Ex Parte Staymates et al

Patent Trial and Appeal Board

Sep 20, 2017

13440857 (P.T.A.B. Sep. 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.
13/440,857 04/05/2012 Matthew Staymates DHS-001 1837
15614 7590 09/22/2017
U.S. Department of Homeland Security, S&T/OGC
Assistant General Counsel, Intellectual Property
Mail Stop 0205
245 Murray Lane
Washington, DC 20528
EXAMINER
RAEVIS, ROBERT R
ART UNIT PAPER NUMBER
2856
NOTIFICATION DATE DELIVERY MODE
09/22/2017 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):
john.copenhaver@hq.dhs.gov
lavanya.ratnam@hq.dhs.gov
william. Washington @ tsa.dhs.gov
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW STAYMATES and STEFAN ROBERT LUKOW
Appeal 2016-002408
Application 13/440,857
Technology Center 2800
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
JENNIFER R. GUPTA, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 the final rejection of
claims 1—24. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM.
Appellants’ invention is directed to a non-intrusive inspection method
of and apparatus for detecting trace explosives or narcotics on unadorned
feet or footwear (Spec. 12).
Appeal 2016-002408
Application 13/440,857
Claim 1 is illustrative:
1. An apparatus for collection of particulate matter
from footwear, comprising:
a. a contoured channel suitable for receiving airflow
passed over target footwear and conveying such airflow to a
sample accumulation feature;
c. [sic] a pressurized gas source to provide gas that
is pressurized to gas delivery vehicles that are positioned about
a location where the footwear is to be placed and oriented so
high velocity airflow from the vehicles impacts target footwear
during operation to dislodge particulate matter embedded in or
on the target footwear;
an air moving device that draws airflow that passed by
the target footwear into the contoured channel so airflow into
the contoured channel is maintained at or above 400 liters per
second at ambient temperature during procurement of sample
by the sample accumulation feature that collects entrained
particle liberated from the target footwear, the contoured
channel and gas delivery vehicles being configured to maintain
consistent particle release from the target footwear and
minimize particle spillage from the contoured channel.
Appellants appeal the following rejections:
1. Claims 1—24 are rejected under 35 U.S.C. § 112, first paragraph, as
lacking written description.
2. Claims 12—14, and 20-24 are rejected under 35 U.S.C. § 112, first
paragraph, as lacking enablement.
3. Claims 1—24 are rejected under 35 U.S.C. § 112, second paragraph,
as indefinite.
1 The Examiner omitted claim 12 from the statement of the enablement
rejection (Final Act. 3). However, it is clear from the body of the
enablement rejection that claim 12 was meant to be included in the rejection.
We find the Examiner’s omission to be harmless error.
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4. Claims 1, 3—7, 9, 11, 12, and 14—24 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Mawer (US 2007/0056396 Al, pub.
Mar. 15, 2007) in view of Achter (4,909,089, iss. Mar. 20, 1990),
Linker (US 6,334,365 Bl, iss. Jan 1. 2002), and Danylewych-May
(5,741,984, iss. Apr. 21, 1998).
5. Claims 2 and 10 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Mawer in view of Achter, Linker, Danylewych-
May, and Konduri (US 2009/0044641 Al, pub. Feb. 19, 2009).
6. Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Mawer in view of Achter, Linker, Danylewych-May, and Jenkins
(US 2008/0053252 Al, pub. Mar. 6, 2008).
FINDINGS OF FACT & ANALYSIS
REJECTION (1): Written Description
The Examiner rejects claims 1—24 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
The Examiner finds that the Specification lacks written descriptive
support for the recitation “minimize particle spillage from the contoured
channel” in claim 1 (Final Act. 2). The Examiner finds that reducing
spillage from the entire fluid system is broader than minimizing spillage
from the contoured channel (Ans. 4). The Examiner finds that, while ]Hf 9,
10, and 17 of the Specification disclose minimizing spillage from the
apparatus, the claim more narrowly requires minimizing spillage from the
contoured channel (Ans. 4).
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Regarding claim 20, the Examiner finds that although 19 of the
Specification discloses reducing spillage of sample from the channel mouth,
reducing is not the same as minimizing (Ans. 4).
Regarding claim 24, the Examiner finds that the Specification does
not support maintaining a flow at/above 400 liters per second during the
predetermined sequence of gas expulsion from the gas delivery vehicles
(Ans. 4—5). The Examiner finds that Appellants’ jets are disclosed as having
off-times during the sequencing of the jets used to acquire a sample from the
footwear (Ans. 5).
Regarding claim 13, the Examiner finds that there is no written
descriptive support for having the channel be adjustable (Ans. 5).
Appellants argue that the Examiner has not shown that one of
ordinary skill would have questioned that the Specification provides written
descriptive support for any of the claims2 (App. Br. 10—11). Appellants
argue that the Examiner has merely provided questions in the Final Action
with no basis to question the presumption of written descriptive support. Id.
Appellants contend that the Examiner has not explained why the broad
disclosure of minimizing spillage from the apparatus is insufficient to
2 Appellants misstate the Examiner’s burden in making a 35 U.S.C. § 112, |
1 rejection for lack of written description. The Examiner’s burden includes
presenting evidence or reason why a person skilled in the art would not
recognize that the written description of the invention provides support for
the claims. This burden does not require the Examiner to present factual
evidence to satisfy a prima facie case, but it is necessary for the Examiner to
point out the claim limitations that are not adequately supported and explain
any other reasons that the claim is not fully supported by the disclosure to
show that the inventor had possession of the invention. See, Hyatt v. Dudas,
492 F.3d 1365, 1371 (Fed. Cir. 2007).
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provide written descriptive support for minimizing spillage from the
contoured channel (Reply Br. 6—7).
Regarding claim 20, Appellants argue that'll 3 and 10 of the
Specification disclose minimizing spillage from the apparatus by optimally
supplying the gas at a rate of 620 liters per second (Reply Br. 7—8).
Regarding claim 24, Appellants argue that “the air moving device”3 in
claim 24 refers to the primary air mover 14 in Figure 1, which can be
operated separate from the gas-delivery vehicles 9, 10, 11, and 12 (Reply Br.
8—9). Appellants contend that the apparatus could use the primary air mover
14 to meet the 400 1/sec flow rate with the gas-delivery vehicles (i.e., jets) 9
to 12 turned off (Reply Br. 9).
Regarding claim 13, Appellants argue that the original claim 13
recites that the mouth dimensions and position of gas delivery vehicles may
be reconfigured so as to efficiently sample footwear having atypical
dimensions (Reply Br. 10). Appellants contend that original claim 13
provides written descriptive support for amended claim 13 which recites that
the channel and gas delivery vehicles are configured to permit reorientation
to sample footwear of atypical dimension (Reply Br. 9—10).
To satisfy the written description requirement, a specification must
describe the claimed invention in sufficient detail that one skilled in the art
can reasonably conclude that the inventor had possession of the claimed
3 Claim 24 recites “the air moving device” which lacks antecedent basis in
claims 23 and 20, from which claim 24 depends. Claim 21 recites “an air
moving device.” It appears that claim 24 should depend from claim 21 in
the chain of dependency. Appellants should consider correcting this issue in
the event of further prosecution.
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invention. See, e.g., Moba, B.V. v. Diamond Automation, Inc., 325 F.3d
1306, 1319 (Fed. Cir. 2003).
With regard to claims 1, 13, 20, and 24, the preponderance of the
evidence favors Appellants’ argument of written descriptive support. With
regard to claims 1 and 20, Appellants’ disclosure to minimize spillage from
the apparatus demonstrates that Appellants possessed the limitations to
minimize spillage from the channel (claim 1) and mouth (claim 20). The
channel mouth and channel are each parts of the apparatus where the air
containing the sample are directed. The Specification discloses that the flow
rate through the jets 9 to 12 and air knives 7a and 8a can overload the system
and spill sample laden air from intake portion (i.e., mouth) of the channel 3a
(Spec. 117). Accordingly, Appellants’ disclosure to minimize spillage from
the system or apparatus demonstrates possession of minimizing spillage
from the channel and the mouth.
Amended claim 13 appears to be a rephrasing of originally filed claim
13. Specifically, originally filed claim 13 recited that the mouth dimensions
and position of gas delivery vehicles (e.g., jets) maybe reconfigured so as to
efficiently sample footwear. Amended claim 13 recites that channel and gas
delivery vehicles are “configured to permit reorientation to sample
footwear.” The Examiner explains that the amended claim language fails to
satisfy the written description requirement because the channel is not
disclosed as being adjustable (Ans. 5). The Specification discloses that the
channel mouth may be reconfigured to accommodate atypical sized footwear
(Spec. 19). The Specification discloses that jets and air knives may be
reoriented to accommodate abnormal variance in the foot or footwear size of
the target (Spec. 120). Appellants have demonstrated possession of the
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channel and gas delivery vehicles configured to permit reorientation to
sample footwear having atypical dimensions.
Regarding claim 24, the Specification discloses that the air is drawn
through the collection device by the primary air mover 14 at a flow rate of
above 600 liters per second (Spec. 117). The air jets sequence is performed
with the air mover flow rate of 620 liters per second and a channel intake
area of 18.4 square feet (Spec. 119). Appellants possessed having the air
mover at a flow rate of at least 400 liters per second during the jet sequence.
On this record, we reverse the Examiner’s 35 U.S.C. § 112, first
paragraph, rejection for failing to comply with the written description
requirement.
REJECTION (2): Enablement
The Examiner finds that claims 12—14, and 20—24 fail to comply with
the enablement requirement of 35 U.S.C. § 112, first paragraph (Final
Act. 3). The Examiner finds that claim 12 recites “other techniques” but
does not disclose what those other techniques may be (Final Act. 3). The
Examiner finds that claims 14 and 20 are not enabled because it is unclear
how an accumulation feature (claim 14) or an accumulator (claim 20)
minimizes spillage. Id. The Examiner rejects claim 13 because it is not
disclosed how an apparatus’ channel height/width are reconfigured. Id. The
Examiner finds that only the angle of jets are described as being reoriented,
not the channel (Final Act. 3).
Appellants contend that the Examiner’s rejection merely includes a
list of questions, but fails to explain why Appellants’ disclosure is not
enabling (App. Br. 14). Appellants argue with regard to claim 14 that the
accumulator 13 is in the path of the airflow downstream of where
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Application 13/440,857
footwear 15 is received by the mouth (Reply Br. 10). Appellants contend
that blockage of the accumulator 13 will result in air containing the sample
backing-up and spilling out of the channel adjacent where footwear is
placed. Id.
The examiner has the initial burden to establish a reasonable basis to
question the enablement provided for the claimed invention. In re Wright,
999 F.2d 1557, 1562 (Fed. Cir. 1993). The test for enablement is whether a
person reasonably skilled in the art could make and use the invention with
information contained in the specification coupled with information known
in the art without undue experimentation. In re Wands, 858 F.2d 731, 737
(Fed. Cir. 1988). The court in Wands stated eight factors that may be
considered in assessing whether a claim is enabled. Id. Lack of enablement
is determined by considering all the relevant factors including any of the
eight listed in the Wands decision so that the decision is based upon the
evidence as a whole. Wands, 858 F.2d at 740.
In the present case, the Examiner’s rejection merely lists several
questions about the breadth of the claims. For example, the rejection of
claim 12 merely states “what might the ‘other techniques’ be?” (Final
Act. 3). As another example, the rejections of claims 14 and 20 merely posit
“how does an accumulation feature [or accumulator] minimize spillage?”
(Final Act. 3). The Examiner further explains that maximizing collection
does not necessarily relate to minimizing spillage. Id.
The Examiner provides more analysis with regard to claim 13 in
stating that the disclosure of 19 and claim 13 teach reconfiguration of the
channel height and width but that is not reorientation of the channel. (Final
Act. 3).
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The Examiner’s questions regarding all the claims under rejection and
analysis of claim 13 fail to provide a complete analysis of any Wands factor
other than the breadth of the claim. The Examiner has not dispensed with
the initial burden to establish that undue experimentation would have been
required to make or use the claimed invention. With regard to claim 13, the
Examiner has not explained adequately via factual findings that undue
experimentation would have been required to reorient the channel in light of
Appellants’ disclosure that the channel dimensions maybe reconfigured.
On this record, we reverse the Examiner’s § 112, first paragraph,
rejection of claims 12—14 and 20—24 as failing to comply with the
enablement requirement.
REJECTION (3): INDEFINITENESS
The Examiner concludes that claims 1 and 20 are indefinite under
35 U.S.C. § 112, second paragraph, because they recite apparatus claims but
the structural limitations in the claims are not recited as being coupled to one
another (Final Act. 4, 5). The Examiner concludes that the claims are
directed to an aggregation of parts that is more like unconnected elements of
a system. Id.
Appellants argue that the Examiner has not cited any authority that
requires that the limitations composing the apparatus be structurally
connected (App. Br. 15).
The Examiner’s rejection of claims 1 and 20 appears to be based on
the failure of Appellants to recite essential subject matter in the claims.4
Cases relevant to this type of rejection include In re Venezia, 530 F.2d 956
4 See Manual of Patent Examining Procedure § 2172.01 ed. 9, rev. 7 (2015).
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(CCPA 1976) and In re Collier, 397 F.2d 1003 (CCPA 1968). The
Examiner has not explained how the facts of the present appeal compare to
the facts presented in Venezia or Collier. The facts in the present appeal
appear to be distinguishable from those cases.
In Venezia and Collier the concern of the court centered on the
recitations in the claims that made the combination of the various elements
optional or conditioned on various future events. Venezia, 530 F.2d at 958;
Collier, 397 F.2d at 1005. Claims 1 and 20 recite that the various limitations
are structured to use an air moving device to direct airflow from footwear
being sampled to an accumulation device via a contoured channel. As
pointed out by Appellants, the limitations of the claims are related
functionally to one another which the Examiner does not dispute (App. Br.
17). The Examiner has not shown that essential structural relationships are
missing from the claims so as to render the claims indefinite.
Regarding claim 1, Appellants argue that their omission of reference
character (b) has no effect on the scope of the claims and has no bearing on
the claim’s compliance with § 112,12 (App. Br. 17).
The Examiner concludes that the recitation of elements (a) and (c)
without including (b) suggests that an element is missing from the claim
(Ans. 7).
We find that Appellants’ omission of (b) from the listing of elements
(a) and (c) without more does not fail to comply with 35 U.S.C. § 112,
second paragraph because applicants can be their own lexicographer.5 We
5 Although we reverse the Examiner’s § 112,12, rejection, we strongly
recommend in the event of further prosecution of this application, that (c) be
changed to (b). We find that using conventional, alphabetical ordering of
the elements comports with customary claim drafting.
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Application 13/440,857
reverse the Examiner’s rejection of claim 1 based on the omission of
limitation (b).
Regarding claims 1 and 17, the Examiner concludes that “sample
accumulation feature” is indefinite (Final Act. 4). The Examiner finds that
features are not structural elements that are separate from the remaining
structural components of claims 1 and 17. Id. The Examiner concludes that
it is unclear if the phrase “sample accumulation feature” is meant to invoke
35U.S.C. § 112, | 6 (Ans. 8).
Appellants argue that “sample accumulation feature” is described in
7, 9, and 17 of the Specification (App. Br. 18). Appellants contend that
one of ordinary skill in the art would not have been confused by the term
“sample accumulation feature.” Id.
We determine that the Examiner does not explain why sample
accumulation feature would be considered indefinite in view of the
Specification’s disclosure that a pre-concentrator or any means used to
isolate a sample for analysis may be considered a sample accumulation
feature. In other words, the Examiner has not shown that the claims when
read in light of the Specification are indefinite. We reverse the Examiner’s
§112, second paragraph, rejection of claims 1 and 17.
Regarding claim 10, the Examiner concludes that “space” should be
changed to “spaced” (Final Act. 4). Regarding claim 12, the Examiner
concludes that recitation of optimizing the predetermined sequence using
flow visualization fails to provide any structural limitation to the apparatus
claim (Final Act. 5). Appellants do not contest these rejections specifically
(App. Br. 15—20). Therefore, we summarily affirm the Examiner’s § 112,
second paragraph, rejections of claims 10 and 12.
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Regarding claim 20, the Examiner further concludes that “is to be
sampled” fails to provide a complete limitation (Final Act. 5). The
Examiner further concludes that “deliver” in claim 20 should be changed to
“delivery.” Id.
Claim 20 recites, in relevant part, “one or more gas deliver vehicles
positioned about a location where footwear that is to be sampled, respective
gas delivery vehicles being configured to direct a flow of gas to impact the
footwear’s surface to collect a sample for analysis . . . .” We conclude that
the claim is indefinite as drafted. “Deliver vehicle” is described later in the
claim as a “delivery vehicle.” Thus, the claim is internally inconsistent as
drafted. The “to be sampled” language renders the claim indefinite because,
as the Examiner concludes, it presents an incomplete thought that is
amenable to two or more interpretations (Ans. 9). The first interpretation is
that the location is defined by where the footwear is actually placed and the
second interpretation is only the intended placement of the footwear at the
location. Id. We affirm the Examiner’s §112 rejection of claim 20.
In summary, we affirm the Examiner’s § 112, second paragraph
rejection of claims 10, 12, and 20-24 (i.e., based on “to be sampled” and
“deliver”). We reverse the remaining § 112, second paragraph, rejections of
claims 1—9, 11, and 13—19.
REJECTION (4): OBVIOUSNESS
Appellants argue claims 1,17, and 20 separately. With regard to
claims 1,17, and 20, Appellants contend that the Examiner engaged in
impermissible hindsight in combining the teachings of four references to
arrive at the claimed invention (App. Br. 21). Appellants argue that the
Examiner relied on only ten lines directed to non-contact sampling from the
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lengthy Danylewych-May reference that is directed to contact sampling
(App. Br. 22). Appellants argue that Danylewych-May disparages and
teaches away from non-contact sampling. Id. Appellants contend that the
Examiner fails to appreciate that Achter is directed to vapor sampling such
that one of ordinary skill in the art would not have been looked to Achter to
solve a problem with particulate or residue collection (App. Br. 23).
Appellants contend that Mawer and Linker are directed to whole body
systems while Danylewych-May is directed to contact sample collection
such that there would have been no reason to combine the references. Id.
Appellants contend that the combination of Achter’s funnels are used along
the entire length of the machine and it is unclear if the combination of these
funnels with Mawer’s air-inlets/ air-outlets would even work (App. Br. 24).
Appellants further argue that the applied prior art fails to teach all the
elements of claim 1 (App. Br. 23). Appellants contend that the combination
of Mawer and Achter fail to teach that Achter’s funnels used in vapor
collection would have been useful in collecting particulate chemicals and
would have been used in a manner that minimizes particle spillage as
claimed (App. Br. 24). Appellants contend that the Examiner has not
explained why it would have been obvious to combine Linker’s
preconcentrator with Mawer’s device. Id. Appellants contend that the
Examiner has not addressed the limitation that “the contoured channel and
gas delivery vehicles being configured to maintain consistent particle release
from the target footwear and minimize particle spillage from the contoured
channel” and “to dislodge particulate matter embedded in or on the target
footwear” (App. Br. 25).
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With regard to method claim 17, Appellants argue that the Examiner
has not addressed the limitation that requires “placing target footwear into a
predetermined position near to or partially inside a contoured air sample
intake channel” (App. Br. 25). Appellants contend that the combination
would not have been able to place the footwear “near to or partially inside”
the channel because Achter teaches using a mesh screen to cover the
entrance to the channel. Id. Appellants contend that modifying Mawer’s
tube 23 to be big enough to accept footwear, would have caused a tripping
hazard and thus would not have been obvious (App. Br. 26).
Regarding claim 20, Appellants argue that the Examiner did not
address the claim limitation that requires “respective gas delivery vehicles
being configured to direct a flow of gas to impact the footwear’s surface to
collect a sample for analysis” and “maintain the flow of gas at or above four
hundred liters per second (400 L/sec) in operation to minimize spillage of
sample from the mouth” (App. Br. 26).
Appellants’ arguments have been fully considered, and we determine
that these arguments are unpersuasive of reversible error. The Examiner
relies on Danylewych-May’s teachings regarding the non-contact sensors in
the background of the invention section of the patent. Danylewych-May’s
description of using a contact sensor does not teach away or otherwise
detract from Danylewych-May’s teachings regarding non-contact sensors. A
reference is good for all that it teaches. In re Boe, 355 F.2d 961, 965 (CCPA
1966). Danylewych-May discloses typical sampling rates for non-contact
sensors that use an impinging gas stream (col. 2,11. 38-48). That
Danylewych-May describes disadvantages with these sensors as a
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background for the development of patentee’s invention, does not teach
away from using known sampling rates in Mawer’s non-contact sensors.
We are unpersusaded by Appellants’ arguments that it would not have
been obvious to combine the references’ teachings because Achter is
directed to sensing vapors, Danylewych-May is directed to contact sensor,
and Achter teaches placing a mesh in front of the funnel-shaped openings
which would prevent partially placing the footwear in the channel (claim
17). These arguments attack the references individually instead of
addressing what the combined teachings would have suggested to the
ordinarily skilled artisan. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
The Examiner is not proposing to bodily incorporate all the features of the
Danylwych-May, Achter, and Linker into Mawer’s device. Rather, the
Examiner proposes modifying Mawer’s tube 23 to include a funnel shaped
opening to more effectively collect gas from a portal (Final Act. 6). The
Examiner finds that it would have been obvious to use Linker’s
preconcentrator (accumulator) in Mawer in order to obtain accurate
measurements of a passenger within a portal. Id. The Examiner finds that
Danylewych-May’s teachings that “portal type collectors” sample entrained
vapors and particles at a rate of 10-1000 liters per second, suggestive of the
claimed sampling rate (Final Act. 6—7).
We are unpersuaded by Appellants’ argument that the combination of
Mawer and Achter fail to teach that Achter’s funnels used in vapor
collection would have been useful in collecting particulate chemicals and
would have been used in a manner that minimizes particle spillage. The
funnel-shaped tubes provide aerodynamically-shaped inlets for collecting air
samples (Achter, col. 3,11. 60-65). The aerodynamically-shaped inlets
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provide a more efficient way for collecting air samples. Accordingly,
modifying Mawer’s collection tube 23 to be more aerodynamic would
permit a more efficient collection of an air sample. Contrary to Appellants’
argument, the Examiner is not proposing to modify Mawer’s air inlets 22
and air outlets 20. Rather, the Examiner’s modification involves changing
Mawer’s receiving tubing 23 to have a funnel-shaped opening (Final Act. 6).
Appellants’ arguments regarding claim 17 fail to explain why
modifying Mawer’s tube 23 contour with the footwear placed near the
opening would fail to satisfy the claim. In other words, Appellants’
argument focuses on the claim construction where the footwear is placed in
a predetermined position that is partially inside a contoured air sample intake
channel. Claim 17 also includes placing the footwear in a predetermined
position near to a contoured air sample intake channel. The claims do not
recite—and the Specification does not disclose—how close the footwear
would need to be to the contoured air sample intake channel to satisfy the
claim. The Examiner’s proposes to modify Mawer’s receiving tube 23 to
have Achter’s funnel-shape wherein the shoes being sampled would be
placed on the threshold 4 in portal 1. Such placement of the shoes on
threshold 4 would be considered “near to” the funnel-shaped, contoured
receiving tube 23. Even if the air-inlets 22 located in the threshold were
modified as argued by Appellants to have a funnel-shape, Achter teaches
placing a screen over the opening of the funnel-shaped air inlets (Achter,
col. 5,11. 67—68; col. 6,1. 1). Accordingly, the screens would prevent a
tripping hazard as argued by Appellant while still allowing footwear to be
located near to the contoured channel.
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Regarding Appellants’ argument whether the Examiner has shown
where each limitation of claims 1,17 and 20 are taught, we determine that
the Examiner makes findings where the references teach the limitations
recited in the claim (Final Act. 6—7; Ans. 12—13). Regarding claim l’s
limitation that the contoured channel and gas delivery vehicles are
configured to maintain consistent particle release from the target footwear
and minimize particle spillage from the contoured channel, the Examiner
makes findings that the combined teachings would have suggested the
desirability of maintaining consistent particle recovery and which minimizes
spillage from the contoured channel (Final Act. 7). Appellants do not
specifically challenge this finding. The Examiner also finds that the prior art
would have suggested the various modification of Mawer for specific
reasons (Final Act. 6). Although Appellants contend that the Examiner’s
combination is based upon impermissible hindsight, Appellants do not
specifically challenge the Examiner’s stated reasons to make the various
modifications.
On this record, we affirm the Examiner’s § 103 rejection over Mawer
in view of Danylewych-May, Achter and Linker.
REJECTIONS (5) AND (6)
Appellants argue claims 2 and 10 as a group. We select claim 2 as
representative.
Claim 2 depends from claim 1 and recites “wherein the apparatus is
constructed to signal when footwear is in a position of optimal airflow in
relation to the mouth and gas delivery vehicle.” Appellants argue that
Konduri does not teach a sensor that is capable of detecting when footwear
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is in a position of optimal airflow in relation to the mouth and gas delivery
vehicles (App. Br. 26—27).
The Examiner rejects claim 2 based upon Konduri’s teaching of using
a sensor to detect when a person is present and then actuating the system
(Final Act. 7). The Examiner finds that the optimal position is when an
individual is in the portal and in proper position. Id. The Examiner finds
that Koduri teaches that the sensor indicates when a person is in the proper
(i.e., best) position for the sample system to be actuated (Ans. 14). The
Examiner further finds that Linker shows in Figure 1 air flowing past the
shoes of woman in the testing device which would be in the optimal position
for the sensing (Ans. 14). The Examiner finds that optimal airflow is not
defined in the Specification, but that one of ordinary skill would naturally
desire such optimal airflow for best detection (Ans. 14—15).
Appellants have not shown the Examiner’s claim interpretation of
optimal airflow or the Examiner’s findings with regard to Linker and
Konduri to constitute reversible error. On this record, we affirm the
Examiner’s § 103 rejection of claims 2 and 10.
Claim 8 depends from claim 1 and recites “where the gas delivery
vehicles’ exits release compressed gas at approximately 80 psi
backpressure.” Appellants argue that the Examiner’s reliance on Jenkins’s
teaching of pressure range from 40 to 100 psi does not point specifically to
80 psi as required by claim 8 (App. Br. 27).
The Examiner finds that Jenkins teaches using a range of 40 to 100 psi
as a proper sampling pressure with a preference of 80 psi (Ans. 15).
Appellants have not shown reversible error with this finding of the Examiner
(Reply Br. 15). We affirm the Examiner’s § 103 rejection of claim 8.
18
Appeal 2016-002408
Application 13/440,857
DECISION
The Examiner’s decision 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)(1).
ORDER
AFFIRMED
19