Ex Parte Pecoraro et al

Patent Trial and Appeal Board

Aug 3, 2016

12826824 (P.T.A.B. Aug. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/826,824
75207 7590
Gearhart Law LLC
41 River Road
Suite IA
Summit, NJ 07901
FILING DATE FIRST NAMED INVENTOR
06/30/2010 JOSEPH PECORARO
08/03/2016
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.
1658 JPRF 01 UTL 4050
EXAMINER
SCHNEIDER, CRAIG M
ART UNIT PAPER NUMBER
3753
MAILDATE DELIVERY MODE
08/03/2016 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 JOSEPH PECORARO and RALPH FRAGOLA
Appeal2014-007107
Application 12/826,824
Technology Center 3700
Before MICHAEL L. HOELTER, JILL D. HILL, and LISA M. GUIJT,
Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Joseph Pecoraro and Ralph Fragola ("Appellants") appeal under
35 U.S.C. § 134(a) from the Examiner's decision to reject claims 1---6, 8-13,
15-19, 21-25, and 27-30. 1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Claims 7, 14, 20, and 26 are cancelled, and claims 27-30 were added in an
Amendment dated October 4, 2013, but are not listed in the Claims
Appendix of the Appeal Brief.
Appeal2014-007107
Application 12/826,824
CLAIMED SUBJECT MATTER
Independent claims 1, 8, 15, 21, and 27 are pending. Claim 1,
reproduced below, illustrated the subject matter on appeal.
1. A fire sprinkler system comprising;
a pressurized graded pipe system having a condensation
accumulation point;
a pipe assembly disposed at said accumulation point,
having a first controlled valve and a second controlled valve, a
water reservoir disposed between said controlled valves;
a water detection device having a water sensor and a
pressure switch capable of closing said first controlled valve
when the system pressure drops, wherein the water sensor is
capable of detecting a presence of a predetermined amount of
water in the water reservoir, and wherein the first controlled
valve closes, and the second controlled valve opens when the
predetermined amount of water is present in the system; and the
second controlled valve closes and the first controlled valve
opens after the water reservoir is empty; and
wherein the water detection device automatically controls
said controlled valves.
REJECTIONS
I. Claims 1-3, 6, 8, 9, 11-13, 15, 16, 18, 19, 21, 22, 24, 25, 27,
and 30 stand rejected under 35 U.S.C. § 103(a) as unpatentable over
Thompson (US 6,443, 173 B 1; iss. Sept. 3, 2002) and Golinveaux (US
2006/0021760 Al; pub. Feb. 2, 2006). Final Act. 2.
II. Claims 4, 10, 17, 23, and 28 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Thompson, Golinveaux, and Hertenstein (US
2,642,675; iss. Sept. 30, 1950). Final Act. 4.
2
Appeal2014-007107
Application 12/826,824
III. Claims 5 and 29 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Thompson, Golinveaux, and Hodgman (US 2,021, 148;
iss. Nov. 19, 1935).
ANALYSIS
Rejection I
Appellants argue claims 1-3, 6, 8, 9, 11-13, 15, 16, 18, 19, 21, 22, 24,
25, 27, and 30 as a group. Appeal Br. 9-13. We select independent claim 1
as representative of the group. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
Claims 2, 3, 6, 8, 9, 11-13, 15, 16, 18, 19, 21, 22, 24, 25, 24--27, and 30
stand or fall with claim 1.
The Examiner finds that Thompson teaches the limitations of claim 1,
except for the water detection device comprising a pressure switch capable
of closing the first controlled valve when the system pressure drops, but
finds that Golinveaux discloses a pressure sensor sensing pressure inside a
dry pipe fire sprinkler system, the system controlling operation of its valves
based on the sensed pressure. Final Act. 2-3 (citing Golinveaux i-f 53). The
Examiner concludes that it would have been obvious to employ a pressure
switch like Golinveaux' s to control the first control valve of Thompson, "to
provide for a back up closure of the condensate drain." Id. at 3.
Appellants appear to argue that the Examiner's findings regarding the
disclosure of Thompson are in error because Thompson's condensate drain
does not "provide for a fail safe when the fire protection system is
triggered," so that water dispatched to assist in fire mitigation will be
undesirably removed by the condensate drain. Appeal Br. 10-11.
3
Appeal2014-007107
Application 12/826,824
The Examiner responds that Thompson does not discuss the exact
protocol of what happens with its drain valves when a fire triggers the
sprinkler system, but one skilled in the art would understand that there
would be closure of at least one of the drain valves in the event of a fire so
as to not siphon off water needed to fight the fire. Ans. 6. Indeed,
Thompson discusses various embodiments for use of its condensate drain
"during periods of inactivity" (Thompson 4:27 - 5:5), which teaches that its
drain is not employed when the sprinkler system is active. In addition,
Thompson's operational embodiments always start with at least one valve
closed and generally keep one valve closed throughout the drain operation.
Id. 4:27-67. We agree with the Examiner that one skilled in the art would
understand that at least one valve of Thompson's condensate drain would be
closed during periods of activity (i.e., when the sprinkler system is in use).
Even if Appellants' argument regarding the lacking functionality of
Thompson (Appeal Br. 10) is correct, which argument lacks supporting
evidence, provision of a fail safe is not recited in the claims, and it is unclear
what factual finding or conclusion of the Examiner is resultantly in error.
Further, even if we accept as true Appellants' claim that Thompson's drain
is inferior to Appellants' drain (id.), this fact does not apprise us of
Examiner error. Inferiority does not negate obviousness. See In re Mouttet,
686 F.3d 1322, 1332 (Fed. Cir. 2012); In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004). We are not persuaded by these arguments.
Appellants similarly argue that fire protection systems typically
require multiple condensate drains, such that "removal of water from the
system [via the condensate drain] would equate to the lack of proper
4
Appeal2014-007107
Application 12/826,824
functionality of the system as a whole." Id. at 11; Reply Br. 2-3. Therefore,
Appellants contend, simply adding Thompson's condensate drain to a fire
protection system would be "ill advised," without a way to prevent
undesirably expelling water intended to combat a fire through the
condensate drain. Id. Although there are "conceivably a number of
appropriate responses to this problem," Appellants "chose[] to solve this
dilemma using a pressure switch, [] which the Examiner alleges is obvious
in light of Golinveaux." Id. Appellants appear to argue that the Examiner's
conclusion of obviousness is in error, because Golinveaux "is [not]
concerned with the aforementioned problem to be solved, and as such its
pressure sensor operates in a substantially different manner than the present
invention." Id.
Operation of the pressure sensor, however, is only claimed to the
extent that the pressure switch is "capable of closing said first controlled
valve when the system pressure drops." Galvineaux discloses controlling
valve operation based, in whole or in part, on a pressure sensor signal. See
Galvineaux i-f 49 and 51-53. Thompson discloses controlling operation of its
condensate drain inlet and outlet valves 18, 20 in response, e.g., to sensors
detecting a predetermined change in temperature. Thompson 4:23-26.
Appellants have failed to explain why one skilled in the art would not add
Galvineaux's pressure sensor, or substitute Gavineaux's pressure sensor for
Thompson's temperature sensor, or why a signal from such a pressure sensor
would not be capable of closing Thompson's first control valve based on
system pressure. Appellants also have not specifically explained why the
Examiner's stated reasoning of providing "a back up closure of the
5
Appeal2014-007107
Application 12/826,824
condensate drain" lacks a rational basis. We therefore are not persuaded that
the Examiner's conclusion of obviousness is in error. For the reasons set
forth above, we sustain Rejection I.
In the Reply Brief, Appellants allege that the Examiner's conclusion
of obviousness was improperly based on hindsight. Reply Br. 4. To the
extent that this argument is supported by the reasoning set forth in the
Appeal Brief, we have addressed that reasoning above. If this is intended to
be a new argument, we decline to consider its merits in the absence of a
showing of good cause. See 37 C.F.R. § 41.41(b)(2).
Rejection II
Appellants make no argument that claims 4, 10, 17, 23, and 28 would
be patentable over Thompson, Golinveaux, and Hertenstein, if claim 1 is not
patentable over Thompson and Golinveaux. We therefore sustain Rejection
II for the reasons set forth above regarding Rejection I.
Rejection III
Appellants make no argument that claims 5 and 29 would be
patentable over Thompson, Golinveaux, and Hodgman, if claim 1 is not
patentable over Thompson and Golinveaux. We therefore sustain Rejection
III for the reasons set forth above regarding Rejection I.
DECISION
We AFFIRM the Examiner's rejection of claims 1-3, 6, 8, 9, 11-13,
15, 16, 18, 19, 21, 22, 24, 25, 27, and 30 under 35 U.S.C. § 103(a) as
unpatentable over Thompson and Golinveaux.
6
Appeal2014-007107
Application 12/826,824
We AFFIRM the Examiner's rejection of claims 4, 10, 17, 23, and 28
under 35 U.S.C. § 103(a) as unpatentable over Thompson, Golinveaux, and
Hertenstein.
We AFFIRM the Examiner's rejection of claims 5 and 29 under
35 U.S.C. § 103(a) as unpatentable over Thompson, Golinveaux, and
Hodgman.
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
7