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Airbus S.A.S. v. Firepass Corp.

United States Court of Appeals, Federal Circuit

November 8, 2019

AIRBUS S.A.S., Appellant
v.
FIREPASS CORPORATION, Appellee

          Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 95/001, 555.

          Mark Alexander Chapman, Hunton Andrews Kurth LLP, New York, NY, argued for appellant. Also represented by Clifford Ulrich.

          Roger Thompson, The Law Offices of Roger S. Thompson, New York, NY, argued for appellee.

          Before Lourie, Moore, and Stoll, Circuit Judges.

          Stoll, Circuit Judge.

         Airbus S.A.S. appeals the Patent Trial and Appeal Board's reversal of the patent examiner's rejection of certain new claims presented by patent owner Firepass Corporation in an inter partes reexamination of U.S. Patent No. 6, 418, 752. Airbus challenges the Board's finding that an asserted prior art reference fails to qualify as relevant prior art because it is not analogous to the claimed invention of the '752 patent. We hold that the Board erred in its analogous art analysis by declining to consider record evidence relied on by Airbus to demonstrate the knowledge and perspective of a person of ordinary skill in the art at the time of the invention. We therefore vacate the Board's reversal of the examiner's rejection and remand for reconsideration in view of this additional evidence.

         Background

         This inter partes reexamination returns from a prior appeal in which we vacated the Board's decision dismissing Airbus's cross-appeal for lack of jurisdiction and remanded to the Board to consider Airbus's challenge to certain newly presented claims. See generally Airbus S.A.S. v. Firepass Corp., 793 F.3d 1376 (Fed. Cir. 2015). Airbus now appeals the Board's reversal of the examiner's rejection of those newly presented claims on remand.

         I

         The '752 patent discloses a fire prevention and suppression system that prevents and extinguishes fires using breathable air instead of water, foam, or toxic chemicals- each of which can present risks to personnel or electronic equipment. See '752 patent col. 1 ll. 47-65, col. 2 ll. 41-64. The invention is based on the inventor's alleged discovery that a low-oxygen ("hypoxic") but normal pressure ("normbaric") atmosphere inhibits fire ignition and combustion, yet remains breathable for humans. See id. at col. 4 l. 60-col. 5 l. 25. More specifically, the '752 patent explains that, if one reduces the atmospheric concentration of oxygen from its natural level of 20.94% to about 16.2% or slightly lower while adding nitrogen to maintain the same air pressure, fires are suppressed while humans can continue to breathe. Id. at col. 6 ll. 21-67. The specification applies this principle to various fire-preventative and fire-suppressive enclosed facilities, from computer rooms and automobile tunnels to military vehicles and spacecraft. See id. at col. 10 l. 55-col. 22 l. 45. These enclosed facilities can utilize a "hypoxic generator" that produces hypoxic air by altering the composition of the surrounding ambient air. See id. at col. 9 l. 36-col. 10 l. 21. But "[a]ny oxygen extraction device, such as a nitrogen generator or an oxygen concentrator can be used instead of a hypoxic generator" with certain adaptations. See id. at col. 10 ll. 22-54.

         Claim 91, the only independent claim at issue on appeal, is illustrative of the claimed invention:

91. A system for providing breathable fire-preventive and fire suppressive atmosphere in enclosed human-occupied spaces, said system comprising:
an enclosing structure having an internal environment therein containing a gas mixture which is lower in oxygen content than air outside said structure, and an entry communicating with said internal environment;
an oxygen-extraction device having a filter, an inlet taking in an intake gas mixture and first and second outlets, said oxygen-extraction device being a nitrogen generator, said first outlet transmitting a first gas mixture having a higher oxygen content than the intake gas mixture and said second outlet transmitting a second gas mixture having a lower oxygen content than the intake gas mixture;
said second outlet communicating with said internal environment and transmitting said second mixture into said internal environment so that said second mixture mixes with the atmosphere in said internal environment;
said first outlet transmitting said first mixture to a location where it does not mix with said atmosphere in said internal environment;
said internal environment selectively communicating with the outside atmosphere and emitting excessive internal gas mixture into the outside atmosphere;
said intake gas mixture being ambient air taken in from the external atmosphere outside said internal environment with a reduced humidity; and
a computer control for regulating the oxygen content in said internal environment.

J.A. ...


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