Ex Parte Szprengiel et al

Patent Trial and Appeal Board

Aug 14, 2017

13298768 (P.T.A.B. Aug. 14, 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.
139650.155 5917
EXAMINER
OSWALD, KIRSTIN U
ART UNIT PAPER NUMBER
3744
MAIL DATE DELIVERY MODE
13/298,768 11/17/2011
7590
Carella, Byrne et al
5 Becker Farm Road
Roseland, NJ 07068-1739
08/15/2017
Stanley Szprengiel
08/15/2017 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 STANLEY SZPRENGIEL and THOMAS GRAHAM
Appeal 2016-0023951
Application 13/298,7682
Technology Center 3700
Before BIBHU R. MOHANTY, BRUCE T. WIEDER, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the Final Rejection of
claims 1, 3—9, 11, and 12. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references the Appeal Brief (“Appeal Br.,” filed Aug. 14,
2015) and Reply Brief (“Reply Br.,” filed Dec. 28, 2015), and the
Examiner’s Answer (“Ans.,” mailed Dec. 18, 2015) and Final Office Action
(“Final Act.,” mailed Apr. 8, 2015).
2 According to Appellants, the real party in interest is Component Hardware
Group, Inc. Appeal Br. 1.
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Application 13/298,768
BACKGROUND
The Specification relates to condensate evaporators for refrigeration
apparatuses. Spec. 1.
CLAIMS
Claims 1,3,6, and 11 are the independent claims on appeal. Claim 1
is illustrative of the appealed claims and recites:
1. A condensate evaporator for refrigeration apparatus
comprising
a pan having a floor, upstanding walls extending from
said floor to define a cavity for receiving condensate therein
and a pair of posts on an underside of said floor for pivoting of
said pan on a surface about a horizontal axis passing through
said posts towards one end of said pan under the weight of
condensate in said cavity; and
a heating element cast into said floor for heating
condensate in said cavity to a point of evaporation.
Appeal Br. App. 1.
REJECTIONS
1. The Examiner rejects claims 1 and 11 under 35 U.S.C. § 103(a) as
unpatentable over Heyer3 in view of Hoffmann.4
2. The Examiner rejects claim 12 under 35 U.S.C. § 103(a) as unpatentable
over Heyer in view of Hoffman and Galliou.5
3. The Examiner rejects claims 3 and 6 under 35 U.S.C. § 103(a) as
unpatentable over Balentine6 in view of Hoffman.
3 Heyer, US 3,683,153, iss. Aug. 8, 1972.
4 Hoffmann, US 5,072,095, iss. Dec. 10, 1991.
5 Galliou et al., US 2004/0084439 Al, pub. May 6, 2004.
6 Balentine, US 5,694,785, iss. Dec. 9, 1997.
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4. The Examiner rejects claim 7 under 35 U.S.C. § 103(a) as unpatentable
over Balentine in view of Hoffman and Coe.7
5. The Examiner rejects claims 4 and 8 under 35 U.S.C. § 103(a) as
unpatentable over Balentine in view of Hoffman, Coe, and Galliou.
6. The Examiner rejects claims 5 and 9 under 35 U.S.C. § 103(a) as
unpatentable over Balentine in view of Hoffman, Coe, Galliou, and
Song.8
DISCUSSION
Claim 1
With respect to claim 1, the Examiner finds that Heyer teaches a
condensate evaporator including a pan and heating element as claimed,
except that Heyer does not disclose that the pan pivots about a horizontal
axis passing through the posts on the underside of the pan floor as claimed.
Final Act. 10. With respect to this claim requirement, the Examiner relies
on Hoffmann. Id. In particular, the Examiner finds that Hoffmann teaches a
device that pivots about a horizontal axis passing through posts on the
underside of the device when weight of a condensate in a cavity causes an
actuator foot to decompress. Id. (citing Hoffmann Fig. 2; col. 3,11. 46—52).
The Examiner proposes to modify one of Heyer’s posts with Hoffmann’s
actuator foot “to activate the heating element (46 of Heyer) in the event that
the thermostat mechanism fails to detect a significant enough temperature
change despite a high level of condensate or when the thermostat mechanism
has complete failure.” Final Act. 10—11. The Examiner concludes that such
a modification would have been obvious to provide an alternate method to
7 Coe, US 3,387,653, iss. June 11, 1968.
8 Song, US 2009/0188231 Al, pub. July 30, 2009.
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activate the heating element if Heyer’s thermostat mechanism were to fail
“or to ensure that the condensate within the pan is not too high.” Id. at 11.
As discussed below, we are not persuaded of reversible error by
Appellants’ arguments.
Appellants first argue that the Examiner has erred in finding that
Hoffmann teaches that the actuator foot decompresses. Appeal Br. 9.
Rather, Appellants assert that Hoffmann discloses only that Hoffmann’s
actuator foot 77 moves upward. Id. at 10 (citing Hoffmann col. 3,11. 46—52).
Although Hoffmann states that the actuator foot moves upwardly, one of
ordinary skill in the art would readily understand that the foot moves
upwardly relative to the warmer plate 11 such that the weight of a vessel on
the warmer plate causes the actuator foot to make contact with the rivet
contact 65. See Hoffmann Figs. 1, 2; col. 3,11. 46—52. We agree with the
Examiner that Hoffmann thus indicates that the weight of the vessel and
fluid placed on the warmer plate causes the actuator foot to decompress, i.e.
the actuator foot moves inward as indicated in Figure 2. Ans. 4—5.
Appellants next argue that Hoffmann does not disclose that the device
pivots about a horizontal axis as claimed. Appeal Br. 10. However, as
noted, we agree with the Examiner that Hoffmann’s structure indicates that
the actuator foot is depressed when an object is placed on the device. See
Final Act. 10. We find that such depression at least suggests that the device
would pivot on an axis between the posts on the far right and the far left of
Figure 1. In particular, if the feet 15 are stationary and the actuator foot 7
depresses, the housing would pivot about an axis between the feet on the far
right and far left of Figure 1 when weight is applied. We do note that this is
not a case of inherency, because it may be that the feet 15 are also depressed
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when weight is applied to the house, though Hoffmann does not explicitly
disclose or otherwise indicate any movement of feet 15.
Appellants also argue that the Examiner has failed to support the
conclusion of obviousness with factual evidence including “any objective
teaching in Hoffmann that would lead one of ordinary skill in the art to
modify” Heyer as proposed. Appeal Br. 11. Instead, Appellants assert that
“the Examiner presents a classic example of hindsight reconstruction.” Id.
We disagree. As an initial matter, we note that the conclusion of
obviousness is generally based on “what the combined teachings, knowledge
of one of ordinary skill in the art, and the nature of the problem to be solved
as a whole would have suggested to those of ordinary skill in the art.” In re
Kotzab, 111 F.3d 1365, 1370 (Fed. Cir. 2000). Thus, the conclusion need
not be based on any explicit evidence found in the prior art. Id. Here, the
Examiner concludes that the proposed modification to Heyer would have
been obvious because “it is well known in the art to provide a substitute or
back-fail safe type of activation for a switching mechanism[, and i]t is well
known in the art to have an alternative method of switch activation if the
thermostat in Heyer were to fail.” Ans. 5. Appellants do not address the
Examiner’s findings and conclusion in this regard, and without further
explanation, we are not persuaded that the Examiner has not adequately
supported the conclusion with evidence or that the rejection is based on
hindsight.
Finally, Appellants argue “that Heyer and Hoffmann are directed to
non-analogous structures.” Appeal Br. 11. Our reviewing court has set forth
a two-prong test for determining whether a prior art reference is analogous:
(1) whether the reference is from the same field of endeavor as the claimed
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invention, and (2) if the reference is not within the same field of endeavor,
whether the reference is reasonably pertinent to the particular problem with
which the inventor is involved. In re Klein, 647 F.3d 1343, 1348 (Fed. Cir.
2011). Appellants do not address either prong of this test, and Appellants
compare the references to each other without reference to the claimed
invention. See Appeal Br. 11. Further, we agree with and adopt the
Examiner’s response and find that both references are reasonably pertinent
to the particular problem with which Appellants are involved, i.e., activating
a heating element to heat fluid collected in a vessel. See Ans. 6.
Based on the foregoing, we are not persuaded of reversible error with
respect to the rejection of claim 1. Accordingly, we sustain the rejection of
claim 1.
Claims 11 and 12
With respect to claim 11, the Examiner finds that Heyer teaches a
condensate evaporator as claimed except that Heyer does not disclose that
the pan pivots as claimed or that the device include a switch as claimed.
Final Act. 11—12 (citing Heyer Fig. 1; col. 1,11. 57—64; col. 3,11. 12—20;
col. 4,11. 1—12, 25—27, 60—68). For these missing elements, the Examiner
relies on Hoffmann, including findings and conclusions similar to those
noted above with respect to claim 1. Final Act. 12—14.
As discussed below, we are not persuaded of reversible error in the
rejection by Appellants’ arguments.
Appellants first argue that Heyer’s elements 62 and 64 may not be
considered a pair of flanges as claimed. Appeal Br. 12. In support,
Appellants assert that “the lugs 62 and 64 are on the heating element cover
52 not the body 12. Further the lugs 62 and 64 do not extend from the body
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12 but are disposed within the plane of the body 12.” Appeal Br. 12. We
agree with the Examiner that lugs 62 and 64 are flanges as claimed. See
Final Act. 11—12; Ans. 7. In particular, we note that the claim does not
require that the flanges do not extend “within the plane of the body” and the
claim does not specify in which direction the flanges extend. We also note
that the claim does not require that the flanges extend “away” from one end
of the pan. See Reply Br. 4—5. The claim requires only “a pair of parallel
flanges extending from one end [of the floor],” which reads on Heyer’s
flanges that extend upward from one end of the floor bottom.
Second, Appellants argue that Heyer’s heating element is not cast into
the floor of the pan. Appeal Br. 12—13. In support, Appellants assert that
Heyer’s heating element is merely inserted into a U-shaped groove and held
in place by a separate heating element cover. Id. at 13 (Heyer col. 4,11. 1—
12, 25—27). However, we agree with the Examiner that one of ordinary skill
in the art would consider the claim requirement “cast into said floor” to read
on Heyer’s disclosure. See Ans. 7. Specifically, Heyer discloses that “the
vaporizer bottom 16 is cast... to provide a generally U-shaped groove 44
... to receive the U-shaped heating element 46 therein in general intimate
overall contact.” Heyer col. 4,11. 1—5. We also find that to the extent
Appellants interpret the claim to require a specific method of creating the
device, i.e., a product by process claim, Appellants have not pointed out any
distinction between a product made by the claimed process and Heyer’s
device. See Ans. 7.
Third, Appellants argue that the proposed modification of Heyer
would not result in a triangular array of posts on an underside of the pan as
claimed. Appeal Br. 13—14. We disagree. We note that the claim uses the
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Application 13/298,768
open-ended language “comprising,” i.e., the claim is directed to a
condensate evaporator comprising, inter alia, a plunger switch and a pair of
posts defining a triangular array. Thus, the claim does not preclude the
presence of other posts and only requires that three of the posts be arranged
in a “triangular array.” The Examiner proposes to modify Heyer to replace
one the posts 92 with Hoffmann’s plunger switch. We find that such a
modification would necessarily result in a triangular array as claimed,
regardless of whether a rectangular array of posts is also present.
In light of the foregoing discussion, we are not persuaded of reversible
error with respect to the rejection of claim 11. Accordingly, we sustain the
rejection of claim 11. Appellants do not provide separate arguments with
respect to claim 12, which depends from claim 11. Thus, we also sustain the
rejection of claim 12 for the same reasons.
Claims 3—9
With respect to claims 3 and 6, the Examiner finds that Balentine
discloses a condensate evaporator including a pan having a floor, upstanding
walls, a heating element, electrical circuitry connecting the heating element,
and a pair of posts. Final Act. 3—7. In particular, the Examiner finds that
Balentine’s “horizontal flange connected to 12 on the underside of 30 with
apertures 18 for receiving screws 20” is a pair of posts. Id. Further, the
Examiner acknowledges that Balentine does not disclose that the device is
pivotable as claimed or that the device includes a plunger switch as claimed.
Id. The Examiner finds that Hoffmann discloses a vessel warmer with a
support surface that pivots about a horizontal axis through two posts and
includes a plunger switch. Id. The Examiner concludes:
It would have been obvious to one of ordinary skill in the
art at the time the invention was made to have provided the
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Application 13/298,768
support surface for pivoting about a horizontal axis towards one
end thereof under the weight of condensate in said cavity, the
pan with the enveloped heating element, the plunger switch to
activate the heating element and the pivoting posts to the
condensate apparatus of Balentine as taught by Hoffman for the
benefit of having the pan pivot under weight of condensate to
engage the plunger switch to activate the heating element
before the condensate level is too high and to have the heating
element enveloped within the floor to prevent damage to the
heating element from the condensate.
Id. at 7.
We are not persuaded of reversible error with respect to this rejection
by Appellants’ arguments. Appellants argue that Balentine does not include
a pair of posts and that the Examiner has not provided a factual basis for
modifying Balentine to include a pair of posts as claimed. Appeal Br. 15-
lb. However, the Examiner’s conclusion, quoted above, makes clear that
the rejection proposes to modify Balentine to include a support surface as
provided in Hoffmann. As discussed above with respect to claim 1, we
agree with the Examiner that Hoffmann discloses a support surface that
pivots about a horizontal axis through posts on the underside of the surface
and includes a plunger switch as claimed. Without further explanation from
Appellants, we are not persuaded that the Examiner has not provided a
factual basis to modify Balentine’s device to include posts as claimed.
Accordingly, we sustain the rejection of claims 3 and 6. We also sustain the
rejections of claims 4, 5, and 7—9, which fall with claims 3 and 6. See
Appeal Br. 16.
CONCLUSION
We AFFIRM the rejections of claims 1, 3—9, 11, and 12 for the
reasons discussed above.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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