Board of Patent Appeals and Interferences
Patent and Trademark Office (P.T.O.)
*1 EX PARTE GPAC INCORPORATED
Appeal No. 92-2532
January 26, 1993
Heard October 8, 1992
Request filed November 23, 1990, Control No. 90/002,209, for the Reexamination for Patent No. 4,604,111, issued August 5, 1986, based on a continuation application Serial No. 06/323,730 filed November 23, 1981. Particulate Contamination Control Method And Filtration Device.
Harvey B. Jacobson, Jr. et al. for appellant
Primary Examiner--Tim Miles
Before Serota
Steiner and W. Smith
Examiners-in-Chief
W. Smith
Examiner-in-Chief
This is an appeal from the final rejection of claims 1 through 43, all the claims pending in this reexamination proceeding of U.S. Patent No. 4,604,111 ('111 patent).
Claims 1, 8, 42 and 43 are illustrative of the subject matter on appeal and read as follows:
1. A method of establishing a negative pressure environment within an existing building for removing dangerous solid materials from the building, said method comprising:
(1) defining an enclosed space within said building using existing wall structure to define at least a portion of said enclosed space;
(2) establishing at least one flow path for air to enter said enclosed space;
(3) continuously evacuating air from said enclosed space through a filter means to remove dangerous solid materials from said evacuated air and to establish a negative air pressure in said enclosed space so that air exiting said space passes through said filter means; and
(4) sealing said flow path against air existing from said air space to the exterior of said enclosed space in the event of loss of negative air pressure in said enclosed space.
8. A system for establishing a favorable environment for removing dangerous solid materials, said system comprising:
wall means enclosing a defined air space within a building, said wall means including at least one inlet for air to enter said air space and an outlet for air to exit from said air space;
filter means for filtering air in said air space;
air moving means for producing a negative air pressure within said air space and for drawing air into said space through said inlet and for moving air through said filter means in advance of moving air through said outlet; and
sealing means for sealing said inlet against air exiting from said air space to the exterior of said air space in the event of loss of negative air pressure in said air space.
42. A method of establishing a negative air pressure environment within an existing building for removing dangerous solid asbestos materials from the building, said method comprising:
(1) defining an enclosed space within said building using existing wall structure to define at least a portion of said enclosed space;
(2) establishing at least one flow path for substantial volumes of air to enter and move through said enclosed space, said flow path being separate from any air leaks into said enclosed space;
*2 (3) removing the solid asbestos materials within the enclosed space whereby dangerous asbestos fibers become airborne and contaminate the air within the enclosed space;
(4) continuously evacuating substantial volumes of air from said enclosed space through a high efficiency particulate air (HEPA) filter means and continuously drawing substantial volumes of air into said enclosed space to remove the airborne asbestos fibers from said evacuated air and to establish a negative air pressure in said enclosed space so that the air exiting from said enclosed space passes through said HEPA filter means; and
(5) sealing said flow path against said contaminated air exiting from said air space to the exterior of said enclosed space automatically upon loss of negative air pressure in said enclosed space.
43. A system for establishing a favorable environment for removing dangerous solid asbestos materials from an existing building, said system comprising:
wall means enclosing a defined air space containing asbestos contamination within said building, said air space also containing airborne asbestos fibers,
said wall means including at least one inlet opening, separate from any breaches in said wall means, for outside air to enter into said air space and at least one outlet opening for air filtered by a filter means to exit from said air space,
high efficiency particulate air (HEPA) filter means for filtering air in said air space;
high volume air moving means for producing a negative air pressure within said air space and for drawing large volumes of outside air into said air space through said inlet opening and for moving the large volumes of air through said outlet opening, thereby reducing the level of airborne asbestos fibers in said air space; and
sealing means for sealing off said inlet opening against contaminated air exiting from said air space to the exterior of said air space automatically upon loss of negative pressure in said air space.
The references relied upon by the examiner are:
Merriman 323,587 Aug. 4, 1885
Barbour 1,531,473 Mar. 31, 1925
Strahan 1,623,286 Apr. 5, 1927
Chadirjian et al. (Chadirjian) 1,699,094 Jan. 15, 1929
Kattmann 1,813,703 July 7, 1931
Powers 2,252,784 Aug. 19, 1941
Ruegsegger 3,111,301 Nov. 19, 1963
Whitfield 3,158,457 Nov. 24, 1964
Gedney 3,254,457 June 7, 1966
Fuller 3,384,000 May 21, 1968
Lyons 3,500,655 Mar. 17, 1970
Tarnoff 3,682,084 Aug. 8, 1972
*3 Cook et al., "Dealing With Asbestos Problems", Asbestos, Vol. 1, Chapter 8, John Wiley & Sons, pages 279-304 (1979).
Asbestos Control Technology, Inc., "MICRO-TRAP", No. 15, pages 13A-13P (1980).
The Random House College Dictionary, page 1186, Revised Edition (1982).
The claims stand rejected as follows:
I. Claims 1 through 11, 13 through 15, 18 through 26, 30 through 37, 42 and 43 under 35 U.S.C. § 103 as unpatentable over the Asbestos book in view of any or all of Gedney, Fuller, Strahan, Ruegsegger, Powers, Tarnoff, Merriman or Lyons;
II. Claims 1 through 11, and 13 through 15 under 35 U.S.C. § 103 as unpatentable over the Asbestos book in view of any of Kattmann, Chadirjian or Barbour;
III. Claim 12 under 35 U.S.C. § 103 "as claim 8 above, further in view of Whitfield";
IV. Claims 17, 18, and 40 under 35 U.S.C. § 103 as unpatentable over the Asbestos book in view of Gedney;
V. Claims 16, 27, 29, 38, 39, and 41 under 35 U.S.C. § 103 as unpatentable over the Asbestos book in view of either Gedney or Fuller; and,
VI. Claims 1 through 43 under 35 U.S.C. § 103 as unpatentable "over the prior art as applied above, further in view of the MICRO-TRAP publication."
BACKGROUND
This is the second reexamination proceeding involving the '111 patent. The first reexamination proceeding, Reexamination Control No. 90/001,227, resulted in an appeal to this board, Ex parte Natale, 11 USPQ2d 1222 (BPAI1988). This board reversed all prior art rejections then pending including those which were based upon the Asbestos book reference which is the basis of the rejections in this reexamination proceeding. A reexamination certificate was issued in due course which stated that the patentability of original patent claims 1 through 17 was confirmed and that claims 18 through 29 added during that reexamination proceeding were determined to be patentable.
Upon granting of the second request for reexamination of the '111 patent, patent owner added claims 30 through 43. In rejecting the claims involved in this proceeding, the examiner has relied upon a number of secondary references in combination with the Asbestos book reference which were not relied upon in the first reexamination of the '111 patent. The examiner is of the opinion that the secondary references bridge the evidentiary gap found to exist in the rejections in the first reexamination proceeding.
OPINION
REJECTION I.
The claimed invention is directed to methods and systems for removing dangerous solid materials such as asbestos from a building. To this end, an enclosed space within the building is defined using at least a portion of the existing wall structure and at least one flow path for air to enter this enclosed space is established. Air is to be continuously evacuated from the enclosed space through a filter in order to remove the dangerous solid materials from the evacuated air and to establish a negative air pressure in the enclosed space so that the air exiting from the space passes through the filter means. The air flow path is to be sealed against air exiting from the air space to the exterior of the enclosed space in the event the negative air pressure in the enclosed space is lost. By sealing the air flow path under these circumstances, the dangerous solid material, such as asbestos, is kept within the enclosed space and will not exit and contaminate the adjoining areas.
*4 As will become apparent, the step and means for sealing the air flow path against air exiting from the enclosed space are significant in determining the patentability of the subject matter on appeal. Therefore, the definition of the word "sealed" as used in the context of the present invention as set forth at column 5, lines 38-61 should be kept in mind. [FN1] The term "sealed" is meant to "indicate that an attempt is made to make the room sealed, but it is not critical that these sealed conditions exist" and that "it should be recognized that one of the prime advantages of my invention is that these seals need not be absolute."
Another aspect of the present invention which should be kept in mind is that the '111 patent discloses and claims in certain of the claims that a suitable sealing means to prevent undesirable back flow from the enclosed space to the exterior of the enclosed space in the event of loss of negative air pressure in the enclosed space is a so-called "flap seal." As described at column 6, lines 38-58 of the '111 patent such a flap seal is a flap of the polyethylene sheeting material which is used in part to define the enclosed space which is larger in all dimensions than the opening over which it hangs. Such a flap seal allows air to enter into the enclosed space under the negative pressure established in the enclosed space but will fall into place and prevent air from escaping in the opposite direction upon loss of the negative pressure in the enclosed space.
The Asbestos book reference provides relevant background material to the problems identified and associated with both the handling and removal of asbestos at the time of the present invention. There is no dispute that at this time the dangers of allowing asbestos to escape into the atmosphere of an enclosed space were well known. As set forth on page 285 of the Asbestos book reference, "Asbestos is most dangerous when it is in dust form." In discussing controlling asbestos contamination in the context of working with the material on page 287, the Asbestos book reference states that strict control of dust formation must be maintained to ensure the safety of the workers. One approach is to prevent dust from being created. However, if this is impractical, a dust control system is required.
The reference states that high-volume, low-velocity control systems have been used such as a suitable hood to extract the dust as it is formed if the dust is localized. If the dust cannot be localized, the reference states that booths (tents) should be constructed to prevent the dust from escaping. The openings in such booths or tents are stated to be kept as small as possible since wide openings need higher extraction rates. In describing the filter system to be used in such a dust collection system, the Asbestos book reference specifically states that fans and motors should be installed after the filter to "ensure that the filtration system is under negative pressure as a safeguard against leaks and to simplify maintenance." The sixth full paragraph of page 287 states that the "extract" should be started before operations are carried out and should be left running for several minutes after completion of the work. [FN2]
*5 One overriding thought is conveyed in this reference, i.e., when confronted with the presence of asbestos, whether in the context of working with the material or stripping asbestos insulation materials, the spread of contamination must be minimized. See, e.g., the fourth full paragraph of page 289 and section (6) DEALING WITH AN ASBESTOS PROBLEM on pages 291-292 of this reference.
The operational aspects of stripping asbestos insulation within a given area of an existing building are described on pages 293-296 of the reference. One of the first steps in the standard practice is to sheet off the area where the asbestos is to be removed by using suitable gauge plastic sheeting so as to contain the asbestos in that location. The sheets must overlap and be sealed. The space enclosed by the sheeting should be "kept below atmospheric pressure by an extract fan fitted with an 'absolute' filter" [FN3] which results in the direction of air flow being into the work zone in the enclosed space. The Asbestos book reference also states that "it may be necessary to fit ventilation flaps into the tent system at selected locations to improve ventilation in a particular area or where high extraction rates are required" (page 295). This page of the reference also reiterates that "since the chief hazard from asbestos work arises from the generation and spread of dust, dust-control measures are paramount."
Turning to independent claims 1 and 8 first [FN4], we find that the only significant distinction between the claimed method and system and those disclosed in the Asbestos book reference is whether the ventilation flaps which can be fitted into the tent system of the reference would be such that they would "seal" the flow path created thereby against air exiting from the air space enclosed by the tent in the event the negative air pressure in the tent is lost.
Bearing in mind the overriding thought in removing asbestos per the Asbestos book reference is to prevent asbestos from escaping outside the enclosed space, we conclude that one of ordinary skill in the art in providing the disclosed ventilation flaps would use flaps that would seal their flow path against air exiting from the air space to the outside upon loss of the negative air pressure in the enclosed space in order to prevent asbestos escaping with the outgoing air. The secondary references relied upon by the examiner provide an ample evidentiary basis for concluding that this person of ordinary skill would be sufficiently skilled to use well-known, ordinary ventilation flaps that seal against unwanted back drafts.
For example, Ruegsegger is directed to anti-back draft dampers used in ventilation systems in buildings. This damper is a pivoted flap which seals against its frame to prevent dust laden air from entering the building. The dampers ultimately close when there is a change in the pressure differential across the opening. See, e.g., column 1, lines 31-50 and column 3, lines 26-34.
*6 Fuller is an example of a back draft damper which is of a flexible nature. Again, the damper is positioned such that it closes upon a change in the pressure differential across the opening.
Powers is another example of a back draft damper which is of special significance since the pivoted damper is opened by suction and automatically swings to a closed position when the pressure differential ceases. See page 2, column 1, lines 3-10. As pointed out at page 2, column 1, lines 38-47, this pivoted damper serves to prevent egress of air therethrough when closed.
Strahan is another example of a back draft damper for ventilating systems which automatically prevents a back draft or outlet of air from the building through the intake openings. Merriman and Lyons are further examples of such ventilation flaps.
We conclude that one of ordinary skill in the art would have found these types of back draft dampers to have been eminently suitable to serve as the ventilation flaps in the tent system of the Asbestos book reference. This hypothetical person would have recognized such dampers or flaps would close automatically upon loss of the negative pressure in the enclosed area of the Asbestos book reference and upon closure would provide a "sealing" action preventing asbestos dust from exiting the tent. The ventilation flaps of these references are reasonably pertinent to the problem of providing ventilation flaps in a tent system so that a negative air pressure can be maintained therein, yet prevent spread of a contaminating substance when that pressure differential is disturbed. This problem is common to the Asbestos book reference and the present invention. In re Wood, 599 F.2d 1032, 202 USPQ 171 (CCPA1979).
Patent owner argues on page 31 of the Appeal Brief that the claims require an intentionally created air inlet/flow path. The disclosed ventilation flaps in the tent system of the Asbestos book reference clearly meet this portion of the claims since a ventilation flap would be considered an intentionally created air inlet/flow path.
Patent owner argues that the Asbestos book reference describes no more than a passive system with "below atmospheric pressure" in the work area. However, claims 1 and 8 do not require any particular level of negative air pressure. In any event, the Asbestos book reference explicitly states that ventilation flaps are included in the tent system to improve ventilation in a particular area or where high extraction rates are required. As set forth above, the Asbestos book reference correlates the size of openings created in a tent or booth used as an enclosure in working with asbestos material with the extraction rate needed to remove asbestos from the enclosed atmosphere. This argument also ignores the disclosure of the reference that the system is to be under negative pressure as a safeguard against leaks. This is the same concept which forms the foundation of the present invention.
*7 Patent owner argues in the paragraph bridging pages 36-37 of the Appeal Brief that the ventilation flaps of the Asbestos book reference are not suggested to permit "high volume air flow" to sweep through the work area. First, claims 1 and 8 do not place any quantitative limitation on this amount of air. Second, the Asbestos book reference discloses that high extraction rates may be required and if so, ventilation flaps would be needed.
Patent owner also argues that the Asbestos book reference does not disclose that the ventilation flaps are to seal against asbestos egress upon loss of negative air pressure. We first observe that it would defy common sense to use ventilation flaps in the tent area of the reference that would allow asbestos material to exit therethrough under any circumstances. The Asbestos book reference is replete with cautionary notes concerning the extreme danger asbestos dust represents and repeatedly cautions against allowing asbestos dust to escape from the enclosed space defined by the tent or booth which is under negative air pressure. The unspoken argument presented by patent owner is that one of ordinary skill in the art would for some reason put ventilation flaps in the tent system of the Asbestos book reference which would allow asbestos to escape. The skill of the art must be presumed, not the contrary. In re Sovish, 769 F.2d 738, 226 USPQ 771 (Fed.Cir.1985).
Further, these arguments are premised upon the rejection being based upon the Asbestos book reference alone as in the previous reexamination. Here, the new secondary references clearly demonstrate the knowledge possessed by one skilled in the art that ordinary ventilation flaps routinely close automatically upon a change in air pressure in the environment in which they are used and serve to prevent the ingress or egress of an undesired environment. When the applied references are viewed together, this hypothetical person of ordinary skill in the art would understand that the ventilation flaps disclosed to be useful in the tent system of the Asbestos book reference should not, under any circumstance, allow asbestos dust to escape. The ventilation dampers or flaps illustrated in the secondary references would be routinely adapted to the specific circumstances of the Asbestos book reference system in order to accomplish this function.
Patent owner's response to the secondary references is for the most part an individual critique. Patent owner notes that the back draft dampers and flaps of these references are not used in an asbestos laden atmosphere and that some are disclosed in the specific environment of the secondary reference to open and shut in the "wrong way" as compared with the present system.
Since there is ample motivation to use such conventional ventilation flaps as the specific ventilation flaps in the tent system as the Asbestos book reference in view of the dangerous nature of the asbestos material being handled therein, patent owner's arguments directed to the secondary references individually are not entitled to much weight. As to the specific secondary references which the patent owner characterizes as opening and closing the "wrong way", we point out that the rejections are based upon a combination of the Asbestos book reference with the secondary references. The controlling thought in installing the ventilation flaps of the Asbestos book reference would be to allow adequate ventilation while preventing the escape of asbestos to the surrounding area. One of ordinary skill in the art would be able to install such conventional anti-back draft dampers in the manner required in order to achieve this purpose. Thus, such dampers or flaps would close upon loss of the air pressure differential across their openings in a manner which would keep airborne asbestos within the tent. See, e.g., Powers.
*8 Patent owner relies upon the affidavit filed under 37 C.F.R. § 1.132 of Frederick Porcello, a professional engineer, in support of these arguments. We have carefully considered Mr. Porcello's affidavit but do not find it persuasive.
For example, Mr. Procello states in paragraph 29 of his affidavit:
"[i]t would not be obvious to me, or, in my opinion, to one of ordinary skill in the art, to provide the ventilation flaps with some type of sealing capability, particularly any automatic or instantaneous sealing.
In reaching his conclusion of nonobviousness, Mr. Porcello has not set forth a factual basis in support. In re Grunwell, 609 F.2d 486, 203 USPQ 1055 (CCPA1979). The unspoken argument by Mr. Porcello is that the ventilation flaps used in the tent system of the Asbestos book reference would allow asbestos fiber to escape which is in direct conflict with the numerous warnings in the reference. Further, Mr. Porcello critically analyzes the secondary references individually. As set forth in In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA1981), an affiant must review the references as they are combined to establish the prima facie case of obviousness.
Mr. Porcello also states in paragraph 54 of his affidavit that one of ordinary skill in the art would not know how to effectively combine the references. However, this opinion appears to be based upon the assumption that the references need be able to be physically combined. Such is not the law. In re Keller, supra. To the extent this opinion is based upon the secondary references showing rigid dampers and flaps, it ignores the flexible flaps used in Fuller.
Patent owner also relies upon the affidavit of William G. Eads, a professional engineer who considers himself an expert in the art of heating, ventilation, and air-conditioning systems. Mr. Eads characterizes the '111 patent as providing "large" air inlet openings into the work area which would draw "large" volumes of air. However, claims 1 and 8 are not limited to any particular size opening or particular volume of air to be drawn into the work area. Thus, the opinions expressed by Mr. Eads appear to be based upon a fundamental misunderstanding as to what is claimed in the '111 patent.
The same can be said for Mr. Eads' analysis of the Asbestos book reference. Mr. Eads states in paragraph 17 of his affidavit that the Asbestos book reference does not teach or suggest any high volume air flow to sweep through the work area. This is not relevant to claims 1 and 8 since they are not limited in this manner. Further, this opinion does not take into account the disclosure of the Asbestos book reference that ventilation flaps are used in the tent system to improve ventilation or where high extraction rates are required. High extraction rates means in the context of the reference the movement of a relatively higher amount of air as opposed to when the ventilation flaps are not used.
*9 Nor do we see that Mr. Eads' observation regarding the number of times the '111 patent has been subsequently cited in other U.S. patents is particularly relevant to the present issues. The mere citation of a patent does not lend further "patentability" thereto.
Mr. Eads states in paragraph 21 of his affidavit that nothing in the secondary references suggests that their back draft preventing flaps and dampers be used to prevent escape of airborne asbestos contamination from removal work areas. He is correct only if the secondary references are read in a vacuum to the exclusion of the Asbestos book reference. Mr. Eads has not analyzed these references properly in combination with the Asbestos book reference. For example, Mr. Eads has not established why the anti-back draft damper of Ruegsegger which is expressly disclosed to prevent dust from flowing into an environment where it is not wanted in an automatic manner upon pressure disturbance through the opening would not provide the needed sealing function when properly adapted in the air flow path of the Asbestos book reference. The various anti-back draft dampers and flaps disclosed in the secondary references appear on their face to "seal" against dust infiltration or exfiltration depending upon one's viewpoint in the same manner as the present so-called flap seals. These flaps and dampers would "seal" to the extent required in the present invention.
We have also considered the affidavit of Robert J. Reichert, a registered patent attorney. Mr. Reichert reviewed the first office action in this reexamination proceeding and has concluded that the references relied upon by the examiner would not have rendered the claimed subject matter obvious under 35 U.S.C. § 103. We have carefully considered this affidavit but conclude that it, like the other affidavits of record, is entitled to little weight. Like the other affiants, Mr. Reichert has primarily premised his opinion on the patentability issue on the '111 patent providing for "substantial air flow volumes" and "an automatic sealing of the air flow inlet openings of the work area upon the loss of negative air pressure" (paragraph 12). These limitations do not appear in a substantial number of the claims on appeal.
Further, Mr. Reichert has not addressed in his affidavit the overwhelming import of the Asbestos book reference to prevent asbestos escaping from the work area and contaminating the surrounding environment. Mr. Reichert's opinion, like the other affiants, appears to underestimate the level of skill in this art. Like patent owner's arguments and the other affiants, the unspoken premise of Mr. Reichert's opinion is that those of ordinary skill in this art would operate the ventilation flaps of the Asbestos book reference in a manner that would allow such contamination. Such an assumption defies common sense and ignores the substantial evidence provided by the references relied upon by the examiner.
*10 To the extent Mr. Reichert considered the references applied by the examiner conjointly in paragraph 18, he has not supplied any factual basis for his conclusion that the anti-back draft dampers and ventilation flaps of the secondary references would not have been considered obvious expedients by one of ordinary skill in the art in implementing the disclosure of the Asbestos book reference that ventilation flaps can be used to increase the extraction rate within the tent system.
Patent owner also relies upon objective evidence of nonobviousness. Patent owner asserts that the '111 patent is a commercial success and has been recognized and copied by others in this industry. Reliance is placed upon the Porcello affidavit as well as the affidavit of Eugene E. Newman, an officer of the present assignee.
The sole argument presented as to why the '111 patent is a commercial success is based upon the amount of royalties collected under this patent. However, in reciting the licensing history of this patent in his affidavit, Mr. Newman has not established precisely what claim(s) of the '111 patent is involved in this licensing program. Mr. Newman has not established any nexus between the licensing program and the claimed invention. Thus, it is not possible on this record to determine how relevant this evidence is to the claimed subject matter.
In evaluating the licensing activity proferred as evidence of commercial success, we are mindful of the statement in EWP Corp. v. Reliance Universal, Inc., 755 F.2d 898, 225 USPQ 20 (Fed.Cir.1985):
When, as happened here, the PTO issues a patent because the examiner did not consider prior art teaching the very technique essential to the claimed invention ... it is not unusual to see astute businessmen capitalize on it by erecting a temporarily successful licensing program thereon. Such programs are not infallible guides to patentability. They sometimes succeed because they are mutually beneficial to the licensed group or because of business judgments that it is cheaper to take licenses than to defend infringement suits, or for other reasons unrelated to the unobviousness of the licensed subject matter. Such a "secondary consideration" must be carefully appraised as to its evidentiary value and we have tried to do that here.
Here, the patent examiner did not consider the Asbestos book reference in granting the original patent. Nor did the patent examiner consider the very relevant secondary references directed to anti-back draft dampers and flaps in issuing the first reexamination certificate. Further, there is no evidence in this reexamination proceeding that these licenses were taken based upon the merits of the claimed invention of the '111 patent as opposed to economic and business considerations. On this record, we find this evidence of commercial success is entitled to little weight.
Patent owner also argues that the subject matter of the '111 patent has been copied by others and is the only system and method that effectively meets the guidelines of the Environment Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA).
*11 As to patent owner's assertions concerning copying of the present invention by others, we are mindful of the statement in Cable Electric Products, Inc. v. Genmark, Inc., 770 F.2d 1015, 226 USPQ 881 (Fed.Cir.1985):
It is our conclusion that more than the mere fact of copying by an accused infringer is needed to make that action significant to a determination of the obviousness issue. Accord Vandenberg v. Dairy Equipment Co., 740 F.2d 1560, 1567, 224 USPQ 195, 199 (Fed.Cir.1984), where copying of a patented device, despite the failure of protracted efforts by the copyist to design a similar device, was found to be an admission of the mechanical superiority of the patented version, but "not strong evidence of nonobviousness." [footnote omitted]
Rather than supporting a conclusion of obviousness, copying could have occurred out of a general lack of concern for patent property, in which case it weighs neither for nor against the nonobviousness of a specific patent. It may have occurred out of contempt for the specific patent in question, only arguably demonstrating obviousness, or for the ability or willingness of the patentee financially or otherwise to enforce the patent right, which would call for deeper inquiry. Even widespread copying could weigh toward opposite conclusions, depending on the attitudes existing toward patent property and the accepted practices in the industry in question. It is simplistic to assert that copying per se should bolster the validity of a patent.
On this record, we conclude the evidence of copying is entitled to little weight since patent owner has not provided any evidence which puts this issue in the needed context. Mere assertions of copying, as here, are not persuasive.
While Mr. Porcello and Mr. Newman conclude that the EPA and OSHA guidelines were adopted based upon the invention of the '111 patent, the affidavits do not support these conclusions with any objective evidence. Similar information regarding asbestos removal in a tent system under negative air pressure having ventilation flaps was publicly available through the Asbestos book reference. Thus, the particular background information used to promulgate these rules is not seen to be particularly relevant to the present patentability issues.
In essence, the proffered evidence amounts to repetitive opinion affidavits having little, if any, factual support. Such evidence is entitled to little weight. In re Vamco Machine & Tool, Inc., 752 F.2d 1564, 224 USPQ2d 617 (Fed.Cir.1985).
Reviewing patent owner's evidence of nonobviousness anew in its entirety and balancing it against the evidence of obviousness relied upon by the examiner, we conclude that the evidence of nonobviousness is of insufficient weight to outweigh the evidence of obviousness. Therefore, we conclude that the subject matter of claims 1 and 8 as well as 6, 7, 9, 10, 11, and 13 through 15 would have been obvious to one of ordinary skill in the art.
*12 Patent owner argues on page 59 of the Appeal Brief the requirement of claim 2 (Group B) on appeal that the air evacuated from the enclosed space passes adjacent to a high level of dangerous solid materials within the enclosed space is not found or suggested in the references cited. We disagree. The purpose of the Asbestos book reference is to exhaust the air inside the enclosed space or tent through the absolute filter to remove airborne asbestos. Such evacuated air would of necessity pass adjacent the asbestos material being removed.
Patent owner also argues the evacuation rates set forth in dependent claims 3 through 5 (Group C) are not disclosed in the references. While the numerical ranges claimed are not explicitly disclosed, the Asbestos book reference clearly discloses the relationship between the size of openings in an enclosed space or tent where asbestos is present and the extraction rate which is needed for removing and filtering the air within the enclosed space. See page 287. The rate of evacuation of air or the extraction rate would be a result effective variable. As such, the precise rate of evacuation of air or the extraction rate for a given system or tent erected for the purposes of removing dangerous asbestos material per the Asbestos book reference would be routinely optimized. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA1980). We note that patent owner in making the separate arguments of claims 3 through 5 does not assert that the numerical ranges set forth in these claims represent the so-called "large" extraction rates on which the Porcello and Eads affidavits are premised.
The Group F claims, claims 18, 22, and 24 through 26 are stated on pages 17- 18 of the Appeal Brief to be generally similar to the claims of Group A but emphasize the substantial higher volume air flow continuously drawn into the work area and the automatic sealing of the flow path. Patent owner argues on page 60 of the Appeal Brief that there is no suggestion of continuously evacuating substantial volumes of air through a filter means from the enclosed space to remove the airborne, dangerous asbestos solid materials. Again, these arguments ignore the disclosure of the Asbestos book reference that high extraction rates can be used in a tent system containing asbestos in order to remove airborne asbestos contaminants within that enclosed space. As to the separate arguments directed to the Group G claims, claims 19 through 21, see the above comments concerning claims 3 through 5.
The Group H claim, claim 23, requires the evacuating and drawing step be continuously performed until the fiber content of the airborne dangerous asbestos solid material is no greater than 0.01 fibers per cubic centimeter. Again, the whole purpose of the Asbestos book reference is to draw the air within the tent enclosure of that system through an absolute filter in order to remove airborne asbestos contamination. The determination of what would be considered an appropriate level of residual asbestos fiber content in the air would be well within the skill of the artisan. The filter system of the Asbestos book reference would be operated in the manner needed to provide a safe environment. To conclude otherwise would again under-estimate the skill in this art.
*13 The Group J claims, claims 30, 34, 36, 37, 38, 42, and 43, are said to be separately patentable in that they emphasize the air flow or air inlet is intentionally created and that the sealing of the flow path is done in an automatic and immediate manner upon loss of negative air pressure in the enclosed space. As explained above, the prior art relied upon by the examiner directly suggests both features of these claims. The Asbestos book reference describes the use of ventilation flaps. Such flaps would be an intentional breach of the tent system and not mere leakage. The various anti-back draft dampers and flaps of the secondary references relied upon by the examiner automatically and immediately shut when the pressure drop across them drops. Again, one of ordinary skill in the art would appreciate in which direction the pressure drop occurs in the tent system of the Asbestos book reference when ventilation flaps are provided. Those of ordinary skill in the art would be well skilled to provide anti-back draft dampers or flaps which automatically shut and seal in an immediate manner in order to prevent asbestos material from exiting the enclosed tent space per the secondary references.
The Group K claims, claims 31 through 33 again recite the extraction rates which are discussed above in relation to claims 3 through 5.
The Group L claim, claim 35 is also directed to operating the system until the airborne dangerous asbestos solid material weighs no greater than 0.01 fibers per cubic centimeter. This limitation has been discussed supra.
Rejection I is affirmed.
REJECTION II.
This rejection involves claims 1 through 11 and 13 through 15. The references relied upon by the examiner are the Asbestos book reference in view of the so-called tent flap references, Kattmann, Chadirjian, and Barbour.
In making this rejection the examiner has determined that the description in the Asbestos book reference of a method and system of removing asbestos from a building involving the tent system when fitted with the disclosed ventilation flaps meets the method and system set forth in claims 1 and 8 on appeal with the exception that the Asbestos book reference does not explicitly state that the ventilation flaps seal the flow path against air exiting the tent in the event of loss of the negative air pressure.
The examiner has relied upon Barbour, Chadirjian, and Kattmann for their disclosure of ventilation flaps in tents. The examiner has determined that the flaps in these tents which serve to ventilate the tents would "seal" in a manner such that they prevent the flow of an undesired atmosphere through the opening covered by the flap due to the fact that the flaps of the references are slightly oversized in relation to the openings with which they are associated.
We agree with the examiner's conclusion that one of ordinary skill in the art in viewing the Asbestos book reference together with Kattmann, Barbour, and Chadirjian would have found it obvious to ensure the ventilation flaps in the tent system of the Asbestos book reference would isolate one environment from another by making the ventilation flaps slightly oversized in comparison with the opening in the tent with which they are associated in the Asbestos book reference per the secondary references. Bearing in mind that the '111 patent does not require any particular degree of "sealing" in this regard, the tent flaps of the secondary references do provide a sealing function, i.e., they protect the tent interior from infiltration of the outside environment.
*14 Patent owner argues on page 40 of the Appeal Brief that there is no disclosure that these flaps provide any seal whatsoever. We disagree. Due to their size relative to the opening with which they are associated, the flaps do serve to "seal" the interior of the tent from the outside atmosphere. Claims 1 and 8 call for nothing more.
Patent owner, Porcello, and Eads state that the flaps in the secondary tent references are positioned in the wrong way as compared with the present invention. This position is again based upon viewing the secondary references by themselves. The rejection is based upon the combined disclosure of these references with the Asbestos book reference. The Asbestos book reference states that ventilation flaps may be used in the tent system of that reference. These ventilation flaps would be positioned to open inwardly in the tent system under the influence of the negative air pressure disclosed to exist within that system when the absolute filter is operating. Thus, the primary reference relied upon by the examiner, the Asbestos book reference, of necessity discloses the "correct" way of arranging the flaps. The examiner has relied upon the secondary tent references only to show that those of ordinary skill in the art were well aware of "tent" flaps which serve a ventilation purpose and serve to "seal" against an undesired environment infiltrating through their ventilation opening.
We have considered anew the evidence of nonobviousness relied upon by patent owner, i.e., the Porcello, Eads, Reichert, and Newman affidavits. For the reasons set forth above in Rejection I, we do not find this evidence is entitled to much weight. Specifically, Porcello and Eads base their opinions upon viewing the references individually. They have not properly accounted for the disclosure of the Asbestos book reference that ventilation flaps can be used in the tent system of that reference to provide high extraction rates. Nor have they taken into account that the reference is concerned with the same dangerous substance as the present invention and that the overriding consideration in the Asbestos book reference is to keep the asbestos dust contained within the tent system.
In regard to the Newman affidavit, Mr. Newman has not correlated the licensing program discussed in his affidavit with any specific claim on appeal. It is not possible on this record to determine which claim, if any, is relevant in these licenses. Further, as set forth above, merely alleging licensing of an invention and/or copying of the invention by others is not entitled to significant weight.
Weighing patent owner's evidence of nonobviousness anew in its entirety against the evidence of obviousness relied upon by the examiner in this rejection, we find that the evidence of nonobviousness is insufficient to outweigh the evidence of obviousness.
Rejection II is affirmed.
REJECTION III.
Claim 12 depends from claim 8 and requires a barrier deflection means be placed in an air space to cause air entering the space to flow pass a source of a high level contamination before entering the filter means. The examiner has relied upon Whitfield in addition to the references relied upon the Rejections I and II in rejecting this claim.
*15 Whitfield is directed to a so-called ultra-clean room in which air is circulated at a high rate so that the incoming air performs a sweeping function over the working areas. This sweep air exists through submicron filters to remove dust particles. As set forth at column 10, lines 49-58, air-diffusing means can be associated with the inlet for the sweep air in order to ensure that the sweep air is of equal velocity and volume throughout the entire working area.
Whitfield fairly discloses the concept of deflecting or directing air which is to sweep dust out of an environment to the location where it is needed. In Whitfield, this is the entire room. We agree with the examiner that one of ordinary skill in the art would have found it obvious to provide appropriate deflectors or diffusers in the tent system of the Asbestos book reference to guide the air within the tent system to the locations therein where asbestos dust is being generated in order to assist its removal under the negative air pressure through the absolute filter of that reference.
Mr. Porcello states in paragraph 45 of his affidavit that Whitfield does not disclose a deflection barrier to divert air in any manner. We disagree. The reference clearly discloses the use of diffuser grids to deflect or direct incoming air over the entire room in order to provide the sweeping function desired in that reference.
Patent owner has not explained on this record how the licensing activity and/or copying by others pertains specifically to the subject matter of claim 12. Accordingly, this evidence is entitled to little, if any, weight in regard to this rejection.
Rejection III is affirmed.
REJECTION IV
Claims 17, 28, and 40 require that the inlet includes at least one opening of a size and shape to allow a person to step through the inlet covered by the flexible film flap. The examiner relies upon Gedney for its disclosure of such a flexible flap door.
Gedney discloses an inflatable tent-like structure made of a flexible film of low air permeability. An equilibrium air door is provided which comprises a flap of flexible material sufficiently large to permit vehicle or pedestrian traffic therethrough. When the tent structure is being inflated, the equilibrium air door opens inwardly to the tent under the influence of the higher air pressure generated by the fan used to inflate the tent structure. As set forth at column 15, lines 15-21, once the structure is inflated, the air equilibrium door is moved into the closed position due to the air pressure within the structure which is exerted on the internal surface of the flexible flap. See Figure 2 of the reference which illustrates the equilibrium air door in its opened and closed position.
We agree with the examiner that one of ordinary skill in the art, viewing the Asbestos book reference and Gedney together, would have found it obvious to design the ventilation flaps of the Asbestos book reference to include those having a size sufficient to allow a person to enter and exit the tent system. The equilibrium air door or flexible flap entrance of Gedney serves the same function as the other flaps or dampers disclosed in the various other references relied upon by the examiner, i.e., it will open under the influence of a pressure change to allow air to enter in a desired direction while closing when the change in air pressure is disturbed to prevent the reversal of air flow.
*16 Patent owner as well as affiants Porcello and Eads state that the equilibrium air door of Gedney does not serve to provide a seal against air movement. However, none of these statements are supported by any factual evidence. Further, these statements view Gedney by itself and not in combination with the Asbestos book reference as combined by the examiner. Again, the Asbestos book reference clearly states ventilation flaps can be used in the tent system of that reference. The tent system of that reference is designed to keep asbestos dust within the tent by use of negative air pressure in association with the absolute filter. Gedney is relevant in that it shows flexible flaps which operate under the influence of changing air pressure which are sized so that the vehicle or pedestrian traffic can enter and exit. To whatever extent it may be said that the equilibrium door in Gedney does not "seal", in adapting such a concept to the tent system of the Asbestos book reference, one of ordinary skill in the art would surely ensure that upon closure of such a large flap, asbestos laden air would not be permitted to exit the tent to contaminate the surrounding area.
Again, patent owner has not explained with any specificity how the evidence of nonobviousness pertains to the subject matter of these dependent claims.
Rejection IV is affirmed.
REJECTION V.
Claims 16, 27, 29, 38, 39, and 49 require that the sealing means comprise a flexible film flap. [FN5]
The examiner relies upon Gedney and Fuller for their disclosure of flexible films used to seal openings and thus prevent an undesirable reversal of air flow therethrough.
We agree with the examiner's conclusion that one of ordinary skill in the art, viewing these references together, would have found it obvious to provide the ventilation flaps in the tent system of the Asbestos book reference as flexible film flaps which serve to prevent an undesirable reversal of air flow from with the tent system of the Asbestos book reference to the outside in order to prevent contamination of the outside atmosphere with dangerous asbestos dust.
Our analysis of the affidavits and objective evidence of nonobviousness of record in regard to these claims is the same as in regard to the subject matter covered by Rejection I. For those reasons, we find this evidence not to be entitled to sufficient weight to outweigh the evidence of obviousness relied upon by the examiner.
Rejection V is affirmed.
REJECTION VI.
In this rejection, the examiner has in essence repeated rejections I through V while additionally relying upon a document which has been entitled MICRO-TRAP. As developed in this reexamination proceeding, a threshold issue in this rejection is whether the MICRO-TRAP document can be considered a printed publication.
To decide whether the MICRO-TRAP document is a printed publication, it is necessary to review part of the proceedings in the first reexamination of the '111 patent since the examiner states on page 23 of the Examiner's Answer that the record of the first reexamination establishes MICRO-TRAP to be a printed publication. Specific reference is made in the Examiner's Answer to pages 9 and 10 of the requestor's July 9, 1987, "Petition For Review Of Denial For Request Reexamination" in the first reexamination proceeding (Paper No. 6 of that file).
*17 The first request for reexamination was initially denied by the examiner assigned to make that determination. Part of the denial was that the MICRO-TRAP document submitted with the request was not considered to be a printed publication. As originally submitted, this document comprised a first page describing the use of a absolute or HEPA filter in asbestos removal projects by Duall Maintenance Company. The MICRO-TRAP unit is stated to be available from Asbestos Control Technology Inc. The record in the first reexamination proceeding as well as this reexamination proceeding indicates that the inventor of the '111 patent, Anthony Natale; the present assignee of the '111 patent, GPAC Inc.; Duall Maintenance Company, and Asbestos Control Technology Inc. are all related entities.
The second page of the MICRO-TRAP document originally submitted is a schematic wiring diagram for the MICRO-TRAP unit which is dated July 20, 1980. Pages 3 through 5 of this document include operating instructions for the MICRO-TRAP unit. Attached to the originally submitted copy of this document is (1) a series of price lists from Asbestos Control Technology Inc. for MICRO-TRAP units and various supplies needed in asbestos removal projects; (2) purchase orders from a company identified as ICONCO of California ordering MICRO-TRAP units and other supplies from Asbestos Technology Inc.; (3) invoices of Asbestos Technology Inc. indicating shipment of MICRO-TRAP units, and (4) the ordered supplies and cancelled checks from ICONCO of California indicating payment of these orders.
Upon the examiner's initial determination that the MICRO-TRAP document was not a printed publication in the first reexamination proceeding, requestor submitted with the above referenced petition an Exhibit C to establish that the MICRO-TRAP document itself was a printed publication having a publication date no later than July 23, 1980. Exhibit C (copy attached to this decision) is a letter dated July 23, 1980, from a Mr. James H. Oetter, Jr. to Mr. George Smart. George Smart is identified in requestor's petition as the architect who prepared the invitation for bid for removing asbestos material at the General Mail Facility in Greensboro, North Carolina. The letter from Mr. Oetter thanks Mr. Smart for the time he extended to him when Mr. Oetter called upon Mr. Smart to discuss "our MICRO-TRAP." The letter states "as discussed enclosed you will find literature on the MICRO-TRAP." Attached to the letter is a copy of pages 1, 3, 4, and 5 of the MICRO-TRAP document originally presented with the reexamination request. The circuit diagram which is part of the originally submitted MICRO-TRAP document is not included as part of Exhibit C.
This record also establishes that James Oetter was working for Asbestos Technology Inc. For example, the Asbestos Technology Inc. invoices attached to the originally submitted MICRO-TRAP document state that a J. Oetter was the salesman for these orders.
In a decision mailed August 6, 1987, (Paper No. 7 in the first reexamination proceeding), the Examining Group Director granted the petition and ordered reexamination of the '111 patent. In pertinent part, the Group Director determined that requestor had established that the MICRO-TRAP document, identified as Document 13 in the petition, was a printed publication.
*18 We agree with patent owner that the initial burden of establishing a document to be a printed publication under the patent laws is on the proponent of the document. Here, the proponent was the requestor in the first reexamination proceeding. This requestor provided additional information to establish this fact in the form of Exhibit C when the original patent examiner concluded that the originally submitted MICRO-TRAP publication was not a printed publication. The Patent and Trademark Office then determined that the additional information provided in Exhibit C established a reasonable basis to conclude that, at the least, the text portion of the MICRO-TRAP document was a printed publication no later than July 23, 1980. We find no basis on this record to disagree with this conclusion.
The letter from Mr. Oetter to Mr. Smart in which the MICRO-TRAP document was enclosed provides evidence that this document was being distributed by a company associated with the present inventor and patent owner as sales literature in the normal course of business no later than July 23, 1980. Patent owner's position on whether this document is a printed publication is merely to argue that the patent examiner has the initial burden of establishing this document as a printed publication. However, patent owner's arguments do not take into account Exhibit C and the Patent and Trademark Office's ultimate determination that MICRO-TRAP is a printed publication. This determination shifts the burden to patent owner to establish that the MICRO-TRAP document is not a printed publication. Since Mr. Oetter was working on behalf of Asbestos Control Technology Inc., a company which is controlled by or related to the present inventor and/or patent owner, patent owner is in the best position to ascertain and make of record the relevant facts concerning the MICRO-TRAP document. As the record now stands, it is reasonable to conclude that this document was being distributed in the normal course of business of selling MICRO-TRAP units by Asbestos Control Technology Inc. no later than July 23, 1980. We agree with the examiner that the MICRO-TRAP document is a printed publication and can be relied upon in determining the patentability of the claimed subject matter in this reexamination proceeding.
Turning to the merits of these rejections, we agree with the examiner that this publication further buttresses the case of obviousness established by the other references relied upon in the rejections. The MICRO-TRAP publication reiterates that air flow within the work area in which asbestos is being removed must be controlled to keep potential contaminants in the work area in order to prevent their spreading throughout the entire building. The so-called exhaust theory ventilates the work area with the air exiting through the MICRO-TRAP unit, a HEPA filter. While this document may be considered cumulative to the Asbestos book reference, it does establish that one of ordinary skill in the art at the time of the present invention was well aware of the importance of ventilating the work area using a HEPA filter in order to prevent asbestos fiber contamination escaping the work area.
*19 The MICRO-TRAP document also discloses in Section 3.(A) of the "How To Use" section that an air turnover rate of fifteen minutes is desirable which is in the middle of the preferred range of the '111 patent. The MICRO-TRAP document also states in clause d. of the last page that the MICRO-TRAP filter unit can be used for other purposes, e.g., removing welding fumes. This is further evidence that those of ordinary skill in the asbestos removal art were well aware of other similar ventilation problems and would have routinely consulted other art areas where similar ventilation problems occur, In re Wood, supra. This buttresses the examiner's reliance upon the numerous secondary references from the ventilation art in general which establish the use of anti-back draft dampers or flaps to be well known in this field.
Patent owner argues on page 9 of the Reply Brief that the air turnover rate in the MICRO-TRAP publication "may result from recirculation within the work area." However, the MICRO-TRAP publication states on the first page that the MICRO-TRAP unit is used in such a manner that it ventilates the work area which eliminates the need for air-fed respirators. This is a clear indication that the unit is pulling fresh air into the work area from outside the work area as in the present invention and the Asbestos book reference. The subsequent discussion of air turnover in the document reasonably appears to be in the same context as in the present invention.
Rejection VI is affirmed.
THE DISSENT
In asserting the absence of a prima facie case of obviousness, the dissent focuses primarily on the disclosure of the Asbestos book reference. However, the rejections before us for review are based upon the combined disclosures of the Asbestos book reference and the various secondary references. The dissent states that none of the secondary references deal with the problem of external contamination of any type upon loss of negative pressure or disclose a sealing means responsive to loss of internal negative pressure.
As to the problem of external contamination upon loss of negative pressure, we point again to the Asbestos book reference for its disclosure that asbestos removal is to take place within a tent system having ventilation flaps which is operated under negative air pressure. The Asbestos book reference clearly conveys the concept that such an asbestos removal system must be operated in such a manner that external contamination of any type must be avoided. See also the MICRO-TRAP document. Powers and Strahan are two secondary references which disclose ventilation flaps which seal in response to lost of internal negative pressure. When the Asbestos book reference is considered together with such secondary references, we conclude that one of ordinary skill in the art would have been readily led or motivated to use such conventional ventilation flaps as those disclosed to be useful in the Asbestos book reference.
*20 The dissent raises the question of what is the level of skill in this art. As set forth in Custom Accessories Inc. v. Jeffrey-Allan Industries Inc., 807 F.2d 955, 1 USPQ2d 1196 (Fed.Cir.1986):
The person of ordinary skill in a hypothetical person who is presumed to be aware of all the pertinent prior art. The actual inventor's skill is not determinative. Factors that may be considered in determining level of skill include: type of problems encountered in art; prior art solutions to those problems; rapidity with which innovations are made; sophistication of the technology; and education level of active workers in the field. Not all such factors may be present in every case, and one or more of them may predominate. [citations omitted].
Both Porcello in his affidavit and the dissent emphasize the education level of this hypothetical person. As set forth above, the education level of workers in the field is but one consideration. Here, the references of record provide the best evidence as to the level of ordinary skill in this art. The Asbestos book reference is very relevant in this regard, showing that this hypothetical person was sufficiently skilled to remove asbestos by constructing a tent system having ventilation flaps and operated under a negative air pressure such that air-borne asbestos within the tent system exits through the absolute filter. We do not find the level of skill in this art area to be so low that this hypothetical person would use the ventilation flaps in the tent system of the Asbestos book reference under circumstances that would allow escape of asbestos fibers. We conclude that this hypothetical person would have readily recognized the use of ventilation flaps such as those disclosed in the secondary references in the tent system as the Asbestos book reference would properly serve to seal upon loss of the negative air pressure in the tent system of the reference and prevent the exit of asbestos fibers.
The dissent considers the evidence deficient in establishing that the MICRO-TRAP document was accessible to the public. As pointed out above, this record establishes that this document was being disseminated to the public as sales literature by an employee/representative of patent owner. The burden is properly shifted to patent owner to establish this document is not a printed publication. This document is "real world" evidence that the concepts underlying the present invention were publicly available prior to the effective filing date of the '111 patent.
The dissent questions whether our affirmance of the examiner's decision amounts to a new ground of rejection in that we gave further reasons why patent owner's rebuttal evidence was insufficient. We disagree. Here, in contrast to the circumstances in In re DeBlauwe, 736 F.2d 699, 222 USPQ 191 (Fed.Cir.1984), both the examiner and the Board considered the evidence of record. Patent owner was apprised by the examiner's actions that the evidence of record was not a sufficient rebuttal of the obviousness rejections of record. That we gave further reasons and cited precedent in support of the examiner's decision in this regard does not amount to a new ground of rejection.
*21 No time period for taking any subsequent action in connection with this appeal may be extended under 37 CFR 1.136(a). See the final rule notice, 54 F.R. 29548 (July 13, 1989), 1105 O.G. 5 (August 1, 1989).
The decision of the examiner is affirmed.
AFFIRMED
BOARD OF PATENT APPEALS AND INTERFERENCES
Chairman
William F. Smith
Examiner-in-Chief
FN1. Claims involved in a reexamination proceeding are to be read as broad as reasonably possible, consistent with the supporting specification. In re Yamamoto, 740 F.2d 1569, 222 USPQ 934 (Fed.Cir.1984).
FN2. In the context of this book, a reference to high extraction rates means the process of extracting asbestos from the atmosphere within an enclosed booth.
FN3. The '111 patent sets forth at column 2, lines 48-60 that "absolute" filters and the HEPA filters used in the present invention are one and the same.
FN4. Claims 1 and 8 are representative of the Group A claims, claims 1, 6 through 11, and 13 through 15, argued together by patent owner.
FN5. Claim 38 is included in this rejection which only requires that the temporary wall of the wall means which encloses the defined air space be a flexible film wall. The Asbestos book reference clearly discloses this concept. It appears the examiner's inclusion of this claim in this rejection is an inadvertent error.
DISSENTING OPINION
Arthur J. Steiner
Examiner-in-Chief
I respectfully disassociate myself from the majority's decision. In my opinion, the examiner committed clear reversible error in rejecting the appealed claims under 35 U.S.C. 103.
THE INVENTION
In resolving the ultimate legal conclusion of obviousness under 35 U.S.C. 103, it is necessary to look back at the state of the art of asbestos removal in the real world at the time of the invention disclosed and claimed in the '111 patent, as established by the objective evidence of record. Panduit Corp. v. Dennison Mfg. Co., 774 F.2d 1082, 227 USPQ 337 (Fed.Cir.1985), vacated, 475 U.S. 809, 229 USPQ 478 (1986), aff'd on remand, 810 F.2d 1561, 1 USPQ2d 1593 (Fed.Cir.1987). At that time, the asbestos removal industry utilized a "passive system" recommended by the Environmental Protection Agency (EPA), which required a work area to be completely sealed off purposely avoiding the creation of any air inlets. [FN1]
The claimed invention proceeded against the tide of conventional wisdom [FN2] by intentionally providing a sufficiently large opening in a work area to create an air flow path capable of permitting large volumes of air to enter and sweep the work area clean of minute airborne asbestos fibers with the aid of negative air pressure. [FN3] The creation of such a large air inlet necessitated the provision of means to seal off the inlet "in the event of loss of negative air pressure in the enclosed space." [FN4] The objective evidence proffered by the patent owner (appellant) supports the conclusion that the claimed invention revolutionized the asbestos removal industry--it is the only system satisfying current EPA and United States Safety and Health Administration guidelines, [FN5] and enjoyed considerable commercial success [FN6] in spite of the futile attempts of others economically motivated to develop an alternative acceptable procedure. [FN7]
Fundamental Errors
*22 A number of issues involving factual and legal questions arise in this appeal. However, brevity is best served by focusing on three fundamental errors, any one of which mandates reversal of every rejection. Specifically, the examiner committed clear reversible error in:
(I) concluding that that claimed invention was prima facie obvious;
(II) ignoring objective evidence relating to the level of ordinary skill in the art; and
(III) failing to accord probative weight to the objective evidence relating to secondary considerations.
I: The Absence of a Prima Facie Case of Obviousness.
The initial burden of establishing a prima facie basis to deny patentability to a claimed invention rests upon the examiner. In re Oetiker, ---F.2d ----, 24 USPQ2d 1443 (Fed.Cir.1992); In re Piasecki, 745 F.2d 1468, 223 USPQ 785 (Fed.Cir.1984). In rejecting a claim under 35 U.S.C. 103, the examiner must provide a factual basis to support the obviousness conclusion. In re Warner, 379 F.2d 1011, 154 USPQ 173 (CCPA1967); In re Lunsford, supra; In re Freed, 425 F.2d 785, 165 USPQ 570 (CCPA 1970). Based on the objective evidence of record, the examiner is required to make the factual inquiries mandated by Graham v. John Deere of Kansas City, 383 U.S. 1, 17, 148 USPQ 459, 469 (1966). [FN8] The examiner is also required to explain why one having ordinary skill in the art would have been led to modify and/or combine the applied prior art to arrive at the claimed invention. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 5 USPQ2d 1434 (Fed.Cir.1988).
Claims 1 (method) and 8 (apparatus) are concededly the broadest claims on appeal and of essentially the same scope. For convenience, I shall focus on claim 1 directed to a method comprising enclosing a space within a building and continuously evacuating the enclosed space via negative air pressure through a filter. Of particular significance are the requirements in claim 1 for:
1. intentionally creating an air "flow path"; and
2. sealing said flow path against air exiting from said air space to the exterior of said enclosed space in the event of loss of negative air pressure in said enclosed space.
I stress that claim 1 not only calls for the intentional creation of an opening having sealing means, but requires the sealing means to function in response to a loss of negative pressure. [FN9]
The primary reference, the Asbestos book, discloses a method wherein a sealed air space under negative air pressure is defined within a building. Optional ventilation flaps are mentioned. The examiner construed all the appealed claims to be of such broad scope as to encompass the disclosed optional "ventilation flaps" as intentionally created openings generating air flow paths. [FN10] In my opinion, the obviousness of the claimed invention does not pivot about the correctness of this legal conclusion. [FN11] However, it is relevant to the obviousness issue to recognize that according to uncontroverted evidence, [FN12] the responsive sealing means is necessitated by the creation of a large opening.
*23 The principal distinction between the claimed invention and the Asbestos book which earned the most attention by the examiner is the recited sealing means responsive to a loss of negative air pressure. However, it is misleading merely to state that it is the only difference. A realistic assessment of the lacuna between the claimed invention and the applied prior art requires findings as to what the Asbestos book does not disclose.
The Asbestos book fails to provide any particulars with respect to the size of the optional ventilation flaps, their precise function [FN13] or how they operate. Significantly, the Asbestos book is utterly devoid of any mention of
1. any sealing means% in connection with the optional ventilation flaps;
2. a potential problem arising from a loss of negative pressure; and, therefore,
3. any nexus between a possible loss of negative pressure and the ventilation flaps.
The secondary references [FN14] do not remedy the short-comings of the Asbestos book since not one of them:
4. deals with the problem of external contamination of any type upon loss of negative pressure; or
5. discloses a sealing means responsive to the loss of internal negative pressure.
Such silence in the applied prior art is no substitute for the factual support upon which the obviousness conclusion must rest. In re Burt, 356 F.2d 115, 148 USPQ 548 (CCPA1966). I emphasize that not a single applied reference mentions the potential problem of external contamination of any type resulting from a loss of negative air pressure. Absent a recognition in the art of a potential problem, it is difficult to perceive whence stems the requisite motivation to take preventive action. In re Meng, 492 F.2d 843, 181 USPQ 94 (CCPA1974); In re Shaffer, 229 F.2d 476, 108 USPQ 326 (CCPA1956); In re McKenna, 203 F.2d 717, 97 USPQ 348 (CCPA1953); In re Bisley, 197 F.2d 355, 94 USPQ 80 (CCPA1952). Exacerbating the lack of factual support for the obviousness conclusion is a teaching away, at page 297 of the Asbestos book, from purposely creating a large opening. [FN15] In re Hedges, supra; W.L. Gore & Associates, Inc. v. Garlock, Inc., supra; In re Lunsford, supra.
The majority focuses on the "overriding thought," conveyed by the Asbestos book, of minimizing external contamination. It cannot be gainsaid that conventional practices in the art, prior to the claimed invention, involved enclosing a work area in plastic to prevent environmental contamination, otherwise asbestos removal would have been performed alfresco. However, the Asbestos book lacks any recognition of a potential problem stemming from a loss of negative air pressure, never mentions sealing means on the optional ventilation flaps and, therefore, does not suggest a nexus between a potential loss of negative air pressure and any such sealing means. The majority, armed with the '111 patent in one hand and a creative pen in the other, attempts to fill in the blanks under the guise of "common sense" and its notion of the level of ordinary skill in the art. In my opinion, the majority erred by substituting a perceived level of skill for statutory prior art rather than employing that skill, as established on this record, to interpret prior art. In re Kratz, 592 F.2d 1169, 1175, 201 USPQ 71, 76 (CCPA1979).
*24 Admittedly, the claimed invention is not technologically complex--it is elegantly simple. However, it is well settled that simplicity is not synonymous with obviousness, but may evince nonobviousness. In re Van Wanderham, 378 F.2d 981, 154 USPQ 20 (CCPA1967). The obviousness conclusion must be based on facts, regardless of the complexity of the claimed invention. In re Sporck, 301 F.2d 686, 133 USPQ 360 (CCPA1962). The above-enumerated voids in the applied prior art underscore the absence of a sufficient factual basis to support a prima facie case of obviousness. In re Freed, supra; In re Warner, supra; In re Burt, supra. I would reverse each of the examiner's rejections on that basis. In re Oetiker, supra. [FN16]
II. The Level of Ordinary Skill in the Art.
One of the factual inquiries mandated by Graham v. John Deere of Kansas City, supra, is the level of ordinary skill in the art. Presumably, neither the examiner nor the majority have any basis to challenge ¶ 23 of the Porcello Affidavit, wherein affiant avers:
As a general matter, the level of education is relatively low. Generally, a bachelor's degree in an engineering discipline is not typical. Most persons of ordinary skill in the art have several years of practical, hands-on experience, but little in the way of formal engineering education.
In addition, and quite relevant to the obviousness issue, are the corroborating statements of Porcello [FN17] and Eads, [FN18] each undisputedly possessing at least ordinary skill in the art, on the factual inquiry of the level of ordinary skill in the art--i.e., how one skilled in the art would have interpreted the optional ventilation flaps mentioned in the Asbestos book. In re Fay, 347 F.2d 597, 146 USPQ 47 (CCPA1965). Each of these undisputed experts in the art unequivocally states that it would not be obvious to him to provide seals of any kind on the ventilation flaps mentioned in the Asbestos book, and each opines that it would not be obvious to one having ordinary skill in the art to provide such ventilation flaps with some type of sealing means.
The examiner appears to resent such evidence as an attempt to usurp his decision making authority. On page 31 of the Answer, the examiner disposes of appellant's argument that he erroneously substituted his judgment for that of an expert by contending, without precedential support, that In re Zeidler, 682 F.2d 961, 215 USPQ 490 (CCPA1982) "is not applicable to the facts of the present apparatus case" (examiner's emphasis). The examiner argues that if the doctrine espoused in In re Ziedler, supra, precluding an examiner from substituting his judgment for that of an established expert in the art,
were to be applied in all cases, the Office would have to abrogate its statutory mandate to decide questions of patentability to any and every established expert in each art, as would the courts. Also, the opinions of experts advanced by opposing parties would no doubt be divergent.
*25 In my opinion, the examiner's refusal to consider the statements of Porcello and Eads on the level of ordinary skill in the art constitutes clear reversible error.
The majority makes no mention of the examiner's treatment of the affidavit evidence relating to the level of ordinary skill in the art, but goes beyond the Examiner's Answer by summarily dismissing Porcello's "conclusion of nonobviousness" as lacking "a factual basis in support" citing In re Grunwell, 609 F.2d 486, 203 USPQ 1055 (CCPA1979). [FN19] The statements of Porcello (¶ 29) and Eads (¶ 15) are not opinions on the ultimate legal conclusion of obviousness under 35 U.S.C. 103, but relate to the requisite factual inquiry on the level of ordinary skill in the art. These undisputed experts, based on information uniquely within their competence, stated that it would not be obvious to them to provide seals on the ventilation flaps mentioned in the Asbestos book. To the extent that these statements can be regarded as opinions, the facts upon which they are based (more accurately the absence of facts) are clear from the record and spelled out by Porcello in the sentence immediately preceding his "opinion." [FN20]
Porcello and Eads also agree that it would not be obvious to one having ordinary skill in the art to provide such ventilation flaps with some type of sealing capability. The majority disagrees. The bottom line is that the majority locks horns with unchallenged experts on the issue of the level of ordinary skill in the art, which is determined by the subjective reaction of persons so skilled. In re Oelrich, 579 F.2d 86, 91, 198 USPQ 210, 215 (CCPA1978); In re Meng, 492 F.2d at 849, 181 USPQ at 98. [FN21]
We are charged with resolving the legal conclusion of obviousness under 35 U.S.C. 103 based on real world considerations. Panduit Corp. v. Dennison Mfg. Co., supra. I would, therefore, place more weight on the opinions of those who have experienced "a greater nearness to the push and sweat of life" [FN22] as to the level of ordinary skill in the art than that of the majority which is based solely on the cold words of the Asbestos book. In re Oelrich, supra; In re Meng, supra. In my opinion, the majority erred in substituting its opinion for those of undisputed experts on the level of ordinary skill in the art. Compare In re Zeidler, supra.
III. Secondary Considerations
All evidence relevant to the ultimate legal conclusion of obviousness under 35 U.S.C. 103 must be given consideration. In re Oetiker, supra; Loctite Corp. v. Ultraseal Ltd., supra; Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871 (Fed.Cir.1983). Appellant proffered affidavits [FN23] to establish that the invention covered by the '111 patent has been adopted as a standard in the industry [FN24] and enjoys considerable commercial success through a successful licensing program, [FN25] while others in the industry economically motivated to develop alternative acceptable procedures failed in their efforts. [FN26] The examiner's rather brief treatment of such objective evidence of secondary considerations extends from the bottom of page 51 to approximately the midpoint of page 52 where the Answer ends.
*26 I have difficulty understanding the examiner's evaluation of the objective evidence of nonobviousness. It would appear that the examiner erroneously etched his prima facie case of obviousness in stone, rendering it invulnerable to the real world considerations illuminated by appellant's evidence. Such an approach is clearly erroneous. In re Piasecki, supra; In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA1976).
The majority again goes beyond the examiner's treatment of the rebuttal evidence, citing two decisions wherein the granting of licenses [FN27] and copying by others [FN28] were not sufficient to carry the day for nonobviousness. The majority also downplays the opinion affidavits citing In re Vamco Machine & Tool, Inc., 752 F.2d 1564, 224 USPQ 617 (Fed.Cir.1985). [FN29]
Certainly, the mere presentation of objective evidence of nonobviousness does not mandate a conclusion of nonobviousness. See, for example, In re Beattie, 974 F.2d 1309, 24 USPQ2d 1040 (Fed.Cir.1992); Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 21 USPQ2d 1053 (Fed.Cir.1991) In each case, the objective evidence of nonobviousness must be considered and weighed against the evidence of obviousness adduced by the examiner. In re Oetiker, supra; In re Piasecki, supra. It is of interest to note that in the first full paragraph on page 52 of the Answer, the examiner characterizes the secondary considerations as "impressive." Such "impressive secondary considerations" relating to commercial success, licensing, copying, and the failure of others, must be weighed against prior art unappreciative of any external contamination problem resulting from a loss of internal negative air presence and devoid of any teaching of a ventilation flap having sealing means responsive to the loss of internal negative air pressure. The evidence of secondary considerations paints a more accurate picture of the real world environment at the time the claimed invention was made than that retrospectively recreated by the examiner and embellished by the majority's conception of what the then level of ordinary skill in the art should have been. Minnesota Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., supra; Continental Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 20 USPQ2d 1746 (Fed.Cir.1991); Panduit Corp. v. Dennison Mfg. Co., supra. In my judgment, the evidence of nonobviousness confutes the evidence of obviousness, mandating reversal of the examiner's rejection as legally erroneous.
Due Process
The examiner's fleeting treatment of the objective evidence of nonobviousness does not adequately apprise appellant of any perceived shortcoming in the proffered evidence. The majority, for the first time on appeal, introduces reasons challenging the sufficiency of the evidence, leaving appellant helpless to take corrective action in this case.
*27 In my opinion, the majority, under color of an affirmance, in fact imposed a new ground of rejection thereby improperly depriving appellant of the procedural safeguards of 37 CFR 1.196(b). [FN30] In re De Blauwe, 736 F.2d 699, 222 USPQ 191 (Fed.Cir.1984); In re Waymouth, 486 F.2d 1058, 179 USPQ 627 (CCPA1973); In re Eynde, 480 F.2d 1364, 178 USPQ 470 (CCPA1973). Appellant has a right to cry "foul."
FN1. Porcello Aff. ¶ 18; the '111 patent, column 2, lines 3 through 9. Note column 1 of the '111 patent, lines 40 through 46, wherein it is reported that
[a] typical requirement standard of requiring that the area "settle" for 24 hours before allowing persons to re-enter in order to clean up settled asbestos fibers is clearly insufficient for protection. The thinner fibers remain airborne for up to 80 hours and it is now clear that re-entry into the room stirs up the fibers to pose the same hazard.
FN2. Porcello Aff., ¶ 19. It has been held that proceeding against conventional practices constitutes evidence of nonobviousness. In re Hedges, 783 F.2d 1038, 228 USPQ 685 (Fed.Cir.1986); W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 220 USPQ 303 (Fed.Cir.1983); In re Lunsford, 357 F.2d 385, 148 USPQ 721 (CCPA 1966).
FN3. Porcello Aff., ¶ 13; Eads Aff., ¶ 11.
FN4. Porcello Aff., ¶ 14; Eads Aff., ¶ 12.
FN5. Newman Aff., ¶ 10.
FN6. Newman Aff., ¶¶ 4, 7 through 9, and 13.
FN7. Porcello Aff., ¶¶ 20 and 21.
FN8. Failure to make the requisite factual inquiries constitutes reversible error. Bausch & Lomb, Inc. v. Barnes-Hind/Hydrocurve, Inc., 796 F.2d 443, 230 USPQ 416 (Fed.Cir.1986); Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 228 USPQ 90 (Fed.Cir.1985); Jones v. Hardy, 727 F.2d 1524, 220 USPQ 1021 (Fed.Cir.1984). I find no express factual inquiries as required by Graham v. John Deere of Kansas City, supra, in the Answer which may explain the examiner's departure into "the tempting but forbidden zone of hindsight." Loctite Corp. v. Ultraseal Ltd., 781 F.2d at 873, 228 USPQ at 98.
FN9. The majority declined to resolve whether claims 1 and 8 encompass manual sealing (means) or are limited to automatic sealing (means). I agree with their tacit determination that the outcome of this appeal anent the broadest claims does not rest on whether the sealing (means) is automatic or manual. The significant limitation is that the sealing (means) is responsive to a loss of negative pressure.
FN10. In re Yamamoto, 740 F.2d 1569, 222 USPQ 934 (Fed.Cir.1984). Although such an interpretation is certainly broad, I question whether it is reasonable in light of the record. In re Okuzawa, 537 F.2d 545, 190 USPQ 464 (CCPA1976); In re Royka, 490 F.2d 981, 180 USPQ 580 (CCPA 1974). It is of interest to note that on page 4 of the Answer, the examiner states he
has never and does not now contend that establishing an airflow path or providing an air inlet as called for in any of the claims may be interpreted to encompass mere air leakage.
Thus, the examiner concedes that not just any opening satisfies the claim requirement for creating an air flow path. Presumably, the examiner is of the opinion that an optional ventilation flap inherently creates an air flow path satisfying the appealed claims. The examiner should be aware that inherency and obviousness are distinct concepts. In re Naylor 369 F.2d 765, 152 USPQ 106 (CCPA 1966); In re Henderson, 348 F.2d 550, 146 USPQ 372 (CCPA 1965).
FN11. Whittaker Corp. v. UNR Industries, Inc., 911 F.2d 709, 15 USPQ2d 1742 (Fed.Cir.1990).
FN12. Porcello Aff. ¶ 14; Eads Aff. ¶ 12.
FN13. The majority resorts to speculation in assigning the optional ventilation flaps a functional role with respect to asbestos removal vis-a-vis a means to alleviate the discomfort of the workers where a high degree of asbestos removal is required.
FN14. Even if it is assumed that the secondary references can be considered to reside in "analogous arts," the obviousness conclusion does not necessarily follow. Lindemann Maschinenfabrik GmbH v. American Hoist and Derrick Co., 730 F.2d 1452, 1460, 221 USPQ 481, 487 (Fed.Cir.1984).
FN15. The first full paragraph on page 297 of the Asbestos book reads as follows:
The removal of his contaminated clothing and respirator by an operator is potentially a very hazardous operation. If an operator comes out of the working area with clothing contaminated with blue asbestos and pushes through a flap in the 'tent', removes the hood, pulls off the respirator and walks into the clean area, then not only has risk been incurred by the operator but can also be a spread of contamination to other people. This emphasizes the need for careful and standardized barrier procedures.
FN16. Inasmuch as I would reverse the examiner's rejection of the broadest claims on appeal, it is unnecessary to address the propriety of the examiner's rejection of the narrower claims. Compare In re Fine, 837 F.2d 1071, 1076, 5 USPQ2d 1596, 1600 (Fed.Cir.1988). However, I do agree with appellant that the examiner has not discharged his burden of establishing that the MICRO-TRAP Bulletin is a printed publication available as prior art under 35 U.S.C. 102(a) or (b). Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 7 USPQ2d 1057 (Fed.Cir.1988); In re Wyer, 655 F.2d 221, 210 USPQ 790 (CCPA1981). I do not consider the evidence sufficient to support the holding that the MICRO-TRAP Bulletin traversed into the public domain by being accessible to the public. In re Bayer, 568 F.2d 1357, 196 USPQ 670 (CCPA1978).
FN17. Porcello Aff., ¶ 29.
FN18. Eads Aff., ¶ 15.
FN19. Page 18.
FN20. ¶ 29 of the Porcello Aff. reads as follows
The Asbestos book reference does not disclose or suggest that the ventilation flaps provide a sealing means, manual or automatic, nor is there any suggestion that a ventilation flap automatically closes under any circumstances, much less upon loss of negative air pressure. It would not be obvious to me, or, in my opinion, to one of ordinary skill in the art, to provide the ventilation flaps with some type of sealing capability, particularly any automatic or instantaneous sealing.
FN21. In my opinion, In re Grunwell, supra, is not particularly relevant to the exigencies of this case. In Grunwell, the court did not attach significant weight to opinions offered to distinguish the claimed androst-4- enes from the known androst-5-enes because affiants did not state any facts to differentiate the properties of the steroids. In the situation before us, the expert opinions relate to the level of ordinary skill in the art which has been consistently held to be a subjective determination. In re Oelrich, supra; In re Meng, supra.
FN22. B.H. Levy, Cardozo and Frontiers of Legal Thinking, Oxford University Press, 1938, p. 19.
FN23. Newman Aff. ¶¶ 4, 7 through 10 and 13; Porcello Aff. ¶¶ 20 and 21.
FN24. In re Shuman, 361 F.2d 1008, 150 USPQ 54 (CCPA1966).
FN25. Minnesota Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d 1559, 24 USPQ2d 1321 (Fed.Cir.1992).
FN26. Minnesota Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., supra.
FN27. EWP Corp. v. Reliance Universal, Inc., 755 F.2d 898, 225 USPQ 20 (Fed.Cir.1985).
FN28. Cable Electric Products, Inc. v. Genmark, Inc., 770 F.2d 1015, 226 USPQ 881 (Fed.Cir.1985).
FN29. In re Vamco Machine & Tool, Inc., supra, would not appear particularly relevant to the facts of this case, inasmuch as the opinions expressed therein were on the ultimate legal conclusion of obviousness by individuals having no expertise as legal experts. Moreover, the affidavit evidence was not accorded significant weight because the patent involved in the reexamination proceeding did not enable one having ordinary skill in the art to achieve the advantages which brought about commercial success.
FN30. Since I disagree with the majority's assessment of appellant's evidence, I oppose the imposition of a new ground of rejection.
Exhibit C
*28 July 23, 1980
Mr. George Smart
113 North Baylan Avenue
Raleigh, North Carolina 27603
Dear Mr. Smart,
Thank you for your time and courtesy you extended to me when I called to discuss our Micro-Trap. As discussed enclosed you will find literature on the Micro-Trap.
Price per unit $2,200, F.O.B., Maple Shade, New Jersey.
Rental $90.00 per day with a minimum of five (5) days. Upon your decision to purchase the equipment half of the five day rental ($225.00) will be applied towards the purchase of the equipment.
Price per filters:
# 1 primary filter $105.00 (approx. life 500 hrs)
# 2 pre-filter 6.50 (approx. life 8 hours)
# 3 pre-filter 2.00 (approx. life 2 hours)
Looking forward to hearing from you. May we have your order?
Sincerely,
James H. Oetter Jr.
Sales
Federal information sources recommend the use of a high capacity exhaust system at the work site when demolition and rip-out of asbestos is in progress. While waiting for the E.P.A. to require the useof this equipment, Duall Maintenance Co., Mt. Laurel, N.J., a pioneer in asbestos problem-solving, has been using the exhaust theory, commonly called the HEPA filter, in projects for two years.
In asbestos removal work, billions of asbestos fibers can be released into the work area. Exhaust filters are essential. By controlling the air flow, it is possible to keep potential contaminants in the work area, preventing their spreading throughout an entire building. The exhaust theory ventilates the work area, resulting in a more productive environment. This can eliminate the need for cumbersome air-fed respirators and alarms.
On completion of the removal operation, barriers are taken down from the work area. Because the exhaust system has been utilized, the work area contains air which is cleaner. There is much less probability of contamination being released to other parts of the facility.
Now, MICRO-TRAP, a portable exhaust unit, is being introduced by a Maple Shade, N.J. engineering firm of the same name. MICRO-TRAP is now available for sale, or lease to contractors and to industrial organizations with local applications such as removal or repair of asbestos pipe insulation or control of asbestos fall-out.
MICRO-TRAP operates on 110 volts, 20 amps, and utilizes a HEPA (high efficiency particulate absolute) filter capable of removing very small respirable particles of asbestos dust and fiber. It removes to the certified level of the filter, in this case 99.97 on .3 micron, below range of optical microscopes. Each unit is able deliver 1,700 CFM. Used singly, or in multiples, as logistics dictate, MICRO-TRAP provides a sensible alternative to the asbestos contamination gamble.
OPERATING INSTRUCTIONS
MICRO-TRAP AIR FILTRATION UNIT--READ BEFORE STARTING
*29 1. Before plugging in--make certain filters have been correctly installed. Main filter should be installed with air flow direction toward the other end of unit, (toward the air exhaust outlet on top side). Make certain the filter door is fully closed.
2. Unit should be located as far from Decontamination Chamer as possible. May be exhausted to the other side of a barrier, or through an outside opening. In either case, make certain the vent is sealed around the opening.
3. Now you are ready to throw the off/on switch (# 6 see illustration). allow to run a few minutes until static pressure builds up. Red light is
4. Control # 1, the Magnehelic Guage records the level of static pressure. The normal reading on this guage should be between 1 1/2 and just less than "3".
If the guage reads less than 1 1/2 " pressure, shut off the machine, via the off/on switch. Unplug machine, open filter door, and swing down to a 45 degree angle, then inspect the main filter (HEPA) for damage. This condition can occur if improper filters are used. Operating the unit with improper filters, or no filters at all, will cause the unit to fail.
5. Once the MICRO-TRAP is operating, the Magnehelic Guage and the small trouble lite under the guage (# 4 on illustration) will be your watchdog. As long as the pressure is less than 3, but more than 1 1/2 , there should be no problem (within the unit). When the pressure reaches "3", the YELLOW LIGHT will be activated. This is the indicator of one, or more, "dirty filters".
Replace the first pre-filter which is on the outside of the door grill, (with the machine running). If the YELLOW LIGHT goes out, you have solved the problem. If light remains on, open the grill door and lower it to approx. 45 degree angle (with machine still running) and replace the filters in the rack on the door. If YELLOW LIGHT still remains lit after this move, then Shut Down Machineand Unplug Power Cord. Now replace the main filter. Be sure that this filter is installed with the air flow direction as indicatef on filter label. Now, close up the grill door, plug in the power, and throw the off/on switch.
6. The "TIMER" can be used to clean the air at the close of a work period. This control (# 2 on illustration) over-rides the off/on switch. When you wish to put the timer on, be certain the off/on switch is in the "off" position.
Frequently you may wish the "Timer" to shut off in a short period. If you want any period less than 2 hours, turn the timer clockwise past "2", then back to the desired time interval. The machine will shut down automatically.
MICRO-TRAP, THE PORTABLE AIR FILTRATION UNIT is designed to remove particles to one third micron at 99.97 or 99.99 efficiency, depending on which filter is used.
Air movement approximates an average of 1700 cubic feet per minute. Your MICRO-TRAP will operate on 115 or 220 volts. This unit has been factory wired for 115 volts.
*30 The Control Panel--There are six functional activities with dials or indicators housed in the recessed area of the cabinet.
(1) MAGNEHELIC GUAGE indicates static pressure. It enables you to check unit performance, and filter condition at a glance.
(2) TIMER allows for the shut down of unit at preset time.
(3) ACCUMULATED OPERATING HOURS are recorded on the dial in the manner of a speedometer. Allows you to log running hours between maintenance periods, during a particular project, or to see how long a filter lasts.
(4) YELLOW WARNING LIGHT is the indication that one or more of the filters requires changing. This light is activated when the dial reading on (1) Magnehelic Gauge reaches "3".
(5) RED POWER SUPPLY LIGHT indicates that power is being supplied to the unit. If this light goes out during an operation, check whether the breaker or fuses supplying that unit have blown.
HOW TO USE MICRO-TRAP AIR FILTRATION TO THE BEST ADVANTAGE
1. Control the Air Flow by locating the unit where you can exhaust air from the work area. This will force make up air into the work area, preventing the escape of contaminants. For best results, locate the unit(s) as far from the Decontamination Chamber as possible. The Decontamination Chamber need not be sealed when using MICRO-TRAP air filtration.
2. Units can be run in-place to recirculate and clean the air. Should be started before the removal operation and contined through removal and the cleaning operation. Depending on the fiber count, your MICRO-TRAP should be operated until the desired fiber count level has been reached.
3. Determining How Many Units to Use on a Project: Our Formula
(A) Cubic Feet in work area (floor area x ceiling height)
(B) Frequency of Air Turnover Desired (We usually work on 15 min)
(C) CFM/Unit (MICRO-TRAP average 1700 CFM)
Formula Example
--------- ---------
(A) = # UNITS 2500 x 12 = 30,000 =1.18 = unit
--------- --------- ------
(B) x (C) 15 x 1700 25,500
We have seen as many as 10 units used on a project where work area was large, and the potential for facility contamination without filtration was highly probable.
CAUTIONS:
a. Do not wet units as it will shorten the life of the filter cartridges.
b. When changing filters, handle used filters as contaminated asbestos. Seal in poly bags, label, place in drums. Then send to landfill with asbestos-containing waste as per specification.
*31 c. Use of filters, other than thos specified by manufacturer may result in machine malfunction, and delays at the job site.
d. If other uses are intended for MICRO-TRAP, ex. welding fumes, check with the manufacturer. It may require the use of an additional filter designed for the particular purpose.
e. THIS UNIT MUST BE TURNED OFF, AND UNPLUGGED BEFORE SERVICING THE FILTERS.
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