Kidde Graviner Limited

Patent Trials and Appeals Board

Apr 17, 2020

15089822 - (D) (P.T.A.B. Apr. 17, 2020)

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.
15/089,822 04/04/2016 Adam Chattaway 93438US01;
67010-582PUS1
5948
26096 7590 04/17/2020
CARLSON, GASKEY & OLDS, P.C.
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
BARRERA, JUAN C
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
04/17/2020 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):
cgolaw@yahoo.com
ptodocket@cgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ADAM CHATTAWAY, TERRY SIMPSON, and
TADD F. HERRON
Appeal 2019-005100
Application 15/089,822
Technology Center 3700
Before JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK,
Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7, 9, 10 and 17–21. See Final Act. 1.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Kidde Graviner
Limited, which is owned by United Technologies Corporation. Appeal Br.
1.
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Application 15/089,822

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THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to a fire suppression system using inert
gas and organic halide gas. Sole independent claim 1, reproduced below, is
representative:
1. A fire suppression system comprising:
at least one high pressure gas source containing an inert
gas;
at least one low pressure gas source containing an organic
halide gas;
a distribution network connected with the at least one high
pressure gas source and the at least one low pressure gas source
to distribute the inert gas and the organic halide gas, the
distribution network including flow control devices configured
to control flow of the inert gas and the organic halide gas;
a detection system configured to detect a fire threat; and
a controller in communication with the detection system
and the distribution network, the controller configured to,
initially release the inert gas in response to the fire
threat to reduce an oxygen concentration at the fire threat
below a preset oxygen concentration threshold, and
release the organic halide gas to increase an organic
halide gas concentration at the fire threat above a preset
organic halide gas concentration threshold while the
oxygen concentration is below the preset oxygen
concentration threshold.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Haaland US 7,726,409 B2 June 1, 2010
Seebaluck US 2011/0308823 A1 Dec. 22, 2011
Chattaway US 2012/0217027 A1 Aug. 30, 2012

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REJECTIONS
1. Claims 1–7, 9, 10, and 17–21 are rejected under 35 U.S.C.
§ 112(a), as failing to comply with the written description requirement.
2. Claims 1–7, 9, 10, and 17–21 are rejected under 35 U.S.C.
§ 112(b), as being indefinite.
3. Claims 1–7, 9, and 17–21 are rejected under 35 U.S.C. § 103 as
unpatentable over Seebaluck and Haaland.
4. Claim 10 is rejected under 35 U.S.C. § 103 as unpatentable
over Seebaluck, Haaland, and Chattaway.
ANALYSIS
Rejection 1: 35 U.S.C. § 112(a) - Claims 1–7, 9, 10, and 17–21
The Examiner finds that claim 1 lacks written description support
because many different kinds of “detection systems” are in the art and the
Specification does not define the recited “detection system.” Final Act. 6.
Appellant argues that the rejection is improper because the Examiner
acknowledges that detection systems are known and the Specification
indicates this. Appeal Br. 5 (citing Spec. ¶ 35). According to Appellant,
“[i]nformation which is well known in the art need not be described in detail
in the specification.” Id. (citing MPEP § 2163(II)(A)(2)).
In response, the Examiner states that the rejection is proper despite
detection systems being known in the art, because the claims are being
interpreted under a means-plus-function analysis, which requires disclosure
of a means for performing the claimed function. Ans. 11–12.
Appellant replies that the Examiner’s means-plus-function analysis
under 35 U.S.C. § 112(f) is inappropriate because the claimed “detection
system” fails the three-prong test set forth in MPEP 2181(I). Reply Br. 1.
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Appellant asserts that the Examiner has failed to show that the term
“detection system” is a generic placeholder for “means” similar to examples
given in the MPEP, such as “module for” and “device for.” Appeal Br. 4.
Appellant argues that, by contrast, the term “‘detection system’ is a specific
element with unique features, for instance, the capability to detect whether
there is a fire threat in a given compartment, as would be understood by one
of ordinary skill in the art based on the instant application.” Id. (citing Spec.
¶ 35).
The phrase at issue is, “a detection system configured to detect a fire
threat.” Appeal Br. 9 (Claims App.). MPEP 2181(I) provides that “a claim
limitation that does not use the term ‘means’ or ‘step’ will trigger the
rebuttable presumption that 35 U.S.C. § 112(f) or pre-AIA 35 U.S.C. § 112,
six paragraph does not apply.” (citations omitted)(emphasis added). Further,
this section of the MPEP provides that this rebuttable “presumption is
overcome when ‘the claim term fails to ‘recite sufficiently definite structure’
or else recites ‘recites function without reciting sufficient structure for
performing that function.’” Id. In this case, claim 1 does not recite the
terms “means” or “step.” Consequently, there is a rebuttable presumption
that 35 U.S.C. § 112(f) does not apply. The Examiner must, therefore, show
that claim 1 fails to recite sufficiently definite structure or recites function
without reciting sufficient structure for performing that function. For the
following reasons, we do not agree with the Examiner’s determination that
35 U.S.C. § 112(f) applies to claim 1.
The Examiner finds that “the ‘detection system’ includes a generic
place holder ‘system’ that lacks structure.” Ans. 11–12. The Examiner,
however, ignores that claim 1 recites a detection system. A “detection
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system” is not a generic structural term such as “means,” “element,” or
“device”; nor is it a coined term lacking a clear meaning, such as “widget”
or “ram-a-fram.” See Personalized Media Communications, LLC v.
International Trade Com'n, 161 F.3d 696, n. 11 (Fed. Cir. 1998).
A “detection system” has a well-known meaning to those of skill in
the fire suppression arts connotative of structure, including detectors,
sensors, and analytic chemistry techniques. For example, the Examiner cites
to Haaland in the obviousness rejection which discloses that detection
systems vary with the nature of the fire, and that certain fires “will produce
voluminous smoke whose detection by light scattering or mobility detection
is well known.” Haaland, 28:58–62. Haaland also discloses that fires “can
be detected by infrared absorption, mass spectrometry, Raman scattering,
photoacoustic spectroscopy, and other methods of analytical chemistry.” Id.
at 28:62–66. Haaland further discloses that other fires “may produce
byproducts such as HF, HCN, NO, SO2, and other gases whose
concentration is minimal unless a fire is present. These may be detected by
surface acoustic wave sensors, chemical field effect transistors, resonance
fluorescence, or other analytical chemistry techniques.” Id. at 28:66–29:4.
Indeed, the Examiner appears to acknowledge that detection systems are
well known, stating that the rejection is based upon Appellant’s lack of
disclosure of a specific “detection system” out of the “many different kinds
of detection systems in the art.” Final Act. 6.
Even though the term “detection system” may not evoke a particular
structure, it does convey to one knowledgeable in the art a variety of
structures known as “detection systems,” as evidenced at least by Haaland.
We, therefore, conclude that one of ordinary skill in the art would
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understand that the term “detection system” is a sufficiently definite
structural term that precludes overcoming the rebuttable presumption that
35 U.S.C. §112(f) does not apply to claim 1. To the extent that the
Examiner determines that claim 1 lacks written description support even if
claim 1 is not subject to 35 U.S.C. §112(f) (see Final Act. 5–6), Appellant’s
Specification provides that “detection systems . . . are generally known and
are thus not described further herein.” Spec. ¶ 35. This disclosure in
Appellant’s Specification is supported by the disclosure of Haaland and,
thus, no further description of structures known to skilled artisans is required
pursuant to MPEP § 2163(II)(A)(2)).
For all the foregoing reasons, we do not sustain the rejection of claims
1–7, 9, 10, and 17–21 under 35 U.S.C. §112(a).

Rejection 2: 35 U.S.C. § 112(b) - Claims 1–7, 9, 10, and 17–21
The Examiner finds that claim 1 is indefinite because the claimed
“detection system” invokes 35 U.S.C. § 112(f), but the written description
does not disclose the corresponding structure, material, or acts for
performing the claimed function. Final Act. 6. The Examiner also considers
that claim 1 is indefinite because “it is unclear how the controller makes a
determination based on oxygen levels, without disclosing structure that can
sense oxygen levels.”2 Id. at 8. Similarly, the Examiner finds that claim 1 is
indefinite because “it is unclear how the controller makes a determination
based on organic halide gas concentration threshold, without disclosing
structure that can sense organic halide gas levels.” Id.

2 We understand this rejection not to rely on the interpretation of the
“detection system” as invoking 35 U.S.C. § 112(f).
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Appellant contends that 35 U.S.C. § 112(f) does not apply to the
recited detection systems and that, as a result, claim 1 is merely broad not
indefinite. Appeal Br. 5–6. Appellant does not address the parts of the
rejection that the recited controller is unclear in the absence of structure for
sensing oxygen levels and organic halide levels. See id.
We do not sustain the portion of this rejection based on the
Examiner’s determination that the recited claim term “detection system” is a
means plus function claim element because we determine the claim term is
not a means plus function claim element. Further, for the same reasons
discussed above, the scope of the recited detection system would not have
been unclear to one of ordinary skill in the art after reading the
Specification.
We summarily sustain the parts of the rejection where the Examiner
determined that the recited controller functions were unclear because
Appellant does not dispute those parts of the rejection. In re Berger, 279
F.3d 975, 984, 985 (Fed. Cir. 2002) (holding that the Board did not err in
sustaining a rejection under 35 U.S.C. § 112, second paragraph, when the
applicant failed to contest the rejection on appeal). We, thus, sustain the
rejection of claims 1–7, 9, 10, and 17–21 under 35 U.S.C. § 112(b).
Rejection 3: Obviousness of Claims 1–7, 9, and 17–21
Claim 1, 2, 4, 6, 7, 9, 17–19, and 21
Appellant argues independent claim 1, but does not submit separate
arguments for the patentability of dependent claims 2, 4, 6, 7, 9, 17–19, and
21. Appeal Br. 6–7. We select claim 1 as representative and claims 2, 4, 6,
7, 9, 17–18, and 21 stand or fall with claim 1. 37 C.F.R. § 41.37 (c)(1)(iv)
(2018).
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The Examiner finds that Seebaluck discloses most of the limitations of
claim 1 including a distribution network for distributing a high pressure gas
source and a low pressure gas source, but does not disclose the low pressure
gas source containing an organic halide gas. Final Act. 10. The Examiner
finds that Haaland discloses “a fire suppression system that uses Halons
(halide gas), like Halon 1211, to aid in fire suppression. Id. (citing Haaland,
3:51–4:8). The Examiner concludes that it would have been obvious to
modify Seebaluck’s low pressure gas source delivery system to deliver
Halon gas in order to:
i) displace or restrict the flow of oxygen, along with an inert
gas (like the gas used in high pressure gas source 16 of
Seebaluck) to suffocate the fire;
ii) remove heat from the combustion zone to cool it below
burning temperature; and
iii) generate Br and Cl atoms that interfere with flame
chemistry.
Final Act. 10.
Appellant argues that the rejection is improper because Seebaluck only
uses inert gases, and teaches away from halons based on their ozone-depletion
role. Appeal Br. 6 (citing Seebaluck ¶ 2).
The Examiner responds that Seebaluck does not teach away from
halons because Seebaluck does not state that halons cannot be used, or that
the device cannot operate with halons, but discloses that “halons are typical
in the firefighting art.” Ans. 13. According to the Examiner, although
Seebaluck recognizes that halons play a role in ozone depletion, Seebaluck
states that it is difficult to replace fire suppression systems that use halons in
aviation due to space and weight limitations. Id. The Examiner thus asserts
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that using halons in aircraft is justified due to limited space and payload,
which would outweigh ozone depletion concerns. Id.
In reply, Appellant contends that the Examiner’s position “does not
amount to a ‘justification’ to use halons,” and when Seebaluck is considered
in its entirety, the combination is improper. Reply Br. 2. Appellant’s
contention is not persuasive for the following reasons.
We note that merely because a prior art reference discloses a different
solution to a similar problem, it does not teach away from the claimed subject
matter unless the prior art reference also criticizes, discredits or otherwise
discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201 (Fed.
Cir. 2004). Here, as the Examiner correctly finds, although Seebaluck
recognizes that halons play a role in ozone depletion, for certain applications,
it is difficult to replace certain fire suppression systems that use halons.
Seebaluck ¶ 3; Ans. 3. This implies that the use of halon is desirable in some
circumstances. More specifically, Seebaluck states, “Replacing [halon]
systems in aviation applications is often challenging because space and weight
limitations are of greater concern than non-aviation applications.” Seebaluck
¶ 3.
Moreover, Haaland teaches that halons could be used in combination
with other ways to suppress a fire, including inert gases, as taught by
Seebaluck so that “substantially smaller quantities of agent [] are required.”
Haaland, 4:13–14. Thus, as the Examiner correctly finds, the use of halons as
part of a fire suppression system, and particularly, for certain applications
such as in an aircraft, “would exceed the concern of ozone depletion.” Ans.
13. We do not consider the potential disadvantage of ozone depletion to
outweigh the benefits related to fire suppression set forth by the Examiner.
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See Final Act. 10. Rather, we agree with the Examiner that the proposed
modification to Seebaluck would be desirable despite the possibility of any
perceived disadvantages cited by Appellant. See In re Fulton, 391 F.3d at
1200 (“‘[T]he question is whether there is something in the prior art as a whole
to suggest the desirability, and thus the obviousness, of making the
combination,’ not whether there is something in the prior art as a whole to
suggest that the combination is the most desirable combination available.”
(alteration in original)). For example, the Examiner finds that use of halon
would “displace or restrict the flow of oxygen, along with an inert gas (like
the gas used in high pressure gas source 16 of Seebaluck) to suffocate the
fire.” Final Act. 10. Appellant’s teaching away argument is, thus, not
persuasive.
We have considered all of Appellant’s arguments and determine that
they fail to apprise us of Examiner error. We, thus, sustain the rejection of
claim 1 under 35 U.S.C. § 103(a). Claims 2, 4, 6, 7, 9, 17–19, and 21 fall with
claim 1.
Claim 3
Claim 3 recites that the controller is configured to release the organic
halide gas in response to a peak mass flow rate of the inert gas. The
Examiner relies on Seebaluck for this feature. See Final Act. 11 (citing
Seebaluck ¶ 19).
Appellant asserts that Seebaluck discloses releasing the second inert
gas in response to a certain oxygen concentration not peak mass flow rate.
Appeal Br. 6. According to Appellant, the portion of Seebaluck upon which
the Examiner relies discloses only “maintaining a particular oxygen
concentration with a particular mass flow rate of the second inert gas.” Id.
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The Examiner responds that the “configured to” limitation of claim 3
only requires that the controller has the capability to perform the claimed
function. Ans. 13. According to the Examiner, because Seebaluck’s
“controller is programmable and can control and monitor the flow rates of
each gas, the controller has the capability of performing the claimed
function.” Ans. 13–14.
Appellant maintains that Seebaluck does not teach the claimed
features, and that the controller of Seebaluck being programmable is not
enough to meet the claimed limitation. Reply Br. 2. Appellant’s argument
is persuasive for the following reasons.
Seebaluck discloses a relationship between mass flow rate and oxygen
concentration so that the controller operates “to provide a desired mass flow
rate, such as to reduce the oxygen concentration below the predetermined
threshold.” Seebaluck ¶ 30. Seebaluck further discloses that “a
predetermined amount of gas from the first inert gas output 18 reduces the
oxygen concentration below the 12% threshold, the controller 26
subsequently releases the second inert gas output 22 from the low pressure
inert gas source 20.” Id. ¶ 17. Thus, we agree with Appellant that release of
the second inert gas is based on the oxygen concentration.
We also agree with Appellant that the Examiner’s position that
Seebaluck is capable of meeting claim 3 because Seebaluck’s controller is
programmable is insufficient. Claim 3 requires that the controller is
configured to release the organic halide gas in response to a peak mass flow
rate of the inert gas. Here, the term “configured to” is understood to mean
“programmed to.” Spec. ¶ 34 (“The controller 38 may include software,
hardware (e.g., one or more microprocessors), or both that is configured or
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programmed to perform the functions described herein.”). The Examiner
does not direct us to any portion of Seebaluck disclosing that its
programming includes releasing the organic halide gas in response to a peak
mass flow rate of the inert gas. We, thus, do not sustain the rejection of
claim 3.
Claim 5
Claim 5 recites that the controller is configured to maintain the
organic halide gas concentration at the fire threat above the preset organic
halide gas concentration threshold exclusive of whether the oxygen
concentration at the fire threat is below or above the preset oxygen
concentration threshold. The Examiner relies on Seebaluck for this
limitation. See Final Act. 11–12 (citing Seebaluck ¶ 19).
Appellant argues that Seebaluck maintains a particular oxygen
concentration, and does not maintain a “concentration of the second inert gas
exclusive of oxygen concentration, as claimed.” Appeal Br. 7.
The Examiner responds that the “configured to” limitation of claim 5
only requires that the controller has the capability to perform the claimed
function. Ans. 14. According to the Examiner, because Seebaluck’s
“controller is programmable, [and] can control and monitor the flow rates of
each gas, the controller is deemed capable of performing the claimed
function of maintaining a desired organic halide gas concentration regardless
of oxygen levels.” Id.
Appellant maintains that Seebaluck does not teach the claimed
features, and that the controller of Seebaluck being programmable is not
enough to meet the claimed limitation. Reply Br. 2. Appellant’s arguments
are persuasive.
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Seebaluck discloses maintaining “the oxygen concentration below the
12% threshold” (Seebaluck ¶ 19), and does not maintain a “concentration of
the second inert gas exclusive of oxygen concentration, as claimed.” Appeal
Br. 7. Although we understand the Examiner’s position that maintaining the
organic halide gas concentration is an intended use limitation, claim 5
requires more than mere capability. Rather, claim 5 requires that the
controller is configured to maintain the organic halide gas concentration at
the fire threat above the preset organic halide gas concentration threshold
regardless of the preset oxygen concentration threshold. The Examiner does
not direct us to any portion of Seebaluck disclosing that its programming
includes maintenance of the organic halide gas concentration regardless of
the preset oxygen concentration threshold. We, thus, do not sustain the
rejection of claim 5.
Claim 20
Claim 20 recites that the preset organic halide gas concentration
threshold is less than 9 vol%. The Examiner finds that this value can be
found by routine optimization. Final Act. 13.
Appellant argues that the Examiner has not provided evidence that
organic halide gas concentration is a result-effective variable that could be
optimized.
The Examiner responds that because Seebaluck’s controller controls
flow rate of the (halide) gas source 20 and oxygen levels based on a known
relationship, “i.e. the more halide gas, the less oxygen there is, and the
controller monitors and makes adjustments based on oxygen levels, the
concentration of the halide gas is deemed a result-ffective variable. Ans. 15.
We agree with the Examiner for the following reasons.
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Seebaluck discloses that “controller 26 controls whether the first inert
gas output 18 and/or the second inert gas output 22 are distributed to the
confined spaces 14a, 14b and at what mass and mass flow rate.” Seebaluck
¶ 13. Seebaluck also discloses that controller 26 causes the release of the
first inert gas output 18 within the confined space 14a to reduce “an oxygen
concentration within the confined space 14a below a predetermined
threshold, such as 12%,” and then controller 26 causes the release of the
second inert gas output 22 to the confined space 14a “to facilitate
maintaining the oxygen concentration below the predetermined threshold.”
Id. ¶ 15. Given that the mass flow rate of the first inert gas output 18 and the
second inert gas output 22 are known and the size of the confined space is
known, the volume of each of these gas outputs can be determined. As the
Examiner correctly notes, these gases then replace the oxygen to keep the
oxygen concentration at a predetermined level such that “the more halide
gas, the less oxygen there is.” Ans. 15. Thus, the concentration of any of
these gases can be determined and adjusted as needed. Accordingly, we
sustain the rejection of claim 20.

Rejection 4: Claim 10
Claim 10 depends from claim 1. Appellant does not separately argue
claim 10. See Appeal Br. 7. For the same reasons discussed above for claim
1, we sustain the rejection of claim 10.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 9, 10,
17–21
112(a) Written Description 1–7, 9, 10,
17–21
1–7, 9, 10,
17–21
112(b) Indefiniteness 1–7, 9, 10,
17–21

1–7, 9, 17–
21
103 Seebaluck, Haaland 1, 2, 4, 6,
7, 9, 17–
21
3, 5
10 103 Seebaluck, Haaland,
Chattaway
10
Overall
Outcome:
1– 7, 9, 10,
17–21

TIME PERIOD FOR RESPONSE
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