Ex Parte Maxik et al

Patent Trial and Appeal Board

Aug 22, 2017

14211663 (P.T.A.B. Aug. 22, 2017)

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.
14/211,663 03/14/2014 Fredric S. Maxik 588.00062 5196
12239 7590 08/24/2017
Biological Illumination, LLC
Widerman Malek, PL
1990 W New Haven Avenue
Ste 201
Melbourne, EL 32904
EXAMINER
SPAMER, DONALD R
ART UNIT PAPER NUMBER
1799
NOTIFICATION DATE DELIVERY MODE
08/24/2017 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):
Michelle@USLegalTeam.com
Docket @ U SLegalT eam.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BIOLOGICAL ILLUMINATION, LLC1
Appeal 2017-001485
Application 14/211,663
Technology Center 1700
Before CHUNG K. PAK, PETER F. KRATZ, and AVELYN M. ROSS,
Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL2
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—4, 7, 9-18, 20, and 21. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
1 Fredric S. Maxik, David E. Bartine and Robert R. Soler are listed as the
inventors of the instant application (Application Data Sheet filed March 14,
2014).
2 In our Decision we refer to the Specification as amended (“Spec.”)
originally filed March 14, 2014, the Final Office Action (“Final Act.”)
mailed December 31, 2015, the Appeal Brief (Appeal Br.) filed May 31,
2016, the Examiner’s Answer (“Ans.”) mailed September 30, 2016, and the
Reply Brief (“Reply Br.”) filed October 31, 2016.
Appeal 2017-001485
Application 14/211,663
STATEMENT OF THE CASE
The subject matter on appeal relates to photoreactive system for
preserving produce. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A photoreactive system comprising:
a body member including:
an outer wall;
an inner wall;
a proximal vented section;
a distal vented section;
a void between an inner surface of the outer wall
and an outer surface of the inner wall defined as an outer
chamber; and
a void defined by an inner surface of the inner wall
defined as an inner chamber;
a light source configured to emit light within a
wavelength range, the light source comprising:
a plurality of light-emitting diodes (LEDs), and
a driver circuit coupled to the plurality of LEDs;
a plurality of photoreactive pellets configured to react to
the light emitted by the light source to remove at least one of
bacteria, volatile organic compounds (VOCs), and ethylene; and
an optic surrounding the light source such that a space is
formed between the optic and the inner surface of the inner wall
of the inner chamber;
wherein the light source is positioned within the inner
chamber;
wherein the proximal and distal vented sections are
configured to permit a gaseous flow therethrough, the gaseous
flow including at least one of bacteria, VOCs, and ethylene; and
wherein the entire driver circuit is positioned within the
gaseous flow.
Appeal Br. 12 (Claims App’x).
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Appeal 2017-001485
Application 14/211,663
REJECTIONS
The Examiner maintains the following rejections:
A. Claims 1—4, 7, 9-12, 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Mazyck3 in further
view of Marson4, Min5, and Levine.6 Final Act. 2.
B. Claims 1—4, 7, 9-12, 21 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Strohm7 in further
view of Mazyck, Marson, Min, and Levine. Id. at 5.
C. Claims 13 and 14 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Strohm, Mazyck, Marson, Min,
and Levine. Id. at 8.
D. Claim 15 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Strohm and further in view of Mazyck,
Sanchez8, Marson, Min, Liston9, and Levine. Id. at 10.
E. Claims 16 and 20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Strohm and in further view of
Mazyck, Sanchez, Marson, Min, Fowler10, and Levine. Id.
at 14.
3 Mazyck et al., US 2011/0085933 Al, published April 14, 2011
(“Mazyck”).
4 Jonathan L. Marson, US 2011/0149565 Al, published June 23, 2011
(“Marson”).
5 Min et al., US 2003/0102819 Al, published June 5, 2003 (“Min”).
6 Levine et al., US 5,859,952, issued January 12, 1999 (“Levine”).
7 Strohm et al., US 2005/ 0217282 Al, published October 6, 2005
(“Strohm”).
8 Luis Cuartero Sanchez, US 2005/0169795 Al, published August 4, 2005
(“Sanchez”).
9 Liston et al., US 5,623,105, issued April 22, 1997 (“Liston”).
10 Fowler et al., US 2005/0232825 Al, published October 20, 2005
(“Fowler”).
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Appeal 2017-001485
Application 14/211,663
F. Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Strohm, Mazyck, Sanchez,
Marson, Min, Fowler, Levine, and further in view of
Liston. Id. at 17.
Appellants seek our review of Rejections A—F. Appellants argue
rejections A—F together, and argue independent claims 1 and 15 together.
Appeal Br. 8—10. Appellants do not separately argue the remaining
dependent claims. Id. Therefore, we limit our discussion to claim 1 to
resolve the issues on appeal.
OPINION
The Examiner rejects claim 1, among others, as obvious over Mazyck,
Marson, Min, and Levine. Final Act. 2. The Examiner finds that Mazyck
teaches a photoreactive system having the structural elements of claim 1 and
including an LED light source and photoreactive pellets. Id. at 2—3. The
Examiner acknowledges that Mazyck does not teach a driver circuit, but
finds that Min teaches a driver circuit for LEDs to control the output of light
as desired. Id. at 3. The Examiner further finds that Levine teaches placing
the driver circuit within an airflow to cool the circuitry. Id.', Ans. 4. And,
the Examiner finds that Marson teaches use of a diffractive element, or
optic, in order to provide a uniform distribution of light. Final Act. 3^4.
Appellants argue that the Examiner’s rejection fails to meet all
elements of the claim. Appeal Br. 8. Specifically, Appellants contend that
the Examiner has not shown a driver circuit “positioned within the gaseous
flow,” i.e., the flow that passes from the proximal to distal ends and
comprises toxins to be removed. Id. Appellants similarly urge that the prior
art fails to suggest a driver circuit being placed in the gaseous flow and the
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Appeal 2017-001485
Application 14/211,663
same flow that interacts with the photoreactive pellets. Id. at 9. Appellants
explain that “Levine teaches an airflow established by a fan 64 to cool the
ballast that is entirely separate and apart from the pipe 47 carrying fluid to
be sterilized by the UV lamp 43.” Id.
Appellants’ arguments do not persuade us of reversible error by the
Examiner. Appellants place undue focus on the particularized teachings of
Levine and attempt to bodily incorporate these features into Mazyck. But,
“[t]he test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference . . . .” In re Keller, 642 F.2d 413, 425 (CCPA 1981). Rather,
“[t]he test for obviousness is . . . what the combined teachings of the
references would have suggested to those [having] ordinary skill in the art.”
Id. at 425 (citations omitted). One of ordinary skill can use his or her
ordinary skill, creativity, and common sense to make the necessary
adjustments and further modifications to result in a properly functioning
device. SeeKSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“a
court can take into account the inferences and creative steps that a person of
ordinary skill in the art would employ”). Furthermore, “if a technique has
been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the techniques is obvious unless its actual application is beyond his or
her skill.” See id. at 417.
Here, the Examiner relies on Mazyck to provide nearly all of the
structural features of the photoreactive system, including “wherein the
proximal and distal vented sections are configured to permit a gaseous flow
therethrough” as required by the claims. Final Act 2—3; see also Ans. 3.
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Appeal 2017-001485
Application 14/211,663
The Examiner uses the teachings of Min to provide a driver circuit to control
the light output from the LEDs. Final Act. 3; Ans. 3. And, the Examiner
relies on Levine, for the limited teaching that placing a driver circuit within
an airflow is advantageous because the airflow cools the driver circuit. Final
Act. 3; Ans. 4. Thus, the rejection does not add the driver circuit of Min, as
oriented relative to other features of Levine, into the system of Mazyck, but
rather suggests only that placing a driver circuit within an airflow has
advantages. KSR, 550 U.S. at 417. Appellants establish no error in this
reasoning by focusing on the teachings of Levine alone and neglecting to
address the combined teachings of Mazyck, Min, and Levine as presented by
the Examiner.
CONCLUSION
Appellants have failed to identify a reversible err in Examiner’s
rejection of claims 1—4, 7, 9-18, 20, and 21 under 35 U.S.C. § 103(a) as
being unpatentable.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—4, 7, 9—
18, 20, and 21 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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