Ex Parte Robinson

Patent Trial and Appeal Board

Sep 6, 2017

11827882 (P.T.A.B. Sep. 6, 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.
11/827,882 07/13/2007 Paul Robinson H28488-MOR03334P02640US 1987
93730 7590 09/08/2017
HONEYWELL/WOOD PHILLIPS
Patent Services
115 Tabor Road
P.O. Box 377
MORRIS PLAINS, NJ 07950
EXAMINER
WOODWARD, VALERIE LYNN
ART UNIT PAPER NUMBER
3771
NOTIFICATION DATE DELIVERY MODE
09/08/2017 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):
ksanderson@woodphillips.com
patentservices-us @ honey well, com
docketing @ woodphillips .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL ROBINSON
Appeal 2015-007579
Application 11/827,8821
Technology Center 3700
Before LINDA E. HORNER, ANNETTE R. REIMERS, and
NATHAN A. ENGELS, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON REHEARING
STATEMENT OF THE CASE
Paul Robinson (Appellant) filed a request for rehearing under
37 C.F.R. § 41.52 (hereinafter “Request”) of our decision dated June 23,
2017 (hereinafter “Decision”). In that Decision, we affirmed the Examiner’
rejections of claims 10 and 12 under 35 U.S.C. § 102(b) and claims 1, 2, 8,
11, and 13 under 35 U.S.C. § 103(a).
1 Appellant identifies Morning Pride Manufacturing, L.L.C. and Honeywell
International, L.L.C. as the real parties in interest. Appeal Brief 1 (January
20, 2015) (hereinafter “Appeal Br.”).
Appeal 2015-007579
Application 11/827,882
ANALYSIS
The request for rehearing must state with particularity the points
believed to have been misapprehended or overlooked by the
Board. Arguments not raised, and Evidence not previously relied
upon, pursuant to §§ 41.37, 41.41, or 41.47 are not permitted in
the request for rehearing except as permitted by paragraphs (a)(2)
and (a)(4) of this section.
37 C.F.R. § 41.52(a)(1). Rehearing is not an opportunity for Appellant to
make new arguments which could have been made in the briefs or to
reiterate arguments made in the briefs which have been specifically
addressed by the Board.
Appellant contends the Board misapprehended or overlooked various
points in affirming the first through fourth grounds of rejection of claims 1,
2, 8, and 10-12. Appellant does not present any arguments regarding the
Board’s affirmance of the fifth ground of rejection of claim 13. We address
Appellant’s arguments as to the first through fourth rejections infra.
First Ground of Rejection: Rejection of claims 10 and 12 under 35 U.S.C.
§ 102(b) as anticipated by Ansite
Appellant contends that the Board erred in affirming the first ground
of rejection by making an overly broad interpretation of “an oxygen/air
supply connection for a fitment of the emergency/rescue breathing
apparatus” as recited in representative claim 10. Request 1. In particular,
Appellant argues that the Board erred in finding that “the specification
somehow asserts or admits that ‘the structure of the oxygen/air connection
could be formed in any manner that renders it capable of use with a fitment
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Appeal 2015-007579
Application 11/827,882
or a regulator filter device. Request 2.2 3For the reasons that follow,
Appellant’s arguments do not demonstrate error in this interpretation.
Claim 10 recites an oxygen/air supply connection for a fitment of the
emergency/rescue breathing apparatus. As noted in our Decision, we
interpreted “emergency/rescue breathing apparatus,” in light of the
Specification, to include: (1) a Self-Contained Breathing Apparatus (SCBA),
in which the claimed oxygen/air supply connection is for a fitment such as
an oxygen/air regulator, and (2) an Air Purifying Respirator or a Powered
Air Purifying Respirator, in which the claimed oxygen/air supply connection
is for a fitment such as an air purifying filter device. Decision 5 (citing
Spec. para. 23). We noted in our Decision the breadth of the Appellant’s
definition of “emergency/rescue breathing apparatus” to emphasize the fact
that the Specification does not limit the specific structure of the fitment to
which the oxygen/air supply connection is joined. In other words, the
fitment is not limited to a regulator of an SCBA.
In part based on the breadth of the description in Appellant’s
Specification, we found no error in the Examiner’s finding that Ansite’s
circular opening in end wall 22 of filter 20, which is designed to achieve a
snap fit connection with connector tube means 32 of portable
ventilator/resuscitator 30, satisfies the limitation of an “oxygen/air supply
connection for a fitment of the emergency/rescue breathing apparatus.”
Decision 5-6. In other words, we found no error in the Examiner’s finding
2 The Request misquotes the Board’s Decision. The Decision states that “the
structure of the oxygen/air supply connection could be formed in any
manner that renders it capable of use with a fitment of a regulator or filter
device.” Decision 5 (emphasis added).
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Application 11/827,882
that Ansite’s circular opening is capable of being used as a connection to a
fitment of an emergency/rescue breathing apparatus, as claimed. Id.
Appellant’s arguments raised in the Request, similar to the arguments
presented in the Appeal Brief, fail to point out any structural difference
between the claimed “oxygen/air supply connection” and Ansite’s circular
opening in filter 20. Appellant’s contention that Ansite’s filter opening 22 is
“not a ‘connection’” does not demonstrate a structural difference between
filter opening 22, which engages with conical outer surface 34 and shoulder
36 of connector tube means 32 of ventilator/resuscitator 30 to create a snap
fit airtight relation, and the claimed “oxygen/air supply connection for a
fitment of the emergency/rescue breathing apparatus.” Decision 6. For
these reasons, we do not change our decision affirming the Examiner’s first
ground of rejection.
Second Ground of Rejection: Rejection of claim 1 under 35 U.S.C. § 103(a)
as unpatentable over Ansite and Price
Appellant argues the Board erred in affirming the second ground of
rejection because “Price’s threaded connection is not a functional equivalent
to the undisclosed connection between the hose 40 and the component 62
shown in Fig. 3 of Ansite.” Request 3 (arguing the Board failed to recognize
that the Examiner’s rejection is based on the connection between the hose 40
and the valve 62). Appellant contends that “the Decision errs in asserting
that the Examiner was proposing to use a threaded connection to connect the
adapter 32 of Ansite to the valve body 62 and further errs in asserting that
‘the connection in Price is used to connect an adapter to a valve body in the
same manner and in the same environment.’” Id.
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Application 11/827,882
First, we point out that claim 1 does not require that the connection
between the oxygen/air port and hose is threaded. Rather, claim 1 recites
that the oxygen/air port is “configured to engage the oxygen/air ventilation
port” and that “the oxygen/air port comprises a threaded male connection.”
The claim does not recite the location of the threaded male connection on the
oxygen/air port.
Second, the Board did not misapprehend the Examiner’s proposed
modification of Ansite. The Examiner found that Price teaches an adapter
46 with a threaded male connection that meets ventilator valve body 2.
Final Act. 5. The Examiner determined that “it would have been obvious
... to modify the connection adapter of Ansite to include the threaded male
connection on the oxygen/air port as taught by Price in order to provide a
sufficiently tight sealing means between the connection adapter body and the
ventilation device.” Id. at 6. As noted in our Decision (Decision 7), the
Examiner further explained in the Answer that he proposed to modify the
connection between adapter 32 and component 62. See Ans. 4 (“Ansite
does not provide any description of what type of connection is provided
between adapter 32 and inhalation/exhalation valve 62 connected to hose
40” and “[ljacking any details as to the type of connection, one of skill in the
art would look elsewhere for suitable connection types”)(emphasis added).
For these reasons, we do not change our decision affirming the Examiner’s
second ground of rejection.
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Application 11/827,882
Third and Fourth Grounds of Rejection: Rejection under 35 U.S.C. § 103(a)
of claim 2 as unpatentable over Ansite, Price, and Muller and of claims 8
and 11 as unpatentable over Ansite and Muller
Appellant argues the Board erred in affirming the third and fourth
grounds of rejection because the circular opening in Ansite “is simply not an
equivalent to a bayonet connection” such as disclosed in Muller. Request 4
(arguing that “the Decision fails to recognize that Ansite is based upon the
idea of utilizing its device with a standard, filter component 20 having just a
circular opening 22 formed in an end wall of the filter 20”).
First, Appellant’s argument appears to differ from the arguments
presented in the Appeal Brief. As noted in our Decision, in the Appeal
Brief, Appellant asserted error in the Examiner’s stated reason to modify
Ansite with the bayonet fitting of Muller. Decision 9 (citing Appeal Br. 9,
arguing that a bayonet fitting is not quicker than a snap fit connection and
that Ansite’s snap fit connection already provides a fluid tight seal).
Appellant now, for the first time in this appeal, challenges that a bayonet
connection is not equivalent to a snap fit connection. As noted above,
arguments not raised in the briefs are not permitted in the request for
rehearing. 37 C.F.R. § 41.52(a)(1).
Second, to the extent Appellant asserts that this argument is not new,
it is nonetheless not persuasive of error in the Board’s Decision. This
argument is based on Appellant’s assertion that Ansite’s circular opening in
end wall 22 “was never intended or designed to be a connection.”
Request 4. Appellant’s assertion is factually incorrect. Ansite describes that
the circular opening in end wall 22 is designed to connect via snap fit to
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Application 11/827,882
conical outer surface 34 of connector tube means 32. Ansite, col. 2,11. 43-
49, Fig. 3.
For these reasons, we do not change our decision affirming the
Examiner’s third and fourth grounds of rejection.
DECISION
Appellants’ Request has been granted to the extent that we have
reconsidered our Decision in light of the arguments in Appellant’s Request,
but is denied with respect to our making any modification to the Decision.
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).
DENIED
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