Ex Parte Berry

Patent Trial and Appeal Board

Oct 19, 2018

14340912 (P.T.A.B. Oct. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/340,912 07/25/2014
20995 7590 10/23/2018
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
John Robert Berry
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.
SAFH.002Cl 3662
EXAMINER
SMYTH, ANDREW P
ART UNIT PAPER NUMBER
2881
NOTIFICATION DATE DELIVERY MODE
10/23/2018 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):
j ayna.cartee@knobbe.com
efiling@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN ROBERT BERRY
Appeal2017-010894
Application 14/340,912
Technology Center 2800
Before TERRY J. OWENS, MARK NAGUMO, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Appellant2 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-18 and 20-33. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
The invention is related to air purification apparatuses and methods of air
purification for removal of airborne particulates such as organic and inorganic
substances, bacteria, and viruses from the air. Spec. ,r,r 2-3. Physical filters for
1 In our Decision, we refer to the Specification filed July 25, 2014 ("Spec.");
the Final Office Action mailed January 21, 2016 ("Final Act."); the Appeal
Brief filed January 13, 2017 ("Br."); and the Examiner's Answer mailed
June 12, 2017 ("Ans."). Appellant did not file a Reply Brief.
2 Inventor John R. Berry is identified as the real party in interest. Br. 3.
Appeal2017-010894
Application 14/340,912
particulates are said to be limited in that they do not trap small particulates, can
become clogged, and require cleaning. Spec. ,r 4. Applicant describes air
purification systems that employ light energy reflected within the interior of a
chamber to impact and destroy particulates. Spec. ,r 29.
The claims are directed to air purification apparatuses. Claims 1, 11, and 24,
reproduced below from the Claims Appendix of the Appeal Brief with key
limitations italicized, are illustrative of the claimed subject matter:
1. An air purification apparatus, comprising:
a chamber comprising a first end with a first opening, and a
second end with a second opening, and one or more substantially
continuous walls extending substantially continuously between the
first opening and the second opening to form an interior volume,
wherein at least one of the walls comprises a reflective surface facing
inwardly towards the interior volume;
a collimated light source configured to direct a beam of
collimated light energy into the chamber; and
a charge generation system configured to impart a charge to
the one or more substantially continuous walls, to repel particles
contained within the interior volume from the one or more walls.
11. An air purification apparatus comprising:
a chamber comprising one or more sidewalls forming an inner
cross-sectional area extended longitudinally along a longitudinal axis
to form an interior volume, each sidewall comprising an inwardly-
facing reflective surface, wherein the inwardly reflective surface
compnses:
a first reflective portion extending generally along and
parallel with the longitudinal axis; and
a second reflective portion oriented to be substantially
non-parallel with the longitudinal axis;
a collimated light source configured to direct a beam of
collimated light into the chamber; and
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Application 14/340,912
a beam redirector disposed within the interior volume and
configured to rotate through a complete revolution about a rotational
axis such that the beam of collimated light energy is redirected to
form a field of collimated light energy extending across substantially
an entirety of the cross sectional area of the interior volume and
extending longitudinally along the longitudinal axis.
24. An air purification apparatus comprising:
a chamber comprising:
one or more sidewalls forming an interior volume, the
one or more sidewalls comprising one or more surfaces facing
inwardly towards the interior volume; and
a first opening and a second opening configured to allow
air to flow through the interior volume from the first opening to
the second opening along a longitudinal axis;
a collimated light source configured to direct a beam of
collimated light energy into the interior volume of the chamber;
a beam redirector disposed within the interior volume and
configured to rotate through a complete revolution about a rotational
axis such that the beam of collimated light energy is redirected to
form a field of collimated light energy extending across substantially
an entirety of a cross sectional area of the interior volume during said
revolution; and
a controller configured to rotate the beam redirector about the
rotational axis at a rotational velocity corresponding to at least V/W,
wherein Vis the linear velocity of a particle within the chamber along
the longitudinal axis, and Wis the width of the beam of collimated
light energy.
REFERENCES
The Examiner relies on the following prior art in rejecting the claims on
appeal:
Wen
Nakahara
US 6,673,137 Bl
US 2004/0017556 Al
3
Jan. 6, 2004
Jan. 29, 2004
Appeal2017-010894
Application 14/340,912
Goebel et al.
("Goebel")
Berry et al.
("Berry")
Pierce
Van Steen
Boodaghians et al.
("Boodaghians")
US 6,730,141 B2
US 2006/0165563 Al
US 7,373,254 B2
US 2011/0302881 Al
US 2012/0051977 Al
REJECTIONS
May 4, 2004
July 27, 2006
May 13, 2008
Dec. 15, 2011
Mar. 1, 2012
The Examiner maintains and Appellant seeks review of the following
rejections under 35 U.S.C. § 103:
1. Claims 1-7 and 10 over Pierce in view of Goebel;
2. Claim 8 over Pierce in view of Goebel, and further in view of Wen;
3. Claim 22 over Pierce in view of Berry, and further in view of Wen;
4. Claim 29 over Pierce in view of Berry, and further in view of
Nakahara;
5. Claims 31 and 32 over Pierce in view of Berry, and further in view of
Goebel;
6. Claim 9 over Pierce in view of Goebel, and further in view of Berry;
7. Claim 33 over Pierce in view of Berry, and further in view of Van
Steen and Boodaghians; and
8. Claims 11-18, 20, 21, 23-28, and 30 over Pierce in view of Berry.
Final Act. 5-31; Br. 14--27.
OPINION
Appellant argues each of the independent claims (1, 11, and 24) separately.
Br. 14--17, 18-23, 24--26. Appellant contends the dependent claims are
"patentable for similar reasons" to those argued for each independent claim, and
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Appeal2017-010894
Application 14/340,912
that any additional cited art does not make up for the deficiencies in the art cited
against the independent claims. Id. at 17, 23-24, 27. We therefore focus on the
independent claims.
Claim 1
The Examiner rejects claims 1-7 and 10 under§ 103(a) as obvious over
Pierce in view of Goebel. Final Act. 1 7. The Examiner finds claim 8 obvious over
Pierce in view of Goebel, and further in view of Wen. Id. at 22. The Examiner
finds claim 9 is obvious over Pierce in view of Goebel, and further in view of
Berry. Id. at 27.
Appellant argues claims 1-10 as a group. Br. 14--17.
Claim 1 recites, among other things, "a charge generation system configured
to impart a charge to the one or more substantially continuous walls, to repel
particles contained within the interior volume from the one or more walls." Br. 28
(Claims App'x).
The Examiner finds that Goebel discloses the charge generation system as
claimed. Final Act. 19. An annotated version of Fig. 2 of Goebel is reproduced
below:
,------- -----1
I in1,/ e 12 I
I 1 f.
'ddid,i,.;,~ s
&t)tffC~~·t {~". :~Le .. -.1- , •.•• ~-.J..:-
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I 11 13 I
I 6 . . . I L ~ ~ ~ Q ~ --LLLL~ ~ ~LL~ :~~l:,t~ct~~c~~t~~--R~~
5
Appeal2017-010894
Application 14/340,912
Fig. 2 is a schematic view of Goebel's system for removing gaseous pollutants
from ambient air. Goebel col. 4, 11. 38-39.
The purification unit in Goebel' s Fig. 2 includes a purification chamber 6a, 3
a radiation source 10, and a pair of electrodes 12 and 13 connected to a voltage
supply 14. Id. col. 5, 11. 7-10. The air to be purified is directed through inlet 7,
then irradiated with optical radiation S by radiation source 10. Id. col. 5, 11. 10-12.
Because an electric field E is applied between electrodes 12 and 13 inside
purification chamber 6a, the ionized pollutant molecules are drawn off and
removed through outlet port 8. Id. col. 5, 11. 32-35.
The Examiner finds that Goebel' s electrodes 12 and 13 apply an electric
field E to the walls of chamber 6a, which are substantially continuous, with
particles being repelled via electric field E out of outlet port 8. Final Act. 19. The
Examiner determines that these elements meet the "charge generation system"
limitation. Id.
Appellant argues that Goebel does not disclose the charge generation system
as claimed. Br. 15-16. We agree.
Goebel discloses a pair of oppositely charged electrodes inside a chamber,
unconnected to the chamber walls. Goebel Fig. 2. Goebel does not teach that the
electrodes of Goebel impart a charge to the walls of the chamber. Consequently,
the walls will not repel particles within the chamber interior, as required by
claim 1. See Br. 28 (Claims App'x). Goebel teaches drawing ionized pollutant
molecules through the electric field created by the electrodes and out of the outlet
port. Goebel col. 5, 11. 32-35.
3 Throughout this Opinion, for clarity, labels to elements are presented in bold font,
regardless of their presentation in the original document.
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Application 14/340,912
As Appellant persuasively argues, if both electrodes in Goebel were attached
to the continuous walls, an electrical short would result. See Br. 16. On the other
hand, if only one electrode were attached to the substantially continuous walls in
Goebel, no electric field would be generated, and the pollutant molecules would
not be drawn out of the outlet port. See id. at 17. In either instance, the combined
references would produce a seemingly inoperative device. "If when combined, the
references 'would produce a seemingly inoperative device,' then they teach away
from their combination." Tee Air, Inc. v. Denso Mfg. Michigan, Inc., 192 F.3d
1353, 1360 (Fed. Cir. 1999) (quoting In re Sponnoble, 405 F.2d 578, 587 (CCPA
1969)).
The Examiner bears the initial burden of presenting a prima facie case of
unpatentability. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). A prima
facie case is established when the party with the burden of proof points to evidence
that is sufficient, ifuncontroverted, to entitle it to prevail as a matter of law. See
Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1369 (Fed. Cir. 2006). "If
examination at the initial stage does not produce a prinia facie case of
unpatentability, then without more the applicant is entitled to grant of the patent."
Oetiker, 977 F.2d at 1445 (citing In re Grabiak, 769 F.2d 729, 733 (Fed. Cir.
1985); In re Rinehart, 531 F.2d l 048, 1052 (CCPA 1976)).
Here, the Examiner has not met the initial burden of presenting a prima facie
case of obviousness of claim 1, and therefore has not properly shifted the burden of
coming forward with rebuttal or argument onto Appellants. In re Rijckaert, 9 F .3d
1531, 1532 (Fed. Cir. 1993). Accordingly, we do not sustain the rejection of
claim l under§ 103(a) over Pierce in view of Goebel. The Examiner's rejection of
claims 2-10, each depending frorn clairn 1, does not cite to prior art addressing the
deficiency in the combination of Pierce and Goebel. See Final Act. 20-23.
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Application 14/340,912
Consequently, for the reasons given above, we do not sustain the rejection of
claims 2-----10.
Clairn 11
The Examiner finds that claims 11-18, 20, 21, 23-28, and 30 are obvious
over Pierce in view of Beny. Final Act. 5. Claims 11 and 24 are independent. See
Br. 29, 30-31. Claims 12-18, 20, 21, 23, and 33 depend from claim 11. See id. at
29----32. Claims 25----32 depend from claim 24. See id. at 31.
Appellant argues claim 11 and its dependent claims as a group. Br. 18, 23.
Appellant addresses separately independent claim 24 and its dependent claims 25----
32. In our Decision, we mirror Appellant's discussion of the claims.
\Vith respect to claim 11, Appellant first argues that Pierce in view of Berry
does not teach the recited beam redirector. Br. 18. The Examiner finds that Pierce
teaches this limitation. Final Act. 6; Ans. 6, 7.
Fig. 7 of Pierce is reproduced below:
Fig. 7 shows a ventilation system for disinfesting and disinfecting air.
Pierce col. 3, 11. 59----60. The system comprises laser source 1 to supply energy,
rotating multifaceted min-or 2 to maximize Hux, treatment chamber 3 with highly
reflective surfaces, and detectors 4. Id. col. 24, 11. 7-10.
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Appeal2017-010894
Application 14/340,912
As a first point, Appellant argues that Pierce is silent with respect to how
much of the cross-sectional area within its system would be covered by its
sweeping laser beam, and given Pierce's disclosure, one of ordinary skill in the art
would not understand that "any alleged reflective energy field created by Pierce
would extend across substantially an entirety of the cross-sectional area of the
interior volume of its chamber." Br. 20. Appellant also argues that the
Specification describes fonnation of vortices in some implementations of
chambers, implying that Pierce's system could suffer the same fate, and leave
portions of the cross-sectional area uncovered by reflective energy. id.
According to Pierce, "[a] ventilation disinfesting/disinfecting system can be
used for air treatment to destroy, control or prevent accumulations of airborne
pathogens and microbe contamination commonly found in closed ventilation
systems including but not limited to spacecraft, submarines, medical facilities, food
processing plants, buildings, and hotels." Pierce col. 23, 11. 57----62. The air stream
potentially containing such pathogens and microbes is swept with high intensity
electromagnetic energy matched to the absorption of contaminants contained in the
air. Id. col. 23, 11. 62----65. The system uses a highly reflective section in the air
handling system where air flow is subjected to one or more wavelengths of
electromagnetic energy, causing unwanted particulates to be incinerated with only
nominal increase in the temperature of the air. Id. col. 23, 1. 65-col. 24, 1. 2.
Contamination in air drawn or pushed through the system is killed or vaporized by
energy from the laser or other source. Id. col. 24, 11. 4----6.
Pierce describes-albeit not in great detail-a system that can destroy
pathogens with light energy in environments such as spacecraft and medical
facilities. See Pierce col. 23, 1. 57---col. 24, 1. 2. One of ordinary skill in the art at
the time of the invention would have understood that such an air purification
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Application 14/340,912
system needed to be able to destroy all, not merely some, pathogens in the system
with light energy in order to make the environment safe. "A person of ordinary
skill is also a person of ordinary creativity, not an automaton." KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398,421 (2007). "[A]court can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ." Id. at 418. The skilled artisan would have understood from Pierce's
disclosure that the light energy needed to reflect about the interior of the air
chamber such that an entire cross sectional area was irradiated; pathogens
otherwise could escape the system, making the environment unsafe. Therefore,
Appellant's inference from Pierce's silence does not persuade us that the Examiner
reversibly erred in finding that Pierce discloses a beam redirector that redirects
light energy to form a field of collimated light energy extend across substantially
an entirety of the cross sectional area of the interior volume, as required by claim
11. See Br. 29 (Claim App'x).
As a second point, Appellant argues that Pierce does not teach or suggest a
beam redirector configured to form a field of collimated light energy extending
longitudinal(y along the longitudinal axis. Id. at 20-21.
\Ve give claims their broadest reasonable scope consistent with the
specification. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004). The words used in a claim must be read in light of the specification, as it
would have been interpreted by one of ordinary skill in the art at the time of the
invention. Id.
Taking this requirement into account, we find that claim 11 does not require
any specific amount of longitudinal extension of the light energy. See Br. 29
(Claims App'x). The broadest reasonable interpretation of the term "field of
collimated light energy ... extending longitudinally along the longitudinal axis"
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Application 14/340,912
does not require light energy to extend from one end of the chamber to the other
end, longitudinally. Rather, any longitudinal extension of light energy satisfies the
requirement of claim 11. Any irregularity or roughness on the walls of the
chamber (such as those disclosed by Beny paragraph 35) will cause light energy to
be reflected off the surface with at least some longitudinal direction . .....,
Consequently, Appellant's argument that Pierce does not disclose light energy
extending longitudinally along the longitudinal axis is not persuasive of reversible
error. See In re Crish, 393 F.3d 1253, 1259 (Fed. Cir. 2004) ("[W]hen the prior art
evidence reasonably allows the PTO to conclude that a claimed feature is present
in the prior art, the evidence 'compels such a conclusion if the applicant produces
no evidence or argument to rebut it."') (quoting In re Spada, 911 F.2d 705, 708 n.3
(Fed. Cir. 1990)).
As a final point, Appellant argues that Pierce in view of Berry does not
disclose "a first reflective portion extending generally along and parallel with the
longitudinal axis" or "a second reflective portion oriented to be substantially non-
parallel with the longitudinal axis." Br. 21. The Examiner finds that Pierce
teaches the claimed first reflective portion and Berry teaches the second. Final
Act. 6-7.
Pierce describes a "highly reflective" section of an air handling system.
Pierce col. 23, 1. 65---col. 24, 1. 2. Figure 7 of Pierce, shown above, illustrates that
the interior surface of the chamber, which is "highly reflective," extends "generally
along and parallel with the longitudinal axis" of the chamber. See id. Fig. 7. Thus,
this part of Appellant's argument is unpersuasive of reversible error.
Berry discloses an air purification system that uses laser beams to purify air.
Berry Abstract. Berry discloses that the interior walls of the air purification
chamber are highly reflective and may have surface treatments such as facets and
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Application 14/340,912
dimples "to facilitate propagation of the light beam" "at selected angles to the
longitudinal dimension of the chamber." Id. ,r 35. The facets and dimples provide
"a second reflective portion oriented to be substantially non-parallel with the
longitudinal axis," making Appellant's contention that the combined references do
not teach this limitation unpersuasive of reversible error.
For the reasons discussed above, we sustain the Examiner's rejection of
claim 11 under§ 103(a) as obvious over Pierce in view of Berry. Appellant
merely adopts its arguments for claim 11 to argue patentability of claims 12-18,
20, 21, 23, and 33, and does not explain why the additional features in those claims
should be separately patentable. See Br. 23-24. We sustain the rejection of these
claims for the same reasons as given for claim 11.
Claim 24
The Examiner rejects independent claim 24 and its dependent claims 25-28
and 30 under§ 103(a) as obvious over Pierce in view of Berry. Final Act. 5. The
Examiner determines claim 29 to be obvious over Pierce in view of Berry, and
further in view of Nakahara. Id. at 24. The Examiner determines claims 31 and 32
to be obvious over Pierce in view of Berry, and further in view of Goebel. Id. at
25-26.
Claim 24 recites, in part, "a controller configured to rotate the beam
redirector about the rotational axis at a rotational velocity corresponding to at least
V /W, wherein V is the linear velocity of a particle within the chamber along the
longitudinal axis, and Wis the width of the beam of collimated light energy." Br.
31 (Claims App'x). The Examiner finds that Berry teaches this limitation. Final
Act. 15-16. The Examiner finds that Berry's controller inherently rotates the beam
redirector at a rotational velocity corresponding to at least V /W because "the
velocity of~ particle (i.e., an arbitrary particle) in the chamber's (20) volume 1s
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Application 14/340,912
disclosed by the Maxwell-Boltzmann particle speed distribution as between zero to
greater than 2500 mis." Ans. 10.
The Specification states that one of skill in the art would recognize that
ventilation systems are generally construed to contain a laminar air flow that
avoids turbulent flow, and defines Vas "linear air flow rate within vent." Spec. ,r
79. Therefore, the broadest reasonable interpretation of the limitation consistent
with the specification, as interpreted by one of ordinary skill in the art (see In re
Am. Acad. of Sci. Tech. Ctr., 367 F.3d at 1364), would not encompass, literally, the
velocity of any particle at a speed of zero to an unlimited value, "greater than 2500
m/sec." See Ans. 10.
Because the Examiner's interpretation of the limitation is overly broad and
not reasonable, we do not sustain the rejection of claim 24 under§ 103(a) as
obvious over Pierce in view of Berry. The misbegotten construction applies
equally to dependent claims 25-32, and we do not sustain the rejection of these
claims for the same reason.
DECISION
The rejections under 35 U.S.C. § 103(a) are reversed as to claims 1-10 and
24--32 and affirmed as to claims 11-18, 20-23, and 33.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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