Ex Parte 7390340 et al

Patent Trials and Appeals Board

Mar 28, 2019

90013835 - (D) (P.T.A.B. Mar. 28, 2019)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
90/013,835 10/17/2016 7390340 076777-000003 6618
91887 7590 03/28/2019
Capitol Patent & Trademark Law Firm, PLLC
P.O. BOX 1995
Vienna, VA 22183
EXAMINER
JASTRZAB, KRISANNE MARIE
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
03/28/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte ENHANCED SYSTEMS & PRODUCTS, INC.,
Patent Owner and Appellant
____________
Appeal 2019-002085
Reexamination Control 90/013,835
Patent 7,390,340 B1
Technology Center 3900
____________
Before RICHARD M. LEBOVITZ, JEFFREY B. ROBERTSON, and
WESLEY B. DERRICK, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL
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Enhanced Systems & Products, Inc. (“Appellant”), the owner of the
patent under reexamination (hereinafter “the ’340 Patent”), appeals under
35 U.S.C. §§ 134(b) and 306 from a final rejection of claims 1–7 (Appeal
Brief filed December 18, 2017, hereinafter “Appeal Br.,” 4;1 Final Office
Action mailed July 18, 2017).2 We have jurisdiction under 35 U.S.C.
§§ 134(b) and 306.
We AFFIRM.

STATEMENT OF THE CASE
This reexamination proceeding is based on a third-party request for ex
parte reexamination filed by Kinetic Systems, Inc. (Request for Ex Parte
Reexamination filed October 17, 2016, 1.) The instant proceeding is related
to Reexamination Control Number 90/013,836, which is an ex parte
reexamination of U.S. Patent No. 7,896,959 B1, titled “Filtration

1 The Appeal Brief does not contain any page numbers. Accordingly, our
reference to page numbers herein are based on the page entitled “APPEAL
BRIEF” as page 1 and consecutively numbering the pages thereafter.
2 Appellant makes a number of arguments in the briefing based on evidence
that was not entered into the record as of the filing of the Appeal indicating
that petitions have been filed with the Director to enter the evidence and also
that a petition had been field to prevent the Examiner from relying on
alleged admitted prior art. (See Appeal Br. 14–15, FN1, FN2; Petition under
37 C.F.R. § 1.182 filed November 13, 2017; Petition under 37 C.F.R.
§ 1.181 filed March 29, 2018; Petition under 37 C.F.R. § 1.181 filed
September 5, 2018.) Appellant’s petitions have all been dismissed or
denied. (See Petition Decision entered January 29, 2018, Petition Decision
entered July 5, 2018; Petition Decision entered January 8, 2019.)
Accordingly, we do not consider any arguments pertaining to, and grounded
on, the un-entered evidence presented in Appellant’s briefing in the course
of deciding this appeal.
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Apparatus,” in which the Board entered a Decision on Appeal on December
3, 2018. (See Appeal Br. 3.) A Request for Rehearing was filed by Patent
Owner on February 4, 2019, and is currently pending.
We heard oral argument from Appellant on March 20, 2019, a
transcript of which will be entered into the electronic record in due course.
The ’340 Patent states that the invention relates to a fluid filtering
device that filters undesirable chemicals, particles, hydrocarbons, and
pathogens from liquids, gases, and vapors. (Col. 1, ll. 5–9.) The ’340 Patent
states that the device is suitable for use in combination with a soil vent stack.
(Col. 4, ll. 59–61.)
Claim 1 on appeal reads as follows:
1. In combination with a soil vent stack, a filtration
apparatus for use in a system containing a gas or vapor to be
cleaned which comprises:
at least one housing having an inner chamber; an inlet
and an outlet;
HEPA filter in said at least one chamber;
an outlet portion for said apparatus for discharge of a gas
or vapor from said HEPA filter and chamber associated with
said at least one housing;
an inlet portion of said apparatus associated with an inlet
of said at least one housing for receiving said gas or vapor to be
passed through said chamber and HEPA filter;
first valve means associated with the inlet portion of said
at least one housing to selectively close off the inlet to said at
least one housing and to control the flow of said gas or vapor;
second valve means associated with the outlet portion of
said at least one housing to selectively close off the outlet of
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said at least one housing and to control the flow of said gas or
vapor.
(App. Br. 48 (Claims App’x).)

THE REJECTION
The Examiner rejected claims 1–7 under pre-AIA 35 U.S.C. § 103(a)
as obvious over Mason et al. (U.S. Patent No. 5,424,042, issued June 13,
1995, “Mason”) in view of Pittman (U.S. Patent No. 5,064,454, issued
November 12, 1991, “Pittman”), and further in view of Patent Owner’s
admission of the prior art (AAPA). (Examiner’s Answer mailed March 13,
2018, hereinafter “Ans.,” 2–5.)
Appellant relied on certain parts of the following (Appeal Br. 52
(Evidence App’x)):
Declaration of Robert Monetti dated April 16, 2017, and
attachments thereto (Ex. i) (“Monetti Declaration”).
2003 National Standard Plumbing Code Illustrated (Ex. ii)
Office Action dated December 10, 2007 in U.S. Patent No.
7,390,340 B1 (Ex iii).
Pulse Jet Filter Operation and Maintenance Manual, 2004
(Ex iv) (“Operation Manual”).

Level of Ordinary Skill
The Examiner determined that all of the prior art references applied in
the rejection are directly pertinent to the claimed invention and clearly
evinces the level of one of ordinary skill in the art at the time of the
invention. (Final Act. 5; Ans. 5.)
Appellant contends that the Examiner has not sufficiently established
the level of ordinary skill in the art, because Mason and Pittman do not
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disclose a soil vent stack. (Appeal Br. 9, 10–11; Reply Brief filed July 13,
2018, “Reply Br.” 2.)
We agree with the Examiner and expressly adopt the Examiner’s
determination of the level of skill in the art. Appellant has not provided
sufficient explanation as to why the alleged deficiencies of Mason and
Pittman render them insufficient to provide the level of ordinary skill. That
is, Appellant has not sufficiently explained why the alleged silence in Mason
and Pittman as to a soil vent stack means that such prior art is not pertinent
to a soil vent stack such as those claimed, and as a result does not provide
sufficient information as to the appropriate level of skill. See In re GPAC,
57 F.3d 1573, 1579 (Fed. Cir. 1995) (holding that the Board did not err in
concluding that the level of ordinary skill was best determined by references
of record.)
Indeed, the Monetti Declaration provides a clear statement of the level
of skill in the art by its statement that “One of ordinary skill should have at
least 10 years of experience in handling hazardous materials.” (Monetti
Decl. ¶ 7.) Mason discloses “methods and devices for processing waste,
especially radioactive, toxic, industrial and household waste.” (Col. 1, ll. 7–
10.) Pittman discloses an apparatus for collecting and removing particulate
and fibrous matter, which “may be toxic or otherwise harmful to people or
the environment.” (Col. 1, ll. 7–21.) Thus, the disclosures in each of the
publications, as found by the Examiner, reflect the level of skill in the art,
namely, experience in handling hazardous materials. Mason and Pittman are
therefore directed to the very subject matter in which Patent Owner’s
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evidence states that one of ordinary skill should have experience.
Accordingly, Patent Owner’s arguments are unpersuasive.

Claim Interpretation
Claim 1: “Valve means”
Appellant contends that “valve means” as recited in claims 1 and 7
recites means plus function language such that the valves are at least
directed to a structure that can completely, selectively close or preclude the
flow of gas or vapor during removal or replacement of a filter, which, as
shown in Figures 1 and 2 of the ’340 Patent, include ball valves. (Appeal
Br. 21–23.)
The Examiner stated that “valve means can be interpreted to include
ball valves but by no means restricts or requires that be the only valve that
properly meets the claimed valve means.” (Ans. 9.)
At the outset, we agree with Appellant that recitation of “valve
means” invokes 35 U.S.C. § 112, 6th paragraph (pre-AIA), and, thus, limits
“valve means” to the structure disclosed in the ’340 Patent and equivalents
thereof. Williamson v. Citrix Online, LLC., 792 F.3d 1339, 1347–48 (Fed.
Cir. 2015).
We agree with Appellant that the structure corresponding to the
“valve means” is “structure for closing off the inlet and outlets of a housing
in order to control or preclude the flow of gas or vapors to the housing so
that one or more HEPA filters can be removed or replaced.” (Appeal Br. 22,
citing ’340 Patent, col. 2, ll. 35–36, 52–53; col. 4, ll. 25–36.) We agree also
that in view of Figure 2 of the ’340 Patent, an example of such a structure
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would be a ball valve or equivalents thereof. Even though the ’340 Patent
does not use the term “ball valve,” we agree with Appellant that one of
ordinary skill in the art would have understood the valves depicted in Figure
2 to be ball valves. (Appeal Br. 23.) Thus, the recited “valve means” would
include ball valves and equivalents to the disclosed structure that perform
the function of selectively closing off the inlet or outlet to control the flow of
gas or vapor.

Obviousness Rejection
Regarding claim 1, the Examiner found that Mason discloses an
apparatus and method for processing industrial, hospital, and household
wastes, which includes an off-gas cleaning and pollution control system.
(Ans. 2, citing Mason col. 1, ll. 7–10, col. 2, ll. 61–68.) The Examiner found
that the off-gas cleaning and pollution control subsystem removes harmful
pollutants from the off-gas to minimize stack emissions. (Id., citing Mason,
col. 4, ll. 17–21, col. 5, ll. 40–49.) The Examiner found that the off-gas
cleaning and control subsystem includes a pair of HEPA filters, the filters
being capable of removing particles 0.3 µm and larger at approximately
99.97% efficiency. (Id. at 2.) Claim 1 also requires a HEPA filter. The
Examiner found that although Mason discloses that the system remains in
operation while one of the filters is changed, Mason does not disclose that
valves located at inlets and outlets facilitate that operation as required by the
claim. (Id. at 3.) The Examiner found that Mason discloses that monitoring
pressure differentials may be used to determine whether a filter may need to
be replaced or cleaned, but that Mason does not disclose pressure gauges on
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the HEPA filters as recited in dependent claim 2 and independent claim 7.
(Id.)
The Examiner found that Pittman discloses a filtration removal system
where valves are provided at both the inlet and exhaust of the filter units so
as to isolate the filter unit from the flow of the system for cleaning. (Id.,
citing Pittman, col. 4, ll. 7–31, 34–36, 40–43; col. 5, ll. 5–10.) The
Examiner found that Pittman discloses that pressure gauges are used to
detect pressure drop across each filter unit to determine when cleaning is
required. (Id., citing Pittman col. 5, ll. 10–25; Fig. 3.)
The Examiner determined that it would have been obvious to one of
ordinary skill in the art to include valves such as those taught in Pittman in
the HEPA filter units of Mason to selectively facilitate the individual
cleaning or change out of filters without shutting down the system as
disclosed in Mason. (Id.) The Examiner determined that it would have been
obvious to employ pressure gauges as disclosed in Pittman associated with
the filters of Mason to determine the filter loads requiring cleaning or
change out. (Id. at 3–4.)
The Examiner determined that neither Mason nor Pittman discloses
that the filtration devices may be used in combination with a soil vent stack
as recited in the preamble of claim 1. (Id. at 4.) However, the Examiner
found that Appellant acknowledges that filtration in combination with
plumbing soil vent stacks is well known in the art, stating also that prior art
filtration devices were difficult to maintain. (Id., citing, e.g., ’340 Patent,
col. 1, ll. 20–21.) The Examiner found that Patent Owner acknowledges that
soil vent stacks of plumbing systems, combustion equipment, or vents of
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biological installations exhibit commonality by requiring the same type of
filtration system. (Id., citing ’340 Patent, col. 1, l. 5 – col. 2, l. 21, col. 4, ll.
59–61.)
The Examiner determined that it would have been obvious to one of
ordinary skill in the art to have used the filtration apparatus resulting from
the combination of Mason and Pittman with any gas source recognized as
requiring filtration such as gas from soil vent stacks, because Appellant
recognizes such a combination is known in the art and further because such a
combination would provide ease of maintenance that Appellant admits is
missing in prior filtration of soil vent stack gases. (Id.)
Appellant argues that the Examiner has improperly applied and
interpreted the teachings of the ’340 Patent in rejecting the claims. (Appeal
Br. 12–16.) Appellant contends that during examination of the application
leading to the ’340 Patent, the Office acknowledged that providing the
filtration apparatus with a soil vent stack was not suggested by the prior art,
which examination entailed consideration of the same specification and
drawings now relied upon by the Examiner such that the Office should be
bound by that determination. (Id. at 18–20.)
Appellant contends that the “pneumatic valves” disclosed in Pittman
are not the equivalent of the ball valves disclosed in the ’340 Patent, because
the valves in Pittman do not close to the extent needed to control or preclude
the flow of air to allow the filters to be removed or replaced during cleaning.
(Id. at 24–27.) Therefore, Appellant argues that Pittman does not provide
sufficient evidence that the valves disclosed therein would allow the filters
in Mason to be changed without releasing radioactive particles into the
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environment, which would render Mason inoperable for its intended
purpose. (Id. at 27–29.) Appellant contends that Mason and Pittman are not
analogous art to the claimed invention, because neither reference is
reasonably pertinent to the claimed invention directed to a soil vent stack
due to the operational pressures and unidirectional flow disclosed in Mason
and Pittman. (Id. at 32–39.) Appellant argues that the combination of
references would render one or more of Mason and Pittman unsatisfactory
for its intended purpose because of the differences in pressure and flow
between each reference and a soil vent stack. (Id. at 43.) In particular,
Appellant argues that the combination would render Mason inoperable due
to release of undesirable particles to the environment through the valves of
Pittman. (Id. at 44–45.)
Regarding claim 7, Appellant contends that the Examiner has not
provided sufficient support that the differential pressure gauges recited
would have been obvious in view of the combined teachings of Mason and
Pittman. (Id. at 30–31.)

ISSUES
Thus, the principal issues with respect to this rejection are:
1. Did the Examiner err in relying on the ’340 Patent as admitted
prior art?
2. Did the Examiner err in finding that the valves in Pittman are
capable of acting as the “valve means” recited in claim 1?
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3. Did the Examiner err in determining that the combination of a soil
vent stack and filtration apparatus recited in claim 1 would have
been obvious over the prior art of record?
4. Did the Examiner err in determining that it would have been
obvious to use a pressure differential gauge as disclosed in Pittman
to measure pressure in the off-gas cleaning and pollution control
system disclosed in Mason as recited in claim 7?

DISCUSSION
We select claims 1 and 7 as representative of the arguments made by
Appellant. 37 C.F.R. § 41.37(c)(1)(iv).
Issue 1
We are not persuaded by Appellant’s argument that the Examiner
improperly relied on the ’340 Patent for the disclosure of a soil vent stack in
combination with a filtration apparatus. In particular, in the “Background of
the Invention,” the ’340 Patent discloses: “Filtration devices in a plumbing
system are used for the soil vent stack.” (Col. 1, ll. 20–21.) This is a clear
admission that it was known to one of ordinary skill in the art to use
filtration devices in combination with soil vent stacks. Thus, it is immaterial
whether the remaining parts of the ’340 Patent cited by the Examiner
constitute admitted prior art or are part of the disclosure of the invention.
The cited portion above is sufficient to support the Examiner’s position in
combination with Mason and Pittman. (See MPEP § 2258(I)(F)(1) (“[A]n
admission by the patent owner of record in the file or in a court record may
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be utilized in combination with a patent or printed publication [in a request
for reexamination].”))

Issue 2
We are not persuaded by Appellant’s argument that the valves
disclosed in Pittman are not encompassed by the “valve means” recited in
the claims. Specifically, we do not agree with Appellant that the “pneumatic
valves” disclosed in Pittman, when incorporated into Mason’s filtering
apparatus, would be incapable of “selectively clos[ing] off the inlet” and
“selectively clos[ing] off the outlet” as recited in claim 1.
Pittman discloses that “pneumatic valves 38 and 40 are closed to
isolate the filter unit.” (Col. 4, ll. 41–43.) Although Appellant contends that
the pneumatic valves in Pittman “only close[] to the extent needed to isolate
the collectors 16 in order to prevent asbestos particles that are blown off the
screens by the force of the air jets 42 from reattaching themselves to the dust
collector screens 16” (Monetti Decl. ¶ 10), on this record, Appellant does
not provide sufficient evidence or explanation to support this position to
outweigh the express disclosure in Pittman.
That is, based on this record, Appellant’s position that the valves
disclosed in Pittman are insufficient appears to stem from the disclosure in
Pittman that the dust collectors (filters) disclosed therein are for the purpose
of collecting larger, solid asbestos particles and not to preclude air flow and
also based on the presence of a back-up HEPA filter disclosed in Pittman.
(Appeal Br. 23–24.) We are not persuaded by these arguments.
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First, we are of the view that Appellant is relying on a definition of
“isolate” in a manner inconsistent with its customary use, such as disclosed
in Pittman: “Valves are provided for blocking flow from each filter unit for
cleaning when desired.” (Pittman, col. 2, l. 23–24.) Thus, regardless of
whether Pittman discloses that larger particles are collected, Pittman’s
disclosure that flow is “block[ed]” would be reasonably understood by one
of ordinary skill in the art, in light of the ordinary meaning of “block” to
mean that the valves completely close off the inlets and outlets to the filter
units 16.
Appellant’s additional argument that the valves in Pittman only need
to be closed momentarily because of the duration of the emission of
compressed air from the airjets disclosed in Pittman (Appeal Br. 24–25,
citing Operating Manual, p. 8) is also not persuasive. We have not been
directed to sufficient explanation or evidence as to how a time period for the
pulse of a typical airjet informs the capability of a valve to close completely
to block airflow.
Second, it appears that Appellant accords much weight to Pittman’s
disclosure of back-up filter 18 as informing whether Pittman’s valves are
capable of closing completely. (Appeal Br. 25–26; Monetti Decl. ¶ 11.)
However, Pittman’s disclosure related to back-up HEPA filter units 18 is
“primarily for the purpose of avoiding an accidental release of contaminant
in the event of failure of one of the filter units.” (Col. 4, ll. 3–6.) In
addition, Pittman discloses that the back-up HEPA filter 18 is optional.
(Pittman, col. 3, l. 60 – col. 4, l. 3, e.g., col. 3, ll. 66–67, “This is
accomplished by filter units 16, preferably followed by a backup HEPA
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filter unit 18.” (emphasis added); col. 7, ll. 20–22 “the backup filter 18 may
not be strictly essential in normal operations, though it is certainly desirable
for safety purposes.”)
Thus, Pittman itself does not disclose that the backup HEPA filter 18
is used to collect fine asbestos particles in the air as asserted by Appellant,
and even so, does not suggest that the pneumatic valves themselves would
not fully close. Appellant has not provided sufficient support for the
position that one of ordinary skill in the art would have understood Pittman’s
disclosure of back-up HEPA filters to inform that capability of the valves to
close completely to air flow.
Appellant’s arguments that Pittman’s pneumatic valves are knife edge
gate valves and are not equivalents of the structure and function of valves
that completely close off or preclude the flow of gas or vapor are not
persuasive at least because they are unsupported by any objective evidence
of record. (Appeal Br. 25–26, FN 7; Reply Br. 13–14; see FN 2 above.)
Arguments of counsel cannot take the place of factually supported objective
evidence. In re Huang, 100 F.3d 135, 139–40 (Fed. Cir. 1996). Again, the
Examiner’s determination of equivalence is based on Pittman’s express
disclosure that the valves block flow through the filter unit and completely
isolate the filter unit from the conduit. (Ans. 9–10.) For the reasons
discussed above, the Examiner’s position is supported by the record.
Appellant’s additional arguments with respect to the combination of
Mason and Pittman, e.g., that the combination would render Mason
unsatisfactory for its intended purpose by allowing the escape of radioactive
particles to the atmosphere, are likewise unpersuasive as such arguments are
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based on the position that the pneumatic valves in Pittman do not close off
the inlet and outlets of the filters. (Appeal Br. 27–29, 44–45; Reply Br. 13–
14.)

Issue 3
Initially, we are not persuaded by Appellant’s argument that the
Office has previously determined the claimed subject matter was novel and
non-obvious, and as a result, the Office is changing the interpretation of the
claims based on the identical Specification and drawings. (Appeal Br. 18–
21; citing Non-Final Action in Application No. 11/119, 254, the underlying
application to the ’340 Patent, p. 4.) Appellant has not explained with any
particular specificity how the claim interpretation has changed. Rather, we
agree with the Examiner that the new art presented, which is substantively
different than the prior art previously of record, provides a proper basis in
rejecting the claims. (Ans. 8.)
We are also not persuaded that the Examiner’s reasoning for
combining the prior art to result in a combination of a soil vent stack and
filtration apparatus is insufficient. As discussed above, we are of the view
that the disclosure in the Background Section of the ’340 Patent at column 1,
lines 20–21 is sufficient to constitute an admission of prior art and supports
the Examiner’s rationale that “[i]t would have been well within the purview
of one of ordinary skill in the art to use the filtration apparatus as in the
combination of Mason and Pittman with any gas source recognized as
requiring filtration such that from soil vent stacks, as Patent Owner clearly
acknowledges that such a combination is known in the art.” (Ans. 4.) Thus,
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Appellant’s arguments that the Examiner has improperly interpreted the ’340
Patent to include admissions of prior art are not persuasive. (Appeal Br. 12–
14.)
Appellant argues that Pittman and Mason are non-analogous art
because neither discloses a soil vent stack and both employ the use of
negative pressure to move air, and as such are not reasonably pertinent to the
claimed invention. (Appeal Br. 32–33; Reply Br. 10–12.) We are not
persuaded by this argument, at least because the ’340 Patent discloses that
filtration devices in a plumbing system are used for soil vent stacks. (’340
Patent col. 1, ll. 20–21.) Such a statement provides evidence that one of
ordinary skill in the art would have considered Mason and Pittman, which
both relate to cleaning and maintenance of filtration systems (Mason, col. 1,
ll. 6–14, col. 12, ll. 62–68; Pittman, col. 1, ll. 8–15, col. 4, l. 32 – col. 5, l. 9),
reasonably pertinent to the problem of installation and maintenance of
filtration apparatus in soil vent stacks. (’340 Patent, col. 2, ll. 25–27; see
’340 Patent, col. 4, ll. 34–41 discussing monitoring of gas pressure for
uniform flow.) Appellant has not provided adequate evidence that even if a
soil vent stack excludes negative pressure, why the presence of negative
pressure would have led the skilled worker to ignore the teachings of
Pittman and Mason with regard to the use of a HEPA filter in a filtration
device and valves to isolate it when changing the filter. “‘A reference is
reasonably pertinent if, even though it may be in a different field from that
of the inventor’s endeavor, it is one which, because of the matter with which
it deals, logically would have commended itself to an inventor’s attention in
considering his problem.’” In re ICON Health and Fitness, 496 F.3d 1374,
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1379–80 (Fed Cir. 2007) (quoting In re Clay, 966 F.2d 656, 659 (Fed. Cir.
1992)).
We are also not persuaded by Appellant’s arguments that a soil vent
stack has structure that functions to vent gases or vapors under neutral or
ambient pressure allowing for bi-directional air flow whereas Mason and
Pittman operate under negative pressures and uni-directional airflow, which
would render Mason and Pittman nonanalogous art. (Appeal Br. 14, 18, 33–
38.) As discussed above, the ’340 Patent expressly describes the pertinence
of filtration systems to soil vent stacks. The fact that the systems may
operate under different pressures does not mean that one of ordinary skill
would have considered the references not relevant to the claims. Rather, the
skilled worker with 10 years of experience in handling hazardous materials,
would have consider both publications pertinent to the problem of
maintenance of filters in a soil vent stack and would understand that not all
teachings in a publication are necessarily relevant to problem the worker is
addressing.
We are also not persuaded that Pittman is non-analogous art due to
housing the filtration apparatus in a trailer as argued by Appellant. (Id. at
37.) We agree with and adopt the Examiner’s position in this regard that
Pittman does not require portability for proper operation and has no bearing
on the filtration function. (Ans. 12.)
Likewise, we are not persuaded that Mason and Pittman would not
function as intended to move the required volume of gas using a pressure of
plus or minus one inch of water column in a soil vent stack system. (Appeal
Br. 43; Reply Br. 13.) Regarding Mason, Mason discloses that the draft fan
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is used to pull gas through the off-gas cleaning and control subsystem “and
to maintain a negative pressure inside melter chamber 26 in the range of
approximately –2.9 to –4.9 KPa.” (Col. 16, ll. 39–45.) Thus, Mason’s
disclosure of negative pressure relates to the pressure required in the melter
chamber and does not mean that the off-gas cleaning and control subsystem
is incapable of operating at pressures that would be compatible with a soil
vent stack. (See Ans. 7–8.) Regarding Pittman, as discussed above, we
observe that the Examiner has relied on Pittman for the disclosure of valves
that would be sufficient to close off the filter units in Mason to allow for
filter removal. We are not persuaded that the negative pressure applied in
Pittman for removal of particulate and fibrous material (col. 3, l. 34–42),
would mean that the valves disclosed therein would be incompatible with
Mason’s system and a soil vent stack.
Appellant’s arguments fail to take into account the level of ordinary
skill in the art in considering the combined teachings of the prior art. In
KSR, the Supreme Court explained, “[w]hen a work is available in one field
of endeavor, design incentives and other market forces can prompt variations
of it, either in the same field or a different one. If a person of ordinary skill
can implement a predictable variation, § 103 likely bars its patentability.”
KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). “A person of
ordinary skill is also a person of ordinary creativity, not an automaton.” Id.
at 421. Moreover, Appellant’s arguments are largely grounded on the
contended lack of “precise teachings directed to the specific subject matter
of the challenged claims” and, thus, fail to “take account of the inferences
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and creative steps that a person of ordinary skill in the art would employ.”
Id. at 418.
Accordingly, we affirm the Examiner’s rejection of claim 1.

Claim 7
Claim 7 recites a “differential pressure gauge associated with the
conduits of each housing.”
Appellant’s arguments regarding whether Mason and Pittman disclose
the claimed filter means and whether the combination would decontaminate
biologics or chemicals as recited in claim 1 are not persuasive for the
reasons discussed above. (Appeal Br. 31–34; Reply Br. 14–15.) To the
extent Appellant provides separate arguments with respect to claim 7, we
agree with the Examiner (Ans. 12) that Pittman’s disclosure of pressure
monitoring in order to detect clogged filter units, would have provided
sufficient reasons for one of ordinary skill in the art to incorporate a pressure
gauge into the apparatus in Mason. That is, as evidenced by Mason, which
discloses monitoring differential pressure across filters (col. 12, ll. 62–68),
one of ordinary skill in the art would have understood that pressure
monitoring to detect filter clogging was a known technique to determine
whether filters require cleaning, and, therefore, it would have been obvious
to have applied pressure gauges as disclosed in Pittman to the filters of the
off-gas cleaning and control system disclosed in Mason. Appellant has not
sufficiently explained why any difference in the particular filter (i.e., a
HEPA filter in Mason as opposed to a dust collector in Pittman), would have
Appeal 2019-002085
Reexamination Control 90/013,835
Patent 7,390,340 B1

20
any particular bearing as to the use of pressure gauges for monitoring
pressure. (Appeal Br. 29–31.)
Accordingly, we affirm the Examiner’s rejection of claim 7.

CONCLUSION
We affirm the Examiner’s rejection of claims 1–7 as obvious over
Mason in view of Pittman and AAPA.
DECISION
The Examiner’s decision to reject claims 1–7 as discussed above
under 35 U.S.C. § 103(a) is affirmed.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

Appeal 2019-002085
Reexamination Control 90/013,835
Patent 7,390,340 B1

21
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P.O. Box 1995
Vienna, VA 22183

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