filled matrix such as a scaffold of porous polymeric material
compounded with adsorbents that fill the void spaces meets the
requirement for the claim limitation "inert barrier".
Additionally, it is noted that Azarian discloses in column 7 lines
51-59 that "the adsorbent filter material, as explained in further
detail below, may include a wide variety of materials. The
general term "adsorbent", as used herein is not meant to refer to
any particular material or material for adsorption of any
particular contaminants. The terms "adsorbent" and "adsorb"
are not intended to be limiting with respect to the manner or
mechanism of vapor entrapment. That is, the terms are intended
to refer to any mechanism of entrapment whether it be
adsorption, absorption, or some other mechanism." Therefore,
based on these cited disclosures of Azarian, Appellant's
argument that the prior art cited does not disclose "a barrier
disposed between at least two of the two or more chemicals
within the filter, wherein the barrier is a gas permeable, inert
barrier" is not found persuasive by Examiner.
(Ans. 11-12).
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Appeal 2018-004675
Application 14/447,922
Although we agree with the Examiner that Azarian does teach the
presence of two cross-reactive chemicals, and also teaches the presence of
gas permeable inert barriers, we agree with Appellant that the preponderance
of the evidence of record does not support a finding that Azarian teaches or
suggests that the inert barrier is disposed between the cross-reactive
chemicals because, as argued by Appellant, Azarian does not teach each of
its adsorbents (chemicals) is separated from another adsorbent by any
barrier.
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. In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988). In this instance, Appellant has persuasively shown
error in the Examiner's finding that Azarian discloses that the cross-reactive
chemicals are separated by a gas permeable, inert barrier, as required by
claim 1. Accordingly, we reverse the rejection of claim 1 over
Capetanopolous in view of Azarian. Because claim 12 has a comparable
limitation, we also reverse the rejection of claim 12, as well as the rejection
of the remaining claims, each of which depends from either claim 1 or claim
12.
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Application 14/447,922
CONCLUSION
We REVERSE the rejection of claims 1-10 and 21-23 under
35 U.S.C. § 103(a) as unpatentable over Capetanopolous in view of Azarian.
We REVERSE the rejection of claims 11-15 and 24--25 under
35 U.S.C. § 103(a) as unpatentable over Capetanopolous in view of Azarian
and further in view of Jolson.
REVERSED
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