Ex Parte Anderson et alDownload PDFPatent Trial and Appeal BoardDec 28, 201713794946 (P.T.A.B. Dec. 28, 2017) Copy Citation United States Patent and Trademark Office UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O.Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/794,946 03/12/2013 Timothy D. Anderson 047177-9536-US00 1382 23409 7590 01/02/2018 MICHAEL BEST & FRIEDRICH LLP (Mke) 100 E WISCONSIN AVENUE Suite 3300 MILWAUKEE, WI 53202 EXAMINER VAZQUEZ, ANA M ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 01/02/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): mkeipdocket@michaelbest.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TIMOTHY D. ANDERSON, KEN NGUYEN, and PAUL R. LAURENTIUS1 Appeal 2016-007908 Application 13/794,946 Technology Center 3700 Before MICHELLE R. OSINSKI, FRANCES L. IPPOLITO, and BRENT M. DOUGAL, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from the Examiner’s Final Rejection of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Hussmann Corporation (“Appellant”) is the applicant as provided in 37 C.F.R. § 1.46 and is identified as the real party in interest. Appeal Br. 2. Appeal 2016-007908 Application 13/794,946 THE CLAIMED SUBJECT MATTER Claims 1, 9, and 13 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter on appeal. 1, A merchandiser comprising: a case defining a product display area and including a canopy having a first air outlet in fluid communication with a. primary air passageway within the case to direct a primary air curtain into the product display area, the canopy further having a second air outlet in fluid communication with a secondary/ air passageway within the case to direct: a secondary/ air curtain into the product display area; a divider coupled to the canopy between the primary air passageway and the secondary/ air passageway/, the divider providing airflow communication between the primary/ air passageway and the secondary air passageway upstream of the first and second air outlets, the airflow/ communication provided through the divider; and a wall extending through the canopy to the divider to rn.ain.tain air separation between the primary air passageway/ and the secondary air passageway upstream from the di vider. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Gerweck US 3,369,375 Bush US 3,935,803 Subera US 4,283,922 Rosanio US 4,938,034 THE REJECTIONS I. Claims 1—5, 7—11, 13—15, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Subera and Gerweck. Final Act. 2—16. II. Claims 6 and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Subera, Gerweck, and Rosanio. Id. at 16—19. Feb. 20, 1968 Feb. 3, 1976 Aug. 18, 1981 July 3, 1990 2 Appeal 2016-007908 Application 13/794,946 III. Claims 16 and 17 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Subera, Gerweck, and Bush. Id. at 19—21. IV. Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Subera, Gerweck, Bush, and Rosanio. Id. at 21—24. OPINION Rejection I The Examiner finds that Subera teaches most of the limitations of independent claim 1, including, inter alia, (i) a divider coupled to a canopy between a primary air passageway (air flow conduit 56) and a secondary air passageway (secondary air band conduit 66); and (ii) a wall extending through the canopy to the divider to maintain air separation between the primary air passageway and the secondary air passageway upstream from the divider. Final Act. 3 (citing Subera Fig. 7); see also id. at 4 (including Examiner-annotated reproduction of Figure 7 of Subera). The Examiner acknowledges that Subera fails to disclose that the divider provides airflow communication between the primary air passageway and the secondary air passageway upstream of a first air outlet (in fluid communication with the primary air passageway) and a second air outlet (in fluid communication with the secondary air passageway). Id. at 5. The Examiner finds that Gerweck teaches a “divider (61, Fig. 5) providing airflow communication (through perforated plate 61, Fig. 5) between the primary air passageway (42, Fig. 5) and the secondary air passageway (60, Fig. 5) upstream of [] first (44a, Fig. 5) and second (62, Fig. 5) air outlets.” Id. at 5—6. The Examiner finds that Gerweck provides airflow communication “in order to separate a cold refrigerated air being emitted from an upper supply chamber (17, Fig. 5) from a room ambient 3 Appeal 2016-007908 Application 13/794,946 air.” Id. at 6 (citing Gerweck, 5:2—6). The Examiner concludes that it would have been obvious to a person of ordinary skill in the art to provide a perforated divider as taught by Gerweck, providing airflow communication between the primary air passageway and the secondary air passageway upstream of the first and second air outlets of Subera, in order to create a more effective thermal barrier, by separating the refrigerated cold airflow from the ambient air. Id. (citing Gerweck, 5:2—8). Gerweck teaches that “[cjurtain air within a front portion 63 of the duct 42 is divided with a portion of the divided air flowing downwardly and being discharged through a curtain air outlet 44a and another portion discharged downwardly through the discharge opening 62 of the duct 60.” Gerweck, 4:72—5:2. Gerweck further teaches that “dividing of the curtain air creates a more effective thermal barrier,” with “the[] two portions of air, which are discharged through the opening 62 and outlet 44a respectively, form[ing] two laminar air curtains which separate the cold refrigerated air being emitted . . . from the upper supply chamber 17 from the room ambient air.” Id. at 5:2—8. Appellant argues that “there is no objective reason . . . why one of ordinary skill in the art would modify Subera as alleged by the Examiner.” Appeal Br. 7. More particularly, Appellant argues that “Subera’s two separate airflows already provide the thermal barrier referred to in Gerweck.” Id. We agree that the Examiner’s articulated reasoning lacks a rational underpinning. Gerweck provides airflow communication between two passageways for the specific purpose of creating a divided airflow from a single stream of air, with Gerweck finding the divided airflow provides a more effective thermal barrier. Because Subera already provides a divided 4 Appeal 2016-007908 Application 13/794,946 airflow (i.e., two portions of air discharged from two openings), one of ordinary skill in the art would not be led to provide airflow communication between the already divided airflow “in order to create a more effective thermal barrier” (Final Act. 6), as alleged by the Examiner. The Examiner takes the position that one having ordinary skill in the art would recognize that by providing the divider having perforations as taught by Gerweck between the primary air passageway and the secondary air passageway of Subera, it will create a third air curtain formed by the combination of the cold air flowing through the first air passageway, and warm air flowing through the second air passageway and that this “third air curtain [would] provide [] a more effective thermal barrier.” Ans. 6—7. We find this reasoning to be based on impermissible hindsight, as it appears to be only with the benefit of Appellant’s Specification that one of ordinary skill would understand the benefit of allowing airflow communication between two separate passageways upstream of the respective air outlets of the two separate passageways so as to form a third merged air curtain with a different airflow profile. See Reply Br. 5 (“[NJothing apart from [Appellant’s] specification teaches or suggests that mixing the air would result in a more efficient thermal barrier,” and “[accordingly, the modification suggested by the Examiner is impermissible hindsight.”) Although we appreciate that “the rationale to modify or combine the prior art does not have to be expressly stated in the prior art. . . [and] may be reasoned from knowledge generally available to one of ordinary skill in the art [or] established scientific principles” (Ans. 6 (emphasis omitted)), the Examiner has not provided sufficient evidentiary support in the record to 5 Appeal 2016-007908 Application 13/794,946 support the Examiner’s stated conclusion that one of ordinary skill in the art would recognize the benefits of the creation of an air curtain formed by the combination of air from two separate passageways and, thus, would be led to provide a divider having perforations between the two passageways of Subera. See Ans. 6—7. For the foregoing reasons, we do not sustain the Examiner’s rejection of independent claim 1, and claims 2—5, 7, and 8 which depend therefrom, under 35 U.S.C. § 103(a) as unpatentable over Subera and Gerweck. Because the Examiner relies on the same deficient reasoning in connection with independent claims 9 (Final Act. 12) and 13 (id. at 15), we also do not sustain the Examiner’s rejection of claims 9 and 13, and claims 10, 11, 14, 15, 19, and 20 which depend therefrom, under 35 U.S.C. § 103(a) as unpatentable over Subera and Gerweck. Rejections II—IV The rejections of claims 6, 12, and 16—18 rely on the same deficient reasoning. Final Act. 16, 19, 22. Thus, we do not sustain the rejections, under 35 U.S.C. § 103(a), of: claims 6 and 12 as unpatentable over Subera, Gerweck, and Rosanio; claims 16 and 17 as unpatentable over Subera, Gerweck, and Bush; and claim 18 as unpatentable over Subera, Gerweck, Bush, and Rosanio. DECISION The Examiner’s decision to reject claims 1—20 under 35 U.S.C. § 103(a) is reversed. REVERSED 6 Copy with citationCopy as parenthetical citation