Ex Parte Kristensson et al

Patent Trial and Appeal Board

Apr 20, 2017

13514440 (P.T.A.B. Apr. 20, 2017)

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.
13/514,440 06/07/2012 Dan Allan Robert Kristensson 439089US 9384
22850 7590 04/24/2017
OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET
ALEXANDRIA, VA 22314
EXAMINER
LOUIS, LATOYA M
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
04/24/2017 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):
patentdocket @ oblon. com
oblonpat @ oblon. com
tfarrell@oblon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAN ALLAN ROBERT KRISTENSSON,
PAL MARTIN SVENSSON, and MARK KORNFELD
Appeal 2017-002750
Application 13/514,440
Technology Center 3700
Before WILLIAM A. CAPP, JAMES J. MAYBERRY, and
SEAN P. O’HANLON, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 13, 14, 18-22, 24, and 25 as unpatentable under 35
U.S.C. § 103(a) over Schmid (US 2006/0079170 Al, pub. Apr. 13, 2006),
Kristensson (WO 2008/136740 Al, pub. Nov. 13, 2008), Pariseau (US
5,951,394, iss. Sept. 14, 1999), and Genco (US 5,431,599, iss. July 11,
1995).12 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Claims 15 and 16 have been cancelled. See Amendment after Final
Rejection, dated Aug. 21, 2015.
2 A rejection of claims 13, 14, 18-22, 24, and 25 under 35 U.S.C. 112,
second paragraph, is withdrawn. Ans. 7.
Appeal 2017-002750
Application 13/514,440
THE INVENTION
Appellants’ invention relates to Temperature controlled Laminar
Airflow (“TLA”) air treatment systems. Spec. 1. Claim 13, reproduced
below, is illustrative of the subject matter on appeal.
13. A method of treating allergic asthma and/or rhinitis in a
person in need thereof comprising the step of supplying treated
air to said person in a sleep state such that the person's
exposure, at the location of the person’s nose and mouth, to
allergens and other airborne fine particles larger than 0.5 pm, is
reduced by at least 95%, wherein said supplying treated air
comprises:
delivering treated air into a zone around the person’s nose
and mouth in such a way as to substantially avoid in-mixing of
ambient air into the zone, by controlling a temperature of said
treated air such that said treated air is maintained at a
temperature of 0.5 to 1°C cooler than the ambient air
surrounding said zone, and the delivered air is introduced such
that the delivered air descends as substantially laminar airflow,
which displaces the person's body convection currents without
imposing a draft onto the person in said zone,
wherein said treated air is provided by a temperature
controlled laminar airflow device comprising at least one of
each of (1) an air inlet, (2) a filter, (3) a blower, (4) an air-
temperature adjustment system, (5) an air-temperature control
system capable of determining ambient air-temperature at a
level of the person’s nose and mouth, wherein said air-
temperature control system comprises a control unit and two
sensors where a first sensor is situated such that it is in an air-
stream of said treated air while a second sensor is situated in a
manner so as to determine ambient air-temperature as measured
at a level of the person’s personal breathing zone but outside
the air-stream of said treated air, and wherein said control unit
communicates with said air-temperature adjustment system to
maintain the temperature of said treated air relative to said
ambient air-temperature, (6) an air supply nozzle, and (7) a
housing.
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Application 13/514,440
OPINION
Appellants argue claims 13, 14, 18-22, 24, and 25 as a group. Appeal
Br. 5-18.3 We select claim 1 as representative. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2016).
The Examiner finds that Schmid discloses the claimed invention
except for an air temperature adjustment system and explicit disclosure of
laminar air flow. Final Action 5-6. The Examiner relies on Kristensson as
disclosing laminar air flow and a temperature control system. Id. at 6. The
Examiner concludes that it would have been obvious to a person of ordinary
skill in the art at the time of the invention to use laminar flow and a
temperature control system. Id. According to the Examiner, a person of
ordinary skill in the art would have done this to provide enhanced control
and precision. Id. at 6-7.
The Examiner relies on Pariseau and Genco as disclosing an air-
temperature control system with two sensors, where a first sensor is located
in the treated air and a second sensor is located in ambient air. Id. at 7-8.
The Examiner concludes that it would have been obvious to a person of
ordinary skill in the art at the time the invention was made to further modify
Schmid to include a two-sensor control system. Id. at 7-8. According to the
Examiner, a person of ordinary skill in the art would have done this to
provide enhanced control and stability. Id. at 8.
Appellants traverse the Examiner’s rejection by arguing that Schmid
lacks temperature control as claimed. Appeal Br. 7. In response, the
Examiner directs our attention to Figure 8 of Schmid as disclosing
3 This case came before the Board for regularly scheduled oral hearing on
April 12, 2017.
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Application 13/514,440
downward airflow and to Figure 24 of Schmid as disclosing controlled air
temperatures proximate to a sleeping patient. Ans. 8 (citing Schmid ^ 96).
The Examiner relies on Kristensson as teaching an air temperature control
system controlled by temperature sensors. Id. (citing Kristensson pp. 4,
11. 15-20; 6.11. 32-37). The Examiner also relies on Pariseau and Genco as
teaching air temperature control systems. Id. (citing Pariseau, col. 6,1. 5 —
col. 7,110).
Appellants argue that Pariseau and Genco do not relate to their
invention. Appeal Br. 6. Appellants contend that Genco and Pariseau
discloses push-pull ventilation systems. Id. Appellants distinguish Genco’s
system from a TLA system that “relies entirely on a difference between the
[temperature of the] supply air and the ambient air to maintain a stable
descending airflow.” Id.
Appellants’ argument regarding Pariseau and Genco disclosing push-
pull systems is not persuasive, as the Examiner does not rely on either
reference for disclosing the use of temperature to maintain a stable
descending flow. Instead, the Examiner relies on Kristensson as disclosing
this feature. Ans. 8. Kristensson teaches that
clean air intended to constitute the clean air zone will be at such
a lower temperature, e.g. 1-2° C lower, than air surrounding the
clean air zone that clean air in the clean air zone sinks slowly
downwards . . . The higher density of the cooler air is thus used
for controlling the downward velocity.
Kristensson p. 4,11. 3-7.
Pariseau is directed to an environmental control system that monitors
and controls differential air pressure and/or temperature between any two
environments. See Pariseau, col. 5,1. 42 - col. 6,1. 17. Genco is directed to
an environmental control for a series of modular, connectable isolation
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Application 13/514,440
chambers. Genco, col. 2,11. 27-30. Genco’s system employs monitoring
and control equipment, including a plurality of sensors located inside and
outside of a chamber that are used to determine pressure, temperature, and
humidity differentials within and without the chamber. Genco, Fig. 2, col. 5,
11. 20-32. Pariseau’s and Genco’s disclosure of push-pull systems does not
disqualify either reference from serving as prior art in the Examiner’s
proposed combination as teaching air temperature control systems. A
reference qualifies as prior art for an obviousness determination when it is
analogous to the claimed invention. Innovention Toys, LLC. v. MCA Ent.,
Inc., 637 F.3d 1314, 1321 (Fed. Cir. 2011). Pariseau and Genco qualify as
analogous art because they both come from the same field of endeavor as the
application under appeal, namely, air treatment systems. See In re Bigio,
381 F.3d 1320, 1325-26 (Fed. Cir. 2004) (similarity to the structure and
function of the claimed invention).
The mere fact that Pariseau and Genco are used in push-pull systems
does not persuade us that a person of ordinary skill in the art would not look
to them in developing an environmental control system such as claimed by
Appellants. It is common sense that familiar items may have obvious uses
beyond their primary purposes, and a person of ordinary skill often will be
able to fit the teachings of multiple patents together like pieces of a puzzle.
KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). “A reference may
be read for all that it teaches, including uses beyond its primary purpose.” In
reMouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012), citing KSR 550 U.S.
at 418-21. We think a person of ordinary skill in the art would be readily
able to adapt a known temperature control system from a push-pull product
application to a TLA product application. See KSR 550 U.S. at 417
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(explaining that if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill).
Appellants’ challenge to Pariseau and Genco is viewed as an
individual attack on isolated references in a rejection based on a combination
of references. It is well settled that non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references. In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981).
In view of the foregoing, we reject Appellants’ contentions that Pariseau and
Genco were not properly applied as prior art in the Examiner’s rejection.
Next, Appellants argue that modifying Schmid with Kristensson,
Pariseau, and Genco would require a change in the principle operation of
Schmid. Appeal Br. 12. In this regard, Appellants construe the Examiner’s
rejection as requiring removal or replacement of Schmid’s motor and blower
unit. Id. In response, the Examiner denies that the proposed modification of
Schmid entails removal or replacement of the motor and blower. Ans. 10.
Instead, according to the Examiner, the rejection proposes providing Schmid
with a differential temperature sensor and control unit in a manner that does
not change Schmid’s principle of operation. Id.
Schmid is directed to improving air quality in a personal breathing
environment around the head of a person lying on a bed. Schmid 10-12.
Schmid’s device delivers air provided by a blower unit to a person’s
breathing zone. Id. Schmid’s device is provided with a filter that filters the
air prior to being delivered to the breathing zone. Id. ^ 13. Schmid’s air can
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Application 13/514,440
also be conditioned by heating or cooling. Id. Schmid discloses an
embodiment with a downward flow of air that is within a range of +/- 2° F of
ambient air. Id. 96, Fig. 8.
In a substantially similar manner, Appellants’ device brings in air
through air inlet (1), passes the air through filter (2), then propels air through
air-temperature device (4) and nozzle (6) by means of blower (3). Spec,
p. 20,1. 22 - p. 21,1. 10 (“Supply air is driven by action of the blower (3)
out of the nozzle (6)”); Fig. 3. Thus, both Schmid and Appellants’ device
use a blower to draw in air through a filter and propel the filtered air toward
a nozzle. Both Schmid and Appellants’ devices contemplate cooling the air
before it is ejected from the nozzle. In view of the record before us, we
accept the Examiner’s statement that the proposed modification of Schmid
does not require removal of Schmid’s blower unit and we reject Appellants’
position that the Examiner’s proposed modification changes Schmid’s
principle of operation.
In attempting to distinguish their invention from Schmid, Appellants
oversimplify and, in so doing, mischaracterize their own invention as well as
that of Schmid. While Appellants characterize their invention as exclusively
utilizing TLA descending airflow, Appellants’ drawings reveal something
different.4 Appellants’ device uses blower 3 to propel air through a conduit
so that it is ejected from nozzle 6. See Fig. 3. The directional arrows in
Figure 3 immediately after passing through temperature device 5 indicate an
upward direction of travel. Id. A person of ordinary skill in the art would
4 “[A] TLA system relies entirely on a difference between the supply air and
the ambient air to maintain a stable descending airflow.” Appeal Br. 6
(emphasis added).
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Application 13/514,440
understand that such upward direction of travel is the result of the action of
blower 3, not of TLA airflow. Similarly, Figure 3 depicts directional arrows
representing airflow as it is ejected from nozzle 6. Id. A person of ordinary
skill in the art would understand that velocity of the airflow as it exits
nozzle 6 is the result, at least in part, of the air being acted on by blower 3.
Thus, a person of ordinary skill in the art would understand that the
downward flow of air immediately after exiting nozzle 6 has an initial
velocity that is a product of both the action of blower 3 and the TLA
descending airflow.
In similar fashion, Schmid ejects air from a nozzle by operation of a
blower. Schmid 94-96.5 Schmid’s airflow decelerates after leaving the
nozzle. See id. 87.6 Schmid, at least in certain embodiments, also uses air
temperature that is cooler than ambient. Id. Figs. 8, 24. Figure 24 of
Schmid depicts a first isothermal line at -1° F and a second isothermal line
at -2° F. Id. These temperature differentials will tend to impart downward
velocity to air in a manner substantially similar, if not identical, to that of
Appellants’ TLA flow.
Thus, to summarize, both Schmid and Appellants’ inventions are best
understood such that airflow is ejected from a nozzle into a conditioned air
envelope in such a manner that its subsequent descending velocity is
attributable, in part, to a blower and, in part, to temperature differential. To
5 See also Schmid, Abstract (a blower unit produces a conditioned air flow
that delivers air provided by the blower unit).
6 Schmid indicates that the average velocity of air leaving the air outlet is 33
ft/min, but that the velocity 1 foot away from the air outlet is 14.4 ft/min.
See table, Schmid ^ 87.
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Application 13/514,440
the extent that Appellants seek to persuade us that, throughout the entire
conditioned air envelope, Schmid’s velocity is entirely the result of blower
action and Appellants’ velocity is entirely the result of TLA descending
airflow, such a position is not supported by the factual record before us.
Next, Appellants argue that the claimed temperature range of 0.5 to
1 ° C cooler than ambient temperature is critical and produces unexpected
results. Appeal Br. 12-14. Appellants support this position with declaration
testimony from Martin Svensson. Svensson Dec. In response, the Examiner
points out that Schmid explicitly teaches a temperature value within the
claimed range. Ans. 10 (citing Schmid ^ 94 (1° F cooler than surrounding
air)). Thus, the Examiner takes the position that Appellants’ declaration
testimony is insufficient to overcome the prior art rejection.
Mr. Svensson testifies concerning the findings of Robert J. Boyle, et
al, in a study that was purportedly published on November 30, 2011. See
Svensson Dec.7 (hereinafter the “Boyle Study”). Among other things, the
Boyle Study states:
At night airborne particles are carried by a persistent convection
current established by the warm body, transporting allergens
from the bedding area to the breathing zone. The TLA device
Protexo is designed to displace the body convection which
leads to persistent exposure to particles and allergen in bed.
Ambient room air is filtered, cooled by0.5-0.8°C and
distributed to the breathing zone by Protexo - the reduced
temperature allows the filtered air to descend slowly in a steady
laminar stream, displacing particulate and allergen rich air from
the breathing zone (fig S4). The method is able to break body
7 Attached to the Svensson Dec. is a copy of Robert J. Boyle, et al,
Nocturnal temperature controlled laminar airflow for treating atopic
asthma: a randomised controlled trial, which appears to have been
downloaded from http://thorax.bmj.com on March 3, 2015.
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convection without creating draught or dehydration, and
thereby reduces and controls particle and aeroallergen exposure
in the breathing zone.
Boyle Study p. S2. Although Appellants submit Mr. Svensson’s testimony
to establish criticality and unexpected results with respect to the temperature
range claimed in claim 13, Mr. Svensson does not explain the relationship, if
any, between the inventors of the instant application on appeal and the
persons involved in conducting and reporting on the Boyle Study. The
results reported in the Boyle Study appear to be substantially identical to the
results reported in Examples 1 through 4 of Appellants’ Specification.
Spec. 26-35.
The claimed range has an upper limit and a lower limit. The upper
limit (1° C below ambient temperature) is associated with a patient
experiencing uncomfortable drafts. See Spec. 11, 12, 13. The lower limit
(0.5° C below ambient temperature) is associated with creating a descending
stream of air that is capable of overcoming an ascending stream of air caused
by body heat. Spec. 13-14, 33.
As shown in Figure 1, the warm body of a patient in a sleeping
position generates convection air currents. To be effective in
providing a controlled personal breathing zone, TLA devices of
the invention preferably provide a descending stream of filtered
air that has sufficient velocity to overcome these convection
body currents, as shown in Figure 2 without imposing an
unpleasant draft on the patient.
Id. 13-14.
We are not persuaded that the upper limit of the range reflects an
unexpected result that is probative of nonobviousness. Unexpected results
that are probative of nonobviousness are those that are “different in kind and
not merely in degree from the results of the prior art.” Galderma Labs., L.P.
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Application 13/514,440
v. Tolmar, Inc., 737 F.3d 731, 739 (Fed. Cir. 2013) quoting Iron Grip
Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004).
Here, the upper limit of the claimed range relates to whether a person feels a
“draft” of air. According to Appellants, the velocity of descending air
produced by a temperature differential of greater than 1 ° C creates a
noticeable “draft” that is felt by the person, whereas the velocity of air
produced by a smaller temperature differential is not experienced as a
“draft.” Such a result, however, appears to be entirely expected based on the
following disclosure in Schmid.
In each of the embodiments, it is preferred that the conditioned
air that is delivered by the delivery system to the breathing zone
is at a minimum effective velocity in order to reduce any
feeling of draftiness and minimize skin sensation. It is believed
that an air velocity of between 15 and 100 feet per minute at the
surface of the delivery system as the air exits the delivery
system is acceptable.
Schmid ^ 86. Based on the record before us, we think that merely
discovering the threshold of when moving air is perceived as a “draft” is not
an unexpected result, nor is it otherwise probative of nonobviousness.8
Galderma, supra, Iron Grip Barbell, supra.
We turn now to whether the lower limit of the claimed range reflects
an unexpected result that is probative of nonobviousness. Schmid provides a
diagram illustrating the effect of temperature conditions on a clean air
envelope surrounding the location of a patient’s head (represented by a
depiction of a bed and pillow). Schmid ^ 94, Fig. 24. Schmid explains that
8 In our opinion, it would require no more than ordinary skill to determine
the relationship between temperature differential and the downward velocity
of cooler air.
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Application 13/514,440
a change in temperature can help or hurt the clean air envelope that is
developed around the person’s head and shoulders. Id. 95. Schmid further
explains “it is believed that the temperature of the delivered air should be as
close to the ambient temperature adjacent the delivery system as possible.”
Id. 96. Schmid graphically depicts the size and shape of the clean air
envelope that is produced from a -1 ° F temperature differential. Id. 94,
Fig. 24. One degree on the Fahrenheit scale is equal to about 0.56 degrees
on the Celsius scale. Kristensson teaches that using a temperature
differential of 1-2° C lower than ambient produces a clean air zone that
sinks slowly downwards as the higher density of cooler air is used for
controlling the downward velocity.9 Kristensson p. 4,11. 3-7.
In the instant case, Appellants’ Specification teaches that “a warm
human body lying in bed causes a convection flow transporting a high
concentration of allergens and airborne particles to the person's breathing
zone.” Spec. 7,11. 25-27.
A warm human body causes a convection air flow having an
ascending velocity of over 0.1 m/s and having an air-
temperature increased as much as 2 °C above ambient air at
body level. An effective TLA device thus typically provide a
descending, substantially laminar flow of filtered air with a
velocity higher than 0.1 m/s, and in any case, sufficient to break
body convection currents of a sleeping (or similar state) person
laying in bed.
Id. 8,11. 3-8. Appellants teach that a differential of about 0.5° C is “just
enough” to break body convection currents. Id. 18,11. 13-16. Appellants
argue that, while Schmid discloses a temperature range that encompasses the
9 Appellants concede that “it is well-known that vertical temperature
differences (i.e., thermal stratification) result due to changes in the density of
air as it is heated or cooled.” Appeal Br. 8.
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claimed range, Schmid provides no preference to whether the air is warmer
or cooler than ambient. Appeal Br. 15. Appellants further argue that
Schmid fails to disclose the specific range as claimed, which Appellants
claim is critical. Id.
After fully considering Appellants’ arguments, we are not persuaded
that the lower limit of 0.5° C achieves a result that can truly be considered
“unexpected” for purposes of an obviousness analysis. Schmid teaches a
relationship between temperature and the shape of a clean air envelope.
Schmid ^96 (“By keeping the delivered air at a temperature close to
ambient air temperature, the shape of the clean air envelope is optimized”).
When Schmid’s disclosure is combined with Kristenssen’s disclosure of
using slightly cooler air to create a controlled downward velocity, the
combination produces a result that cannot reasonably be considered as
“unexpected.” A patent claim “does not become non-obvious simply
because the patent specification provides a more comprehensive explication
of the known relationships between the variables and the affected
properties.” In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir.
2012). Essentially, Appellants, by claiming a narrower temperature range
than Schmid, have merely optimized a result effective variable. However,
“where the general conditions of a claim are disclosed in the prior art, it is
not inventive to discover the optimum or workable ranges by routine
experimentation.” Id. at 1289, 1295. Given the combined teachings of
Schmid and Kristensson, we are not persuaded that Appellants’ alleged
“unexpected” results are different in kind and not merely in degree from that
of the prior art. Id.
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Appellants argue that Schmid fails to account for convection currents
produced by a human body. Reply Br. 11-12 (“Schmid does not. . . take
into account the significant convection flow from the warm body of a person
lying in a bed”). Appellants support this argument with a graphical
depiction that purports to integrate the temperature regions of Figure 24 of
Schmid with a “[cjomputational [f]luid [djynamics simulation of body
convection.” Id. at 11. This argument is not persuasive. The Examiner’s
rejection is not based on Schmid alone, but on a combination of Schmid and
Kristensson. Kristensson teaches that air that is approximately 1 ° C cooler
than surrounding ambient air “sinks slowly.” Kristensson, p. 4,11. 4-5.
Since Appellants’ invention is directed to overcoming the rising current of
warm air from a person’s body by using slowly descending cooler air,
Appellants do not explain how their invention is distinguishable from the
Examiner’s combination of Schmid and Kristensson. Since the combination
of Schmid and Kristensson produces cool descending air in a manner
substantially identical to that of Appellants, we see no reason why the
Examiner’s proposed combination would not be equally effective at
overcoming a person’s body convention currents. In this regard, we note
that claim 13 is silent regarding the precise location of the first temperature
sensor relative to a person’s body convection currents. Claims App.
Appellants next argue that the applied prior art references are not
combinable for purposes of an obviousness analysis. Appeal Br. 10.
The Examiner's alleged modification of Schmid based on
Kristensson, Pariseau, and Genco is not straight-forward, nor
even apparent. Specifically, as noted above, the device of
Schmid is very different from the systems used in Kristensson
(TLA system), Pariseau (push-pull system), and Genco (push-
pull system). The artisan would not even consider looking to
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any of Kristensson, Pariseau, and Genco to arrive at a
temperature controlled laminar airflow device as required in the
claimed invention. Thus, contrary to the Examiner's
allegations, neither Pariseau nor Genco would provide specific
motivation to alter the device in Schmid and/or Kristensson.
Id. In response, the Examiner states the one of ordinary skill would have
been motivated, upon seeing the control system of Schmid as modified by
Kristensson, to provide the system with temperature sensors and a control
unit as taught by Pariseau and Genco. Ans. 9. According to the Examiner, a
person of ordinary skill in the art would have done this to provide an
advantage of enhanced control and stability. Id. In reply, Appellants argue
that the only possible motivation for the Examiner’s rejection is the
Appellants’ own disclosure and accuse the Examiner of engaging in
impermissible hindsight. Reply Br. 5-6.
Appellants’ argument concerning combinability of the references is
not persuasive. It is well settled that a reason to modify a prior art reference
may be found explicitly or implicitly in market forces; design incentives; the
“interrelated teachings of multiple patents”; “any need or problem known in
the field of endeavor at the time of invention and addressed by the patent”;
and the background knowledge, creativity, and common sense of the person
of ordinary skill. Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324,
1328-29 (Fed. Cir. 2009) (quoting KSR, 550 U.S. at 418-21). An implicit
motivation to combine exists when the improvement is technology-
independent and the combination of references results in a product or
process that is more desirable, for example because it is stronger, cheaper,
cleaner, faster, lighter, smaller, more durable, or more efficient. Dystar
Textilfarben GmBH & Co, v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed.
Cir. 2006).
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Because the desire to enhance commercial opportunities by
improving a product or process is universal—and even
common-sensical—we have held that there exists in these
situations a motivation to combine prior art references even
absent any hint of suggestion in the references themselves.
Id. In the instant case, Schmid, as modified by Kristensson, teaches the use
of controlled temperatures in connection with delivering conditioned air
around the head of a person lying on a bed. Schmid 12, 94-96. Schmid
explicitly discloses providing conditioned air at a temperature differential
vis-a-vis ambient air. Id. ^ 94. We agree with the Examiner that a person of
ordinary skill in the art would have readily perceived the benefit of
providing more precise control of the temperature of the delivered air by
using a temperature control system that employs two temperature sensors
with a first sensor situated in the conditioned air and a second sensor situated
in the ambient air. Ans. 9.
We disagree with Appellants’ position that the Examiner engaged in
impermissible hindsight reasoning. Appeal Br. 9-10, Reply Br. 5-6. In the
final rejection, the Examiner relies on paragraph 93 of Schmid which states:
It has been found that the clean air envelope maintains an
acceptable size and shape when the delivered air is not lower
than the surrounding air by 2° F. and not higher than the
surrounding air by 1° F. If the delivered air falls below this
range, the height of the clear air envelope becomes too low. If
the delivered air is higher than this range, then the air envelope
tends to rise instead of sweeping horizontally over the user.
Schmid ^ 93, Final Action 5. Schmid then states that the bottom of the
boom is positioned approximately 17 inches above the surface of the bed.
Schmid ^ 94. Schmid’s disclosure in paragraph 93 (“surrounding air”) and
paragraph 94 (putting the boom 17 inches above the bed), is sufficient to
meet the limitations in claim 13 directed to “air surrounding said zone” and
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“at a level of the person’s breathing zone.” The Examiner then relies on
secondary references to place sensors where they need to be to measure and
control the temperature differential between the two temperature zones.
Final Action 7-8. Thus, Schmid teaches: (1) a temperature differential; and
(2) the location of the two temperature zones that are measured to determine
the differential. The Examiner modifies Schmid with secondary references
that teach the use of temperature sensors in a control system. Final Action 7.
The Examiner’s reason to use temperature sensors is “to provide enhanced
control and stability.” Id. at 8. As we understand the Examiner’s reasoning,
you place the sensors where they need to be in order to measure what you
are trying to measure, /. e., in each of the two temperature zones where you
seek to maintain a temperature differential. We think the Examiner has
articulated adequate non-hindsight reasoning to sustain the rejection. Id.
See In re Cree, 818 F.3d 694, 702, n.3 (Fed. Cir. 2016).
In view of the foregoing discussion, we determine the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner’s unpatentability rejection of claims
13, 14, 18-22,24, and 25.
DECISION
The decision of the Examiner to reject claims 13, 14, 18-22, 24, and
25 is 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)(l)(iv).
AFFIRMED
17