Ex Parte Leigh

Patent Trials and Appeals Board

Jan 29, 2019

13884965 - (D) (P.T.A.B. Jan. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/884,965 05/12/2013 Daniel Leigh
55890 7590 01/31/2019
SIMON KAHN - PYI Tech, Ltd.
c/o PURRFECT PATENTS LLC
2001 Jefferson Davis Highway
Suite 207
Arlington, VA 22202
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.
LEI-001-US 7795
EXAMINER
ZHOU, QINGZHANG
ART UNIT PAPER NUMBER
3752
NOTIFICATION DATE DELIVERY MODE
01/31/2019 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):
Simon@pyi.co.il
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL LEIGH
Appeal2018-003567
Application 13/884,965
Technology Center 3700
Before ANTON W. PETTING, MICHAEL C. ASTORINO, and
BRUCE T. WIEDER, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant appeals from the
Examiner's decision rejecting claims 1, 2, 5-9, 28, 36, and 38--42 under pre-
AIA 35 U.S.C. § 103(a) as being unpatentable over Hiroyuki et al. (JP 2006-
015130 A, pub. Jan. 19, 2006) (hereinafter "Hiroyuki") 1 in view of Hoffman
(US 2009/0205845 Al, pub. Aug. 20, 2009). We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 Citations to Hiroyuki's disclosure are directed to a translation of the
reference that was filed along with an Information Disclosure Statement on
February 19, 2014.
Appeal2018-003567
Application 13/884,965
STATEMENT OF THE CASE
Claimed Subject Matter
Claim 1, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below.
1. A method of fire fighting, the method comprising:
providing energy via an emitted pulsed energy beam to an
active fire affected area;
directing said emitted pulsed energy beam to combustible
fine fuel within the active fire affected area, wherein said emitted
pulsed energy beam ablates the combustible fine fuel within the
active fire affected area, said provided energy sufficient to
rapidly process the combustible fine fuel by said ablation such
that the active fire is starved of the combustible fine fuel,
wherein said provided energy exhibits a power of at least
1.67 mega-watts per square centimeter at the combustible fine
fuel.
ANALYSIS
Independent claim 1 recites "[a] method of fire fighting" including a
step of "directing said emitted pulsed energy beam to combustible fine fuel
within the active fire affected area." Appeal Br., Claims App. (emphasis
added).
The Examiner finds that Hiroyuki teaches "directing said emitted
pulsed energy beam to solid material (Par. 0008 ' [ only the energy density
from which a] solid produces ablation is required') within the active fire
affected area," but "does not disclose that the solid material is a combustible
fine fuel." Final Act. 2, 3; Ans. 2, 3. To remedy this deficiency the
Examiner turns to Hoffman and finds that "Hoffman teaches a method for
extinguishing wildfires comprising a combustible material consists [sic] of
fine fuel (Par. 0002, 'dry plant life')." Final Act. 3; Ans. 3. The Examiner
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Application 13/884,965
determines that "[i]t would have been obvious to one of ordinary skill in the
art to use the fire fighting laser device of Hiroyuki on fine fuel as taught by
Hoffman, in order to prevent outbreak of fire caused by dry grass or pine
needles." Final Act. 3; Ans. 3. Also, the Examiner determines, a "simple
substitution of one known element ( dry plant life) for another to obtain
predictable results is [ sic, would have been obvious to] one of ordinary skill
in the art." Ans. 3 (citing Manual of Patent Examining Procedure (MPEP)
§ 2143(I)(B).
The Appellant argues that the combined teachings of Hiroyuki and
Hoffman fail to teach directing energy at a fine fuel as required by
independent claim 1. See Appeal Br. 6-7. The Appellant's argument is
persuasive.
In support of this argument, the Appellant contends that "[ t ]he term
'fine fuel' is a well-known term in the art of firefighting" and defined as
"[f]ast-drying fuels, generally with a comparatively high surface area-to-
volume ratio, which are less than 1/4-inch in diameter and have a timelag of
one hour or less. These fuels readily ignite and are rapidly consumed by fire
when dry." Id. (citing Glossary ofWildland Fire Terminology,
https://www.nwcg.gov/glossary/a-z (last visited Aug. 6, 2017) (Ex. LB. 34));
see Ex. I.A. 26, Fire Terminology Glossary of the USDA forest service,
http://www.fs.fed.us/nwacfire/home/terminology.html (last visited Aug. 6,
2017) ("Fast-drying fuels, generally with a comparatively high surface area-
to-volume ratio, which are less than 1/4-inch in diameter and have a timelag
of one hour or less. These fuels readily ignite and are rapidly consumed by
fire when dry."); Ex. III.A. 28, Richard C. Rothermel, A Mathematical
Model For Predicting Fire Spread in Wildland Fuels, U.S. Forest Service
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Appeal2018-003567
Application 13/884,965
(1972) (describing "fine fuels (foliage and twigs under 1/4 inch in
diameter)."). In response, the Examiner determines that "fine fuel is defined
as fine branches and leaves." Ans. 8 (citing Spec. ,r 35). The Specification
at paragraph 35, describes:
There is no requirement that all branches 55 be removed
from the respective tree 50 and a plurality of branches 55,
specifically very thick branches may be left on the respective tree
50, without exceeding the scope. In another embodiment only
fine branches and leaves are processed. In yet another
embodiment only fine branches and leaves below a
predetermined height above the ground are processed, thereby
preventing advance of the fire.
Here, the Specification does not define the term "fine fuel." Rather, the
Specification provides examples of what a fine fuel may include;
specifically, fine branches and leaves. However, one of ordinary skill in the
art would understand that the "fine branches and leaves" referred to in the
Specification must include the characteristics particular to a "fine fuel," e.g.,
being less than 1/4-inch in diameter. Supra. In view of the foregoing, we
determine that the definitions of the term "fine fuel" provided by the
Appellant are included in the broadest reasonable interpretation of the term
in light of the Specification.
The Appellant points out that:
"Hiroyuki describes directing a laser at a 'solid' ... not at fine
fuel" (Appeal Br. 7 (citing Hiroyuki ,r,r 7-8));
"Hoffman doesn't mention fine fuel and only mentions 'dry
plant life"' (id. (citing Hoffman ,r 2)); and
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Appeal2018-003567
Application 13/884,965
"[a]lthough 'plant life' includes fine fuel, it also includes all
other types of fuel as well and is not limited to any particular size"
(id.).
Based on the foregoing, the Appellant contends that "Hoffman can't be
combined with Hiroyuki to teach a limitation of directing said emitted
pulsed energy beam to combustible fine fuel which is not taught by either
Hoffman or Hiroyuki." Id. In response, the Examiner determines that "one
of ordinary skill in the art that [sic] the forest and trees (abstract) of Hiroyuki
read on the [ disputed] claimed limitation because forest and trees are
considered fine branches and fine leave[ s] in [ sic, to] one of ordinary skill." 2
Ans. 8. The Appellant's contention is persuasive.
First, as discussed above, the Examiner's rejection initially relies on
Hiroyuki's teaching of ablation of a solid material (i.e., a solid disk).
Hiroyuki ,r,r 8, 22. The Examiner does not find - nor do we find - that the
solid material is particular to a forest, trees, leaves, or a fine fuel. In fact, the
Examiner explicitly finds that "Hiroyuki does not disclose that the solid
material is a combustible fine fuel." Final Act. 2, 3; Ans. 2, 3. Second, the
Examiner's rejection modifies Hiroyuki's solid material to be "fine fuel as
taught by Hoffman." Final Act. 3; Ans. 3. Hoffman, however, does not
2 Hiroyuki's translated Abstract describes:
Abstract:
PROBLEM TO BE SOLVED: To provide a fire fighting method
which is effective against a fire in a place to which water cannot
be carried, and a fire in an oil field, a forest fire, etc. which a
person cannot approach.
SOLUTION: In the fire fighting method, a blast wave is actuated
by producing a breakdown by irradiating the vicinity of a flame
with a high output pulsed laser.
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Application 13/884,965
disclose a fine fuel. Hoffman merely teaches a general proposition that the
possibility of wildfires is raised when plant life is dry. Hoffman ,r 2. Other
than being "dry," Hoffman's reference to "plant life" is not particular to
type, size, diameter, surface area-to-volume ratio, timelag, etc., i.e.,
characteristics particular to a "fine fuel." Supra. Third, even if one of
ordinary skill in the art would understand that Hiroyuki' s Abstract
references a forest and that a forest may have various sizes of trees and
leaves as the Examiner proposes (see Ans. 8), this only appears to confuse
the rationale in the Examiner's rejection. The reference in Hiroyuki's
Abstract of a forest is merely the location where Hiroyuki's method takes
place. Supra n.2. In contrast, the rationale in the Examiner's rejection is
particular to a specific step of Hiroyuki's method, i.e., the ablation of
Hiroyuki's solid material (i.e., a solid disk), and the substitution of that solid
material with dry plant life, as taught by Hoffman. See Ans. 3.
Therefore, the Examiner fails to explain how the combined teachings
of Hiroyuki and Hoffman teach the step of directing an emitted pulsed
energy beam to combustible fine fuel as required by independent claim 1.
Thus, we do not sustain the Examiner's rejection of claims 1, 2, 5-9, 28, 36,
and 38--42 as unpatentable over Hiroyuki in view of Hoffman.
DECISION
We REVERSE the Examiner's decision rejecting claims 1, 2, 5-9, 28,
36, and 38--42.
REVERSED
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