Safezone Safety Systems, LLC

Patent Trials and Appeals Board

Oct 13, 2020

2019003171 (P.T.A.B. Oct. 13, 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.
14/580,323 12/23/2014 David Allen Dore 12232.002 2557
63209 7590 10/13/2020
Roy Kiesel Ford Doody & North APLC
9100 Bluebonnet Centre Blvd, Suite 100
BATON ROUGE, LA 70809
EXAMINER
TANG, SON M
ART UNIT PAPER NUMBER
2685
NOTIFICATION DATE DELIVERY MODE
10/13/2020 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):
blp@roykiesel.com
rbf@roykiesel.com
sjc@roykiesel.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID ALLEN DORE, ROBERT C. TUCKER, and CHAD
A. GRAND

Appeal 2019-003171
Application 14/580,323
Technology Center 2600

Before CARL W. WHITEHEAD JR., DAVID M. KOHUT, and IRVIN
E. BRANCH, Administrative Patent Judges.

KOHUT, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–42. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use “Appellant” to reference the applicant as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
“Safezone Safety Systems, LLC.” Appeal Br. 2.
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STATEMENT OF THE CASE
Appellant’s Invention
Appellant’s invention relates to a “hotwork enclosure” that isolates
welding therein from combustible gas outside (e.g., from fumes of an oil
drill platform). Spec. 10, l. 18–11, l. 13. Claims 1 and 32, reproduced
below with emphasis, are illustrative of argued subject matter.
1. An apparatus for conducting hot work comprising:
a. an enclosure;
b. a hot work apparatus operable within said enclosure; and
c. a detector located exterior of said enclosure, said
detector being in detecting communication with an interior of
said enclosure, such that said detector detects the presence of
a condition within said enclosure.
32. An apparatus for conducting hot work comprising:
a. an enclosure;
b. a welding apparatus operable at least partially within said
enclosure;
c. a blower assembly in fluid communication with an
interior of said enclosure;
d. a manual shutdown switch in communication with said
welding apparatus;
e. an oxygen detector fluidly connected to the interior of
said enclosure and in communication with said welding
apparatus;
f. a pressure detector fluidly connected to the interior of
said enclosure and in communication with said welding
apparatus; and
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g. a combustible gas detector located exterior of said
enclosure, said combustible gas detector being fluidly
connected to the interior of said enclosure such that said
combustible gas detector detects the presence of a combustible
gas within said enclosure, said combustible gas detector being
in communication with said welding apparatus.
Appeal Br., Claims Appendix.
Rejections
Claims 1–3 and 9–42 are rejected on the ground of nonstatutory
double patenting as being unpatentable over claims 1–8 of Dore
(US 8,947,249 B1; Feb. 3, 2015) and Pregeant (US 6,783,054 B1; Aug. 31,
2004). Non-Final Act. 3–5.
Claims 4, 5, and 7 are rejected on the ground of nonstatutory double
patenting as being unpatentable over claims 1–8 of Dore, Pregeant, and
Fenwal (Kidden Fenwal, Analaser, HSSD®-L TT (High Sensitivity Smoke
Detection System Laser Technology Type), June 1992, 89.58.2).
Non-Final Act. 5–6.
Claim 6 is rejected on the ground of nonstatutory double patenting as
being unpatentable over claims 1–8 of Dore, Pregeant, and Maskell
(US 7,094,142 B1; Aug. 22, 2006). Non-Final Act. 6–7.
Claim 8 is rejected on the ground of nonstatutory double patenting as
being unpatentable over claims 1–8 of Dore, Pregeant, and Ouellette
(US 7,135,332 B2; Nov. 14, 2006). Non-Final Act. 6–7.
Claims 1–5, 7, and 9–42 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Pregeant and Fenwal. Non-Final Act. 9–16.
Claim 6 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Pregeant, Fenwal, and Maskell. Non-Final Act. 16–17.
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Claim 8 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Pregeant, Fenwal, and Ouellette. Non-Final Act. 17.
RELATED APPEALS
The present application is a related application of US 14/579,780
(Appeal Br. 2), which had a pending appeal (2019-002952). We have
addressed that appeal in another decision.
DOUBLE PATENTING REJECTIONS
For the double patenting rejections, Appellant contests the rejections
of: independent claim 32 and its dependent claim 33 by contending a
limitation of claim 32 is not taught by Dore’s claims (Appeal Br. 6–9); and
the remaining claims 1–31 and 34–42 by contending the Examiner does not
address their limitations with specificity (id. at 9–10). For the below
reasons, we are unpersuaded of error and accordingly sustain the double
patenting rejections of claims 1–42.
Claims 32 and 33
Appellant contends Dore’s claims do not teach or suggest claim 32’s
“detector [that is] located exterior of said enclosure . . . [and] detects the
presence of a combustible gas within said enclosure.” Appeal Br. 6–9. The
Examiner responds that Dore’s claimed gas detector, though separated from
the hotwork enclosure (Ans. 3), is “in fluid communication” with the
enclosure by way of being located in the air intake of the enclosure’s blower
(id. at 4). See also Non-Final Act. 8 (table). Appellant replies that Dore’s
claimed gas detector cannot detect gas originating from equipment within
the enclosure and, thus, does not teach or suggest the claimed “detect[ing]
the presence of a combustible gas within said enclosure.” Reply Br. 5–6.
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We are unpersuaded of error. The Examiner finds Dore’s claimed gas
detector can be located in the blower intake of the hotwork enclosure and,
therefore, would expectedly detect gas traveling into the enclosure. Ans. 3–
4; Non-Final Act. 8; Dore, claims 1 (“blower assembly in fluid
communication with an interior of said enclosure”), 7 (“gas detector located
. . . in or near to an air intake of said blower assembly”). Appellant fails to
explain why such a detection of gas flowing into an enclosure would not also
“detect[] the presence of . . . gas within said enclosure,” as is claimed.
See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (affirming because
appellant “merely argued that the claims differed from [the prior art], and
chose not to proffer a serious explanation of this difference.”). Appellant
explains that such a detection of gas flowing into an enclosure would not
detect gas that originates from equipment within the enclosure; however, this
is not claimed. See In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998)
(“[The] proffered facts . . . are not commensurate with the claim scope and
are therefore unpersuasive.”).
Appellant also contends that, even assuming (arguendo) Dore’s
claimed blower intake is in fluid communication with the hotwork enclosure,
a gas detector in the blower intake may nonetheless not be in fluid
communication with the enclosure. Reply Br. 7. We are unpersuaded for
two reasons. First, because the Examiner’s finding of “fluid
communication” is apparent from the rejection (Non-Final Act. 8),
Appellant’s argument could have been raised by the Appeal Brief and is
therefore waived. See 37 C.F.R. § 41.37(c)(1)(iv) (waiver of untimely
arguments). Second, even assuming (arguendo) the argument was not
waived, Dore’s Figure 1 shows that a detector (e.g., 86) located in the
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blower intake (26) of a hotwork enclosure is in fluid communication with
the enclosure.
Claims 1–31 and 34–42
Appellant summarily contends the double patenting rejections lack a
sufficient comparison of all but claim 32 against Dore’s claims.
Appeal Br. 9–10.
We are unpersuaded of error. The Examiner identifies Appellant’s
claim limitations that are taught by Dore’s claims (Non-Final Act. 3–7),
which comprise only 47 lines of Dore. The Examiner also maps Appellant’s
claim 32 to Dore’s claims with specificity. Id. at 8–9 (table). In light of the
above, the rejection is clear enough for Appellant to counter it—e.g., by
identifying limitations of claims 1–31 and 34–42 that are not shared by
claim 32 or not disclosed by the 47 lines of Dore’s claims. In other words,
Appellant was presented a prima facie case to address. See Jung, 637 F.3d
at 1362 (A prima facie case is achieved if the rejection is clear enough for
the applicant to counter it.). Appellant fails to do so by merely alleging the
Examiner did not bridge claims 1–31 and 34–42 to Dore’s claims. See e.g.,
Jung, 637 F.3d at 1363 (“[The] assertion that the examiner must bridge the
facial differences between the claims and the prior art begs the substantive
question of whether there are facial differences to be bridged.” (internal
quotation marks and brackets omitted)).
OBVIOUSNESS REJECTIONS
For all obviousness rejections, Appellant contends the record does not
support the Examiner’s proposed modification of Pregeant in view of
Fenwal—that is, does not support relocating Pregeant’s pressure, gas, and
oxygen sensors 53–55 from inside of the monitored enclosure to outside of
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the enclosure. Appeal Br. 11–17. For the below reasons, we are
unpersuaded of error and accordingly sustain the obviousness rejections of
claims 1–42.
Specifically, Appellant contends the combination of Pregeant and
Fenwal would render Pregeant’s invention unsatisfactory for its intended
purpose because:
[I]f for any . . . reason there was not a flow of air into
[Pregeant’s] chamber 13 and then out of the chamber 13 and to
the . . . relocated exterior gas detector 54, . . . it would be
impossible for the modified gas detector 54 (which is now
exterior of the chamber 13) to detect . . . combustible gas that is
in the interior space 16 of the chamber 13.
Appeal Br. 12. We are unpersuaded because this possibility of an air-flow
failure does not show the combination of Pregeant and Fenwal would have
lacked a reasonable expectation of success in the art. See In re O’Farrell,
853 F.2d 894, 904 (Fed. Cir. 1988) (“For obviousness under § 103, all that is
required is a reasonable expectation of success.”); In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997) (“An assertion of what seems to follow from
common experience is just attorney argument and not the kind of factual
evidence that is required to rebut a prima facie case of obviousness.”); see
also Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006)
(“[A] given course of action often has simultaneous advantages
disadvantages[. This] does not necessarily obviate motivation to
combine.”).
Appellant also contends:
Fenwal teaches that “[t]he AnaLASER detector . . . should be
positioned as close as possible to the protected area to minimize
the air transport time.” See Fenwal, pg. 3, lines 7–9. . . . If
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the[] sensors of Pregeant, [e.g.,] combustible gas sensor 54, are
moved from the interior space 16 of the chamber 13 to the
exterior of the chamber 13 . . . , the sensors would then be
positioned further away from the protected area of Pregeant,
which Fenwal explicitly teaches away from.
Appeal Br. 13. We are unpersuaded because Fenwal’s argued teaching—to
position the detector “as close as possible to the protected area to minimize
the air transport time” (id. at 3, col. 1)—merely compromises between
Fenwal’s disclosed alternative placements of a detector: (1) in the
monitored space (conventional detectors); and (2) outside the monitored
space but in fluid communication (Fenwal’s detector). Fenwal 1, col. 1;
2, col. 2. The argued teaching does not thereby discourage use of the second
(2) placement. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (“The
prior art’s mere disclosure of more than one alternative does not constitute a
teaching away from any of these alternatives because such disclosure does
not criticize, discredit, or otherwise discourage the solution claimed.”).
Appellant also contends: “[T]he relocated combustible gas sensor 54
of Pregeant would be positioned much further away from the protected area
(i.e. the interior space 16 of the chamber 13) as compared to what is shown
in the unmodified Fig. 1 of Pregeant[.]” Appeal Br. 14. We are
unpersuaded for two reasons. First, this contention is mere attorney
argument that Pregeant’s relocated gas sensor 54 would be ineffective at its
proposed distance from the hotwork enclosure. See Geisler, 116 F.3d 1465,
1470 (parenthetical at supra 7 (attorney argument)). Second, contrary to
relocating Pregeant’s detectors “much further away” (Appeal Br. 14), the
Examiner proposes to relocate the detectors “close to the chamber’s wall”
(Ans. 6).
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Appellant also contends that Fenwal’s invention is “nonanalgous art”
because its “purpose of detecting smoke would be nonsensical in the context
of Pregeant or . . . Applicant’s invention.” Appeal Br. 15. We are
unpersuaded because Appellant does not address whether methods of
configuring smoke detectors (i.e., their viable locations as opposed to their
purpose) would have been reasonably pertinent to configuring hotwork
detectors. See In re Clay, 966 F.2d 656, 659–60 (Fed. Cir. 1992) (“[P]rior
art is analogous . . . if . . . reasonably pertinent to the particular problem with
which the [applicant] inventor is involved.”). For example, Appellant does
not contend the invention’s available technologies for gas detection
(Spec. 16, ll. 5–17; 18, ll. 15–18) and Fenwal’s technology for smoke
detection (Fenwal 2, col. 2) were dissimilar. See KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007) (“[I]f a technique . . . would improve similar
devices in the same way, using the technique is obvious.”).
Appellant also contends that another prior art reference of record,
Wardlaw, III (US 2009/0134995 A1; May 28, 2009), teaches, “it is
conventional practice” to locate hotwork detectors in the monitored space
and thereby shows that a person of ordinary skill in the art would not have
relocated Pregeant’s detectors. Appeal Br. 17 (citing Wardlaw ¶ 28). We
are unpersuaded for two reasons. First, Wardlaw at best evidences what was
understood at the time of its filing in 2007; it is not persuasive evidence of
what was obvious at the time of Appellant’s invention in 2014. Second,
even assuming (arguendo) Wardlaw shows an artisan would have chosen
Pregeant’s positioning of a detector over the Examiner’s proposed
positioning, mere preference for one technique in the art does not show that
other techniques were discouraged. See DePuy Spine, Inc. v. Medtronic
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Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (“A reference
does not teach away . . . if it merely expresses a general preference for an
alternative invention[.]”).
In addition to contesting the combination of Pregeant and Fenwal,
Appellant contends:
[The Examiner] reject[s] independent claims 25, 30, and 34 by
simply stating “the limitations are similarly to those in
claim 1 or 32 above, the rejection would be in the same
manner[.]” [This] does not satisfy MPEP 2141’s requirements
that office actions “provide an explanation to support an
obviousness rejection” and that “the applicant be notified of the
reasons for the rejection of the claim so that he or she can
decide how best to proceed.”
Appeal Br. 11 (original brackets omitted).
We are unpersuaded. The Examiner identifies how the limitations of
claims 1 and 32 are taught or suggested by the combination of Pregeant and
Fenwal. Non-Final Act. 10–11. The Examiner also states claims 1 and 32
are similar to claims 25, 30, and 34. Id. at 14–15. If Appellant cannot
thereby ascertain how the Examiner reads some limitations of claim 25, 30,
or 34 on the combination, then Appellant must identify those limitations that
are not bridged to the combination. See supra 6 (similar issue for the double
patenting rejections).
OVERALL CONCLUSION
We affirm the Examiner’s decision to reject claims 1–42.
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DECISION SUMMARY
In summary:
Claims
Rejected Basis Reference/s Affirmed Reversed
1–3, 9–42 nonstatutory double patenting Dore, Pregeant 1–3, 9–42
4, 5, 7 nonstatutory double patenting
Dore, Pregeant,
Fenwal 4, 5, 7
6 nonstatutory double patenting
Dore, Pregeant,
Maskell 6
8 nonstatutory double patenting
Dore, Pregeant,
Ouellette 8
1–5, 7, 9–42 35 U.S.C. § 103(a) Pregeant, Fenwal 1–5, 7, 9–42
6 35 U.S.C. § 103(a) Pregeant, Fenwal, Maskell 6
8 35 U.S.C. § 103(a) Pregeant, Fenwal, Ouellette 8
Overall
Outcome 1–42
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