Ex Parte Hanisko

Patent Trial and Appeal Board

May 30, 2013

10915159 (P.T.A.B. May. 30, 2013)

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.
10/915,159 08/09/2004 Francis Dushan Hanisko 11.016 8982
80127 7590 05/30/2013
Janeway Patent Law PLLC
SUITE 508
2208 NW MARKET STREET
Seattle, WA 98107
EXAMINER
PATEL, VINOD D
ART UNIT PAPER NUMBER
3742
MAIL DATE DELIVERY MODE
05/30/2013 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 FRANCIS DUSHAN HANISKO
____________________

Appeal 2011-004928
Application 10/915,159
Technology Center 3700
____________________

Before: MICHAEL C. ASTORINO, JOHN W. MORRISON, and
HYUN J. JUNG, Administrative Patent Judges.

JUNG, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-004928
Application 10/915,159
2
STATEMENT OF THE CASE
Francis Dushan Hanisko (Appellant) appeals under 35 U.S.C. § 134
from a rejection of claims 2-8, 11, 13, 19-23, and 25-43. App. Br. 4. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claims are directed to a heater for an endodontic condenser.
Claims 26 and 32 are independent. Claim 26, reproduced below, is
illustrative of the claimed subject matter:
26. A system comprising:
a hand-piece for gripping the system;
an endodontic condenser tip fastenable to
the hand-piece and including a heater comprising:
an electrically resistive heating
element disposed in the tip and operable to
generate heat from power that the heating
element receives, and
a body for radiating the heat
generated by the heating element; and
a control circuit comprising:
a sensor operable to sense the power
that the heating element receives, as the
heating element receives the power, and
a processing circuit including a
processor that, while the heating element
generates heat:
determines a temperature of the
heating element from the power
sensed,
compares the temperature of
the heating element to a
predetermined temperature, and
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in response to the temperature
comparison, instructs a component to
modify the amount of power delivered
to the heating element to maintain the
temperature of the heating element at
the predetermined temperature,
wherein if the amount of power is to
be reduced, then the component
reduces the power delivered to the
heating element but does not prevent
power from being delivered to the
heating element.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Lipp
Oishi
Masreliez
Eggers
DeVilbiss
Goldberg
Baldacci
US 4,231,371
US 4,432,211
US 5,043,560
US 5,593,406
US 5,690,849
US 6,753,513 B2
GB 2 014 382 A
Nov. 4, 1980
Feb. 21, 1984
Aug. 27, 1991
Jan. 14, 1997
Nov. 25, 1997
Jun. 22, 2004
Aug. 22, 1979

REJECTIONS
The Appellant seeks our review of the rejections of:
(1) claims 2, 3, 5-8, and 26 under 35 U.S.C. § 103(a) as unpatentable
over Masreliez, Oishi, and Baldacci;
(2) claims 2, 3, 5-8, 11, 13, and 26 under 35 U.S.C. § 103(a) as
unpatentable over Masreliez, Goldberg, and Baldacci;
(3) claim 4 under 35 U.S.C. § 103(a) as unpatentable over Masreliez,
Oishi or Goldberg, Baldacci, and Lipp;
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(4) claims 11 and 13 under 35 U.S.C. § 103(a) as unpatentable over
Masreliez, Oishi, Baldacci, and DeVilbiss; and
(5) claims 19-23 and 25-43 under 35 U.S.C. § 103(a) as unpatentable
over Eggers, Oishi or Goldberg, Baldacci, and DeVilbiss.

ANALYSIS
Rejection (1)
The Examiner finds that Masreliez substantially discloses the subject
matter of independent claim 26 but does not disclose, inter alia, a processing
circuit with a processor that determines a temperature of the heating element
from a power sensed, compares the temperature of the heating element to a
predetermined temperature, and maintains the temperature of the heating
element at the predetermined temperature, wherein if the amount of power is
to be reduced, then the component reduces the power delivered to the
heating element but does not prevent power from being delivered to the
heating element. Ans. 4-5. The Examiner finds that Oishi discloses a
processing circuit having a processor that compares a voltage and inherently
determines a temperature of a heating element from the power sensed. Id. at
6. The Examiner further finds that Baldacci discloses “a current limiting
resistor (4) connected across the switch (L) which opens when the plate
reaches the predetermined temperature level and allows a reduced current to
flow through the plate (abstract) in order to maintain optimum temperature
for the formation of yoghurt.” Id. at 8 (citing Baldacci, col. 2, ll. 120-130,
and col. 3, ll. 1-5). The Examiner concludes that it would have been obvious
to provide a control circuit operable to sense the power that the heating
element receives and a processing circuit including a processor to determine
a temperature of the heating element from the power sensed while the
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heating element generates heat as taught by Oishi in order to provide
efficient operation and accurate temperature sensing and to provide a current
limiting resistor connected across a thermal switch (L) as taught by
Baldacci in order to allow reduced current flow to maintain optimum
temperature for the heater of Masreliez. Id. at 9.
The Appellant argues that Masreliez, Oishi, and Baldacci fail to
disclose a processing circuit having a processor that compares the
temperature of the heating element to a predetermined temperature. Br. 16.
In particular, the Appellant asserts that the Examiner admits that Masreliez
does not disclose such a processing circuit having a processor but the
Examiner does not assert that either Oishi or Baldacci teaches the processor
that performs a comparison. Id.
The Appellant’s argument is not persuasive. The Examiner finds that
Oishi discloses “. . . a processing circuit having a processor (23, 27, 41) that
compares . . . the voltage (column 16, lines 17-23) inherently determining a
temperature of the heating element (PTC) from the power sensed . . . .” Ans.
6; see also Ans. 23-25. Thus, the Examiner asserts that Oishi teaches the
processing circuit of claim 26.
Also, to the extent that the Appellant is arguing that Oishi does not
teach a processing circuit with a processor that inherently determines a
temperature of a heating element from a power sensed, the argument is not
persuasive. The Examiner provides a basis in fact and/or technical
reasoning to reasonably support the determination that the allegedly inherent
characteristic necessarily flows from the teachings of Oishi. See Ans. 5-6,
23-24 and Ex parte Levy, 17 USPQ2d 1461, 1464 (BPAI 1990). Once the
Examiner establishes obviousness based on inherency, the burden shifts to
the Appellant to prove that the prior art does not possess the characteristic at
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issue. See In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986). The Appellant
provides no basis for determining if Oishi fails to inherently disclose
determining a temperature of a heating element from the power sensed.
The Appellant also argues that Masreliez, Oishi, and Baldacci fail to
disclose maintaining the temperature of a heating element by reducing
power to the heating element that does not include turning off the power.
Br. 16, 21. The Appellant asserts that a switch control circuit of Masreliez
does not reduce power to a heating element, other than preventing the power
from being delivered to the heating element. Br. 16-17. The Appellant also
asserts that, in response to a decrease in the amount of current flowing
through a heating element, the control circuit of Oishi stops the flow of
electrical power to the heating element. Br. 17-18. The Appellant further
asserts that Baldacci effectively turns off while the temperature drops inside
a housing. Br. 19 (citing Baldacci 1, ll. 26-35). The Appellant also contends
that the heating element P of Baldacci does not generate enough heat to
maintain the heating element’s temperature while the thermal switch L is
open, and thus Baldacci’s circuit does not maintain the temperature of the
heating element P. Br. 21.
The Appellant’s arguments are not persuasive. The Examiner finds
that Masreliez discloses that “switch control circuit 36 couples the probe 10
to the AC power supply 30 only for a sufficient part of each cycle to
maintain the temperature at the selected value.” Ans. 5, 22 (emphasis
omitted). The Examiner also finds that Oishi discloses a processing circuit
having a processor that determines a temperature of a heating element. Id. at
6, 23-25. The Examiner further finds that Baldacci teaches “a current
limiting resistor (4) connected across the switch (L) which opens when the
plate reaches the predetermined temperature level and allows a reduced
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current to flow through the plate (abstract) in order to maintain optimum
temperature for the formation of yoghurt.” Ans. 8 (citing Baldacci, col. 2, ll.
120-130, and col. 3, ll. 1-5); see also Ans. 26. Masreliez, Oishi, and
Baldacci support the Examiner’s findings by a preponderance of the
evidence. See Masreliez, col. 4, ll. 39-43 (stating “[w]hen the tip 10 reaches
the selected temperature, the switch control circuit 36 couples the probe 10
to the AC power supply 30 only for a sufficient part of each cycle to
maintain the temperature at the selected value”); Oishi, col. 5, ll. 38-44
(stating “an arithmetic processing circuit 23 . . . is programmed for the
arithmetic processing of the output signal from the current detecting circuit
22” and a “control circuit 24 turns off the current-supply switch 21 in
response to the output signal from the arithmetic processing circuit 23”); and
Baldacci, col. 2, l. 120 to col. 3, l. 5 (stating that “[a]dvantageously the heat
delivered by the resistor 4 contributes to the extension of time during which
the temperature is maintained above the preestablished minimum” and that
“[d]uring all this time the energy consumption of the yoghurt making device
is low and even negligible with respect to the initial consumption”). Thus,
contrary to the Appellant’s assertion, the Examiner’s proposed combination
of Masreliez, Oishi, and Baldacci teaches a processor that
instructs a component to modify the amount of power delivered
to the heating element to maintain the temperature of the
heating element at the predetermined temperature, wherein if
the amount of power is to be reduced, then the component
reduces the power delivered to the heating element but does not
prevent power from being delivered to the heating element,
as required by claim 26.
The Appellant states that “[c]laims 2, 3, [and] 5-8 are each dependent
on independent claim 26, and as such, each of claims 2, 3, [and] 5-8 stand or
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fall with independent claim 26.” Br. 14. Accordingly, we sustain the
Examiner’s rejection of claims 2, 3, 5-8, and 26 under 35 U.S.C. § 103(a) as
unpatentable over Masreliez, Oishi, and Baldacci.
Rejection (2)
The Examiner finds that Masreliez substantially discloses the subject
matter of independent claim 26 but does not disclose, inter alia, a processing
circuit with a processor that determines a temperature of the heating element
from a power sensed, compares the temperature of the heating element to a
predetermined temperature, and maintains the temperature of the heating
element at the predetermined temperature, wherein if the amount of power is
to be reduced, then the component reduces the power delivered to the
heating element but does not prevent power from being delivered to the
heating element. Ans. 10. The Examiner finds that Goldberg discloses
a control circuit (34) [that] utilizes the coefficient of resistivity
information and determines the temperature of the heaters . . . ,
the controller (34) determines the resistance value of the heater
(30, 32) required to achieve the desired heater temperature at
(64), the controller (34) monitors the heater resistance and turns
off power to the heater once the desired resistance and
temperature are achieved.
Ans. 11 (citing Goldberg, col. 3, l. 32 to col. 4, l. 17, abstract, figs. 3, 4).
The Examiner finds that Baldacci discloses “a current limiting resistor (4)
connected across the switch (L) which opens when the plate reaches the
predetermined temperature level and allows a reduced current to flow
through the plate (abstract) in order to maintain optimum temperature for the
formation of yoghurt.” Ans. 12 (citing Baldacci, col. 2, ll. 120-130, and col.
3, ll. 1-5).
The Appellant argues that Masreliez, Goldberg, and Baldacci fail to
disclose maintaining the temperature of a heating element by reducing
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Application 10/915,159
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power to the heating element that does not include “turning off” the power.
Br. 22, 23. The Appellant asserts that Masreliez and Baldacci fail to
disclose such maintaining of temperature of a heating element for the
reasons discussed supra in the first rejection. The Appellants also assert that
the controller of Goldberg “turns off” power delivered to a heating element
to reduce the heat generated by the heating element. Br. 22-23.
The Appellant’s arguments are not persuasive. The Examiner finds
that the proposed combination of Masreliez and Baldacci teaches
maintaining the temperature of a heating element by reducing, but not
preventing, power to the heating element. See Ans. 10-13. For the reasons
discussed supra, Masreliez and Baldacci support by a preponderance of the
evidence the Examiner’s findings. Also, the Examiner relies on Baldacci,
not Goldberg, for teaching a reduction of power that does not prevent power
from being delivered to a heating element. See Ans. 10-13, 28-30.
The Appellant states that “[c]laims 2, 3, 5-8, 11 and 13 are each
dependent on independent claim 26, and as such, each of claims 2, 3,5-8, 11
and 13 stand or fall with independent claim 26.” Br. 22. Accordingly, we
sustain the Examiner’s rejection of claims 2, 3, 5-8, 11, 13, and 26 under 35
U.S.C. § 103(a) as unpatentable over Masreliez, Goldberg, and Baldacci.
Rejection (5) – Claims 19-23, 25-31, and 40-431

1 Because claims 4, 11, and 13 depend from independent claim 26, the
Examiner’s rejections of claim 4 under 35 U.S.C. § 103(a) as unpatentable
over Masreliez, Oishi or Goldberg, Baldacci, and Lipp and of claims 11 and
13 under 35 U.S.C. § 103(a) as unpatentable over Masreliez, Oishi,
Baldacci, and DeVilbiss are discussed infra after considering the Appellant’s
additional arguments regarding claim 26, which is also rejected under 35
U.S.C. § 103(a) as unpatentable over Eggers, Oishi or Goldberg, Baldacci,
and DeVilbiss.
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The Examiner finds that Eggers substantially discloses the subject
matter of independent claims 26 and 32 but does not disclose, inter alia, a
control circuit that senses power received by a heating element and a
processor to reduce power to the heating element, to determine the
temperature of the heating element, and to maintain the temperature of the
heating element at the predetermined temperature, wherein if the amount of
power is to be reduced, then the component reduces the power delivered to
the heating element but does not prevent power from being delivered to the
heating element. Ans. 16-17. The Examiner finds that Oishi discloses a
processing circuit having a processor that compares a voltage and inherently
determines a temperature of a heating element from the power sensed. Ans.
18. The Examiner also finds that Goldberg discloses a control circuit 34 that
determines the temperature of heaters, monitors heater resistance, and turns
off power to the heater once desired resistance and temperature are achieved.
Id. at 19. The Examiner further finds that Baldacci discloses reducing
current flow to an electrically heated plate in order to maintain optimum
temperature. Id. The Examiner further finds that DeVilbiss discloses a
control circuit that includes a processor and is operable to determine
temperature of a heating element. Id. at 20. The Examiner concludes that it
would have been obvious
to provide a control circuit that senses the power received by a
heating element to generate heat as taught by Oishi et al.
(US4432211) or Goldberg et al. (US6753513) in order to
provide efficient operation and accurate temperature and to
provide a processor as taught by De Vilbiss et al. (US5690849)
in order to modify (reduce, increase) power to heating element,
and determine the temperature of the heating element by
determining the heating element’s electrical resistance and then
retrieving from a look up table the temperature that corresponds
to the resistance and to provide a current limiting resistor
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connected across a thermal switch (L) as taught by GB2014382
in order to allow reduced current flow to maintain optimum
temperature . . . for the heater of Eggers.
Id. at 20-21.
The Appellant argues that Eggers, Oishi or Goldberg, Baldacci, and
DeVilbiss fail to disclose
a processing circuit having a processor that instructs a
component to modify the amount of power delivered to a
heating element to maintain the temperature of the heating
element, wherein if the amount of power is to be reduced, then
the component reduces the power but does not ‘turn off’ the
power.
Br. 25.
The Appellant’s arguments are not persuasive. The Examiner finds
that Baldacci teaches “a current limiting resistor (4) connected across the
switch (L) which opens when the plate reaches the predetermined
temperature level and allows a reduced current to flow through the plate
(abstract) in order to maintain optimum temperature for the formation of
yoghurt.” Ans. 19 (citing Baldacci, col. 2, ll. 120-130, and col. 3, ll. 1-5);
see also Ans. 26. Baldacci also supports the Examiner’s finding by a
preponderance of the evidence. See Baldacci, col. 2, l. 120 to col. 3, l. 5
(stating that “[a]dvantageously the heat delivered by the resistor 4
contributes to the extension of time during which the temperature is
maintained above the preestablished minimum” and that “[d]uring all this
time the energy consumption of the yoghurt making device is low and even
negligible with respect to the initial consumption”). Thus, contrary to the
Appellant’s assertion, the Examiner’s proposed combination teaches a
processor that
instructs a component to modify the amount of power delivered
to the heating element to maintain the temperature of the
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heating element at the predetermined temperature, wherein if
the amount of power is to be reduced, then the component
reduces the power delivered to the heating element but does not
prevent power from being delivered to the heating element,
as required by claim 26.
The Appellant also argues that the “[E]xaminer’s rationale for
modifying DeVilbiss with Baldacci does not make sense.” Br. 25. In
particular, the Appellant states that “the motive or rationale for modifying
Eggers’ heater with Baldacci’s resistor (4 in Figs. 1-3 of Baldacci) is ‘to
allow reduced current flow to maintain optimum temperature for the heater
. . . of Eggers’” but asserts that “Eggers’ heater already includes a
mechanism that automatically regulates the temperature of the heater.” Br.
29 (citing Office Action 17 (dated May 28, 2009)). The Appellant contends
that Eggers’ auto-regulation mechanism is based on a material’s Curie point
to regulate heat generated by a heater, and if a resistor is added parallel or in
series with Egger’s heating element, the resistor would prevent or not help
Eggers’ auto-regulation mechanism. Br. 29-30. In view of the Appellant
referring to Eggers and Baldacci instead of DeVilbiss and Baldacci, we
presume the Appellant meant to argue that the Examiner’s rationale for
modifying Eggers with Baldacci does not make sense.
The Appellant’s arguments are not persuasive. The Examiner
proposes to provide a current limiting switch connected across a thermal
switch as taught by Baldacci to reduce current flow. Ans. 21. The Examiner
is not proposing to provide the resistor of Baldacci in parallel connection
with the electrical heater of Eggers. See id. Also, the Examiner’s proposed
combination would add the parallel-connected switch and resistor of
Baldacci between the electrical heater of Eggers and its power supply. Thus,
the parallel-connected switch and resistor of Baldacci would effectively be
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in series with the heater of Eggers, which the Appellant asserts “would
simply lower the voltage across the heating element” and “would not help
Eggers’ auto-regulation mechanism maintain the temperature of the heating
element at the material’s Curie-point temperature.” Br. 30. However, the
Appellant’s assertion does not explain why such a series connection would
not help the auto-regulation mechanism of Eggers.
The Appellant states that “[c]laims 19-23, 25, 27-31 and 40-43 are
each dependent on independent claim 26, and as such, each of claims 19-23,
25, 27-31 and 40-43 stand or fall with independent claim 26.” Br. 25.
Accordingly, we sustain the Examiner’s rejection of claims 19-23, 25-31,
and 40-43 under 35 U.S.C. § 103(a) as unpatentable over Eggers, Oishi or
Goldberg, Baldacci, and DeVilbiss.
Rejection (5) – Claims 32-39
The Appellant argues that “[a]s previously discussed, Oishi et al.,
Goldberg et al., Baldacci, and DeVilbiss et al., each fails to disclose
modifying the temperature of a heating element by reducing power to the
heating element that does not include ‘turning off’ the power.” Br. 32. For
the reasons supra, the argument is not persuasive.
The Appellant also argues that “as previously discussed, the
[E]xaminer’s rationale for modifying [Eggers] with Baldacci does not make
sense.” Br. 33. As discussed supra, the argument is not persuasive.
The Appellant states that “[c]laims 33-39 are each dependent on
independent claim 32, and as such, each of claims 33-39 stand[s] or fall[s]
with independent claim 32.” Br. 31. Accordingly, we sustain the
Examiner’s rejection of claims 32-39 under 35 U.S.C. § 103(a) as
unpatentable over Eggers, Oishi or Goldberg, Baldacci, and DeVilbiss.
Rejection (3)
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The Appellant asserts that “dependent claim 4 is patentable over
Masreliez, Oishi et al., Baldacci and Lipp at least by virtue of its
dependency on independent claim 26.” Br. 23. Because the Examiner’s
rejection of claim 26 is sustained for the reasons supra, we sustain the
Examiner’s rejection of claim 4 under 35 U.S.C. § 103(a) as unpatentable
over Masreliez, Oishi or Goldberg, Baldacci, and Lipp.
Rejection (4)
The Appellant asserts that “dependent claims 11 and 13 are patentable
over Masreliez, Oishi et al., Baldacci and De Vilbiss et al. at least by virtue
of their dependencies on independent claim 26.” Br. 24. Because the
Examiner’s rejection of claim 26 is sustained, we sustain the Examiner’s
rejection of claims 11 and 13 under 35 U.S.C. § 103(a) as unpatentable over
Masreliez, Oishi, Baldacci, and DeVilbiss.

DECISION
We affirm the Examiner’s rejection of claims 2, 3, 5-8, and 26 under
35 U.S.C. § 103(a) as unpatentable over Masreliez, Oishi, and Baldacci.
We affirm the Examiner’s rejection of claims 2, 3, 5-8, 11, 13, and 26
under 35 U.S.C. § 103(a) as unpatentable over Masreliez, Goldberg, and
Baldacci.
We affirm the Examiner’s rejection of claim 4 under 35 U.S.C.
§ 103(a) as unpatentable over Masreliez, Oishi or Goldberg, Baldacci, and
Lipp.
We affirm the Examiner’s rejection of claims 11 and 13 under 35
U.S.C. § 103(a) as unpatentable over Masreliez, Oishi, Baldacci, and
DeVilbiss.
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We affirm the Examiner’s rejection of claims 19-23 and 25-43 under
35 U.S.C. § 103(a) as unpatentable over Eggers, Oishi or Goldberg,
Baldacci, and DeVilbiss

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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