Ex Parte Ludwigson

Patent Trial and Appeal BoardOct 20, 2016

12387650 (P.T.A.B. Oct. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/387,650 0510512009 87092 7590 10/20/2016 Bartz & Bartz, P.A. 6950 FRANCE A VENUE SOUTH, STE. 119 Edina, MN 55435 FIRST NAMED INVENTOR Lanny J. Ludwigson 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. Ll5.12.l 3172 EXAMINER MULLER, BRYAN R ART UNIT PAPER NUMBER 3727 MAILDATE DELIVERY MODE 10/20/2016 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 LANNY J. LUDWIGSON Appeal2015-001078 Application 12/387,650 Technology Center 3700 Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and ANNETTE R. REIMERS, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. Â§ 134(a), from a final rejection of claims 1-5, 10, 11, 13-15, and 21-24. Br. 2. Claims 6-9, 12, and 16-20 have been canceled. Br. 2. Claims 25-31 have been withdrawn. Br. 2. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER The disclosed subject matter "is related to air moving devices operable to discharge a stream of cool air or hot air. The air moving device is a handheld air blower equipped with a heater assembly operable to heat air Appeal2015-001078 Application 12/387,650 discharged by the air blower." Spec. if 2. Claims 1, 13, and 21 are independent. Claim 1 is illustrative of the claims on appeal and is reproduced below: 1. An apparatus for moving air comprising: a housing having an internal chamber, an air inlet passage open to the internal chamber, and a spout having an air exit passage open to the internal chamber, a motor located within the internal chamber, an air moving device located in the internal chamber, a power transmission drive connecting the motor to the air moving device whereby the motor operates the air moving device to draw air through the air inlet passage and discharge air through the air exit passage of the spout, an elongated tubular member having an inside wall, the entire inside wall having a converging taper surrounding a passage and an air exit end opening to allow air to flow to atmosphere, said tubular member being mounted on the spout with the air exit passage of the spout in communication with the passage of the tubular member, a heater assembly located in the passage of the tubular member operable to heat air flowing in the passage of the tubular member, said heater assembly including a tubular sleeve located in the passage of the tubular member, said sleeve having a tapered outside surface and an inside surface and a passage through the sleeve, the entire outside surface of the tubular sleeve having a taper that compliments the converging taper of the inside wall of the tubular member whereby the entire outside surface of the tubular sleeve is located in surface engagement with the tapered inside wall of the tubular member to hold the heater assembly in a fixed position within the tubular member, a layer of heat reflective material attached to the inside surface of the sleeve exposed to the air in the passage through the sleeve, an electric heating element located within the passage through the sleeve for radiating heat to the layer of heat reflective material and heating air flowing through the passage of the sleeve, and at least one support mounting the heating element on the sleeve, said heating element being capable of heating the air flowing in the passage of the sleeve whereby heated air is discharged from the air exit end opening of the tubular member to atmosphere. 2 Appeal2015-001078 Application 12/387,650 REFERENCES RELIED ON BY THE EXAMINER Remseth US 1,949,658 Mar. 6, 1934 Albertson US 2,096,023 Oct. 19, 1937 Wright US 2,597,215 May 20, 1952 Crosby US 2,668,315 Feb. 9, 1954 Berryman US 3,612,824 Oct. 12, 1971 Levin US 4,734,017 Mar. 29, 1988 THE REJECTIONS ON APPEAL Claims 1, 2, 4, 5, 11, and 21-24 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Levin, Wright, and Remseth. Claim 3 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Levin, Wright, Remseth, and Berryman. Claim 10 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Levin, Wright, Remseth, Crosby, and Albertson. Claims 13-15 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Levin, Wright, Remseth, Crosby, Albertson, and Berryman. ANALYSIS The rejection of claims 1, 2, 4, 5, 11, 13-15, and 21-24 as unpatentable over Levin, Wright, and Remseth1 Appellant presents similar arguments for independent claims 1, 13, and 21 and further, Appellant does not present separate arguments for 1 Although claims 13-15 were separately rejected based on references in addition to those of Levin, Wright, and Remseth (Final Act. 5), Appellant argues these claims along with claim 1 and only addresses the references to Levin, Wright, and Remseth. Br. 10-11. Accordingly, we address the rejections of claims 1, 2, 4, 5, 11, 13-15, and 21-24 together. 3 Appeal2015-001078 Application 12/387,650 dependent claims 2-5, 10, 11, 14, 15, and 22-24. Br. 10-12. We select independent claim 1 for review with claims 2-5, 10, 11, 13-15, and 21-24 standing or falling with claim 1. See 37 C.F.R. Â§ 41.37(c)(l)(iv). The Examiner finds that Levin discloses a blower including, among other things, an "elongated tubular member (28) with the entire inside and outside walls of the tubular member having a converging taper" (Ans. 3--4; see also Final Act. 2) but that Levin "fails to disclose a heating element therein" (Ans. 4; Final Act. 2). The Examiner finds that Wright discloses a similar blower "including a heating element in an elongated tubular member" (Ans. 4; Final Act. 2) and concludes it would have been obvious "to provide a similar heating element to the elongated tubular member of Levin, as taught by Wright, to improve drying and provide the additional function of melting ice when necessary" (Ans. 4; Final Act. 2-3). The Examiner additionally finds that "Wright includes a tubular sleeve (22) with the entire outer surface thereof in contact with the inner surface of the elongated tubular member (12)" (Ans. 4) and concludes: when applied to the Levin apparatus, it further would have been obvious that the outer surface of the sleeve would also include a converging taper along the entire length thereof to compliment and contact the inner surface of the elongated tubular member (28) for mounting in the same manner as set forth by Wright. Ans. 4; see also Ans. 8, 9; Final Act. 3. Appellant contends that "Wright et al does not disclose a tubular sleeve having an entire surface in contact with the inner wall of casing 12. Also, there is no sleeve with a converging taper along its length to compliment and contact [an] inner surface of the casing 12." Br. 10. Appellant further states "Wright et al does not provide a person skilled in the 4 Appeal2015-001078 Application 12/387,650 art with information, teaching or suggestion to provide Levin [with] a sleeve supporting a heater element with an outside surface located in surface engagement with an inside surface of a tubular member or nozzle." Br. 11. With regard to Appellant's contention that Wright does not disclose a tubular sleeve having an entire surface in contact with the inner wall of casing 12, we disagree. First, the Examiner relies on both Levin and Wright for disclosing an "elongated tubular member." Final Act. 2. Furthermore, inspection of Figure 4 of Wright reveals that the entire outer surface of tubular sleeve 22 is in surface contact with the inner wall of casing 12. That is, Wright discloses that it is known to provide the outer surface of a tubular heating element supporting sleeve in complete surface contact with the inner wall of an elongated tubular member of a blower. As for Appellant's contention that Wright does not disclose a sleeve with a converging taper along its length to compliment and contact an inner surface of the casing 12; we agree. However; the Examiner relies on Levin for disclosing a "tubular member having a converging taper." Final Act. 2. As the Examiner convincingly responds: "it would be obvious/necessary to modify the sleeve (22) and inner layer (20) of Wright to have a taper along the entire length to correspond to the tapered inner wall of chamber (28) of Levin when installed therein" (Ans. 8) and "the inner sleeve would clearly be modified to conform to the inner wall of chamber (28) of Levin in the same manner that [it] conforms to inner wall (12) of Wright, thus providing the claimed tapered outer surface along the entire length thereof' (Ans. 9) (emphasis in original). That is, the Examiner correctly recognizes that one of ordinary skill in the art would have found it obvious to taper the sleeve 22 of Wright to fit within the tapered inner wall of chamber (28) of Levin in 5 Appeal2015-001078 Application 12/387,650 order to mate the sleeve with the tapered inner wall. 2 Such modification is not beyond the ability of the ordinarily skilled artisan. "A person of ordinary skill is also a person of ordinary creativity, not an automaton." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007); see also Perfect Web Technologies., Inc. v. Info USA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) ("while an analysis of obviousness always depends on evidence ... it also may include recourse to logic, judgment, and common sense available to the person of ordinary skill that do not necessarily require explication in any reference"). When addressing Remseth, Appellant states, "Remseth et al also does not include a sleeve engageable with heater casing." Br. 11. However, the Examiner did not rely on Remseth for this teaching, but instead for teaching "that the inner layer (23) is preferably formed from a shiny metal to reflect heat." Final Act. 3; see also Remseth 3:53-55. Appellant does not indicate how the Examiner erred in relying on Remseth for this teaching. Accordingly, and based on the record presented, we sustain the Examiner's rejections of claims 1, 2, 4, 5, 11, 13-15, and21-24. The rejections of (a) claim 3 as unpatentable over Levin, Wright, Remseth, and Berryman; and, (b) claim 10 as unpatentable over Levin, Wright, Remseth, Crosby, and Albertson Regarding the rejections based on the Examiner's additional reliance on Berryman, Crosby, and Albertson (Final Act. 3---6), Appellant does not 2 Appellant is misunderstanding the Examiner since Appellant argues that one skilled in the art cannot provide Levin's tubular member with Wright's sleeve "without changing the structure" of Levin's housing. Br. 10. It is Wright's sleeve that is modified to accommodate Levin's taper, not vice- versa. 6 Appeal2015-001078 Application 12/387,650 contest the Examiner's reliance on these additional references for the reasons stated, but instead, Appellant presents arguments regarding Berryman, Crosby, and Albertson based on other factors. Br. 11. Because Appellant's arguments regarding these additional references do not correspond with the reasons for which they were relied upon, such arguments are non-responsive and are hence not persuasive of Examiner error. Accordingly, based on the record presented, and for the foregoing reasons, we sustain the Examiner's rejections of claims 3 and 10. DECISION TheExaminer'srejectionsofclaims 1-5, 10, 11, 13-15, and21-24 are affirmed. 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)(l)(iv). AFFIRMED 7