Ex Parte Gass et al

Patent Trial and Appeal BoardSep 24, 2018

13182307 (P.T.A.B. Sep. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/182,307 07/13/2011 87598 7590 09/26/2018 Morgan Law Offices, PLC 4635 S. Lakeshore Dr. Suite 131 Tempe, AZ 85282 FIRST NAMED INVENTOR Paul Gass 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. P00554 6105 EXAMINER MA,KUNKAI ART UNIT PAPER NUMBER 3744 NOTIFICATION DATE DELIVERY MODE 09/26/2018 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): docket@patentaz.com info@patentaz.com USPTO@dockettrak.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PAUL GASS and JON SHRADER Appeal2017---007272 Application 13/182,307 Technology Center 3700 Before WILLIAM A. CAPP, ARTHUR M. PESLAK, and SEAN P. O'HANLON, Administrative Patent Judges. PESLAK, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Paul Gass and Jon Shrader ("Appellants") appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Non-Final decision rejecting claims 1-19. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM-IN-PART. Appeal2017---007272 Application 13/182,307 THE CLAIMED SUBJECT MATTER Appellants' invention relates to "an evaporative cooling system installed in a structure wall." Spec. ,r 1. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A cooling system installed within a structure wall, compnsmg: in a housing, the housing disposed between a pair of studs of the wall, a water reservoir; a pump; a pad; a water distributor; a motor; and a fan, wherein at least a portion of each of the water reservoir, the pump, the pad, the water distributor, the motor, and the fan in the housing are disposed between an exterior side and an interior side of the structure wall. REJECTIONS 1 1) Claims 17-18 are rejected under 35 U.S.C. Â§ I02(b) as anticipated by Kucera (US 2005/0000241 Al, published Jan. 6, 2005). 2) Claims 1, 2, 4--7, 11, and 13-15 are rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Kucera and Fosnes (US 2,808,237, issued Oct. 1, 1957). 3) Claim 3 is rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Kucera, Fosnes, and Palmer (US 2005/0268636 Al, published Dec. 8, 2005). 1 A rejection of claims 17-19 for failure to comply with the written description requirement of 35 U.S.C. Â§ 112, first paragraph is withdrawn in the Examiner's Answer. Ans. 2; Non-Final Act. 3. 2 Appeal2017---007272 Application 13/182,307 4) Claims 8-10 are rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Kucera, Fosnes, and Lakmaker (US 3,996,314, issued Dec. 7, 1976). 5) Claim 16 is rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Kucera and Su (US 2009/0107162 Al, published Apr. 30, 2009). 6) Claim 19 is rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Kucera and Thorpe (US 4,732,012, issued Mar. 22, 1988). DISCUSSION Rejection 1 The Examiner finds that Kucera anticipates claim 1 7 because, according to the Examiner, it discloses "in a means for mounting ( 64, 66, and 6 8, a set of screws) within a structure wall ( 12; abstract), a means for evaporative cooling ( evaporative cooler, Page 2, Paragraph [0025], line 1 ). " Non-Final Act. 5. Appellants contend that "Kucera discloses an evaporative cooler attached to the outside of a building" rather than "mounted between wall studs" as disclosed in Appellants' Specification. Br. A8. For the following reasons, we do not sustain the rejection of claim 17. Claim 1 7 requires that "a means for evaporative cooling" be "in a means for mounting within a wall structure." Appellants' Specification provides that "[b ]y the middle part of the 20th Century typical designs for evaporative coolers included a water reservoir, a pump to circulate water over evaporative pads, and an electric blower to draw outside air through the pads, cooling the air by evaporation." Spec. ,r 2. Kucera discloses that "evaporative cooler 10 is attached to a building or structure 12. Evaporative cooler 10 includes an evaporative cooler 3 Appeal2017---007272 Application 13/182,307 housing 14" and "the rear side 22 of evaporative cooler housing 14 will be the side that is in contact with building 12." Kucera ,r 25. Further, Kucera discloses the evaporative cooler "having a front panel and a rear panel including an extension extending from the rear panel ... placed partially into an opening in the wall between standard spaced studs." Id. ,r 11. Items 64, 66, and 68, which the Examiner finds correspond to the recited means for mounting within a structure wall, form part of the extension from the rear panel 30. See id. ,r 26, Fig. 3. Figure 3 of Kucera discloses that blower 186, water pump 134, and media pad 130 are located outside of the wall structure. Id. Fig. 3. Therefore, we do not sustain the rejection of claim 17 because the Examiner has not established by the requisite preponderance of the evidence that Kucera discloses a means for evaporative cooling in a means for mounting within a structure wall as required by claim 1 7. Claim 18 depends from claim 17. Br. A12 (Claims App.). We do not sustain the rejection of claim 18 for the same reason. Rejection 2 Appellants argue claims 1, 2, 4--7, 11, and 13-15 as a group. Br. A4- A6. We select claim 1 as representative of the group and claims 2, 4--7, 11, and 13-15 stand or fall with claim 1. 37 C.F.R. Â§ 41.37 (c)(l)(iv). The Examiner finds that Kucera discloses most of the limitations of claim 1 but fails to disclose that at least a portion of each of the recited elements in the housing "are disposed between an exterior side and an interior side of the structure wall." Non-Final Act. 6. The Examiner finds that Fosnes discloses "wall mounted air circulating heat exchangers having a housing disposed between a pair of studs" and that "encloses the elements such as, blower (24), filter (22), [and] heat exchanger coil (23)." Id. The 4 Appeal2017---007272 Application 13/182,307 Examiner determines that it would have been obvious to modify Kucera with the teachings of Fosnes "so that the cooling system of Kucera would be disposed within the wall and between a pair of studs in order to save environmental space." Id. at 6-7. The Examiner also determines that incorporating Fosnes's "removable front cover plate which includes louvers ... into the cooling system of Kucera would provide easy access for repairing and cleaning of the inside units." Id. at 7 (citing Fosnes, 3:45--49). The Examiner concludes that it would have been obvious, with this modification to Kucera, "that the side louvers (110, Kucera) would be modified to the front of the cooler ... to avoid boundary layer formation and noise creation due to surface friction effect from the wall when the fluid or air is being drawn into the cooler from the side louvers." Id. Appellants' first contention is that "if the evaporative cooler of Kucera reference was modified as suggested, the centrifugal blowers would not be able to intake air, since the intake portion of the blower would now be sealed within the wall" because "Kucera utilizes centrifugal blowers mounted outside of the building wherein the intakes for the blowers are located on the sides of the evaporative cooler." Br. A5. The Examiner responds that "Fosnes explicitly teaches the housing includes an air inlet (20b) and air outlet (20c) at the front of the apparatus." Ans. 3 (citing Fosnes, Fig. 3). According to the Examiner, one of ordinary skill in the art would understand that modifying Kucera with the housing of Fosnes results in "the side intakes (110) of the evaporative cooler of Kucera would be modified from the left and right sides of the housing to the front side of the housing for the cooler" as disclosed in Figure 3 of Fosnes. Id. Consequently, "the suggested modification of Kucera in view of Fosnes 5 Appeal2017---007272 Application 13/182,307 would not seal the intake portion of the blower." Id. at 4. Appellants' first contention is, thus, not persuasive because it is based on attacking the disclosure of Kucera individually when the rejection is based on the combined teachings of Kucera and Fosnes. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellants' second contention is that "the side louvers (110, Kucera) cannot be positioned to the front of the cooler since there are already a pair of left and right front panels ... of Kucera that would prevent boundary layer formation and noise reduction ... when the fluid or air is being drawn into the cooler from the side[] louvers 110." Br. A5. The Examiner responds that in the rejection, "the side intakes (side louvers 110) of Kucera would be modified from the left and right sides to the front of the housing in order to avoid the intake air blockage due to the studs (70) and the interior wall." Ans. 5. Appellants' second contention is not persuasive because it is not responsive to the rejection. While we appreciate the Appellants' reference to the fact that Kucera discloses left and right front panels, the rejection specifically replaces Kucera's front panel with the front panel and louvers of Fosnes so that air can enter and exit the housing through the front panels. Appellants' third contention is that the proposed modification of Kucera would render it unsatisfactory for its intended purpose because "it would be required to drastically reduce the size and capacity of the pump and blowers in order to dispose them within the wall." Br. A6. The Examiner responds that the suggested modification of Kucera "would not require extensive physical modification since the combination is based on obvious suggested features from the reference rather than actual physical 6 Appeal2017---007272 Application 13/182,307 modification of body" and "reduction of size for the evaporative cooler does not necessarily mean reduction of capacity, cooling effect and overall utility." Ans. 6. Appellants' third contention is not persuasive because Appellants do not provide persuasive evidence or technical reasoning why any reduction in size of Kucera's evaporative cooling apparatus would be required or, if required, why the reduction would necessarily be such a drastic reduction in size that it would result in an evaporative cooling apparatus that would be unsatisfactory for its intended purpose. Appellants' fourth contention is that the rejection is based on impermissible hindsight because Fosnes discloses a wall mounted heat exchanger with an air inlet for the heat exchanger located on the same side as the air discharge, while Kucera discloses an evaporative cooler where air is drawn in from outside the building and discharged into the inside of the building. Br. A6. This contention is based on the same premise as Appellants' first contention which we found to be unpersuasive. As we noted above, the rejection is based on the combined teachings of the references resulting in the modification of Kucera by Fosnes' disclosure of a housing for a heat exchanger located between studs in a wall. Appellants' hindsight argument is not persuasive because the Examiner has stated a rationale for the modification of Kucera with Fosnes that we determine is reasonable and supported adequately by sufficient facts. See In re Cree, 818 F.3d 694, 702, n.3 (Fed. Cir. 2016). We have considered all of Appellants' contentions and determine that Appellants fail to persuasively apprise us of error in the Examiner's findings or rationale for the combination of Kucera and Fosnes which we determine to be reasonable and supported by the disclosure in the cited references. See 7 Appeal2017---007272 Application 13/182,307 KSR Int 'l Co. v Teleflex Inc., 550 US 398, 416 (2007) ("the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results."). We, thus, sustain the rejection of claim 1. Claims 2, 4--7, 11, and 13-15 fall with claim 1. Rejection 3 Appellants do not submit arguments for the patentability of claim 3. See Br. A3-A9. Therefore, we summarily sustain the rejection of claim 3. Rejection 4 Appellants do not submit arguments for the patentability of claims 8 and 9. See Br. A3-A9. Therefore, we summarily sustain the rejection of claims 8 and 9. Claim 10 depends from claim 1 and adds the limitation that the cooling system of claim 1 "further includ[es] a water drain." Br. Al I (Claims App.). The Examiner states that "Kucera fails to disclose a water drain" but relies on Lakmaker for disclosing "a cooling apparatus having a drain connection (45)." Non-Final Act. 11. The Examiner concludes that it would have been obvious to one of ordinary skill in the art "to have modified the cooling system of Kucera to incorporate the drain connection ( 45), as taught by Lakmaker in order to provide a drain system that conveniently drains out dirt from the water." Id. at 12. Appellants do not dispute that Lakmaker discloses a cooling apparatus with a drain connection. Br. A 7. Further, Appellants do not persuasively argue that the Examiner's reasoning for combining the teachings of Kucera and Lakmaker is in error. Id. Nevertheless, Appellants contend that the "Examiner is using impermissible hindsight" without explanation of the basis for this contention. Id. We sustain the rejection of claim 10 because 8 Appeal2017---007272 Application 13/182,307 Appellants fail to persuasively apprise us of error in the Examiner's findings or rationale for the combination which we determine to be reasonable and supported by the disclosure in the cited references. Rejection 5 Appellants do not submit arguments for the patentability of claim 16. See Br. A3-A9. Therefore, we summarily sustain the rejection of claim 16. Rejection 6 Claim 19 depends from claim 17. Br. A12 (Claims App.). The Examiner does not rely on the disclosure of Thorpe to cure the factual deficiency in the rejection of claim 17. Non-Final Act. 13. We, thus, do not sustain the rejection of claim 19 for the same reasons discussed above in connection with the rejection of claim 17. DECISION The Examiner's decision rejecting claims 1-16 is affirmed. The Examiner's decision rejecting claims 17-19 is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED-IN-PART 9