Ex Parte Burr et al

Patent Trial and Appeal BoardSep 10, 2014

10548721 (P.T.A.B. Sep. 10, 2014)

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. 10/548,721 10/10/2006 Reinhold Burr 1006/0151PUS1 2833 60601 7590 09/10/2014 Muncy, Geissler, Olds & Lowe, P.C. 4000 Legato Road Suite 310 FAIRFAX, VA 22033 EXAMINER TOWNS, BRITTANY E ART UNIT PAPER NUMBER 3749 MAIL DATE DELIVERY MODE 09/10/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte REINHOLD BURR, DIETRICH KLINGLER, and KLAUS VOIGT ____________ Appeal 2012-008340 Application 10/548,721 Technology Center 3700 ____________ Before NEAL E. ABRAMS, MICHAEL L. HOELTER, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Reinhold Burr, Dietrich Klingler, and Klaus Voigt (Appellants) seek our review under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–4, 6–18, and 24–36. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Appeal 2012-008340 Application 10/548,721 2 THE INVENTION The claimed invention is directed to an air outflow device and an air outflow method. Claims 1, 13, 16, 19, 24, and 33, reproduced below, are illustrative of the subject matter on appeal. 1. An air outflow device for a motor vehicle, having at least one fed-in air stream, wherein an outflow characteristic of the air outflow device is configured to be changed between a dispersal characteristic and a spot characteristic, with the outflow characteristic being changed by an adjustable swirl on at least one outflowing air stream, wherein the at least one fed-in air stream is divided into at least first and second partial air streams, and including at least one metering device for controlling the first partial air stream independently of the second partial air stream. 13. The air outflow device as claimed in claim 1, wherein the air outflow device has a helical or spiral region of extended length for generating the second air stream. 16. The air outflow device as claimed in claim 1, wherein the at least one metering device comprises a double flap which is controlled by a cam or kinematics. 19. An air outflow method for an air outflow device in a motor vehicle, having at least one fed-in air stream, the method comprising: changing an outflow characteristic of the air outflow device; and by adjusting a swirl of a first outflowing air stream independently of a second outflowing air stream of the airflow device, the outflow characteristic configured to be changed between a dispersal characteristic and a spot characteristic. 24. The air outflow method as claimed in claims [sic] 23, wherein a first partial air stream is a swirl-free core air stream, Appeal 2012-008340 Application 10/548,721 3 and a second partial air stream is an outer air stream to which an adjustable swirl is applied. 33. An air outflow device for a motor vehicle comprising: a housing including an inlet for receiving at least one fed- in air stream and an outlet, the housing defining at least first and second flow paths between said inlet and outlet; a helical structure in said first flow path for imparting a swirl to air moving through said first flow path; and a metering device for controlling an airflow through said first flow path independently of an airflow through said second flow path, wherein an outflow characteristic of an air stream exiting said outlet is controlled by said metering device to change an intensity of said swirl. THE PRIOR ART The Examiner relies upon the following as evidence of unpatentability: Hirai JP 52094641 Aug. 9, 1977 Yashushi JP 10-246500 Sept. 14, 1998 Meneghin EP 1332899 A2 Aug. 6, 2003 REJECTIONS The following rejections stand under 35 U.S.C. § 103(a) Claims 1–4, 6–15, and 18–40: Yashushi and Hirai. Claims 16 and 17: Yashushi, Hirai, and Meneghin. Appeal 2012-008340 Application 10/548,721 4 OPINION Claims 1–4, 6–15, and 18–40 Obviousness over Yashushi and Hirai Claim 1 Claim 1 recites, in part, “[a]n air outflow device for a motor vehicle…wherein the at least one fed-in air stream is divided into at least first and second partial air streams, and including at least one metering device for controlling the first partial air stream independently of the second partial air stream.” It is the Examiner’s position that Yashushi discloses: [A]n air outflow for a motor vehicle, having at least one fed-in air stream (e.g. air from the air conditioner travels to the duct (20)) wherein an outflow characteristic of the air outflow device is configured to can be changed between a dispersal characteristic and a spot characteristic… …wherein the at least one fed-in air stream is divided into at least first and second partial air streams (e.g. the air coming from the duct is divided into the blow-out grille through the nozzle part (11) for the main air flow A and through the suction part for the sub stream air flow B, Figure 2). Final Action 2–3. Appellants assert: It is respectfully submitted that Yashushi does not show at least a fed-in air stream divided into first and second partial air streams. Yashushi includes a first air stream that enters nozzle 11, from an air conditioner according to paragraph 0004 of a machine translation of Yashushi, and another air stream that enters the diffuser through suction part 12. Yashushi does not show an air steam that is divided into first and second partial air streams or at least one metering device for controlling a first partial air stream independently of a second partial air stream as Appeal 2012-008340 Application 10/548,721 5 recited in claim 1, and Hirai does not address this shortcoming of Yashushi. Appeal Br. 5. The Examiner responded, stating: The blow-out grill (10) “consists of the nozzle part (11), suction part (12), and diffuser part (13)”, (par. 0016 of machine translation) is installed in the wall of the duct (20), which is connected to the air conditioner. The machine translation of Yashushi states, “the blow-off grill (10) ... is attached to the duct (20) allocated near vehicle room head lining. The duct (20) is connected to the air conditioner” (par. 0016 of machine translation). This is also shown in Figure 1. Therefore, the openings for each of the nozzle part (11) and the suction part (12) are exposed to the “blast air from the air conditioner", (para. 0016) causing the air to be divided into at least two air streams among the nozzle part (11) and suction part (12). The “arrow head A is ventilation from air conditioner show the flow of blast air introduced into the nozzle part (11)”, par. 0017 and “the arrow head B is ventilation from an air conditioner and it show flow of blast air attracted to suction part (12)”, par. 0017, Figure 1. Ans. 15 (emphasis added). We see no error in the Examiner’s position regarding whether Yashushi discloses that the at least one fed-in air stream is divided into at least first and second partial air streams. As is clear from the quote from the Appeal Brief above, Appellants note that two separate air streams enter the device in Yashushi via nozzle part 11 and suction part 12. The Examiner cites a portion of the machine translation of Yashushi that supports the position that the nozzle part 11 and suction part 12 receive their input from a single source, the duct 20. As is shown in Figure 1 below, cited by the Examiner, Yashushi’s device protrudes through a wall of the duct 20, and Appeal 2012-008340 Application 10/548,721 6 the nozzle part 11 and suction part 12 both receive flow from the same side of the wall of the duct 20, i.e., from the same source. Figure 1 of Yashushi shows an air flow device in cross-section and passing through a wall of a duct, also shown in cross-section. Yashushi makes clear in Figure 1 that the nozzle part 11 and the suction part 12 each accept a portion of the stream inside the duct 20, and therefore divide the flow in the duct 20 into at least two parts. Accordingly, the Examiner has shown, by a preponderance of the evidence, that Yashushi discloses the above-noted feature regarding divided flow. Regarding Appellants’ argument that Yashushi fails to disclose at least one metering device for controlling a first partial air stream independently of a second partial air stream as recited in claim 1 and that Hirai fails to remedy this deficiency, we see no error in the Examiner’s position on this point. The Examiner states: Appeal 2012-008340 Application 10/548,721 7 Hirai teaches one metering device for controlling the first partial air stream independently of the second partial air stream (e.g. rotatable dampers (18) are positioned in the sections (17) where the auxiliary air flow B is discharged and the air flow B surrounds the main air flow A changing the dispersion pattern of the main air flow, however, the dampers are adjusting the volume of the auxiliary air flow B independently of the main air flow coming from the main air flow outlet (14) in the center of the section (17), pp. 8, Figure 6). Final Action 3. The arguments in the Appeal Brief do not challenge the Examiner’s position relating to this feature, with respect to Hirai, other than to say “Hirai does not address this shortcoming of Yashushi.” Appeal Br. 5. We agree with the Examiner on this point. The Examiner has addressed this feature in the Final Action and in the Examiner’s Answer. As noted by the Examiner, Hirai does disclose a metering device for controlling the first partial air stream independently of the second partial air stream. For example, Figure 4 of Hirai clearly discloses dampers 181 and 183. Further, the Examiner provided a rationale for modifying Yashushi to include the above-noted feature of Hirai, and the Appellants did not challenge this rationale in the Appeal Brief. Appellants present new arguments for independent claim 1 in the Reply Brief that were not raised in the Appeal Brief. Reply Br. 1–3. Therefore, Appellants’ new arguments in the Reply Brief are untimely. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (Informative) (“[T]he reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not”). See also Optivus Tech., Inc. v. Ion Beam Applications S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) (“[A]n issue not raised Appeal 2012-008340 Application 10/548,721 8 by an appellant in its opening brief . . . is waived.”) (citation and internal quotation marks omitted). Accordingly, we sustain the rejection of claim 1 and of claims 2–4, 6–12, 14, 15, 18, and 32 depending therefrom as obvious over Yashushi and Hirai. Claim 13 Dependent claim 13 recites that the air outflow device “has a helical or spiral region of extended length for generating the second air stream.” The Examiner cites Figure 1 of Yashushi and asserts that Yashushi discloses the above-noted feature. Figures 1, 1(b), and 1(c) are reproduced below. Appeal 2012-008340 Application 10/548,721 9 Figure 1 depicts an air flow device from Yashushi in cross-section, Figure 1b shows a portion of the device cut along line B-B, and Figure 1(c) depicts the portion of the device in a perspective view. Appellants assert: Claim 13 depends from claim 1 and further recites that the air outflow device has a helical or spiral region of extended length for generating the second air stream. The Office Action indicates that Yashushi’s suction part has a helical or spiral region. However, Yashushi’s suction part 12 appears to be a disc with a circular central opening and six upstanding, outwardly directed, slightly curved walls. According to the attached definition of “spiral” previously made of record by Applicant, a spiral is something “winding around a center or pole and gradually receding from or approaching it.” Neither the upstanding walls 13 nor the spaces between pairs of the walls 13 wind around a center of pole and thus neither the walls nor the spaces are spiral or helical. The fact that the air in Yashushi’s diffuser may move in a spiral does not mean that any structural part of Yashushi’s device is a spiral region of an outflow device as claimed. It is respectfully submitted that a person of ordinary skill in the relevant art would not refer to anyone of walls 13 or the spaces between pairs of walls 13 as a “helical” or “spiral” region, Hirai does not address this shortcoming of Yashushi, and claim 13 is submitted to further distinguish over the art of record for this reason. Appeal Br. 6 (emphasis added). Appellants also attack the Examiner’s citation of an English-language machine translation of Yashushi. Reply Br. 3. We find that Yashushi does disclose a spiral region as recited in claim 1. The Examiner has cited both the figures and the text of a machine translation of Yashushi as support. Appellants also point to the figures of Yashushi, but instead as evidence Yashushi does not disclose the spiral Appeal 2012-008340 Application 10/548,721 10 region at issue here. However, figures 1(a)–1(c) of Yashushi do depict a spiral structure as asserted by the Examiner. Further, the machine translation supports the Examiner’s position, see claim 2 of the machine translation of Yashushi describing “[a] blow-off grill of the air-conditioner according to claim 1 being two or more guide plates (13) which separated mutually, were provided and were spirally arranged toward a medial axis of the aforementioned nozzle part (11) in the aforementioned casing (12a).” We also find that the English Abstract supports the Examiner’s position, stating “[i]n the casing 12a, a plurality of guide vanes 13 are mounted such that they are directed to the central axis of the nozzle portion 11 while forming a spiral so that a whirling flow is formed.” Thus, we conclude the Examiner has committed no error in determining that Yashushi discloses the “helical or spiral region of extended length for generating the second air stream” recited in claim 13. Accordingly, we affirm the rejection of claim 13. Claim 24 Dependent claim 24, which depends from dependent claim 23, recites “[t]he air outflow method as claimed in claims [sic] 23, wherein a first partial air stream is a swirl-free core air stream, and a second partial air stream is an outer air stream to which an adjustable swirl is applied.” Because it is pertinent to Appellants’ argument, we also list claim 23, which recites “[t]he air outflow method as claimed in claim 19, wherein the fed-in air stream is divided into at least two partial air streams in order to adjust the swirl.” As noted with respect to independent claim 1, it is the Examiner’s position that Yashushi discloses dividing an incoming air stream into two air Appeal 2012-008340 Application 10/548,721 11 streams. With regard to the recited swirl-free core air stream and the outer air stream to which an adjustable swirl is applied, the Examiner states “the main air flow A is in the center and is a straight air flow while the sub stream air flow B is applied around the main air flow as an outer stream, Yasushi, 0017, Figures 3.” Final Action 5. Appellants assert: It is respectfully submitted that Yashushi does not show a method that involves dividing an air stream into at least two partial air streams wherein the first partial air stream is a swirl- free core air stream and the second partial air stream is outer air stream to which an adjustable swirl is applied. Yashushi's airflow A entering through nozzle 11 and airflow B entering through suction part 12 are not two partial air streams divided from a fed-in air stream; instead, airflow A comes from an air conditioner through nozzle 11 and airflow B comes from somewhere other than the air conditioner. Appeal Br. 8 (emphasis added). We agree with the Examiner on this point. As discussed above with respect to claim 1, the Examiner cited a portion of Yashushi that supports the position that the nozzle part 11 and suction part 12 receive their input from a single source, the duct 20. The figures in Yashushi further support the Examiner’s assertions regarding which flow is straight and which flow contains a swirl. Accordingly, we sustain the rejection of dependent claim 24 as obvious over Yashushi and Hirai as well as the rejection, based on the same references, of claims 25–31 depending from claim 24. Claim 33 Claim 33 recites, in part: the housing defining at least first and second flow paths between said inlet and outlet; Appeal 2012-008340 Application 10/548,721 12 a helical structure in said first flow path for imparting a swirl to air moving through said first flow path; and a metering device for controlling an airflow through said first flow path independently of an airflow through said second flow path, wherein an outflow characteristic of an air stream exiting said outlet is controlled by said metering device to change an intensity of said swirl. It is the Examiner’s position that Yashushi discloses “a helical structure in said first flow path for imparting a swirl to air moving through said first flow path (e.g. a guide plates in the suction (12) form sub stream air flow B which us[es] a turning stream surrounding the main air flow).” Final Action 9. Appellants assert that Yashushi does not disclose the recited first and second flow paths and does not disclose the recited helical structure in a first flow path. Appellants state, “[g]uide plates 13 of suction part 12 are not helical structures under any common definition of that term.” Appeal Br. 9. We agree with the Examiner on this issue, Yashushi does disclose first and second flow paths as they are recited in claim 33, as is evident from the figures of Yashushi depicting the nozzle part 11 and suction part 12 and flows A and B. Further, the guide plates in the suction part 12 are depicted in a shape that appears to be helical, and Appellants, in the Evidence Appendix, Appeal Brief, Specification, or Reply Brief, have not pointed to any definition of “helical” that would exclude what the figures in Yashushi depict. Indeed, our review of a dictionary published about five years before the present application was filed reveals that the term “helical” is broad enough to include a “spiral,” which we have already addressed above. See MERRIAM WEBSTER'S COLLEGIATE® DICTIONARY (10th ed. 1998). Appeal 2012-008340 Application 10/548,721 13 Accordingly, the rejection of claim 33 and claims 34–36 depending therefrom over Yashushi and Hirai is sustained. Claims 16 and 17 Obviousness over Yashushi, Hirai, and Meneghin Claim 16 Dependent claim 16 recites “[t]he air outflow device as claimed in claim 1, wherein the at least one metering device comprises a double flap which is controlled by a cam or kinematics.” The Examiner states: Meneghin teaches a metering device comprises a double flap which is controlled by cam or kinematics (e.g. a butterfly valve (3) which a spindle (19) is controlled by a lever (11) and small wheel (21), paragraph 0017, Figure 1). Hence, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify Yashushi with the metering device comprising a double flap of Meneghin to easily actuate the metering device. Ans. 14. The valve (3) is used "for adjusting the flow rate of air" within conduit (2), par. 0009. Since, the butterfly valve is capable of rotating about a spindle (19), it would make metering the air flow of the suction part (12) of Yashushi easier since the valve (3) can open certain parts of the suction part (12) while blocking other parts of the suction part (12). Ans. 19. Appellants assert: The rejection of claim 13 also provides no reason for putting butterfly valves between walls 13 of Yashushi. The examiner asserted that this would make it "easy" to actuate a metering device, but nothing in the record suggests that there is any reason to put butterfly valves into the spaces between Appeal 2012-008340 Application 10/548,721 14 Yashushi's walls 13. Indeed, the butterfly valve of Meneghin appears suited for use in a circular passageway, and it is not clear how a butterfly valve could be used in the oddly shaped passages between the walls 13 of Yashushi. Furthermore, stating that the proposed modification would make it "easy" to actuate a metering device does not constitute a reason for modifying Yashushi because nothing in the record provides any information about the relative ease of using a butterfly valve versus any other type of valve. Appeal Br. 10–11. We agree with Appellants on this point; the reasoning in the Examiner’s Answer regarding modifying Yashushi to include the valve disclosed in Meneghin is insufficient to make a prima facie case of obviousness. When rejecting claims under 35 U.S.C. § 103(a), the examiner bears the initial burden of establishing a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Only if this initial burden is met does the burden of coming forward with evidence or argument shift to the appellant. See Oetiker, 977 F.2d at 1445. Obviousness is then determined on the basis of the evidence as a whole and the relative persuasiveness of the arguments. Id. The Supreme Court in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) explained: Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue. KSR, 550 U.S. at 418. The Court noted that “[t]o facilitate review, this analysis should be made explicit.” Id. (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds cannot be sustained Appeal 2012-008340 Application 10/548,721 15 by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness”)). However, “the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. In the present case, the Examiner cites Meneghin for the metering device comprising a double flap, which is controlled by a cam or kinematics recited in claim 16. The asserted reasoning is “to easily actuate the metering device” and to “open certain parts of the suction part (12) while blocking other parts of the suction part (12).” Ans. 14, 19. However, we find no rational underpinning to the above-noted reasoning because there is no explanation as to how the asserted modification would make actuation of the metering device easier, and there is no evidence that such a modification would do so. Further, we find no support in the record or in common sense for the concept that a person of ordinary skill in the art would have a reason to open certain parts of the suction part 12 while closing other parts. Indeed, the Final Action and the Examiner’s Answer rely heavily on the fact that Yashushi provides a swirl in this area. As the flow in this area forms a swirl, we can discern no reason set forth in the Examiner’s discussion for limiting the flow in any particular section of suction part 12 relative to the flow in another part of the suction part 12. Accordingly, we reverse the rejection of claim 16 and claim 17 depending therefrom as obvious over Yashushi, Hirai, and Meneghin. Appeal 2012-008340 Application 10/548,721 16 DECISION This being the case, the rejection of claims 1–4, 6–15, and 18–40 as obvious over Yashushi and Hirai are affirmed. The rejection of claims 16 and 17 as obvious over Yashushi, Hirai, and Meneghin is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED-IN-PART mls