13994703 - (D) (P.T.A.B. Oct. 23, 2019)

Mathewv.Kaye

Patent Trials and Appeals BoardOct 23, 2019

13994703 - (D) (P.T.A.B. Oct. 23, 2019)

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. 13/994,703 10/14/2013 Mathew V. Kaye 67211-0026 1015 10291 7590 10/23/2019 FISHMAN STEWART PLLC 39533 WOODWARD AVENUE SUITE 140 BLOOMFIELD HILLS, MI 48304-0610 EXAMINER TSANG, LISA L ART UNIT PAPER NUMBER 3642 NOTIFICATION DATE DELIVERY MODE 10/23/2019 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): docketing@fishstewip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATHEW V. KAYE Appeal 2019-000821 Application 13/994,703 Technology Center 3600 BEFORE DANIEL S. SONG, MICHAEL L. HOELTER, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. Opinion Dissenting filed by Administrative Patent Judge FITZPATRICK. SONG, 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, 16–20, 22–29, 31, 34, and 37–41. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Brandenberg Limited. Appeal Br. 3. Appeal 2019-000821 Application 13/994,703 2 CLAIMED SUBJECT MATTER The claims are directed to an insect trap. Abstract. Claims 1, 27, and 39 are independent. Claim 1 is illustrative: 1. A trap for catching insects comprising: a housing including a perimeter frame hinged to a back frame; a cover; at least one insect attracting light arranged at a bottom of the housing between the cover and the back frame; an insect catching device arranged between the housing and the at least one insect attracting light, the insect catching device including a base glue board disposed at the bottom of the housing and a back glue board disposed behind the at least one insect attracting light with respect to the cover; at least one UVC radiation emitting device capable of destroying air-borne pathogens, the at least one UVC radiation emitting device positioned proximate to a top of the housing on the perimeter frame and arranged across the back glue board; and a protective screen fitted over the at least one radiation emitting device; wherein the housing has a sized opening positioned centrally at the top in proximity to the back glue board for facilitating a controlled flow of air such that an air flow is generated at least in part by convection from the bottom of the housing via the at least one insect attracting light over the base glue board and across the back glue board to convey air-borne pathogens derived from trapped insects towards the at least one UVC radiation emitting device disposed proximate to the top of the housing and positioned laterally across substantially a full width of the insect catching device to ensure that substantially all of the air flow circulating at least partially via convection is exposed to UVC radiation from the at least one UVC radiation emitting device for a period sufficient to at least one of sterilize and destroy air-borne pathogens picked up in the convection air flow. Appeal Br. 29, Claims App’x. Appeal 2019-000821 Application 13/994,703 3 REJECTIONS 1. The Examiner rejects claim 41 under 35 U.S.C. § 112 (pre- AIA), first paragraph, as failing to comply with the written description requirement. Final Act. 3. 2. The Examiner also rejects claim 41 under 35 U.S.C. § 112 (pre- AIA), second paragraph, as being indefinite. Final Act. 4. The Examiner further rejects various claims under 35 U.S.C. § 103(a) (pre-AIA) as follows: 3. Claims 1, 16–18, 20, 22, and 24–26 as unpatentable over Wilcox (GB 2459717, pub. Apr. 11, 2009), in view of Graff (US 2010/0196214 A1, pub. Aug. 5, 2010), and Yamada (US 2011/0296740 A1, pub. Dec. 8, 2011). Final Act. 5. 4. Claim 19 as unpatentable over Wilcox, in view of Graff, Yamada, and Gibson (US 6,878,195 B2, iss. Apr. 12, 2005). Final Act. 9. 5. Claim 23 as unpatentable over Wilcox, in view of Graff, Yamada, and Burrows (US 6,108,965, iss. Aug. 29, 2000). Final Act. 10. 6. Claims 27–29, 34, 37, and 38 as unpatentable over Wilcox, in view of Graff, and Burrows. Final Act. 11. 7. Claim 31 as unpatentable over Wilcox, in view of Graff, Burrows, and Yamada. Final Act. 15. 8. Claims 39 and 41 as unpatentable over Wilcox, in view of Graff, Yamada, and Gibson. Final Act. 16. 9. Claim 40 as unpatentable over Wilcox, in view of Graff, Yamada, Gibson, and Burrows. Final Act. 19. Appeal 2019-000821 Application 13/994,703 4 OPINION Rejection 1: Written Description Claim 41 depends from independent claim 39, and recites “wherein the protective screen further defines two transversely projecting ends fitted respectively fitted above and below the UVC radiation emitting device with respect to the top of the housing.” Appeal Br. 33, Claims App’x (emphasis added). The Examiner rejects claim 41 as failing to comply with the written description requirement. Final Act. 3. The test for determining sufficiency in written description is “whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (citation omitted). The Examiner finds that the Specification only describes the protective screen as being fitted in front of the UVC lamp, and that “[a]lthough figure 1 shows two projecting ends, it is unclear from the figure as to whether these projecting ends are transverse, i.e. exactly 90 degrees, and how exactly they are oriented when the screen is fitted in front of the UVC lamp.” Final Act. 4. The Examiner further finds that “[i]t is not inherent or necessarily required from the depiction in figure 1 that the screen has the ends fitted above and below the UVC lamp.” Final Act. 4. The Appellant disagrees and argues that “the two transversely projecting ends are clearly illustrated in FIG. 1 of the present application,” and a person of ordinary skill would “reasonably conclude that the inventor[] had possession of the claimed insect trap” including the recited protective screen. Appeal Br. 10. In that regard, the Appellant argues that because Appeal 2019-000821 Application 13/994,703 5 “the face is angled at the same angle as the ends, the projection of the ends is in a transverse direction,” and that the ends “clearly project linearly outward from the face in the transverse direction.” Reply Br. 2. We find the rejection as set forth by the Examiner to be deficient. Although the Specification does not explicitly disclose that the projecting ends project at “exactly 90 degrees” as noted by the Examiner (Final Act. 4), Figure 1 does disclose ends that project at least generally transversely, or as conceded by the Examiner, “approximately transversely projecting.” Ans. 5. The Examiner does not appear to sufficiently consider the disclosure provided in Figure 1, or how a person of ordinary skill in the art would have understood this figure in view of the disclosure of the claimed invention. See Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997) (one describes the invention to show “possession” of the invention using descriptive means as words, structures, figures, diagrams, formulas, etc., that fully set forth the claimed invention.); see also Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1565 (Fed. Cir.1991) (“drawings alone may provide a ‘written description’ of an invention as required by § 112.”). In addition, although the Examiner also finds that there is no support for the ends being “fitted above and below the UVC radiation emitting device,” because “[i]t is not clear from the figure as to how the screen fits in front of the lamp,” the Examiner also concedes that the screen is shown as having two holes horizontally positioned on the left side thereof that appear to allow for mounting of the screen with corresponding holes on the left side of the UVC lamp. Ans. 5. Nevertheless, the Examiner finds that no similar holes are provided on the right side of the UVC lamp, and mounting of the Appeal 2019-000821 Application 13/994,703 6 screen using such holes would result in the safety screen being below the UVC lamp instead of around the UVC lamp. In view of Figure 1, we agree with the Appellant that “[t]he fact that Figure 1 does not illustrate corresponding structure for the vertical right holes in the protective screen does not take away from the existence of the corresponding structure on the left side that would allow the protective screen to be fitted to the housing.” Reply Br. 3. Moreover, we do not agree with the Examiner’s finding that mounting of the protective screen using these holes would result in the safety screen being below the UVC lamp instead of around the UVC lamp. That assertion is simply not supported by the illustrated positioning of the holes on the protective screen and holes around the UVC lamp in Figure 1. Thus, we agree with the Appellant that Figure 1 adequately supports finding that the inventors had possession of the claimed insect trap with the recited protective screen. Accordingly, we find the Examiner’s articulated basis for the written description rejection to be inadequate and reverse the same. Rejection 2: Indefiniteness The Examiner also rejects claim 41 as being indefinite, stating that “it is unclear as to the meaning of the limitation ‘fitted respectively fitted above’ in line 2. There appears to be a redundancy in the claim.” Final Act. 4. The Appellant disagrees and argues that in view of the Specification’s disclosure that “[t]o meet health and safety requirements [UVC] lamps are fitted with a UVC protective screen,” and in view of Figure 1, a person of ordinary skill in the art would have understood “the recitation to mean that Appeal 2019-000821 Application 13/994,703 7 one of the recited two transversely projecting ends is fitted above the UVC radiation emitting device, and the other of the recited two transversely projecting ends is fitted below the UVC radiation emitting device.” Appeal Br. 11, quoting Spec. 3. Although we agree with the Examiner that there appears to be a redundant recitation of “fitted” in the claim, we disagree that this error rises to the level of indefiniteness. Instead, it is readily apparent such redundant recitation of “fitted” within the claim is simply an error that is clerical in nature, and that despite this error, a person of ordinary skill in the art would have understood the recitation to mean that one of the two ends is above the UVC radiation emitting device, and the other is below the UVC radiation emitting device in view of the Specification and Figure 1. The Examiner explains that “the claim could be interpreted as having one end both above and below the UVC radiation emitting device, and the other end both above and below the UVC radiation emitting device. Thus, the limitation is unclear.” Ans. 6. However, we agree with the Appellant that in view of Figure 1, “[t]here is no way to interpret either of the ends as being both above and below the UVC radiation emitting device.” Reply Br. 4. Therefore, although we agree with the Examiner (as indicated above) that there appears to be a redundant recitation of “fitted” in the claim, this error appears to be of the type in which an objection could be raised to require correction by the Appellant, but does not rise to the level of indefiniteness. Appeal 2019-000821 Application 13/994,703 8 Rejection 3: Claims 1, 16–18, 20, 22, and 24–26 Claims 1, 16–18, 20, 22, and 24–26 as unpatentable over Wilcox, in view of Graff, and Yamada. Final Act. 5. As to independent claim 1, the Examiner finds that Wilcox discloses a trap for catching insects substantially as claimed, but concedes that Wilcox “does not disclose that the at least one radiation emitting device is a UVC radiation emitting device that is fitted with a protective screen or capable of destroying air-borne pathogens, or that an air flow is generated.” Final Act. 5–6. The Examiner further finds that Graff also discloses “a trap for treating the air” substantially as claimed, wherein the disclosed lights “are ones that attract insects,” and includes a radiation emitting device capable of destroying air-borne pathogens. Final Act. 6–7. The Examiner concludes that it would have been obvious to a person of ordinary skill to have modified Wilcox to have the differing lamps and airflow of Graff, in order to circulate air within a room and also provide an additional function of sterilizing the air to improve general air quality. Such a modification would result in the air flow . . . moving over the base glue board and across the back glue board, at least inasmuch as Graff teaches the air flow moving upwards from the base of the device to any open areas above the base. Final Act. 7, citing Graff Fig. 3. The Examiner further relies on Yamada for disclosing a trap for insects, and teaching that “it is known in the art to have at least one radiation emitting device (2a, 2b, 2c) ba [sic, be] a UVC radiation emitting device capable of destroying air-borne pathogens derived from trapped insects,” and that UVC radiation would sterilize the air. Final Act. 8; citing Yamada Tables 1 and 4. The Examiner concludes that it would have been obvious to a person of ordinary skill “to modify the at least one radiation emitting Appeal 2019-000821 Application 13/994,703 9 device of Wilcox as modified by Graff to emit UVC radiation, as taught by Yamada, in order to effectively trap insects and sterilize the air.” Final Act. 8. Yamada The Appellant argues, inter alia, that the Examiner’s “characterization of the teachings of Yamada as being related to destroying air-borne pathogens was a complete mischaracterization, as such teachings simply were non-existent,” and that the rejection is improper. Appeal Br. 13. In that regard, the Appellant argues that Yamada concludes that the insect trap employing a combination of UV-B and UV-C lamps has a greater attraction effect. (See e.g., id. at paragraph [0053] and Table 1). Yamada does not describe anywhere the UV-C lamp being used for or even being capable of destroying air-borne pathogens derived from trapped insects, as contended in the Final Office Action. Appeal Br. 13. We agree with the Appellant. As we understand the record, the Examiner’s rejection is premised on replacing the upper most UV light of Wilcox for attracting insects with a UV lamp that sterilizes the air in view of Graff, and specifically using the UVC lamp from Yamada for this sterilization function. Final Act. 5–8. In support of this rejection, the Examiner finds that Yamada teaches “a UVC radiation emitting device capable of destroying air-borne pathogens derived from trapped insects,” and concludes that it would have been obvious to a person of ordinary skill “to modify the at least one radiation emitting device of Wilcox as modified by Graff to emit UVC radiation, as taught by Yamada, in order to effectively trap insects and sterilize the air.” Final Act. 8. Appeal 2019-000821 Application 13/994,703 10 However, as noted by the Appellant, Yamada is entirely silent as to its UVC radiation emitting device destroying air-borne pathogens. In addition, as the Examiner finds, Wilcox does not disclose that its “UV lights (22)” sterilize the air. Although Graff includes a UV lamp that does sterilize the air, it does not specify that the UV lamp is a UVC lamp, or that it provides radiation having a wavelength in the UVC range. Yamada, although disclosing a UVC lamp, merely teaches that the UVC lamp, when used in conjunction with a UVB lamp, improves insect “attraction effect.” Yamada ¶ 53. Thus, evidence in support of the factual finding that UVC would function to sterilize the air is not in the record before us, and only appears in the Appellant’s own Specification. As the Appellant argues, this evidentiary deficiency undermines the rejection because it undermines the articulated motivation for combining the references in the manner suggested by the rejection. See Reply Br. 6 (“[T]he fact that UV-C lamps may destroy air- borne pathogens is not enough to actually lead an artisan to substitute one of the lights 22 in Wilcox with a UV-C lamp in Yamada. . . . [A]ny purported motivation to incorporate the UV-C lamp of Wilcox to destroy air-borne pathogens can only be gleaned from Appellant’s application.”). The Examiner responds that claim 1 “does not specify what type of light is emitted by the at least one insect attracting light” and that “[t]here is nothing in the claim, then, that would require the at least one insect attracting light and the at least one UVC radiation emitting device to emit different types of light.” Ans. 7. The Examiner also responds that in claim 1, “[t]he limitation ‘capable of’ is a functional recitation that the prior art need only be capable of performing. . . . Where UVC light is provided, it Appeal 2019-000821 Application 13/994,703 11 functions as a sterilizer for everything around it, including, if present, air- borne pathogens from trapped insects.” Ans. 8 (emphasis added). According to the Examiner, “[t]he UVC light of Yamada, in addition to attracting and trapping insects, would also necessarily function to destroy air-borne pathogens from the trapped insects, because that is what UVC light does.” Ans. 8. Although the Examiner may be correct as to the language of claim 1, this does not establish that the device of Wilcox uses UVC lamps as its attracting light, or UVB or UVA for that matter. We simply do not know the wavelengths of UV radiation the UV lamp of Wilcox produces. The same can be said of the UV lamp of Graff, even though it disclose that the UV lamp sterilizes the air. The Examiner may also be correct that “[w]here UVC light is provided, it functions as a sterilizer” (Ans. 8), but that does not address the lack of reasoning in the rejection for providing UVC light in the first place. As noted, the rejection does not rely on evidence or reasoning to establish the desirability of using a UVC lamp for sterilization purposes, and does not provide a reason with rational underpinnings to extract the UVC lamp of Yamada, and replace one of the UV lamps of Wilcox with the UVC lamp of Yamada for another viable purpose. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“To facilitate review, this analysis should be made explicit” (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.”))). In that regard, we agree with the Appellant that Yamada teaches the desirability of using a combination of UVB and UVC lamps, and Appeal 2019-000821 Application 13/994,703 12 not UVC alone, and that this combination of UVB and UVC lamps is for attraction purposes, not sterilization purposes. Appeal Br. 13; Reply Br. 6; Yamada ¶ 53. See In re Wesslau, 353 F.2d 238, 241 (CCPA 1965) (“It is impermissible within the framework of section 103 to pick and choose from any one reference only so much of it as will support a given position, to the exclusion of other parts necessary to the full appreciation of what such reference fairly suggests to one of ordinary skill in the art.”). The Examiner further responds that claim 1 uses the term “comprising,” and thus, “[t]he lamp of Yamada, even if teaching UVB and UVC light, still teaches ‘at least one UVC radiation emitting device’ as claimed, because it teaches the device emitting UVC light.” Ans. 8. The pertinence of this response is not entirely clear because the rejection is not premised on using UVB and UVC lamps of Yamada in combination, but instead, extracting only the UVC light of Yamada. Therefore, in view of the above considerations, the Examiner’s rejection of independent claim 1, as presently set forth, is deficient. Accordingly, we reverse the same. The Appellant relies on dependency on claim 1 for patentability of claims 16–18, 20, 22, and 24–26. Appeal Br. 16. Thus, the rejection of these dependent claims is also reversed, as these claims ultimately depend from independent claim 1. See also In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988) (citations omitted) (“Dependent claims are nonobvious under section 103 if the independent claims from which they depend are nonobvious.”). Other Issues Appeal 2019-000821 Application 13/994,703 13 Notwithstanding our reversal of Rejection 3 above, because some of the issues raised in the arguments between the Examiner and the Appellant in this rejection are present in other rejections discussed infra, and in the event there may be future prosecution on the merits, we briefly address the numerous other issues raised with respect to this rejection. Initially, we are not persuaded by the Appellant’s argument that “the Final Office Action effectively equated a single element in Wilcox to the two separately claimed elements of claim 1.” Appeal Br. 12. As explained by the Examiner, the rejection considers the UV light near the bottom of the housing of Wilcox to be the insect attracting light and substitutes the UV light near the top of the housing with that of Yamada. Ans. 7. As to the issue of whether Graff is analogous art, we disagree with the Examiner’s finding that Graff discloses a “trap.” See Ans. 10. However, contrary to the Appellant’s assertion, Graff is nonetheless analogous because it is “reasonably pertinent” to the problem addressed by the inventor, and “logically would have commended itself to an inventor’s attention in considering his problem.” In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992). The Appellant asserts that the problem confronted by the inventor was “to provide one or more traps which facilitate the destruction of micro- organisms thereby countering odours and mitigating against the spread of germs in traps employing insect capturing means.” Appeal Br. 15, quoting Spec. ¶ 7; see also Reply Br. 7. However, the Appellant’s articulation of the problem is too narrow and essentially requires pertinent art to be in the same field of endeavor. Instead, the problem confronted by the inventor was how to mitigate against spread of airborne germs and odours. Graff is reasonably pertinent to this problem in its disclosure of an Appeal 2019-000821 Application 13/994,703 14 air purifying device having sterilization compartment with a UV lamp for sterilization of the air passing there through. Dependent claim 20 requires that “the base glue board and the back glue board is arranged between the perimeter frame and the back frame.” Appeal Br. 30, Claims App’x. In rejecting this claim, the Examiner finds that “the base glue board would be arranged, at least in part where the base glue board meets the back glue board, between the perimeter frame and the back frame. See figures 2 and 11.” Ans. 11. We disagree with this assertion because the bottom edge of the first glue surface of Wilcox to which the second glue surface is attached, would extend below the perimeter frame such that the second glue surface would likewise be below the perimeter frame. Accordingly, the rejection of claim 20 is reversed for this additional reason as well. Rejection 4: Claim 19 The Examiner rejects claim 19 as unpatentable over Wilcox, in view of Graff, Yamada, and Gibson. Final Act. 9. Claim 19 ultimately depends from claim 1, and recites “wherein the protective screen has a structure fitted to cover a length of the at least one UVC lamp laterally across the housing, and wherein the protective screen is positioned in front of the at least one UVC lamp with respect to the cover.” Appeal Br. 30, Claims App’x. The Examiner finds that brackets 24 and 26 of Gibson satisfy this claim. Final Act. 10. The Appellant relies ultimately on the dependency of claim 1 for the patentability of claim 19. Appeal Br. 17. Because the Examiner’s application of Gibson does not remedy the deficiency in the combination of Appeal 2019-000821 Application 13/994,703 15 Wilcox, Graff, and Yamada, discussed above relative to Rejection 3, this rejection is also reversed. We further agree with the Appellant that “[t]he brackets 24, 26 [of Gibson] are not protective screens” for the reasons argued. Appeal Br. 17, citing Gibson, col. 4, ll. 64–67. Although we agree with the Examiner’s finding that Graff also teaches protective baffle, we note that this finding is not the basis of the rejection, and further disagree that this baffle is positioned in front of the UV lamp as the Examiner asserts. Ans. 12–13; see also Graff ¶ 7; Reply Br. 9. Thus, this rejection is not sustained for this additional reason as well. Rejection 5: Claim 23 The Examiner rejects claim 23 as unpatentable over Wilcox, in view of Graff, Yamada, and Burrows. Final Act. 10. Claim 23 recites, inter alia, “the plurality of louvered openings disposed paired about a center axis running from the bottom to the top of the housing to provide an upward inflection and a downward inflection, respectively, where the upward inflection and the downward inflection are angled obliquely to the center axis.” Appeal Br. 30, Claims App’x. The Examiner finds that “Wilcox as modified by Graff and Yamada does not disclose that the center axis runs from the bottom to the top of the housing.” Final Act. 11. The Examiner relies on Burrows to correct this deficiency, and concludes that it would have been obvious to have modif[ied] the louvered openings of Wilcox . . . to be paired about a center axis running from the bottom to the top of the housing, as taught by Burrows, i.e. to have the center axis of Appeal 2019-000821 Application 13/994,703 16 Wilcox be transverse to the axis x-x (see Wilcox at figure 1), in order to draw air from higher and lower into the device. Final Act. 11. The Appellant relies ultimately on the dependency of claim 1 for the patentability of claim 23. Appeal Br. 18. Because the Examiner’s application of Burrows does not remedy the deficiency in the combination of Wilcox, Graff, and Yamada, discussed above relative to Rejection 3, this rejection is also reversed. The Appellant’s specific arguments, that the openings of Burrows are not louvered openings and do not have upward or downward inflection, are unpersuasive because the rejection relies on Wilcox for disclosing louvered openings with inflection. Appeal Br. 19; Reply Br. 10; Ans. 13. However, we agree with the Appellant that “the openings 18 [of Wilcox] are not angled obliquely.” Appeal Br. 18; Reply Br. 10. Thus, this rejection is reversed for this additional reason as well. Rejection 6: Claims 27–29, 34, 37, and 38 The Examiner rejects claims 27–29, 34, 37, and 38 as unpatentable over Wilcox, in view of Graff, and Burrows. Final Act. 11. In contrast to claim 1, independent claim 27 does not specify that the recited “radiation emitting device capable of destroying air-borne pathogens” is a UVC radiation emitting device. Appeal Br. 31, Claims App’x. Correspondingly, this rejection does not rely on Yamada. The Examiner rejects independent claim 27 for substantially the same reasons as claim 23 in Rejection 5, relying on the same findings with respect to Wilcox and Graff discussed above relative to Rejection 3. Final Act. 11– 13. In that regard, the Examiner concedes that Wilcox does not disclose a Appeal 2019-000821 Application 13/994,703 17 center axis that runs from the bottom to the top of the housing as required by claim 27, but relies on Burrows to remedy this deficiency to conclude that it would have been obvious to a person of ordinary skill in the art to have “modif[ied] the louvered openings of Wilcox . . . to be paired about a center axis running from the bottom to the top of the housing, as taught by Burrows, i.e. to have the center axis of Wilcox be transverse to the axis x-x (see Wilcox at figure 1), in order to draw air from higher and lower into the device.” Final Act. 13–14. The Appellant relies on arguments submitted with respect to claim 1 arguing conflation of insect attracting light and the radiation emitting device (Appeal Br. 20–21), and that Graff is non-analogous art. Appeal Br. 21; Reply Br. 11–12. These arguments are unpersuasive for the reasons discussed above relative to Rejection 3. The Appellant also relies on arguments submitted with respect to independent claim 23 regarding Burrows. Appeal Br. 21; Reply Br. 11–12. As discussed above relative to Rejection 5, because Wilcox does not disclose openings that are oblique, we do not sustain this rejection of independent claim 27. The Appellant relies on dependency on claim 27 for patentability of claims 28, 29, 34, 37, and 38. Appeal Br. 22; Reply Br. 12–13. Thus, the rejection of these dependent claims is reversed as well. Rejection 7: Claim 31 The Examiner rejects claim 31 as unpatentable over Wilcox, in view of Graff, Burrows, and Yamada. Final Act. 15. Claim 31 depends from independent claim 27, and recites that the “radiation emitting device includes a UVC lamp configured to emit UVC radiation.” Appeal Br. 32, Appeal 2019-000821 Application 13/994,703 18 Claims App’x. The Appellant relies on dependency on claim 27 for patentability of claim 31. Appeal Br. 22. The Examiner’s application of Yamada not only fails to remedy the deficiency of the combination of Wilcox, Graff, and Burrows in the rejection of independent claim 27 for the reasons discussed relative to Rejection 6, but is also problematic for the reasons discussed above relative to Rejection 3 with respect to the application of Yamada. Accordingly, we reverse this rejection. Rejection 8: Claims 39 and 41 The Examiner rejects claims 39 and 41 as unpatentable over Wilcox, in view of Graff, Yamada, and Gibson. Final Act. 16. In particular, the Examiner rejects independent claim 39 relying on findings with respect to Wilcox, Graff, and Yamada substantially the same as the findings discussed above relative to Rejection 3. Final Act. 16–18. The Examiner further finds that Gibson discloses a device for sterilizing air-borne pathogens, including a protective screen that shields a UV lamp, and concludes that it would have been obvious to a person of ordinary skill in the art to have “modif[ied] the protective screen to be positioned in front of the at least one UVC lamp with respect to the cover, to ensure that even if a person were to look through the louvered openings (18) of Wilcox, the UVC lamp would be shielded from view.” Final Act. 19. The Appellant, inter alia, relies on arguments submitted in Rejection 3 with respect to claim 1 regarding Yamada, on arguments submitted with respect to dependent claim 20 regarding the positioning of the second surface of the glue board in Wilcox, and on arguments submitted in Rejection 4 with respect to claim 19 regarding the brackets of Gibson. Appeal 2019-000821 Application 13/994,703 19 Appeal Br. 23–25; Reply Br. 13. Thus, we reverse this rejection of claim 39 for reasons discussed above relative to claims 1, 19, and 20. The Appellant also relies on dependency on claim 39 for patentability of claim 41. Appeal Br. 25. Accordingly, the rejection of claim 41 is also reversed. Rejection 9: Claim 40 The Examiner rejects claim 40 as unpatentable over Wilcox, in view of Graff, Yamada, Gibson, and Burrows. Final Act. 19. The Appellant, inter alia, relies on dependency on independent claim 39 to assert patentability of claim 40. Appeal Br. 25. The Examiner’s application of Burrows does not remedy the deficiency of the combination of Wilcox, Graff, Yamada, and Gibson discussed above relative to Rejection 8 with respect to claim 39. Therefore, this rejection is also reversed. CONCLUSION The Examiner’s rejections are REVERSED. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 41 112, first paragraph Written Description 41 41 112, second paragraph Indefiniteness 41 1, 16–18, 20, 22, 24–26 103(a) Wilcox, Graff, Yamada 1, 16–18, 20, 22, 24–26 19 103(a) Wilcox, Graff, Yamada, Gibson 19 Appeal 2019-000821 Application 13/994,703 20 23 103(a) Wilcox, Graff, Yamada, Burrows 23 27–29, 34, 37, 38 103(a) Wilcox, Graff, Burrows 27–29, 34, 37, 38 31 103(a) Wilcox, Graff, Burrows, Yamada 31 39, 41 103(a) Wilcox, Graff, Yamada, Gibson 39, 41 40 103(a) Wilcox, Graff, Yamada, Gibson, Burrows 40 Overall Outcome 1, 16–20, 22–29, 31, 34, 37–41 REVERSED Appeal 2019-000821 Application 13/994,703 21 FITZPATRICK, Administrative Patent Judge, dissenting. I join the majority’s decision save its reversal of the indefiniteness rejection of claim 41. The Examiner determined that “it is unclear as to the meaning of the limitation ‘fitted respectively fitted above’ in line 2 [of claim 41]. There appears to be a redundancy in the claim.” Final Act. 4. Appellant quotes from paragraph 105 of the Specification and argues that, in light of that disclosure, “an artisan would understand the recitation to mean that one of the recited two transversely projecting ends is fitted above the UVC radiation emitting device, and the other of the recited two transversely projecting ends is fitted below the UVC radiation emitting device.” Appeal Br. 11. Appellant does not argue, let alone concede, that claim 41 includes a typographical error, yet that is the basis of the majority’s decision to reverse the rejection. Appellant has not apprised us of error in the indefiniteness rejection of claim 41. I would sustain the rejection.