Ex Parte Elliott

Patent Trial and Appeal Board

Dec 5, 2012

11468109 (P.T.A.B. Dec. 5, 2012)

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.
11/468,109 08/29/2006 Mark Elliott WEAT/0696 4536
36735 7590 12/05/2012
PATTERSON & SHERIDAN, L.L.P.
3040 POST OAK BOULEVARD, SUITE 1500
HOUSTON, TX 77056
EXAMINER
BOECKMANN, JASON J
ART UNIT PAPER NUMBER
3752
MAIL DATE DELIVERY MODE
12/05/2012 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 MARK ELLIOTT
____________________

Appeal 2010-011933
Application 11/468,109
Technology Center 3700
____________________

Before: LINDA E. HORNER, PATRICK R. SCANLON, and
SCOTT E. KAMHOLZ, Administrative Patent Judges.

KAMHOLZ, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-011933
Application 11/468,109

2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134(a) from the decision of the
Examiner to reject claims 22-25. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.

THE CLAIMED SUBJECT MATTER
The claimed subject matter is directed to foam for fighting fires in
confined areas. Spec. [0004]. Claim 22, reproduced below, is representative
of the claimed subject matter:
22. A foam for extinguishing a fire, consisting essentially of:
a surfactant;
a non-flammable liquid; and
an inert gas having a density substantially less than the
density of air,
wherein a density of the foam is substantially less than
the density of air.

REJECTIONS
Appellant seeks our review of the following rejections:
Claims 22 and 24 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Brotz (US 5,069,290; iss. Dec. 3, 1991). Ans. 3.
Claims 23 and 25 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brotz. Ans. 4.

ANALYSIS
The Examiner found, among other things, that Brotz’s hydrogen is an
“inert gas” as recited in claim 22 and that Brotz’s foam “is capable of being
Appeal 2010-011933
Application 11/468,109

3
injected [into] a confined area to extinguish a fire at the top of the confined
area.” Ans. 3.
We cannot sustain rejections premised on erroneous findings of fact.
A reasonable interpretation of “inert gas” cannot possibly be considered to
encompass hydrogen, which is notoriously reactive and inflammable. See,
e.g., Brotz, col. 1, ll. 32-34 (describing hydrogen as “a highly inflammable
gas”). We think it doubtful that a foam composed primarily of hydrogen is
capable of extinguishing a fire, even if combined with non-combustible
material (Brotz, col. 1, l. 66) and a fire retardant (col. 2, l. 3). We determine
that a preponderance of the evidence of record does not support these
findings of fact. As they are essential to the Examiner’s prima facie case,
the rejections fail. The presently claimed subject matter is neither
anticipated by nor unpatentable over Brotz.

DECISION
For the above reasons, the Examiner’s decision to reject claims 22-25
is REVERSED.

REVERSED

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