Ex Parte Varga

Patent Trial and Appeal Board

Jun 22, 2018

13251030 (P.T.A.B. Jun. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/251,030 09/30/2011
144137 7590 06/26/2018
McDermott Will & Emery LLP (Vyaire)
500 North Capitol Street, NW
Washington, DC 20001
FIRST NAMED INVENTOR
Christopher M. Varga
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.
101675-0201 6107
EXAMINER
HERZFELD, NATHANIEL
ART UNIT PAPER NUMBER
3743
NOTIFICATION DATE DELIVERY MODE
06/26/2018 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):
mweipdocket@mwe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER M. VARGA
Appeal2017-010647
Application 13/251,030
Technology Center 3700
Before JENNIFER D. BAHR, DANIELS. SONG, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Christopher M. Varga (Appellant) 1 appeals under 35 U.S.C. § 134(a)
from the Examiner's decision rejecting claims 1, 4--10, 12-14, 16-20, 22,
and 23, which are the only pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 The Appeal Brief identifies CareFusion 207, Inc. as the real party in
interest. Appeal Br. 3.
Appeal2017-010647
Application 13/251,030
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. An apparatus comprising:
a humidification component configured for retaining a
water volume, said humidification component having a base
portion comprising a non-metallic material transmissive
to electromagnetic radiation, and a reflective surface within a
portion of said humidification component; and
a base unit comprising a heating element, the heating
element configured to transmit electromagnetic radiation to the
humidification component using received electrical energy,
and a transmissive sensor and a reflective sensor external to the
humidification component;
wherein the humidification component is coupled to the
base unit such that (i) the heating element transmits
electromagnetic radiation from the base unit, through the non-
metallic material of the base portion, and directly to the water
volume, and (ii) said reflective surface directs transmitted
electromagnetic radiation to the water volume, wherein the
water volume is heated by absorbing the electromagnetic
radiation, and
wherein said transmissive sensor detects the amount of
electromagnetic radiation directed through said humidification
component, and said reflective sensor detects the amount
of electromagnetic radiation, directed by said reflective surface,
within said humidification component.
REJECTIONS
I. Claims 1, 4, 16-20, 22, and 23 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Taylor (US 1,144,508, iss.
June 29, 1915), Osada (JP 07219650 A, pub. Aug. 18, 1995),
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Application 13/251,030
Morris (US 6,246,045 Bl, iss. June 12, 2001), and Nakada
(JP 052855220 A, pub. Nov. 2, 1993).
II. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Taylor, Osada, Morris, Nakada, and Adsit
(US 4,386,582, iss. June 7, 1983).
III. Claims 7 and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Taylor, Osada, Morris, Nakada, and Eckman
(US 5,586,214, iss. Dec. 17, 1996).
IV. Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Taylor, Osada, Morris, Nakada, and Fletcher (US 3,893,458,
iss. July 8, 1975).
V. Claims 9 and 12-14 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Taylor, Osada, Morris, Nakada, and Rose
(US 5,231,979, iss. Aug. 3, 1993).
DISCUSSION
Each of Appellant's independent claims 1 and 19 requires, in pertinent
part, "a reflective surface within a portion of' a "humidification component"
and "a reflective sensor external to the humidification component" that
detects the amount of electromagnetic radiation directed by the reflective
surface within the humidification component. Appeal Br. 23, 24--25 (Claims
App.).
The Examiner reads the claimed "humidification component" on
Taylor's water receptacle 2, dome 3, and outer casing 10. Final Act. 3. The
Examiner finds that Taylor lacks, in pertinent part, a reflective surface
within a portion of the humidification component and a reflective sensor
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Application 13/251,030
external to the humidification component for detecting the amount of
electromagnetic radiation directed by the reflective surface within the
humidification component. Id. at 4.
All of the rejections are predicated in pertinent part on the Examiner's
determination that it would have been obvious, in view of Osada, to include
a reflective surface within a portion of the humidification component of
Taylor "to amplify the heat being passed into the humidifier" (by reflecting
electromagnetic radiation back into the water volume) and obvious, in view
of Morris, to include a reflective sensor, external to the humidification
component of Taylor, to monitor the degradation of the reflective surface.
Final Act. 4--5; Ans. 12.
Appellant argues, persuasively, that the Examiner does not provide
sufficient explanation as to how one of ordinary skill in the art would have
modified Taylor's apparatus to include a reflective surface within a portion
of the humidification component for directing electromagnetic radiation
back into the water volume, and a reflective sensor, external to the
humidification component (i.e., external to Taylor's casing 10), for detecting
electromagnetic radiation reflected from the reflective surface. See Appeal
Br. 14--16, 19.
In making the combination, the Examiner does not specify on what
portion of Taylor's humidification component the reflective surface would
have been placed. However, a reflective surface within a portion of Taylor's
humidification component (i.e., water receptacle 2, dome 3, and outer casing
10) for directing electromagnetic radiation back into the water volume (i.e.,
between water receptacle 2 and dome 3) seemingly would have had to be on
the inner surface of either water receptacle 2 or casing 10. A reflective
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Application 13/251,030
sensor external to Taylor's humidification component (i.e., water receptacle
2, dome 3, and outer casing 10), as required in claims 1 and 19 and as
proposed by the Examiner, must be external to outer casing 10.
The Examiner does not sufficiently explain, how, or why, a person
having ordinary skill in the art would have placed a reflective sensor
external to Taylor's casing 10 to detect electromagnetic radiation directed
from the proposed reflective surface back into the water chamber (i.e.,
between water receptacle 2 and dome 3). The Examiner's discussion, in the
paragraph bridging pages 10 and 11 of the Answer, addressing the
positioning of the reflective sensor external to the humidification component
is not at all instructive in this regard. Rather than providing any
enlightenment as to how a person of ordinary skill in the art would have
modified Taylor to arrive at the claimed invention, the Examiner alludes to
"inadequacies within the [S]pecification" with respect to the locations of the
reflective surface and the reflective sensor, and how the reflective sensor
works, and concludes that, due to these inadequacies, the Examiner "was not
able to determine a complete scope of the claimed reflective sensor."2 The
Examiner adds that Morris teaches the reason for providing a reflective
sensor (i.e., to monitor degradation of the reflective surface), "and one
having ordinary skill in the art would know how and where to place the
reflective sensor in the correct position for it to operate as required." Id. at
11. For the reasons discussed above, this conclusory discussion is
2 Notably, although the inadequacies identified by the Examiner appear to us
to be fair criticisms of the disclosure of the invention, the Examiner does not
reject the claims under any provision of 35 U.S.C. § 112, second paragraph.
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Application 13/251,030
unavailing to explain how and why a person having ordinary skill in the art
would place a reflective sensor external to casing 10 to operate as claimed.
For the above reasons, the Examiner fails to establish that the subject
matter of claim 1 or claim 19, or any of claims 4--10, 12-14, 16-18, 20, 22,
and 23 depending therefrom, would have been obvious. Accordingly, we do
not sustain any of the rejections before us in this appeal.
DECISION
The Examiner's decision rejecting claims 1, 4--10, 12-14, 16-20, 22,
and 23 is reversed.
REVERSED
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