Ex Parte Boudreau

Patent Trials and Appeals BoardMar 29, 2019

12514551 - (D) (P.T.A.B. Mar. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/514,551 05/12/2009 4859 7590 04/02/2019 MACMILLAN SOBANSKI & TODD, LLC ONE MARITIME PLAZA FIFTH FLOOR 720 WATER STREET TOLEDO, OH 43604-1619 FIRST NAMED INVENTOR Joseph Edward Boudreau 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. 1-50946 1724 EXAMINER NGUYEN, SON T ART UNIT PAPER NUMBER 3643 NOTIFICATION DATE DELIVERY MODE 04/02/2019 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): MST@MSTFIRM.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSEPH EDWARD BOUDREAU Appeal2018-006167 Application 12/514,551 Technology Center 3600 Before STEP AN STAICOVICI, JEREMY M. PLENZLER, and LISA M. GUIJT, Administrative Patent Judges. GUIJT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. Â§ 134(a) from the Examiner's rejection of claims 100-110 and 112-117. 1 We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. 1 Appeal is taken from the Final Office Action dated November 21, 2016, as supplemented by the Advisory Action dated October 27, 2017. Appeal 2018-006167 Application 12/514,551 CLAIMED SUBJECT MATTER Claim 100, the sole independent claim on appeal, reproduced below with disputed limitations italicized for emphasis, is exemplary of the subject matter on appeal. 100. An apparatus for transporting live aquatic animals comprising a trailer chassis including: a trailer shell including a platform, side walls projecting upwardly from the platform, and a ceiling extending between the side walls to define an enclosed space, the enclosed space being partitioned into a product storage compartment and a mechanical chamber; a plurality of wheel supports attached to the trailer shell; a ground engaging wheel rotatably mounted to each of the wheel supports; an insulating layer provided on the side walls and the ceiling of both the product storage compartment and the mechanical chamber of the trailer shell; a heat exchanger provided on the side walls and the ceiling of the product storage compartment of the trailer shell and including a supply air passageway and a return air passageway that extend through the mechanical chamber, the heater exchanger operative to maintain a predetermined temperature within the product storage compartment of the enclosed space; a liquid spray system provided on the ceiling of the product storage compartment of the trailer shell, the liquid spray system operative to spray liquid within the product storage compartment of the enclosed space; a collection tank attached to the trailer shell, which is adapted to collect and store water from the product storage compartment; liquid temperature regulation equipment including a chiller and a heater within the mechanical chamber, the liquid temperature regulation equipment adapted to regulate liquid temperature prior to being pumped to the liquid spray system, a collection pump attached to the trailer shell, the collection pump operative to return the spray liquid from the collection tank to the liquid spray system; 2 Appeal 2018-006167 Application 12/514,551 a biofilter that is operative to reduce metabolic waste in the collected liquid prior to the liquid being pumped to the liquid spray system; a blower to aerate the collected liquid; and a fog system comprising a fog reservoir, a fog pump, and a fog distribution system, the fog system adapted to disperse liquid as a fine fog within the product storage compartment to maintain a desired humidity. THE REJECTI0NS 2 I. Claims 100-103, 108-110, and 112-117 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable Martin3 (EP O 072 334 Bl; published July 31, 1985), Rayner (US 2007 /0245971 Al; published Oct. 25, 2007), and Tomiyama (US 5,309,868; issued May 10, 1994). II. Claims 104--107 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable Martin, Rayner, Tomiyama, and Cummins (US 2006/0191828 Al; published Aug. 31, 2006). 2 The Examiner's rejection of claim 115 under 35 U.S.C. Â§ 112, second paragraph, as being indefinite due to the lack of antecedent basis for the limitations "the refrigeration system" and "the supply air" is understood to be withdrawn, in view of the Examiner's "entry of the amendment" in response to the reply filed October 26, 2017. Adv. Act. 2 (dated Oct. 27, 2017); see also Final Act. 2; Appeal Br. 2 (dated October 26, 2017) (stating that "[a] proposed amendment to Claim 115 is being filed concurrently with this Brief to address a rejection under 35 U.S.C. Â§ 112, second paragraph"). The referenced Amendment filed October 26, 2017 states on page 8 that "[ t ]he proposed amendment corrects a typographical error in dependent claim 115 to read 'a refrigeration system"' and correctly points out that "antecedent basis for the supply air passageway exists in independent claim 100, lines 13-14." 3 We rely on the English language translation, as provided in the record. 3 Appeal 2018-006167 Application 12/514,551 ANALYSIS Rejection I Regarding independent claim 1, the Examiner finds, inter alia, that Martin discloses a liquid spray system (i.e., sprayers 27) provided on the ceiling of a product storage compartment of a trailer shell, which is operative to spray liquid within the storage compartment, as claimed. Final Act. 4; see, e.g., Martin ,r 17 ("sprayers 27 [] pass[] through the panels constituting the ceilings of the loading spaces 4 and 5"). The Examiner determines that "Martin is silent about ... a fog system comprising a fog reservoir, a fog pump, and a fog distribution system, the fog system adapted to disperse liquid as a fine fog within the product storage compartment to maintain a desired humidity," as claimed. Id. at 4; see also Ans. 3 ("Martin is silent in regard to a fog system comprising a fog reservoir, a fog pump and a fog distribution system"). The Examiner relies on Tomiyama for teaching a fog system, as claimed, and reasons that it would have been obvious to a person of ordinary skill in the art to modify Martin "to include a fog system comprising a fog reservoir, a fog pump, and a fog distribution system as further taught by Tomiyama in order to provide added moisture or humidity in the container to keep the marine animal moist." Final Act. 5---6; see also Ans. 3 ("Tomiyama only teaches a fog system and not a sprayer system and a fog system"). Appellant argues, inter alia, that "[t]he system described by Martin creates a thick fog of water, to ensure intense moistening of the atmosphere of the cargo spaces" and that "[ a ]ccording to Martin, the amount of water suspended in this fog is relatively low, and so it is not necessary to carry a large amount of water." Appeal Br. 4 (citing Martin ,r,r 9, 19). Thus, 4 Appeal 2018-006167 Application 12/514,551 Appellant submits that "neither reference teaches the use of a separate spray system to spray liquid within the product storage compartment in addition to the fog system," and that "combining the teachings of Martin and Tomiyama [ fails to] arrive at a system that includes a spray system in addition to the fog system." Id. at 5. Rather, according to Appellant, the Examiner's combination results in "two fog systems." Id. Appellant concludes that "the Examiner's characterization of the Martin system as a spray system and not a fog system is clearly incorrect." Reply Br. 2. Claim 100, as set forth supra, requires two separate systems: a liquid spray system and a fog system. The Specification provides particular definitions for each system, as follows: Spray System (33) - The function of the spray system is to provide a means for dispersing water intermittently over the live aquatic animals held in the trays in the product storage area. Fog System (35) - The function of the fog system is to provide a means for dispersing a fine fog intermittently in the product storage area to keep the humidity at or near 100% moisture when the spray system is not operating. The fog system may be made of plastic pipe complete with fittings, valves and nozzle for dispersing the water into a fine fog .... Spec. p. 27. A preponderance of the evidence supports Appellant's argument that Martin's system is a/og system. Martin expressly discloses that sprayers 27 create a thickfog. Martin ,r 19 (disclosing that "sprayers 27, creating, at the top of each cargo space 4 and 5, a thick fog of fresh or salt water, which ensures intense moistening the atmosphere in which aquatic animals are"). Further, Martin discloses that an advantage of the invention is that "the amount of water suspended in the thick fog as air is relatively low" (Martin ,r 5 Appeal 2018-006167 Application 12/514,551 9 (emphasis added)) and also that ''fine water droplets [are] projected by the sprayers 17'' (id. ,I 19) (emphasis added). Cf WEBSTER'S THIRDNEWINT'L DICTIONARY 881 (1993) ( defining "fog" as "a fine spray of any substance"). Thus, we are persuaded by Appellant that the Examiner erred by not recognizing that Martin's system is disclosed as a fog system, and therefore, the Examiner's reason to modify Martin's fog system to include a second fog system, as taught by Tomiyama, lacks rational reasoning. The Examiner's use of Rayner does not remedy the deficiency of the Examiner's proposed combination of Martin and Tomiyama, as discussed supra. See Final Act. 3---6. Accordingly, we do not sustain the Examiner's rejection of independent claim 100, and claims 101-103, 108-110, and 112- 11 7 depending therefrom. Re} ection II The Examiner's reliance on Cummins fails to cure the deficiencies in the Examiner's reliance on Martin with respect to independent claim 100, and therefore, for essentially the same reasons as set forth supra, we do not sustain the Examiner's rejection of claims 104--107, which depend from claim 1. DECISION The Examiner's decision rejecting claims 100-110 and 112-117 is REVERSED. REVERSED 6