Steven Michalski

Patent Trials and Appeals Board

Oct 20, 2020

2020000959 (P.T.A.B. Oct. 20, 2020)

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.
14/887,392 10/20/2015 Steven Michalski SM-2015-001 4668
103528 7590 10/20/2020
Lawrence D. Cutter
11 Deerpath Drive
New Paltz, NY 12561
EXAMINER
SCHULT, ALLEN
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
10/20/2020 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):
mrpatent@hvc.rr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEVEN MICHALSKI
____________

Appeal 2020-000959
Application 14/887,392
Technology Center 3700
____________

Before ANTON W. FETTING, ULRIKE W. JENKS, and AMEE A. SHAH,
Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE1
Steven Michalski (Appellant2) seeks review under 35 U.S.C. § 134 of
a final rejection of claims 1–24, the only claims pending in the application
on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b). We REVERSE.

1 Our decision will make reference to the Appellant’s Appeal Brief (“Appeal
Br.,” filed August 8, 2019) and Reply Brief (“Reply Br.,” filed November
19, 2019), and the Examiner’s Answer (“Ans.,” mailed September 19,
2019), and Final Action (“Final Act.,” mailed April 1, 2019).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Steven
Michalski (Appeal Br. 2).

Appeal 2020-000959
Application 14/887,392

2

The Appellant invented a ventilation system which provides a mixture
of room air and outside air delivered directly to the vicinity of a user, and
more particularly, a personal ventilation system which is particularly usable
in a sleeping environment or where the user is stationary for an extended
period of time. Spec. para. 1.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A device for mixing air sources, said device comprising:
[1] a portable enclosure having
[1.1] a first air inlet opening for receiving controlled
amounts of outside air,
[1.2] a second inlet opening for receiving inside air, and
[1.3] an air outlet opening for exhausting a mixed volume
of said outside air and said inside air from within said
enclosure for direct delivery to an individual user’s
location;
[2] an air moving device for moving air from within said
enclosure through said air outlet opening,
said air moving device adapted to provide a flow of air
directly into said user’s personal space at said individual
user’s location,
said air moving device adapted to provide personal
ventilation to a breathing zone of said user;
[3] a flexible conduit, exterior to said enclosure, attached to said
first air inlet opening;
and
[4] a barrier structure having an opening therein for receipt of
said flexible conduit,
said barrier structure being suitable for sealable placement
in an exterior window,
Appeal 2020-000959
Application 14/887,392

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whereby a mixture of interior and exterior air is producible
and
said user is providable with a localized supply of fresh air.
The Examiner relies upon the following prior art:
Name Reference Date
Shippee US 3,230,556 Jan. 25, 1966
Doss US 5,915,620 June 29, 1999
Fuchs US 2004/0166795 A1 Aug. 26, 2004
Henrikson US 2004/0211162 A1 Oct. 28, 2004
Aycock US 2013/0180700 A1 July 18, 2013
Connell US 2014/0262132 A1 Sept. 18, 2014
Risser US 2015/0013245 A1 Jan. 15, 2015
Buss (as
translated)
KR 10-877335 A2 Jan. 7, 2009

Claims 1–7, 15–18, and 22–24 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Shippee, Henrikson, and Buss.
Claims 8 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Shippee, Henrikson, Buss, and Aycock.
Claims 9–11 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Shippee, Henrikson, Buss, and Connell.
Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Shippee, Henrikson, Buss, and Risser.
Claim 14 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Shippee, Henrikson, Buss, and Doss.
Claims 19–21 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Shippee, Henrikson, Buss, and Fuchs.

Appeal 2020-000959
Application 14/887,392

4

ISSUES
The issues of obviousness turn primarily on whether the art describes
the recited combination.

FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Shippee
01. Shippee is directed to maintaining a controlled temperature
environment in a bed. Shippee 1:9–11.
02. Shippee describes providing a directed and filtered flow of air,
controllable as to temperature and quantity, immediately adjacent
a bed occupant, which not only serves to maintain a constant
temperature environment suited to the occupant’s needs, but also
effectively reduces the weight of the overlying insulating material.
Shippee 1:32–37.
03. Shippee describes a unit with an air intake and outlet and a
handle to enhance the portability of the unit. Shippee 4:64–65;
Fig. 14.
04. Shippee describes a fan to move air through and out the unit.
Shippee 4:67–73; Fig. 15.

Henrikson
05. Henrikson is directed to an emergency ventilation system
capable of being configured by the end user to supply filtered air
Appeal 2020-000959
Application 14/887,392

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into a room creating a positive pressure condition in the room or
space. Henrikson para. 7.
06. Henrikson describes three separate elements: blower, filtration
pack housing, and hose that can be fitted together and installed
into room or space which converts the space into a safe room with
positive air pressure, or alternately, feeding a closed room which
creates a space with negative pressure for an isolation room.
Henrikson para. 21.
07. Henrikson describes an air intake or output vent, a hose, and a
precut vinyl window cover that the hose connects to. Henrikson
para. 24; Fig. 1.
Buss
08. Buss is directed to an air conditioner. Buss Abstract.
09. Buss describes mounting its air conditioner in a wall. Buss
Abstract; Figs. 1 and 3.
10. Buss describes mixing outside and inside air with valves because
the inside air, having already been cooled, offers free cooling.
Buss 12.

ANALYSIS
Claims 1–7, 15–18, and 22–24 rejected under 35 U.S.C. § 103(a) as
unpatentable over Shippee, Henrikson, and Buss
Shippee describes a bed heater that operates by blowing warm air
under the covers. Henrikson describes an air blower for positive air pressure
remediation or negative air pressure isolation that blows air from/to outside a
Appeal 2020-000959
Application 14/887,392

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window to/from the interior. Buss is a Korean patent publication describing
an air conditioner.
The Examiner begins by applying Shippee for its portable unit, inside
air inlet, air outlet, and fan for moving the air. The Examiner then applies
Henrikson for its outside air inlet, hose, and barrier. These account for all of
the claim 1 limitations. The problem at that point is one reference uses
inside air exclusively, and the other outside air, so there is no combination of
two input ports and mixing of the inside and outside airs.
The Examiner applies Buss to show it was known to mix inside and
outside air and blow the mixture into a room. The Examiner cites only the
drawing showing the mixing valves and claim 13 reciting mixing as such.
The Examiner cites no portion of Buss describing how or why such mixing
is done. The Examiner determines one would apply Henrikson’s outside air
to Shippee’s inside for “allowing fresh air to ventilate the user thereby
creating a more comfortable sleeping temperature and position.” The
Examiner then determines one would apply Buss to the other two references
for “providing the most comfortable conditions for the user while saving
power by not needing to condition the inside air to the desired level if the
outside air already meets the needed conditions.” Final Act. 3–4.
However, Buss mixes air because it is an air conditioner and the
mixing takes advantage of pre-cooled air. FF 10. The Examiner does not
adequately explain, and we do not readily see, how Buss’s mixing of pre-
cooled air can be combined with Shippee’s inside air inlet and outlet and
Henirkson’s outside air inlet. Buss does not show it was known to use a
hose to a local mixer or the desirability of a local mixer as contrasted with a
wall mount mixer. Henrikson does not carry air to a local mixer because
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Application 14/887,392

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Henrikson substitutes rather than mixes air. The Examiner provides no
explanation or support for how the proposed combination would result in
exhausting a mixed volume of a controlled amount of outside air and inside
air. See Appeal Br. 10, 13.
Thus, the Examiner does not provide adequate rational underpinning
to support the legal conclusion of obviousness. See KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007). The Examiner does not explain, with
evidence or reasoning, how Buss’s valves would result in exhausting a
mixed volume of controlled outside air and inside air to provide comfortable
conditions while saving power. Absent such evidence or reasoning, the
Examiner determines that a combination could be made with no showing
that one of ordinary skill would have the insight to make them.
“Obviousness concerns whether a skilled artisan not only could have made
but would have been motivated to make the combinations or modifications
of prior art to arrive at the claimed invention.” Belden Inc. v. Berk-Tek LLC,
805 F.3d 1064, 1073 (Fed. Cir. 2015) (emphasis omitted).
Claims 8 and 12 rejected under 35 U.S.C. § 103(a) as unpatentable over
Shippee, Henrikson, Buss, and Aycock
These claims depend from those above.
Claims 9–11 rejected under 35 U.S.C. § 103(a) as unpatentable over
Shippee, Henrikson, Buss, and Connell
These claims depend from those above.
Claim 13 rejected under 35 U.S.C. § 103(a) as unpatentable over Shippee,
Henrikson, Buss, and Risser
These claims depend from those above.
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Application 14/887,392

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Claim 14 rejected under 35 U.S.C. § 103(a) as unpatentable over Shippee,
Henrikson, Buss, and Doss
These claims depend from those above.
Claims 19–21 rejected under 35 U.S.C. § 103(a) as unpatentable over
Shippee, Henrikson, Buss, and Fuchs
These claims depend from those above.

CONCLUSIONS OF LAW
The rejection of claims 1–7, 15–18, and 22–24 under 35 U.S.C.
§ 103(a) as unpatentable over Shippee, Henrikson, and Buss is improper.
The rejection of claims 8 and 12 under 35 U.S.C. § 103(a) as
unpatentable over Shippee, Henrikson, Buss, and Aycock is improper.
The rejection of claims 9–11 under 35 U.S.C. § 103(a) as unpatentable
over Shippee, Henrikson, Buss, and Connell is improper.
The rejection of claim 13 under 35 U.S.C. § 103(a) as unpatentable
over Shippee, Henrikson, Buss, and Risser is improper.
The rejection of claim 14 under 35 U.S.C. § 103(a) as unpatentable
over Shippee, Henrikson, Buss, and Doss is improper.
The rejection of claims 19–21 under 35 U.S.C. § 103(a) as
unpatentable over Shippee, Henrikson, Buss, and Fuchs is improper.
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Application 14/887,392

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CONCLUSION
The rejection of claims 1–24 is reversed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis  Affirmed Reversed
1–7, 15–18,
22–24
103 Shippee,
Henrikson, Buss
1–7, 15–18,
22–24
8, 12 103 Shippee,
Henrikson, Buss,
Aycock
8, 12
9–11 103 Shippee,
Henrikson, Buss,
Connell
9–11
13 103 Shippee,
Henrikson, Buss,
Risser
13
14 103 Shippee,
Henrikson, Buss,
Doss
14
19–21 103 Shippee,
Henrikson, Buss,
Fuchs
19–21
Overall
Outcome
1–24

REVERSED