Ex Parte Komninos

Patent Trial and Appeal Board

Jul 11, 2018

13925982 (P.T.A.B. Jul. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/925,982 06/25/2013 Nikolaos I. Komninos
23381 7590 07/12/2018
Dorr, Carson & Birney, P.C.
5299 DTC Boulevard
Suite 260
Greenwood Village, CO 80111
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.
8906/12 1279
EXAMINER
ROGERS, DAVID A
ART UNIT PAPER NUMBER
2856
MAIL DATE DELIVERY MODE
07/12/2018 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 NIKOLAOS I. KOMNINOS
Appeal2017-010809
Application 13/925,982
Technology Center 2800
Before BEYERL YA. FRANKLIN, KAREN M. HASTINGS, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1---6 and 9--12. 1 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Application No. 13/925,982, titled Laser Indicator for Remote Measuring
Devices and Method Therefor, filed June 25, 2013 ("Spec."). The real party
in interest is identified as Radiaulics, Inc. Appeal Brief filed Feb. 20, 2017
("App. Br."), 3.
Appeal2017-010809
Application 13/925,982
CLAIMED SUBJECT MATTER
The claims are directed to "a device for use in locating the origin of a
phenomenon of interest, such as a leak, sound, radiation, or the like." Spec.
,r 4. Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. An instrument for use in locating a gas leak, comprising:
a) a handheld portable housing;
b) a sensor within the housing capable of detecting the
presence of the gas leak in a field of detection extending along a
sensor axis fixed relative to the housing and generating a
detection signal in response thereto; and
c) a gas leak locator within the housing to monitor the
detection signal and project a beam of light along a projection
axis fixed relative to the housing and generally parallel to the
sensor axis toward the leak when the detection signal satisfies a
selected criteria level, thereby visibly indicating the presence and
location of the leak.
App. Br. 10 (Claims Appendix) (emphases added).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Engelhart US 2005/0225753 Al
Komninos ("Komninos 076") US 6,058,076
Komninos ("Komninos ") US 7,051,577 B2
Oct. 13, 2005
May 30, 2000
May 30, 2006
Instruction Manual for LD 300 Leak Detector, CS Instruments GmbH
("CS").
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Appeal2017-010809
Application 13/925,982
REJECTIONS
Claims 1, 2, 4---6, and 9-12 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Komninos, CS, and Engelhart. Final Act. 3. 2
Claim 3 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Komninos, CS, Engelhart, and Komninos 07 6. Final Act. 6.
OPINION
In rejecting claim 1, the Examiner finds that Komninos describes a
handheld leak detector using sensors such as ultrasonic acoustic emissions
sensor or gas sensor to detect gas leakage whereas CS describes a leak
detector having "a laser pointer that the operator can use to point at a
location of interest." Final Act. 3. The Examiner finds that Engelhart
describes "using light to indicate locations of flaws and defects on a
composite structure" by "trigger[ing] an ink-based marking device (e.g.,
inkjet marking, pump-fed felt-tip marker, spring-loaded marking pen, etc.) to
place a visually prominent ink indication next to the defect." Id. at 4 ( citing
Engelhart ,r 42); Engelhart ,r 34.
Appellant does not dispute the prior art teachings but argue that the
Examiner reversibly erred in finding claim 1 unpatentable because the
combined prior art would render Engelbart's device inoperable. 3 App. Br. 7.
Specifically, Appellant argues that "Engelhart requires a steering system to
2 We refer to the Final Action of July 27, 2016 ("Final Act."). In this
opinion, we also refer to the Examiner's Answer of July 12, 2017. No Reply
Brief was filed.
3 Appellant does not present separate arguments for the remaining claims.
App. Br. 8. Consistent with the provisions of 37 C.F.R. § 4I.37(c)(l)(iv)
(2013), claim 2-6, and 9-12 stand or fall with claim 1.
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Appeal2017-010809
Application 13/925,982
actively steer the light beam to illuminate a defect" and would be inoperable
when such a light is projected as recited in claim 1. Id.
The test of obviousness is "whether the teachings of the prior art,
taken as a whole, would have made obvious the claimed invention." In re
Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991). In this case, the Examiner
responds that the rejection is proper because Komninos undisputedly
describes a handheld leak detector and a skilled artisan would have
predictably combined the components described in CS and Engelhart with
Komninos' device to arrive at the instrument recited in claim 1. Ans. 2-3.
The Examiner cites various portions of the prior art including directional
light source 91 of Komninos' device which may indicate the location of a
leak. Id. at 3; see Komninos 12:38--47. Because Appellant's argument is
solely directed toward Engelhart individually without addressing the prior
art teachings as a whole, no reversible error has been identified in this aspect
of the obviousness analysis. See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986) ("Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole.").
Appellant also argues that Engelhart is in a field unrelated to that of
Komninos and CS. App. Br. 7-8. To be considered in an obviousness
analysis, the art must be analogous "prior art," which means the prior art
must be in either the same field of Appellant's endeavor or reasonably
pertinent to Appellant's problem. In re Clay, 966 F.2d 656, 659 (Fed. Cir.
1992). The Examiner finds that Engelhart, being in the flaw detection field
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Appeal2017-010809
Application 13/925,982
of endeavor, is at least reasonably pertinent to the problem at issue in this
application. Ans. 3. Whether a prior art reference is "analogous" is a
question of fact. Clay, 966 F.2d at 658. Even if, arguendo, that the
reference is not within the field of the inventor's endeavor, the record lacks
evidence showing that it is not reasonably pertinent to the inventor's
problem including "the remote detection of an event or the measurement of a
quantity from a distance requires ascertaining the origin location of the
event" provided in paragraph 2 of the Application. See id.
DECISION
The Examiner's rejections of claims 1---6 and 9--12 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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