Randy A. Moses et al.

Patent Trials and Appeals Board

Sep 20, 2019

14270282 - (D) (P.T.A.B. Sep. 20, 2019)

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.
14/270,282 05/05/2014 Randy A. Moses 47376-136F01US (272798) 6370
123896 7590 09/20/2019
Mintz Levin/Wayne Fueling Systems LLC
One Financial Center
Boston, MA 02111
EXAMINER
GRUBY, RANDALL A
ART UNIT PAPER NUMBER
3754
NOTIFICATION DATE DELIVERY MODE
09/20/2019 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):
ipdocketingbos@mintz.com
ipfileroombos@mintz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte RANDY A. MOSES and KENT W. ROBINSON
____________________

Appeal 2018-008332
Application 14/270,282
Technology Center 3700
____________________

Before JENNIFER D. BAHR, BENJAMIN D. M. WOOD, and
BRENT M. DOUGAL, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision, set forth in the Non-Final Action dated November 1, 2017
(hereinafter “Non-Final Act.”), rejecting claims 1, 2, 5, 8–10, and 19–31,
which are all of the pending claims. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.

1 We use the word “Appellant” to refer to the “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Wayne
Fueling Systems Sweden AB. Appeal Br. 1.
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THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. An air purge and pressurization system, comprising:
an enclosed container located in a hazardous area, the
area being hazardous due to presence of an explosive gas
external to the container;
a controller configured to operate within the hazardous
area and positioned within an explosion-proof box that is
located within the enclosed container;
a pressure sensor located within the container and
coupled to the controller; and
a variable-speed fan located outside the hazardous area
and coupled to the controller, the fan being configured to force
air from outside the hazardous area into the container;
wherein the controller is configured to adjust a speed of
the fan between different non-zero speeds, based upon an air
pressure detected by the pressure sensor, to maintain the
detected pressure above a minimum pressure.

REJECTIONS
I. Claims 1, 5, 8–10, 19–21, 23–28, and 31 stand rejected under
35 U.S.C. § 103 as unpatentable over Albarado (US 7,518,484 B2,
issued Apr. 14, 2009), Abuzeid (US 6,473,668 B2, issued Oct. 29,
2002), and Hilpert (US 2002/0196605 A1, published Dec. 26,
2002).
II. Claims 2 and 22 stand rejected under 35 U.S.C. § 103 as
unpatentable over Albarado, Abuzeid, Hilpert, and Baucom
(US 5,101,710, issued Apr. 7, 1992).
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III. Claim 29 stands rejected under 35 U.S.C. § 103 as unpatentable
over Albarado, Abuzeid, Hilpert, and Russell (US 6,119,715,
issued Sept. 19, 2000).
IV. Claim 30 stands rejected under 35 U.S.C. § 103 as unpatentable
over Albarado, Abuzeid, Hilpert, Russell, and Emerson
(US 7,405,358 B2, issued July 29, 2008).

DISCUSSION
Rejection I
Claims 1, 5, 8–10, 19, 20, and 28
Independent claim 1 recites, in pertinent part, “an enclosed container
located in a hazardous area,” a controller “positioned within an explosion-
proof box that is located within the enclosed container,” “a pressure sensor
located within the container and coupled to the controller,” “a variable-speed
fan located outside the hazardous area and coupled to the controller, . . .
wherein the controller is configured to adjust a speed of the fan between
different non-zero speeds, based upon an air pressure detected by the
pressure sensor, to maintain the detected pressure above a minimum
pressure.” Claims App. A. The Examiner reads the claimed “controller” on
the combined structure of Albarado’s operator controller console 1, gas
detection controller console 2, shutdown controller 3, and enclosure
controller EC1. Non-Final Act. 3; see Albarado 8:38–40, 9:15–18, 9:64–
10:58, 11:54–62.
The Examiner determines it would have been obvious to modify
Albarado’s multi-part controller to be configured to adjust the speed of
blower B1 between different non-zero speeds, based upon air pressure
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detected inside the enclosure, according to the teachings of “Abuzeid to
provide a means for maintaining the internal pressure of the container higher
than the pressure outside of the container to prevent combustible gases from
entering the enclosure.” Non-Final Act. 5. Specifically, the Examiner states
that it would have been obvious to “modify Albarado such that the controller
3, which affects the blower controller BC1 and consequently the fan speed . .
. , [receives] pressure data from the controller EC1 and adjust[s] the speed of
the fan based on that pressure data, like taught by Abuzeid.” Id. at 13 (citing
Albarado 11:54–63).
The problem with the Examiner’s rejection is that three out of the four
components of Albarado on which the Examiner reads the claimed
“controller” are located outside the enclosed container (enclosure E1), with
only enclosure controller EC1 located within enclosure E1. See Albarado,
Fig. 1. Significantly, Albarado’s shutdown controller 3, which in the
modified apparatus is configured to adjust a speed of the fan (blower B1)
between different non-zero speeds, based upon an air pressure detected by
the pressure sensor (differential pressure monitor DPM), to maintain the
detected pressure above a minimum pressure, is located outside enclosure
E1. The Examiner does not propose, much less articulate any reason why it
would have been obvious, to move shutdown controller 3 within enclosure
E1.2 Thus, even assuming it would have been obvious to house all
controller components within explosion-proof boxes, the Examiner fails to
articulate sufficient findings and reasoning to establish that it would have
been obvious to position a controller as claimed (i.e., a controller
“configured to adjust a speed of the fan between different non-zero speeds,

2 The Examiner relies on Hilpert for fan placement. See Non-Final Act. 5–6.
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based upon an air pressure detected by the pressure sensor, to maintain the
detected pressure above a minimum pressure”) “within an explosion-proof
box that is located within the enclosed container,” as required in claim 1.
The fact that a portion of the structure on which the Examiner reads
the claimed “controller” is located within the enclosed container (enclosure
E1) is insufficient to render obvious the claimed subject matter, especially
where the structure (shutdown controller 3) configured to adjust the fan
speed, as required in claim 1, is positioned outside the enclosed container.
See Ans. 7, 8, 9 (relying on Albarado’s enclosure controller EC1 as the
portion of the controller located in an explosion-proof box within the
enclosed container). Accordingly, we do not sustain the rejection of claim 1,
or claims 5, 8–10, 19, 20, and 28, which depend from claim 1, as
unpatentable over Albarado, Abuzeid, and Hilpert.
Claims 21, 23–27, and 31
Appellant does not present any separate arguments for dependent
claims 23–27 and 31, aside from their dependence from independent claim
21. Appeal Br. 10–11. Thus, claims 23–27 and 31 stand or fall with claim
21. See 37 C.F.R. § 41.37(c)(1)(iv) (permitting the Board to select a single
claim to decide the appeal as to a single ground of rejection of a group of
claims argued together).
Appellant argues that “Albarado, Abuzeid, and Hilpert, alone or in
any combination, fail to teach or suggest ‘a fan, located outside of the
hazardous area,’ as recited in independent claim 21.” Appeal Br. 10
(referring to the arguments directed to a similar limitation in claim 1).
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Appellant’s argument is not commensurate with the scope of claim
21, which does not positively recite a fan, much less a fan located outside of
the hazardous area. See Claims App. B. Rather, claim 21 recites:
[a] controller being configured to: cause a speed of a fan,
located outside of the hazardous area and forcing air into the
container, to change up or down based on the received pressure
data and thereby change a volume of the air being forced into
the container by the fan per unit time.
Id.
Albarado’s shutdown controller 3, as modified in view of the
teachings of Abuzeid, as proposed by the Examiner, receives pressure data
from enclosure controller EC1 and adjusts the speed of the fan (blower B1)
based on that pressure data. See Non-Final Act. 13. Albarado’s “shutdown
controller 3 is in communication with all systems, devices[,] and equipment
of the overall system,” including enclosure controller EC1 (which contains
differential pressure monitor DPM) and blower control device BC1 for a fan
(blower B1) located at a distance from the enclosure. Albarado, Fig. 1,
8:19–23, 38–47, 9:15–18, 11:54–61; see id. 8:13–15 (disclosing ducting C1
for supplying air from the outlet of blower B1 to the inlet port of enclosure
E1). Further, Albarado discloses wireless communication between all of the
controllers in the system. Id. 4:48–51. Thus, Albarado’s controller
(shutdown controller 3), as modified in view of Abuzeid, as discussed
above, is configured to adjust the speed of blower B1 based on received
pressure data, whether blower B1 is located within the hazard area or outside
of the hazard area. Appellant does not identify any additional structure that
Albarado’s controller lacks that would be required to configure it to change
the speed of a fan located outside of the hazardous area as recited in claim
21.
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For the above reasons, Appellant’s argument regarding the location of
the fan does not apprise us of error in the Examiner’s conclusion that
Albarado, Abuzeid, and Hilpert render obvious the subject matter of claim
21. Thus, we sustain the rejection of claim 21, as well as dependent claims
23–27 and 31, which fall with claim 21, as unpatentable over Albarado,
Abuzeid, and Hilpert.
Rejection II
Claim 2
The aforementioned deficiency in the rejection of claim 1 also
pervades the rejection of claim 2. See Non-Final Act. 8–9. The Examiner’s
application of Baucom does not overcome this deficiency. See id.
Accordingly, for the reasons discussed above in connection with claim 1, we
do not sustain the rejection of claim 2 as unpatentable over Albarado,
Abuzeid, Hilpert, and Baucom.
Claim 22
In contesting the rejection of claim 22, Appellant argues only that
Baucom fails to remedy the argued deficiencies of Albarado, Abuzeid, and
Hilpert vis-à-vis claim 21, from which claim 22 depends. Appeal Br. 11.
For the reasons discussed above, Appellant’s arguments fail to apprise us of
error in the Examiner’s conclusion that Albarado, Abuzeid, and Hilpert
render obvious the subject matter of claim 21 and, likewise, fail to apprise us
of error in the conclusion that Albarado, Abuzeid, Hilpert, and Baucom
render obvious the subject matter of claim 22. Accordingly, we sustain the
rejection of claim 22 as unpatentable over Albarado, Abuzeid, Hilpert, and
Baucom.
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Rejection III
Claim 29 depends from claim 21 and further recites that “the
powerline extends out of the container and into an explosion-proof box in
which the controller is disposed.” Claims App. C. The Examiner initially
dismisses the “explosion-proof” limitation as mere intended use or
functional language, and finds that Albarado’s controller housing “is
presumed to be ‘explosion proof’” because it is otherwise identical in
structure to the claimed controller and, thus, inherently capable of
performing “the claimed function.” Non-Final Act. 9. Appellant
persuasively argues that the recitation “explosion-proof” is a structural
limitation, and not mere intended use, and the Examiner does not provide a
basis in fact and/or technical reasoning to reasonably support a
determination that Albarado’s controller housing is inherently explosion-
proof. Appeal Br. 11–12.
Our agreement with Appellant that “explosion-proof” is a structural
limitation is not dispositive, however, because the Examiner also finds that
Russell teaches an air purge and pressurization system for a protected
enclosure, such as enclosure EC1 of Albarado, wherein the air purge and
pressurization system comprises a controller contained in an explosion-proof
box. Non-Final Act. 10 (citing Russell 2:64–67). The Examiner determines
it would have been obvious to modify Albarado (as modified in view of
Abuzeid and Hilpert as set forth in the rejection of claim 21) according to
these teachings of Russell “to provide protection for the controller 3 of
Albarado.” Id.
Appellant argues that, even if Albarado were modified to dispose
shutdown controller 3 in an explosion-proof box, the invention of claim 29
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would not result because “shutdown controller 3 does not ‘receive pressure
data that is indicative of a sensed pressure within an enclosed container,’ as
is required of the recited ‘controller’ per independent claim 21.” Appeal
Br. 12. Appellant contends that shutdown controller 3 receives only “an
informative signal . . . in response to the DPM [of EC1] indicating that
pressure inside the enclosure E1 ‘drops to substantially the pressure outside
of the enclosure.’” Id.; see Albarado 9:15–18 (disclosing that if pressure
inside enclosure EC1 drops to substantially the pressure outside EC1, a
signal is sent to shutdown controller 3).
Appellant’s argument is not persuasive because the “informative
signal” to which Appellant alludes is indicative of a sensed pressure within
EC1 even if it is not the pressure measurement signal itself. Moreover,
Appellant’s argument does not take into account the Examiner’s proposed
modification of Albarado “such that the controller 3, which affects the
blower controller BC1 and consequently the fan speed . . . , [receives]
pressure data from the controller EC1 and adjust[s] the speed of the fan
based on that pressure data, like taught by Abuzeid.” See Non-Final Act. 13.
Appellant does not specifically contest the Examiner’s findings or reasoning
in support of this proposed modification.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that Albarado, Abuzeid, Hilpert, and Russell render
obvious the subject matter of claim 29. Accordingly, we sustain the
rejection of claim 29 as unpatentable over Albarado, Abuzeid, Hilpert, and
Russell.
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Rejection IV
Claim 30 depends from claim 29, and further recites that “the
controller is coupled to one or more incoming power lines that extend into
the explosion-proof box from an underground location.” Claims App. C. In
addressing this limitation, the Examiner finds that “Emerson teaches a
control panel [(motor control module 110)] coupled to one or more incoming
power lines [(power cable 140)] extending from an underground location.”
Non-Final Act. 10 (citing Emerson, Fig. 1). The Examiner determines it
would have been obvious to modify Albarado (as modified in view of
Abuzeid, Hilpert, and Russell) with the underground power lines teaching of
Emerson “for reasons including merely aesthetic.” Id.
Appellant submits that power for Albarado’s system is provided by
operator controller console 1, which is located outside of enclosure E1.
Appeal Br. 14 (citing Albarado 9:64–10:15). Thus, Appellant argues that,
even if Albarado were modified to incorporate Emerson’s power line
teachings, “Emerson’s power cable 140 would go to the operator control
console 1,” and not into the explosion-proof box from an underground
location, as recited in claim 30. Id.
Appellant’s argument is not persuasive. The passage of Albarado that
Appellant cites discloses that “operator controller console 1 will contain:
a) a suitable means of power, preferably a conventional AC-DC power
converter (not shown).” Albarado 9:64–67 (boldface omitted). However,
there is nothing in the passage of Albarado cited by Appellant that discusses
how power is supplied to shutdown controller 3. Whether shutdown
controller 3 receives power directly from an external power source, or
through operator controller console 1, Appellant does not persuasively
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explain why power could not be supplied to shutdown controller 3 by a
power cable routed underground.
Appellant submits that Albarado’s enclosure “is a ‘temporary
building’ that is ‘built around an object to be hot-worked,’” and contends
that “[a] power cable 140 in a fixed underground location would therefore
not be available for Albarado’s unpredictably located temporary building
like in Emerson’s permanently located system.” Appeal Br. 14. Appellant’s
contention amounts to unsupported attorney argument and, thus, is entitled
to little, if any, weight. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
Appellant does not direct our attention to any disclosure in Emerson
to support the contention that Emerson’s system is permanently located.
Emerson discloses providing power to electrical submersible systems within
a well bore from a power source at the surface of the well. Emerson 1:6–9.
In particular, Emerson transmits power from a remote power source via
power supply cable 140, which extends underground for some distance, to
motor control panel 110, and then to junction box 120, and then to wellhead
barrier 130 of an underground well. Id. 2:48–54. Like Emerson’s system,
Albarado’s system can be used at a drilling or production platform (i.e., a
well bore). See Albarado 5:21–25. Given that both Emerson and Albarado
are directed to systems at well bore facilities, it is not apparent, and
Appellant does not adequately explain, why Emerson’s system, and the
infrastructure, such as power, supporting that system, would be considered
any more permanent, or less temporary, than the infrastructure supporting
Albarado’s system.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that Albarado, Abuzeid, Hilpert, Russell, and
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Emerson render obvious the subject matter of claim 30. Accordingly, we
sustain the rejection of claim 30 as unpatentable over Albarado, Abuzeid,
Hilpert, Russell, and Emerson.

DECISION
The Examiner’s decision rejecting claims 1, 5, 8–10, 19, 20, and 28 as
unpatentable over Albarado, Abuzeid, and Hilpert is REVERSED.
The Examiner’s decision rejecting claims 21, 23–27, and 31 as
unpatentable over Albarado, Abuzeid, and Hilpert is AFFIRMED.
The Examiner’s decision rejecting claim 2 as unpatentable over
Albarado, Abuzeid, Hilpert, and Baucom is REVERSED.
The Examiner’s decision rejecting claim 22 as unpatentable over
Albarado, Abuzeid, Hilpert, and Baucom is AFFIRMED.
The Examiner’s decision rejecting claim 29 as unpatentable over
Albarado, Abuzeid, Hilpert, and Russell is AFFIRMED.
The Examiner’s decision rejecting claim 30 as unpatentable over
Albarado, Abuzeid, Hilpert, Russell, and Emerson 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART