Mark Shaw et al.

Patent Trials and Appeals Board

Sep 16, 2021

2021001721 (P.T.A.B. Sep. 16, 2021)

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.
15/955,478 04/17/2018 Mark Shaw 12205.58U 8118
138988 7590 09/16/2021
Driver McAfee Peek & Hawthorne, P.L.
One Independent Dr.
Suite 1200
Jacksonville, FL 32202
EXAMINER
COLON MORALES, DAVID
ART UNIT PAPER NUMBER
3753
NOTIFICATION DATE DELIVERY MODE
09/16/2021 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):
dboswell@dmphlaw.com
ipdocket@dmphlaw.com
tsaitta@dmphlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK SHAW, JACQUE HAHN, DAN KISSEL, and
MICHAEL RIVERA
Appeal 2021-001721
Application 15/955,478
Technology Center 3700
Before EDWARD A. BROWN, MICHAEL L. HOELTER, and
BENJAMIN D. M. WOOD, Administrative Patent Judges.
WOOD, 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 1–19. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42(a).
Contrary to 37 C.F.R. §§ 41.8(a)(1) and 41.37(c)(1)(i), the Appeal Brief
does not identify the real party-in-interest.
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Application 15/955,478

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CLAIMED SUBJECT MATTER
The claims are directed to temperature-responsive pressure-relief
assemblies for storage drums. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
1. A temperature responsive pressure relief filter vent device
adapted to seal an internally threaded drum lid opening in a
storage drum, said device structured to filter and gradually
release gases from inside the storage drum, said device
comprising a mating portion comprising external threads and
a fusible sleeve member, said fusible sleeve member
comprising a tube having a single inwardly-facing surface
and a single outwardly-facing surface, internal threads
disposed on said single inwardly-facing surface and external
threads disposed on said single outwardly-facing surface,
said fusible sleeve sized to receive said mating portion and
to mount into the internally threaded drum lid opening.
REFERENCES
Name Reference Date
Seibert US 5,353,949 Oct. 11, 1994
Shaw US 5,891,223 Apr. 6, 1999
Kotefski US 8,596,291 B2 Dec. 3, 2013
Stolzenfeld US 2004/0155040 A1 Aug. 12, 2004

The Examiner also relies on:
Park Tool Co., “Basic Thread Concepts,” publicly available online
since November 2001 at (https://www.parktool.com/blog/repair-
help/basic-thread-concepts) (“Park Tool”);
Fastenal Co., “Screw Thread Design” (Mar. 4, 2009) available online
at https://www.fastenal.com/en/78/screw-thread design (“Fastenal”).
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REJECTIONS
Claims Rejected 35 U.S.C. § References
1–4, 7, 10, 13–15 103 Seibert, Stolzenfeld, Shaw,
Kotefski
5, 6, 8, 9, 11, 12 103 Seibert, Stolzenfeld, Shaw,
Kotefski, Park Tool
16–19 103 Seibert, Stolzenfeld, Shaw,
Kotefski, Fastenal

OPINION
Claims 1–4, 7, 10, and 13–15—§ 103—Seibert, Stolzenfeld, Shaw, Kotefski
Appellant argues claims 1–4, 7, and 10 as a first group (Appeal Br.
15–19), and claims 13–15 as a second group (id. at 24–28). We select claim
1 as representative of the first group of claims, and claim 13 as
representative of the second group of claims. 37 C.F.R. § 41.37(c)(1)(iv).
Claim 1
The Examiner finds that Seibert teaches a temperature responsive
pressure relief filter vent device adapted to seal an internally threaded
container lid opening and structured to filter and gradually release gases
from inside the container.2 Final Act. 3 (citing Seibert, col. 1–3, Figs. 1–7).
The Examiner acknowledges that Seibert fails to disclose the use of a
threaded fusible sleeve installed between the threaded lid opening and the
threaded mating portion of the vent filter assembly, and therefore finds that
Stolzenfeld’s fusible bung assembly 10’ corresponds to this feature. Id. at

2 The Examiner relies on Shaw to teach such a device used specifically on a
storage drum. Final Act. 4–5 (citing Shaw, 3:13–41, Figs. 1–3). This aspect
of the rejection is not disputed.
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3–4. The Examiner determines that it would have been obvious to one of
ordinary skill in the art:
[T]o modify the connection between the vent filter assembly 10
and the lid of the container 301 of the device of Seibert to
include a threaded fusible sleeve member 10’ with the fusible
sleeve member coupled to the lid of the container via outer
threads 24 and coupled to the vent filter assembly via the inner
threads 48 in similar manner as taught by Stolzenfeld, since
said modification allows the vent filter assembly to function in
the same manner as already taught by Seibert but with the
added advantage that the fusible sleeve member 10’ of
Stolzenfeld allows the system to be temperature responsive via
the fusible sleeve being capable of reacting to high
temperatures by melting and allowing the device to vent
pressure before catastrophic failure of the container can occur.
Id. (emphasis omitted).
The Examiner further finds that the combination of Seibert and
Stolzenfeld “fails to disclose the shape of the sleeve intermediate the plug
and the tank/reservoir/container/drum to be protected.” Final Act. 5
(emphasis omitted). The Examiner finds, however, that Kotefski teaches “a
venting means for a munitions that comprises a lifting plug 55 with external
threads that engages a threaded collar 47 having a single inward-facing
surface with internal threads 53 that engages the plug and a single
outwardly-facing surface with external threads 51 that engages internal
threads of a munitions container to be protected.” Id. (emphasis added)
(citing Kotefski, Figs. 4, 5). According to the Examiner, “[t]he venting
means is configured to allow the lifting plug 55 to be ejected when the
munitions experience high temperature and/or high pressure.” Id. (citing
Kotefski, cols. 1–3, 7–8). The Examiner determines that it would have been
obvious to one of ordinary skill in the art:
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[T]o modify the shape of the intermediate threaded connection
between the plug and the container of the device of the
combination to be shaped similar to the threaded collar 47 as
taught by Kotefski with the intermediate threaded collar having
a single inward-facing surface with internal threads 53 that
engages the plug and a single outwardly-facing surface with
external threads 51 that engages internal threads of the container
since this is a known alternative shape for a threaded collar
capable of attaching a venting means to a container while
allowing the plug to be capable of venting when high temperature
or high pressure is experienced by the container.
Id. at 6
Appellant argues that: (1) neither Seibert nor Shaw discloses the
claimed “fusible member” (Appeal Br. 15); (2) Stolzenfeld’s device
possesses two inwardly facing surfaces and two outwardly facing surfaces,
contrary to claim 1’s requirement that the fusible member have only one of
each such sides (id. at 16); and (3) Kotefski’s threaded ring is not made out
of a fusible material (id. at 17). These arguments are not persuasive because
they fail to address the rejection as articulated by the Examiner. For
example, the Examiner does not rely on either Seibert or Shaw to teach the
claimed fusible member; instead, Stolzenfeld’s bung 10’, as modified by
Kotefski, is relied on to teach a fusible member that has one inwardly facing
side and one outwardly facing side. Final Act. 3–6; Ans. 5; see In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.”).
Appellant further argues that modifying the shape of Stolzenfeld’s
fusible bung to that of Kotefski’s threaded ring “would render the
Stolzenfeld bung inoperative,” because it would remove the thin bridging
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member on which “Stolzenfeld[’s] fusible bung is completely reliant” to
provide high-pressure relief. Appeal Br. 17. Appellant submits that “[i]t is
only through improper hindsight derived from the disclosure of the
application at hand would lead a PHOSITA to produce a fusible sleeve
member to be inserted between a vent filter and a drum lid opening.” Id.
The Examiner responds that Stolzenfeld’s fusible bung 10’ is “entirely made
of a material that melts at a temperature threshold (such as high density
polyethylene, ‘HDPE’, which melts at about 270°F) which causes
mechanical failure and disconnection of the pressure relief device 50 to
[relieve] pressure and prevent the container from exploding due to excessive
and rapid pressure build up.” Ans. 7–8. The Examiner submits that:
[W]hen a high temperature situation is experienced, pressure is
relieved via expulsion of the plug due to mechanical failure as
taught by Stolzenfeld and Kotefski with Stolzenfeld in
particular teaching of a fusible sleeve made entirely of a
material that melts at high temperature which causes the sleeve
to lose mechanical strength to maintain the connection between
the plug and the container and the plug is expulsed by interior
pressure, thus reliving pressure and preventing an explosion
from occurring.
Id. at 8. Appellant did not file a Reply Brief, and therefore does not respond
to this analysis.
We are not persuaded of Examiner error. More specifically, we are
not persuaded that the Examiner erred in finding that Stolzenfeld’s fusible
bung, modified in accordance with Kotefski, would melt and allow
expulsion of valve 50 when high temperatures are experienced, thus
allowing rapid pressure release and avoidance of catastrophic failure of the
container. We are also not persuaded that the Examiner’s reasoning is
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improperly influenced by hindsight. As noted above, the Examiner provides
a technical explanation based on Stolzenfeld’s and Kotefski’s teachings in
support of the combination of Stolzenfeld and Kotefski. Appellant does not
respond to this analysis, or point to any knowledge relied on by the
Examiner that was gleaned only from Appellant’s disclosure and that was
not otherwise within the level of ordinary skill in the art at the time of the
invention, and thereby fails to support its hindsight assertion. See In
re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971) (“Any judgment on
obviousness is in a sense necessarily a reconstruction based upon hindsight
reasoning, but so long as it takes into account only knowledge which was
within the level of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant’s disclosure,
such a reconstruction is proper.”).
For the above reasons, we are not persuaded that the Examiner erred
in rejecting claim 1; therefore, we sustain the Examiner’s rejection of claims
1–4, 7, and 10 as unpatentable over Seibert, Stolzenfeld, Shaw, and
Kotefski.
Claim 13
Appellant makes essentially the same arguments in support of the
patentability of claim 13 as were made in connection with claim 1 (Appeal
Br. 24–28), which we found unpersuasive. Accordingly, we sustain the
Examiner’s rejection of claims 13–15 as unpatentable over Seibert,
Stolzenfeld, Shaw, and Kotefski.
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Claims 5, 6, 8, 9, 11, and 12—§ 103—
Seibert, Stolzenfeld, Shaw, Kotefski, and Park Tool
Claims 5, 8, and 11
Appellant advances no separate arguments in connection with the
rejection of claims 5, 8, and 11, but instead relies on their dependency from
claim 1 for patentability. Appeal Br. 15. As we find no deficiency in the
Examiner’s rejection of claim 1 as being obvious over the combination of
Seibert, Stolzenfeld, Shaw, and Kotefski for the reasons discussed above, we
also sustain the Examiner’s rejection of claims 5, 8, and 11.
Claims 6, 9, and 12
Claims 6, 9, and 12 depend from claims 1, 2, and 3, respectively, and
further recite “wherein the pitch of said external threads of said mating
portion and said internal threads of said fusible sleeve member are different
from the pitch of said external threads of said fusible sleeve member.”
Appeal Br. 33–34. The Examiner acknowledges that the combination of
Seibert, Stolzenfeld, Shaw, and Kotefski does not expressly disclose this
limitation, but finds that one of ordinary skill in the art was well aware of
design considerations concerning thread pitch, and that “in order for
threaded components to couple, the diameter and the pitch of threads must
match.” Final Act. 16–17 (citing Park Tool, 1–2). The Examiner further
notes that one of ordinary skill in the art would have been aware of the
relative advantages and disadvantages of coarse threads and fine threads,
i.e., that course threads “are more resistant to stripping and install faster,”
but “are less efficient in transmitting torque into thread tension,” whereas
fine-pitch threads “are less likely to vibrate loose as they have a smaller
helix angle and are easier to tighten . . . but are easier to strip as compared to
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a coarse pitch.” Id. at 17; see Park Tools, 1–2 (defining pitch and comparing
the advantages and disadvantages of coarse threads and fine threads). The
Examiner determines that it would have been obvious to one of ordinary
skill in the art,
[D]uring design of the device of the combination to
choose/optimize appropriate pitches for the external threads and
the internal threads of the fusible sleeve member of the device
of the combination, . . . such as having different pitches for the
external threads and the internal threads (e.g. having a coarse
pitch at the external threads of the fusible sleeve member and a
fine pitch at the internal threads of the fusible sleeve member or
vice versa), since by appropriately optimizing the design of the
threaded components, the threaded components of the device of
the combination are ensured to be securely coupled to each
other while allowing the design to be optimized to be more
resistant to loosening, resistant from damage, easier to tighten
and/or easier to assemble/disassemble.
Id. (emphasis omitted).
Appellant responds that although the Examiner makes “valid points
regarding the mechanical interlocking of two components, . . . the difference
in pitch of the internal and external threads ‘determines at what point the
pressure relief valve 10 is expelled from the drum lid.’” Appeal Br. 20
(citing Spec., 11:21–22). Appellant submits that “[w]hile it is of course
necessary to provide a secure and tight fit (to preclude passage of gases
between the two members 13/20[)] . . . , it is the ability to alter the release
parameters that produces optimum functionality and universal adaptability
of the invention at hand.” Id. at 20–21.
We understand the Examiner’s position to be that whether the pitch of
the external threads of the mating portion and the internal threads of the
fusible sleeve member are different from the pitch of the external threads of
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the fusible sleeve member is a matter of design choice. A limitation may be
found to be an obvious matter of design choice if, e.g., it does not result in a
difference in function or give unexpected results (In re Rice, 341 F.2d 309,
314 (CCPA 1965)); if it solves no stated problem (In re Kuhle, 526 F.2d
553, 555 (CCPA 1975)); or if it does not modify the operation of the claimed
device (In re Japikse, 181 F.2d 1019 (CCPA 1950). Appellant essentially
responds that this limitation at least results in a difference in function, in that
it affects the internal pressure at which the pressure relief device is expelled
from the drum lid. Appeal Br. 20 (citing Spec., 11:21–22). The portion of
the Specification on which Appellant relies does not support this contention,
however. Instead, it states that “[t]he thickness, length, number of threads,
thickness of threads, pitch, etc.,” affects this pressure set point; it does not
state that merely because the pitch of the internal threads of the sleeve is
different from the pitch of the external threads the sleeve, this will change
this pressure point. Therefore, we agree with the Examiner that this element
amounts to a design choice, to which we give no patentable weight.
Accordingly, we sustain the Examiner’s rejection of claims 6, 9, and 12 as
unpatentable over Seibert, Stolzenfeld, Shaw, Kotefski, and Park Tools.
Claims 16–19—§ 103—Seibert, Stolzenfeld, Shaw, Kotefski, and Fastenal
Claims 16–18 depend from claims 13, 14, and 15, respectively.
Appeal Br. 36 (Claims App.). Claim 13 is an independent method claim,
and is reproduced below:
13. A method of preventing catastrophic failure in a storage
drum, said drum having an internally threaded lid opening,
comprising the steps of:
providing a temperature responsive pressure relief filter
vent device adapted to seal the internally threaded lid opening,
said device structured to filter and gradually release gases from
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inside the storage drum, said device comprising a mating
portion comprising external threads and a fusible sleeve
member, said fusible sleeve member comprising a tube having
a single inwardly-facing surface and a single outwardly-facing
surface, internal threads disposed on said single inwardly-
facing surface and external threads disposed on said single
outwardly-facing surface, said fusible sleeve sized to receive
said mating portion and to mount into the internally threaded
drum lid opening;
mounting said fusible sleeve member onto said mating
portion; and
screwing said fusible sleeve member into the internally
threaded lid opening of the drum.
Id. at 34–35. Claims 14 and 15 depend ultimately from claim 13. Id. at 35.
Each of claims 16–18 additionally recites the step of “choosing the
configuration of said internal and external threads such that said internal and
external threads determine the pressure at which said device is ejected from
said internally threaded drum lid opening.” Id. at 36. Claim 19 depends
from claim 1 via claim 2 and adds a similar limitation. The Examiner
acknowledges that the device of the combination fails to disclose this
limitation, but finds, inter alia, that Fastenal teaches preventing thread
failure for a given design condition “by choosing the appropriate properties
of the threaded components . . . such as the diameter of the threads, pitch,
threads per inch, length of the threaded engagement and/or materials used.”
Final Act. 19 (citing Fastenal, 5–7). The Examiner determines that it would
have been obvious to one of ordinary skill in the art:
[T]o choose/optimize the appropriate properties of the threaded
components of the intermediate fusible threaded collar of the
device of the combination of Seibert in view of Stolzenfeld,
Shaw and Kotefski, such as choosing an appropriate
combination of the diameter of the threads, pitch, threads per
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inch and length of the threaded engagement of the components
based on the design conditions, as it is taught by Fastenal, since
by appropriately optimizing the design of the threaded
components, the threaded components of the device of the
combination, the components are ensured to be securely
coupled during “normal” operating conditions of the device and
be designed to intentionally fail when the material softens due
to high temperature (an emergency condition) in a similar
manner as taught by Stolzenfeld.
Id.
Appellant responds that while the Examiner made “valid points
regarding typical mechanical interlocking of two components, neither of
which are fusible,” none of the cited references concern a threaded
component that is fusible. Appeal Br. 22. Appellant reiterates that “[w]hile
it is of course necessary to provide a secure and tight fit (to preclude passage
of gases between the two members 13/20[)] . . ., it is the ability to alter the
release parameters that is inherent for optimum functionality of the invention
at hand.” Id. at 22–23 (citing Spec., 11:4–5).
We are not persuaded of Examiner error. We note that Appellant does
not specifically address, much less dispute, the Examiner’s findings
regarding the Fastenal reference, particularly the finding that one of ordinary
skill in the art would have known how parameters such as thread pitch and
diameter, the length of the threaded engagement, and the material used to
make the threaded components affect the point at which the threads fail.
Thus, one of ordinary skill in the art would have known how to choose these
parameters to determine the point of failure and thus the pressure at which
the relief valve is expelled from the drum lid. Because we are not persuaded
of Examiner error, we sustain the Examiner’s rejection of claims 16–19 as
unpatentable over Seibert, Stolzenfeld, Shaw, Kotefski, and Fastenal.
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DECISION SUMMARY
The disposition of the Examiner’s rejections are reflected in the
following table:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 7, 10,
13–15
103 Seibert,
Stolzenfeld, Shaw,
Kotefski
1–4, 7, 10,
13–15

5, 6, 8, 9,
11, 12
103 Seibert,
Stolzenfeld, Shaw,
Kotefski, Park
Tools
5, 6, 8, 9,
11, 12

16–19 103 Seibert,
Stolzenfeld, Shaw,
Kotefski, Fastenal
16–19
Overall
Outcome
1–19

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