Ex Parte Hetzler et alDownload PDFPatent Trial and Appeal BoardJun 22, 201712459955 (P.T.A.B. Jun. 22, 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. 12/459,955 07/10/2009 Jurgen Hetzler 3949-TWEL 5919 26822 7590 06/26/2017 Hackler Daghighian Martino & Novak 433 North Camden Drive, Fourth Floor Beverly Hills, CA 90210 EXAMINER WARD, THOMAS JOHN ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 06/26/2017 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): marc @martinopatentlaw.com jcf@hdmnlaw.com marc@hdmnlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JURGEN HETZLER and NORBERT ERNST Appeal 2016-002430 Application 12/459,955 Technology Center 3700 Before LYNNE H. BROWNE, MICHELLE R. OSINSKI, and JILL D. HILL, Administrative Patent Judges. OSINSKI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Jurgen Hetzler and Norbert Ernst (Appellants)1 appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1—6, 9-15, 17, 20, and 21.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 According to Appellants, the real party in interest is Borgwamer Bern Systems GmbH. Appeal Br. 3. 2 Claims 7, 8, 18, and 19 are withdrawn, and claim 16 is cancelled. Final Act. 1 (Office Action Summary); Amendment After Final Rejection 4 (Jan. 7, 2014). Appeal 2016-002430 Application 12/459,955 THE CLAIMED SUBJECT MATTER Claims 1, 17, and 21 are independent. Claim 1 is reproduced below and is illustrative of the claimed subject matter on appeal. 1, A vehicle heating system, comprising: a plurality of heat transfer devices for heating air flowing therethrough, each of the plurality of heat transfer devices comprising an extruded profile in an extrusion direction perpendicular to the air flowing therethrough, and each of the plurality of heat transfer devices comprising a plurality of holes disposed through the extruded profile in a perpendicular direction in relation to the extrusion direction; at least one heating device attached to each of the plurality of heat transfer devices, said at least one heating device comprising two contact plates between which a single heating element or a single layer of heating elements is arranged, said at least one heating device further comprising two positioning frames each positioning frame being attached to one of the contact plates and each positioning frame holding one of the contact plates by engaging around the longitudinal edges of the contact plate; and wherein the plurality of heat transfer devices are arranged in series as seen in flow direction where one heat transfer device is in front of or behind another heat transfer device configured for the flow direction to pass in series through the plurality of heat transfer devices. EVIDENCE The Examiner relied on the following evidence in rejecting the claims on appeal: Kawate US 5,471,034 Nov. 28, 1995 Wu US 6,180,930 B1 Jan. 30, 2001 Bohlender US 2005/0056637 A1 Mar. 17, 2005 Zeyen US 2007/0068913 A1 Mar. 29, 2007 Luppold US 2009/0139983 A1 June 4, 2009 Pierron WO 2005/004538 A1 Jan. 13, 2005 2 Appeal 2016-002430 Application 12/459,955 THE REJECTIONS I. Claims 1—6, 12—15, and 20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Zeyen, Kawate, and Luppold. Final Act. 2—6. II. Claims 10 and 11 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Zeyen, Kawate, and Wu. Id. at 6—7. III. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Zeyen, Kawate, Wu, and Pierron. Id. at 7—8. IV. Claims 17 and 21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Zeyen, Kawate, Luppold, and Bohlender. Id. at 8— 9. OPINION Rejection I The Examiner finds that Zeyen discloses, inter alia, a plurality of heat-emitting elements 56 that the Examiner identifies as the claimed plurality of heat transfer devices. Final Act. 3 (citing Zeyen | 71). As to the plurality of heat transfer devices being arranged in series as seen in a flow direction, the Examiner asserts that “the invention of Zeyen . . . can be oriented or rotated in a fashion which would allow airflow through a series configuration.” Id. at 10. The Examiner also asserts that “[wjhen air passes through the heat emitting element 56[,] the air flow has to pass through at least 2 PTC elements 6 which are in series.” Ans. 9 (citing Zeyen, Fig. 1) (emphasis omitted). The Examiner also finds that Zeyen discloses, inter alia, a plurality of heat generating elements 6 which are held by positioning frame 2 and contact plates 4, which collectively comprise the claimed heating device. Final Act. 3 (citing Zeyen | 54, Fig. 1). The Examiner acknowledges that 3 Appeal 2016-002430 Application 12/459,955 Zeyen fails to disclose two positioning frames, and turns to Kawate’s teaching of terminal plates 26 and 28 with terminal connectors 26.1 and 28.1. Id. The Examiner finds that Kawate teaches “such a configuration allows a heater configuration which prevents the overheating of ducts” and concludes that “[i]t would have been obvious to modify Zeyen . . . with Kawate ... to provide a heater configuration which prevents the overheating of ducts.” Id. Appellants argue that the claim requires two positioning frames in connection with a single layer of heating elements, whereas Kawate’s device teaches two positioning frames with two layers of heating devices therebetween. Appeal Br. 24. Appellants assert that “[i]t is impossible for two prior art references both teaching one positioning frame per heating element to then somehow make it obvious to teach two positioning frames per heating element.” Id. The Examiner merely responds that “[t]he structure of Kawate in combination with Zeyen would disclose all of the limitations of the claim.” Ans. 11. We are persuaded by Appellants’ argument that the Examiner’s reasoning to combine the teachings of Zeyen and Kawate is insufficient. The Examiner has not sufficiently articulated a rational evidentiary underpinning to explain why a person of ordinary skill in the art would have had reason, in light of Kawate, to (i) provide a second positioning frame in Zeyen; and (ii) attach the positioning frames to Zeyen’s contact plates. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness”) (cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)). As an initial matter, the Examiner explains only that “[i]t 4 Appeal 2016-002430 Application 12/459,955 would have been obvious to modify Zeyen et al[.] with Kawate et al[.] to provide a heater configuration which prevents the overheating of ducts” (Final Act. 3), but does not actually explain specifically what the proposed modified heater configuration is. The Examiner also does not explain sufficiently how modification of Zeyen’s structure will prevent overheating of ducts, as generally alleged by the Examiner to be the reason for any such modification. In particular, the Examiner does not explain what deficiencies exist with respect to Zeyen’s structure and/or how Kawate’s configuration would remedy such deficiencies. More specifically, the Examiner’s assertion that Kawate’s “heater configuration . . . prevents the overheating of ducts” (Final Act. 3) does not explain why a skilled artisan would recognize from Kawate, and/or from knowledge generally available to one of ordinary skill in the art, that utilizing two positioning frames and attaching each positioning frame to a contact plate would prevent overheating. In short, the Examiner does not articulate sufficiently what would have led one of ordinary skill in the art, based on the teachings of Kawate, to provide a second positioning frame in Zeyen’s configuration when Zeyen has only a single layer of heating elements. Moreover, the Examiner does not articulate sufficiently what would have led one of ordinary skill in the art, based on the teachings of Kawate, to attach positioning frames to the contact plates, when Zeyen attaches the positioning frame to the layer of heating elements. For the foregoing reasons, we find that the Examiner erred in concluding that the subject matter of claim 1 is unpatentable over Zeyen, Kawate, and Luppold, and we do not sustain the rejection of claim 1, or 5 Appeal 2016-002430 Application 12/459,955 claims 2—6, 12—15, and 20 which depend therefrom, under 35 U.S.C. § 103(a) as unpatentable over Zeyen, Kawate, and Luppold. Rejections II—IV The Examiner rejects, under 35 U.S.C. § 103(a): claims 10 and 11 as unpatentable over Zeyen, Kawate, and Wu; claim 9 as unpatentable over Zeyen, Kawate, Wu, and Pierron; and claims 17 and 21 as unpatentable over Zeyen, Kawate, Luppold, and Bohlender. The rejections of these claims rely on the Examiner’s erroneous conclusion that the combination of Zeyen, Kawate, and Luppold renders obvious a heating device comprising two positioning frames, each positioning frame being attached to one of the contact plates. The Examiner does not contend that Wu, Pierron, and/or Bohlender cure the underlying deficiency. Accordingly, we do not sustain the Examiner’s rejections, under 35 U.S.C. § 103(a), of: claims 10 and 11 as unpatentable over Zeyen, Kawate, and Wu; claim 9 as unpatentable over Zeyen, Kawate, Wu, and Pierron; and claims 17 and 21 under 35 U.S.C. § 103(a) as unpatentable over Zeyen, Kawate, Luppold, and Bohlender. DECISION The Examiner’s rejections of claims 1—6, 9-15, 17, 20, and 21 under 35 U.S.C. § 103(a) are reversed. REVERSED 6 Copy with citationCopy as parenthetical citation