Ex Parte Berner et al

Patent Trial and Appeal Board

Jun 15, 2016

12918120 (P.T.A.B. Jun. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/918,120 08/18/2010 Karl Berner
22876 7590 06/17/2016
FACTOR INTELLECTUAL PROPERTY LAW GROUP, LTD,
1327W. WASHINGTON BLVD.
SUITE5G/H
CHICAGO, IL 60607
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
OST-101079 6273
EXAMINER
HERZFELD, NATHANIEL
ART UNIT PAPER NUMBER
3749
NOTIFICATION DATE DELIVERY MODE
06/17/2016 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):
jmerritt@factoriplg.com
ysolis@factoriplg.com
cschroeder@factoriplg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KARL BERNER and PETER OBSTFELDER
Appeal2014-005909
Application 12/918,120
Technology Center 3700
Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
MARK A. GEIER, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
uECISION ON APPEAL
STATEMENT OF THE CASE
Karl Bemer and Peter Obstfelder (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision to reject under 35 U.S.C. § 102(b):
(1) claims 1--4, 8, 9, 11, 12, and 16-18 as anticipated by Bergman
(US 2,804,855; iss. Sept. 3, 1957); and (2) claims 1, 5, 10, and 19 as
anticipated by Gaede (US 3,558,112; iss. Jan. 26. 1971); and under 35
U.S.C. § 103(a): (1) claims 6, 7, and 20 as unpatentable over Gaede and
Hobbs (US 5,675,098; iss. Oct. 7, 1997); and (2) claims 13-15 as
Appeal 2014-005909
Application 12/918, 120
unpatentable over Bergman and Mori (US 5,425,793; iss. June 20, 1995). 1
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to "a gate unit for gas-tight
separation of two adjacent high temperature zones within a high temperature
oven." Spec. p. 1, 11. 1-3; Figs. 1, 4. Claim 1 is illustrative ofthe claimed
subject matter and recites:
1. A gate unit for gas-tight separation of two adjacent high
temperature zones within a high temperature oven, which
compnses:
a) a gate panel displaceable between an open position and
a closed position;
b) a guide structure, within which the gate panel is
displaceable along a transport path;
c) at least one sealing element which is transported with the
gate panel,
characterised in that
d) protecting means are provided which, over at least one
part of the transport path of the gate panel, may be transported
thereby and by which at least one segment of the sealing element
can be protected over at least one part of the transport path of the
gate panel against influences harmful to the sealing element,
particularly against radiant heat.
1 Claim 15 is not listed in the heading of rejection but is included in the body
of the Bergman/Mori rejection. See Final Act. 10-12. Accordingly, we treat
claim 15 as being part of that rejection.
2
Appeal 2014-005909
Application 12/918, 120
ANALYSIS
Anticipation by Bergman
Claims 1-4, 8, 9, 11, 12, and 16-18
The Examiner finds that Bergman discloses the elements of claim 1,
including at least one sealing element (see Ans. 3, 12-13; see also Final Act.
4; Bergman, Fig. 2) and protecting means (see Ans. 3, 13; see also Final Act.
5; Bergman, Fig. 2). In particular, the Examiner finds that the at least one
sealing element is the "top and bottom portions of the right side of panel 28
opposite the door rim 27, which provide a seal between the vestibule to the
heating chamber." Final Act. 4; see also Ans. 3 ("the elements/portions of
panel 28 opposite and connected to the door rim 27"); Ans. 12 ("the portion
of panel 28 adjacent and connected to the rim 27"); and Ans. 12-13
("portion of 28 attached to the rim 27"). As for the protecting means, the
Examiner finds that such means is "water cooled rim 27." Ans. 3, 13; see
also Final Act. 5.
Appellants disagree with the Examiner as to which component in
Bergman constitutes the sealing element and whether a protecting means is
disclosed at all. More specifically, Appellants assert:
As shown in both FIGS. 2 and 3 of Bergman, the door rim 27 of
the disclosed device forms the seal. See, Bergman col. 1 lines
54-59; see also, Bergman col. 2 lines 20-22. Thus, while the rim
27 purportedly protects the door in Bergman, it also acts as the
sealing element. However, there is nothing in Bergman that
discloses that rim 27 protects itself (the sealing element) over at
least one part of the transport path of the gate. Accordingly,
Bergman does not disclose a device with a protecting device that
protects the sealing element.
Br. 10 (underline omitted).
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Appeal 2014-005909
Application 12/918, 120
Support for the water cooled door rim 27 constituting the sealing
element may be found in Bergman, namely: "[ t ]he frame 32 against which
the water-cooled rim 27 of the inner door closes is also water-cooled, ... "
Bergman, col. 2, 11. 21-24 (italics added). Bergman further states:
To avoid excessive leakage of atmosphere gas through the inner
door when closed, a wedge 41 on the furnace wall shown in
broken lines acts on a roller 42 on the door, also in broken lines,
to hold the door tight against the frame 32 when in closed
position.
Bergman, col. 2, 11. 57----61 (italics added).
The foregoing passages from Bergman make clear that water-cooled
rim 2 7 of inner door 22 corresponds to the claimed sealing element. That is,
water-cooled rim 27 of inner door 22, when pressed against frame 32, seals
furnace heating chamber 10 from atmospheric gas present in vestibule 11.
As such, water-cooled rim 27 of door 22 does not correspond to the claimed
protecting means as envisioned by the Examiner. In this regard, as noted by
Appellants, the Bergman device has no apparent protecting means for
protecting sealing element 27 during any part of the transport path of inner
door 22. See Br. 10.
Consequently, we agree with Appellants that the Bergman device
lacks at least the claimed protecting means recited in independent claim 1.
Accordingly, we do not sustain the Examiner's rejection of claims 1--4, 8, 9,
11, 12, and 16-18 as anticipated by Bergman.
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Appeal 2014-005909
Application 12/918, 120
Obviousness over Bergman and Mori
Claims 13-15
The Examiner's rejection of claims 13-15 as unpatentable over
Bergman and Mori is based on the same unsupported findings discussed
above with respect to independent claim 1. See Final Act. 10-12. The
Examiner does not rely on Mori to remedy the deficiency of Bergman.
Accordingly, for similar reasons, we do not sustain the Examiner's rejection
of claims 13-15 as unpatentable over Bergman and Mori.
Anticipation by Gaede
Claims 1, 5, 10, and 19
The Examiner finds that Gaede discloses the elements of claim 1,
including at least one sealing element (see Ans. 6, 14--15; see also Final Act.
7; Gaede, Fig. 1) and protecting means (see Ans. 6-7, 14--15; see also Final
Act. 7; Gaede, Fig. 1 ). In particular, the Examiner finds that the at least one
sealing element is "sealing door 40" (Ans. 6, 14--15; see also Final Act. 7).
As for the protecting means, the Examiner finds that such means is "heat
door 65" and "inset section 44" (Final Act. 7; see also Ans. 6-7, 15).
Claim 1 recites, in relevant part, that protecting means "are provided
which, over at least one part of the transport path of the gate panel, may be
transported thereby and by which at least one segment of the sealing element
can be protected over at least one part of the transport path of the gate
panel." Appeal Br. 16, Claims App. In this regard, the Examiner finds that
Gaede discloses that protecting means, namely, inset section 44 and heat
door 65
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Appeal 2014-005909
Application 12/918, 120
are provided which, over at least one part of the transport path of
the gate panel [ 4 3] (during transport both panels 44 and 65 move
together with the gate panel, as 44 is attached to 43 and 65 is
attached to the yoke 45 which carries the panel 43), may be
transported thereby and by which at least one segment of the
sealing element (where 44 protects at least the middle segment
of the left hand side of the sealing door 40 from the heat from
chamber 13 during transport, and where 65 protects at least the
mid to upper section of the right hand side of the sealing door
from the heat from chamber 14) can be protected over at least
one part of the transport path of the gate panel against influences
harmful to the sealing element, particularly against radiant heat
(since 65 protects 40 from heat from zone 14 and 44 protects 40
from heat from zone 13).
Ans. 7; see also id. at 14--15; Final Act. 7.
Appellants argue that the claimed protecting means (protecting device)
protects "the gate panel over at least one part of the transport path of the gate
panel. "2 Br. 13 (emphasis omitted). Appellants continue:
When gate panel 40 is being moved, inset door 44 will move as
well. As seen in FIG. l of Gaede, gate panel 40 is larger than
inset door 44. Thus, over the entirety of the transport path, since
inset door 44 does not cover the edges of gate panel 40 it will be
exposed to heat. Therefore, it cannot be said that inset door 44
meets the limitations of the protecting device in claim 1 to protect
the gate panel over at least one part of the transport path of the
gate panel. .. See, claim 1.
Id. (underline omitted). Appellants make related arguments with
2 It is believed that Appellants inadvertently refer to the gate panel as being
protected by the protecting means. Indeed, according to claim 1, it is the
sealing element that is protected by the protecting means over at least one part
of the transport path of the gate panel. Appeal Br. 16, Claims App.; see also
Ans. 14-15. Accordingly, we interpret Appellants' references to "gate panel,"
first instance supra, and "gate panel 40" in general, to be a reference to
"sealing door 40" identified at col. 2, 11. 27-33 of Gaede. See Br. 13.
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Application 12/918, 120
respect to door 65, namely:
As described in Gaede, door 65 and door 40 are connected to the
same yolk 45 which is displaced to move all of the doors at the
same time. See, Gaede col 3 lines 68-72. Thus, when door 40
(the purported sealing element) is being moved, door 65 is
likewise being moved, and cannot protect door 40 from any
radiant heat within zone 14. See, Gaede FIGS. 2 and 3.
Id. (underline omitted).
In summary, Appellants maintain that since inset door 44 does not
cover the edges of sealing door 40 and since door 65 (which also appears to
be smaller in size than sealing door 40 - see Gaede, Fig. I) moves with
sealing door 40, doors 44 and 65 do not protect sealing door 40 from radiant
heat over at least one part of the transport path of the gate panel.
We disagree. As discussed infra, movement of inset door 44, door 65,
and sealing door 40 is not limited to vertical motion. Rather, the transport
paths of these doors include a lateral as well as a vertical component. Gaede
describes the motion of sealing door 40 and heat door 41 3 as follows:
Advantageously, the sealing door 40 and the heat door 41 are
mounted to move first vertically to closed positions extending
across the passageway 3 3 and the opening 21 and then to move
laterally or broadwise to positions in which the sealing door
engages and seals against the bulkhead 31 and in which the heat
door abuts and engages the end wall 19 of the enclosure 15. For
these purposes, the doors are mounted on a carriage in the form
of a yoke 45 which is guided for up and down movement in the
casing 23. The doors move downwardly with the yoke to their
closed positions and, as the yoke approaches the end of its
downward travel, the doors are shifted laterally toward the
bulkhead 31 and the enclosure 15. As the yoke is moved
3 Gaede states that "heat door 41 is made of heavy refractory material" and
that it is formed "with an inset section 44 sized to fit within the opening 21."
Gaede col. 2, 11. 38--42 (emphasis omitted).
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Appeal 2014-005909
Application 12/918, 120
upwardly, the doors first are moved laterally away from the
bulkhead and the enclosure and then move upwardly with the
yoke to open positions located above the passageway 33.
Gaede, col. 2, 11. 52---68 (emphasis omitted).
A similar description of the lateral shifting of door 65 appears at Gaede,
col. 3, 11. 54--72.
Thus, as inset door 44 and door 65 shift laterally inwardly into and
laterally outwardly out of openings 21 and 22, respectively, in heating
chambers 13 and 14 (see Gaede, Fig. 1 ), the sealing element (sealing door
40) becomes protected from radiant heat flowing from heating chambers 13,
14. In other words, doors 44 and 65 protect at least one segment of the
sealing element (sealing door 40) from radiant heat over at least one part of
the transport path, i.e., the lateral component, of the gate panel (which the
Examiner identifies as reference numeral 43; see Final Act. 7; Ans. 6).
Accordingly, since Appellants have not apprised us of error in the
Examiner's rejection and since Gaede supports the Examiner's pos1t10n, we
sustain the Examiner's rejection of independent claim 1 as anticipated by
Gaede. Appellants do not separately argue claims 5, 10, and 19 apart from
claim 1. Br. 14. As such, we likewise sustain the Examiner's rejection of
claims 5, 10, and 19 as anticipated by Gaede. See 37 C.F.R. §
41.37(c)(l)(iv) (2015).
Obviousness over Gaede and Hobbs
Claims 6, 7, and 20
Appellants do not separately argue claims 6, 7, and 20 apart from
stating that the additional reference to Hobbs does not remedy the failures of
the rejection of independent claim 1. Br. 14. As discussed supra, we find
no deficiency in the Examiner's rejection of claim 1 as anticipated by Gaede.
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Application 12/918, 120
Accordingly, for reasons similar to those discussed above for claim 1, we
sustain the Examiner's rejection of claims 6, 7, and 20 as unpatentable over
Gaede and Hobbs. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
DECISION
We REVERSE the decision of the Examiner to reject claims 1--4, 8, 9,
11, 12, and 16-18 as anticipated by Bergman.
We REVERSE the decision of the Examiner to reject claims 13-15 as
unpatentable over Bergman and Mori.
We AFFIRM the decision of the Examiner to reject claims 1, 5, 10,
and 19 as anticipated by Gaede.
We AFFIRM the decision of the Examiner to reject claims 6, 7, and
20 as unpatentable over Gaede and Hobbs.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
9