Ex Parte Seebaluck et al

Patent Trial and Appeal Board

Dec 23, 2014

12816416 (P.T.A.B. Dec. 23, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DHARMENDR LEN SEEBALUCK, TERRY SIMPSON,
and ROBERT GLASER
____________

Appeal 2012-011676
Application 12/816,416
Technology Center 3700
____________

Before LINDA E. HORNER, ANNETTE R. REIMERS, and
LEE L. STEPINA, Administrative Patent Judges.

HORNER, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Dharmendr Len Seebaluck et al. (Appellants) seek our review under
35 U.S.C. § 134 of the Examiner’s decision rejecting claims 1–9 and 16–25,
which are all of the pending claims. We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM-IN-PART and designate our affirmance as a NEW
GROUND OF REJECTION pursuant to our authority under 37 C.F.R.
§ 41.50(b).
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THE INVENTION
Appellants’ claimed invention relates to “a fire suppression system
having a volume reduction system.” Spec. 1, para. 1. Claims 1, 16, and 25
are independent. Claim 1 is illustrative of the subject matter on appeal.
1. A fire suppression system, comprising:
a volume reduction system including a seal member,
wherein said seal member is selectively deployable between a
first position and a second position to seal an opening in a
confined space of an aircraft.
THE REJECTIONS
Appellants seek review of the following Examiner’s rejections:
1. Claims 1–3, 5, 6, 8, 9, and 16–25 under 35 U.S.C. § 103(a) as
unpatentable over Nash (US 5,188,186; issued February 23, 1993).
2. Claim 7 under 35 U.S.C. § 103(a) as unpatentable over Nash and
Dreker (US 4,036,024; issued July 19, 1977).
3. Claim 8 under 35 U.S.C. § 103(a) as unpatentable over Nash.
4. Claims 17–20 under 35 U.S.C. § 103(a) as unpatentable over Nash.
5. Claims 1, 4, and 21–25 under 35 U.S.C. § 103(a) as unpatentable
over Cooper (GB 2 108 839 A; published May 25, 1983).
FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence.
1. Nash discloses “expandable barricades for obstructing an entry
opening” to a confined open area “to isolate fire or smoke generated
in one location from spreading to other areas.” Nash, col. 1, ll. 7–12.
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2. Nash discloses a double-walled curtain or bag and a monitoring and
triggering system, which detects unsafe conditions or unsafe levels of
heat, smoke, gases, or the like, such as conditions sensed by a sensing
means and triggers release of the curtain or bag and filling of the bag
with expansible material, such as any suitable fluid or solid material.
Nash, col. 2, ll. 44–49 and col. 3, l. 61 – col. 4, l. 2.
3. Nash discloses that as the bag begins to fill with fluid or solid
material, it is forced to descend downwardly from a horizontal brace
member, or in an alternate embodiment, the bag is forced outwardly,
i.e., transversely, from a vertical brace member. Nash, col. 3, ll. 1–6.
4. Nash discloses that the barricade “may be used in any setting where a
passageway exists, especially personnel passageways such as in . . .
airplanes.” Nash, col. 4, ll. 47–52.
5. Nash discloses an embodiment, shown in Figure 10, in which an
expandable bag 150 is housed within a vertical brace member 152
prior to deployment and in which, in response to a proper stimulus,
the bag 150 is caused to be ejected from the vertical brace 152 and is
forced across the opening. Nash, col. 8, ll. 50–58.
6. Nash discloses that “[a]lternatively, an expandable bag may be housed
in each vertical brace member” such that upon deployment “both bags
meet at a midpoint between the length of the horizontal brace.” Nash,
col. 8, l. 67 – col. 9, l. 4.
7. Nash discloses that “[a]lthough a single expandable bag is a preferred
embodiment of the invention, the expansible bag may be comprised of
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more than one expandable bag, as illustrated by FIG. 11. . . .” Nash,
col. 9, ll. 12–15.
8. Nash discloses the bag is released from the housing or frame in
reaction to a stimulus, for example, through the use of a small
explosive charge or compressed gas discharge, and thereafter filled
with a material, such a fluid or solid material, that facilitates
deployment. Nash, col. 2, ll. 56 – col. 3, ll. 6. Nash further discloses
that “the expandable bag may, in some situations, be deployed without
filling thereafter” such as “in subways and airplanes where isolation is
necessary . . . .” Nash, col. 9, ll. 43–47.
9. Nash discloses that the invention “may also be used to seal off vertical
shafts” in which “an explosive charge, such as that used in air bags for
automobiles, may be used to ‘blow’ the bag across a vertical shaft.”
Nash, col. 9, ll. 51–57.
10. Nash discloses that the longitudinal, horizontal, and vertical braces
may not be tight fitting to the irregularly shaped roof and wall
surfaces, and that sealing material, such as foam, may be injected
between such members on the walls and roof to provide a complete
barrier when the bag member is disposed to fill the opening
encompassed by these members. Nash, col. 5, ll. 49–55.
11. Appellants admit that at the time of the invention “many aircraft
include cargo bays having open or slotted floors that effectively make
the aircraft bilge part of the cargo bay.” Spec. 1, para. 3.
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12. Cooper discloses a fire curtain 1 having a fire protection system that is
“automatically operated in response to the presence of smoke or
flames” detected by one or more sensing devices 11 to de-energize the
electromagnetic brake unit 9 and allow the fire curtain 1 to drop to the
floor under the influence of the weighted bottom bar 8. Cooper 1,
ll. 14–15 and 76–87.
ANALYSIS
Rejection of claims 1–3, 5, 6, 9, 16, and 21–25 under 35 U.S.C. § 103(a) as
unpatentable over Nash
Appellants offer arguments pertaining to all the claims subject to this
rejection and offer additional arguments applicable to limitations present in
claims 16 and 21–25. App. Br. 4–7. For the arguments pertaining to all of
the claims, we select claim 1 as representative. See 37 C.F.R.
§ 41.37(c)(1)(iv) (2013).
Claim 1
Appellants argue the Examiner erred in determining that it would have
been obvious to use the fire suppression barricade of Nash on an aircraft.
App. Br. 4. Appellants assert that due to the “significant differences
between the environments of an aircraft and a mine or cave, . . . the
teachings of Nash would therefore not have logically commended
themselves to the attention of a person of ordinary skill in the art of an
aircraft fire suppression system.” Id. at 5. Appellants further argue that
“[t]here is no teaching within Nash that suggests that the expandable
barricade 138 can be incorporated into an aircraft to seal an opening in a
confined space of an aircraft” and that “the use of gravity to drop the
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expandable barricade 138 could not effectively seal an opening in a confined
space of the aircraft because open spaces of the oval shaped fuselage would
surround each side of the rectangular shaped barricade 138.” Id. at 5–6. See
also Reply Br. 1–2.
These arguments do not persuade us of error in the Examiner’s
rejection because Nash does not limit applicability of its barricade to use in
mines and does not limit deployment to systems that rely on gravity. The
motivation to use Nash’s barricade in an aircraft is present in the reference
itself, which explicitly discloses use of its fire suppression barricade on an
aircraft (FF 4, 8). In particular, Nash teaches that the invention may be used
to seal off vertical shafts using an explosive charge, such as used in air bags
for automobiles, to blow the bag across the shaft, and that the invention may
be deployed in airplanes, where isolation is necessary, without filling after
deployment (FF 3–5, 8, 9). Appellants’ arguments fail to persuade us that
the Examiner erred in determining that the subject matter of claim 1 would
have been obvious to one having ordinary skill in the art in light of the
teachings of Nash. As such, we affirm the rejection of representative
claim 1, and claims 2, 3, 5, 6, and 9 fall with claim 1.
Claim 16
Appellants further argue the Examiner erred in rejecting claim 16
because “Nash fails to teach . . . blocking airflow leakage at a second
location of the confined space that is different from the first location.” App.
Br. 6. Appellants assert that “unlike an aircraft, airflow leakage in a mine is
not a problem that typically arises, and even if it did arise, it is not
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something that need be addressed.” Id. See also Reply Br. 2–3. Appellants’
argument is belied by the explicit teachings of Nash.
Nash discloses that because the braces defining the opening for
sealing by the bag may not conform in a tight fitting relationship to the roof
and wall surfaces of the mine, a sealing material may be injected between
the brace members and the mine walls and roof “to provide a complete
barrier when the bag member is disposed to fill the opening encompassed by
these members” (FF 10). This disclosure certainly suggests that complete
sealing, so as to prevent airflow leakage in a mine, is a concern. This
passage also suggests a way to provide additional sealing to prevent such
airflow leakage by blocking airflow at a second location (e.g., the area
between the brace members and the roof and wall surfaces) that is different
from the first location (e.g., the area between the braces sealed by the bag).
Appellants’ arguments fail to persuade us that the Examiner erred in
determining that the subject matter of claim 16 would have been obvious to
one having ordinary skill in the art in light of the teachings of Nash. As
such, we affirm the rejection of claim 16.
Claim 21
Appellants assert Nash fails to disclose a controller as called for in
claim 21. App. Br. 7. We agree with the Examiner (Ans. 7) that Nash’s
disclosure of deployment of the barricade in response to a stimulus (such as
a fire threat) is a disclosure of a controller as called for in claim 21 (FF 2).
Appellants’ argument fails to persuade us that the Examiner erred in
determining that the subject matter of claim 21 would have been obvious to
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one having ordinary skill in the art in light of the teachings of Nash. As
such, we affirm the rejection of claim 21.
Claim 22
Claim 22 depends from claim 1 and calls for the seal member to
obstruct at least one opening of a floor of the aircraft that divides the
confined space into two volumes. Appellants assert Nash fails to disclose
this claimed opening. App. Br. 7; Reply Br. 3. Nash discloses use of its
barricade system in an aircraft environment, and further discloses an
embodiment in which the bag is deployed longitudinally across an opening
in a vertical shaft (FF 1, 3–5, 8, 9). Appellants admit it was conventional at
the time of the invention that “many aircraft include cargo bays having open
or slotted floors that effectively make the aircraft bilge part of the cargo bay”
(FF 11). As such, we find no error in the determination that the subject
matter of claim 22 would have been obvious to a person having ordinary
skill in the art at the time of the invention in light of the teaching in Nash to
use the bags of Nash to provide isolation to spaces in aircraft. As such, we
affirm the rejection of claim 22.
Claim 23
Claim 23 depends from claim 22 and further recites that the seal
member is mounted to a beam structure of said floor with a restraint
member. We agree with Appellants (App. Br. 7; Reply Br. 3–4) that the
Examiner’s rejection fails to address the limitation in claim 23 that the seal
member is mounted to the beam structure “with a restraint member.” As
such, the Examiner has failed to set forth a prima facie case of obviousness
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of claim 23. Accordingly, we reverse the rejection of claim 23 under
35 U.S.C. § 103(a) as unpatentable over Nash.
Claim 24
Claim 24 depends from claim 1 and recites that the seal member
extends longitudinally across a plurality of horizontally disposed beam
structures that extend across the confined space. Appellants assert Nash
fails to disclose or render obvious that the seal member extends
longitudinally as called for in claim 24. App. Br. 7; Reply Br. 4. In
particular, Appellants argue that “the entire disclosure of Nash makes clear
that gravity is required to deploy the expandable barricade 138 in order to
seal a mine opening” and that “[t]he Nash system could not operate to
longitudinally extend across a beam structure via gravity.” Reply Br. 4.
Contrary to Appellants’ assertions, Nash contemplates that its barricade
system could be deployed longitudinally to extend across a horizontal
opening in a vertical shaft using an explosive charge, such as is used to
deploy air bags (FF 3, 9). Appellants’ arguments fail to persuade us that the
Examiner erred in determining that the subject matter of claim 24 would
have been obvious to one having ordinary skill in the art in light of the
teachings of Nash. As such, we affirm the rejection of claim 24.
Claim 25
Appellants rely on the same arguments presented for patentability of
claims 16 and 21 to assert that claim 25 is patentable over Nash. App. Br. 7;
Reply Br. 2–3. These arguments fail to persuade us of error in the
Examiner’s rejection for the same reasons set forth above in our analysis of
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claims 16 and 21. As such, we affirm the rejection of claim 25 under
35 U.S.C. § 103(a) as unpatentable over Nash.
Rejection of claim 7 under 35 U.S.C. § 103(a) as unpatentable over Nash
and Dreker
Claim 7 depends from claim 1 and calls for the volume reduction
system to include a gas source for deploying the seal member between the
first and second positions. The Examiner determined that it would have
been obvious to have modified Nash by replacing the foam inflation material
with a gas source to inflate the seal member as taught by Dreker. Final
Act. 3.1 Appellants argue that this proposed modification would improperly
change the principle of operation of Nash and render it inoperable for its
intended purpose because the modification “would change the principle of
operation from a system that preferably utilizes foam material to one that
uses a gas source” and would remove the feature of Nash that uses “the
weight of the foam material to cause the bag 100 to descend downwardly via
gravity.” App. Br. 8.
On the contrary, Nash contemplates embodiments in which the bag is
deployed without the use of foam and in which the bag is not filled with
foam after deployment (FF 3, 5, 8, 9). As such, the proposed modification
of Nash to use a gas source to deploy the bag would have been obvious in
view of the combined teachings of Nash and Dreker. As evidenced by
Dreker, the use of a gas source to deploy seal members in a fire suppression

1 Appellants do not contest the Examiner’s finding (Final Act. 3) that Dreker
teaches using a gas source to deploy a seal member in a fire suppression
system. We agree with the Examiner’s finding as to Dreker.
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system was a known technique in the art. A person having ordinary skill in
the art would have realized that such a system could be used to deploy the
bag of Nash. For these same reasons, we disagree with the Appellants’
characterization (App. Br. 8) of the Examiner’s proposed combination as
being based on “hindsight reasoning.” Accordingly, we affirm the rejection
of claim 7 under 35 U.S.C. § 103(a) as unpatentable over Nash and Dreker.
Rejection of claim 8 under 35 U.S.C. § 103(a) as unpatentable over Nash
Claim 8 depends from claim 1 and calls for the volume reduction
system to include a plurality of seal members deployable to isolate the first
volume of the confined space from the second volume of the confined space.
The Examiner determined that it would have been obvious “to have a
plurality of seal members for safety backup measures.” Final Act. 4.
Appellants argue that “there is no teaching in any of the references of using
multiple seal members to block the cave of Nash.” App. Br. 9. Again,
Appellants’ contention is belied by the explicit disclosure in Nash. Nash
discloses one embodiment in which expandable bags are housed in each
vertical brace member and meet at a midpoint upon deployment to seal the
confined space (FF 6). Nash further discloses that the disclosed single
expandable bag may be comprised of more than one expandable bag, as
illustrated by Figure 11 (FF 7). Accordingly, we affirm the rejection of
claim 8 under 35 U.S.C. § 103(a) as unpatentable over Nash.
Rejection of claims 17–20 under 35 U.S.C. § 103(a) as unpatentable over
Nash
Claims 17–20 depend from method claim 16. Appellants argue the
claims subject to this ground of rejection as a group. We select claim 17 as
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representative, and claims 18–20 stand or fall with claim 17. 37 C.F.R.
§ 41.37(c)(1)(iv) (2013). Claim 17 calls for the first volume being isolated
is an aircraft cargo bay and the second volume being isolated is a bilge, and
a floor has at least one opening extending between the aircraft cargo bay and
the bilge, wherein the step of isolating includes deploying a seal member to
seal the opening and isolate the cargo bay from the bilge. Appellants argue
the method of claim 17 is patentable over Nash because the features of a
cargo bay, a bilge, a floor having openings, a seal member that seals a cargo
bay from a bilge, and a cheek, are not disclosed or suggested by the mine
barricade of Nash. App. Br. 9. Appellants further argue that the proposed
modification to use Nash’s expandable barricade to seal an opening across a
floor in an aircraft would render Nash unsatisfactory for its intended purpose
because Nash relies on gravity to drop from a roof of a mine cave to its
floor. Reply Br. 2. For the reasons discussed above with respect to claims
1, 16 and 22, these arguments do not persuade us of error in the Examiner’s
rejection of claim 17.
In particular, Nash contemplates use of its expandable bag in an
aircraft and deployment of the bag across openings in vertical shafts without
reliance on gravity. Nash further contemplates additional sealing between
the frame members and the walls of the confined space. Further, Appellants
admit that it was conventional at the time of the invention for floors between
the cargo bay and bilge in an aircraft to have openings or slots (FF 11). As
such, based on the teaching in Nash to use its expandable bag in an aircraft
for isolation, and the fact that it was well known in the art that the floors
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between the cargo bays and the bilge were often open or slotted, it would
have been obvious to use Nash’s expandable bag in the manner as called for
in claim 17. Accordingly, we affirm the rejection of claims 17–20 under
35 U.S.C. § 103(a) as unpatentable over Nash.
Rejection of claims 1, 4, and 21–25 under 35 U.S.C. § 103(a) as
unpatentable over Cooper
Appellants argue that the Examiner erred because Cooper teaches a
fire curtain used in buildings that unwinds under gravity, and thus it suffers
from the same deficiencies as Nash. App. Br. 7–8. In particular, Appellants
argue, with respect to Nash, that Nash would not have logically commended
itself to the attention of a person of ordinary skill in the art of an aircraft fire
suppression system because Nash fails to take into consideration the extreme
pressure fluctuations that would be experienced in an aircraft. App. Br. 5.
Appellants assert that “because of the extreme pressure fluctuations in an
aircraft, a device that relies on gravity to drop may not always effectively
seal the aircraft space.” App. Br. 6.
We agree with the Examiner that “an aircraft is not a non-gravitational
environment” and thus a seal member deployed by dropping a weight would
deploy on an aircraft. Ans. 7. Appellants have failed to demonstrate why
pressure fluctuations within an aircraft would prevent a seal that relies on
gravity from deploying. Further, we agree with the Examiner in light of the
teaching in Cooper to use the fire curtain to suppress the spread of fire in
public spaces, it would have been obvious to deploy it to seal an opening in
a confined space of an aircraft. Ans. 5, 8. Further, Cooper teaches that the
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fire curtain is “automatically operated in response to the presence of smoke
or flames,” (Cooper 1, ll. 14–15) which are detected by one or more sensing
devices 11 (Cooper 1, ll. 76–87). Thus, Cooper discloses a controller (a fire
protection system), as called for in claim 21, that operates to de-energize the
electromagnetic brake unit 9 when fire or smoke is detected.
We agree with Appellants that the Examiner has failed to provide
adequate explanation as to why the subject matter of claims 22–25 would
have been obvious to one of ordinary skill in the art in view of the fire
curtain of Cooper. App. Br. 7. Accordingly, we affirm the rejection of
claims 1, 4, and 21, and reverse the rejection of claims 22–25 under 35
U.S.C. § 103(a) as unpatentable over Cooper.
DECISION
The decision of the Examiner to reject claims 1–9, 11–22, 24, and 25
is AFFIRMED. The decision of the Examiner to reject claim 23 is
REVERSED. Because in some instances the fact finding and reasoning
relied on by the Board to sustain the rejections of claims 1–9, 11–22, 24, and
25 differs from the facts and reasoning relied on by the Examiner, we
designate our affirmance of the rejections of these claims as a NEW
GROUND OF REJECTION so as to provide Appellants with a full and fair
opportunity to respond to the thrust of the rejections.
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
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37 C.F.R. § 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new grounds of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected, or both,
and have the matter reconsidered by the Examiner, in which event the
proceeding will be remanded to the Examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same record. . . .
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)(1)(iv).

AFFIRMED-IN-PART; 37 C.F.R. § 41.50(b)

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