Mark Shaw et al.Download PDFPatent Trials and Appeals BoardSep 16, 20212021001721 (P.T.A.B. Sep. 16, 2021) Copy Citation 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. Appeal 2021-001721 Application 15/955,478 2 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”). Appeal 2021-001721 Application 15/955,478 3 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. Appeal 2021-001721 Application 15/955,478 4 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: Appeal 2021-001721 Application 15/955,478 5 [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 Appeal 2021-001721 Application 15/955,478 6 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 Appeal 2021-001721 Application 15/955,478 7 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. Appeal 2021-001721 Application 15/955,478 8 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 Appeal 2021-001721 Application 15/955,478 9 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 Appeal 2021-001721 Application 15/955,478 10 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 Appeal 2021-001721 Application 15/955,478 11 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 Appeal 2021-001721 Application 15/955,478 12 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. Appeal 2021-001721 Application 15/955,478 13 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 Copy with citationCopy as parenthetical citation