Ex Parte Hetzler et al

Patent Trial and Appeal Board

Jun 22, 2017

12459955 (P.T.A.B. Jun. 22, 2017)

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2 Claims 7, 8, 18, and 19 are withdrawn, and claim 16 is cancelled.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
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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
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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
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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
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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
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