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

United States Court of Appeals for the Federal Circuit

November 8, 2019, Decided



 [*1375]  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  [*1376]  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.


This inter partes reexamination [**2]  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.

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 [**3]  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:

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941 F.3d 1374 *; 2019 U.S. App. LEXIS 33435 **; 2019 U.S.P.Q.2D (BNA) 430083; 2019 WL 5849523


Prior History:  [**1] Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 95/001,555.



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Patent Law, Nonobviousness, Elements & Tests, Prior Art, Jurisdiction & Review, Standards of Review, Substantial Evidence, Evidence, Ordinary Skill Standard