Ex Parte Tomaselli et al

Patent Trial and Appeal Board

Jan 10, 2017

12309103 (P.T.A.B. Jan. 10, 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.
12/309,103 05/07/2009 Carlo Tomaselli 20082215A 7816
513 7590 01/12/2017
WENDEROTH, LIND & PONACK, L.L.P.
1030 15th Street, N.W.,
Suite 400 East
Washington, DC 20005-1503
EXAMINER
SHIRSAT, VIVEK K
ART UNIT PAPER NUMBER
3749
NOTIFICATION DATE DELIVERY MODE
01/12/2017 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):
ddalecki@wenderoth.com
eoa@ wenderoth. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARLO TOMASELLI, CEDRIC CATALOGNE,
FRANCESCO CORLEONI, STEFANO STRADA, and
MARCO STARNINI
Appeal 2015-000435
Application 12/309,103
Technology Center 3700
Before JEREMY M. PLENZLER, GORDON D. KINDER, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants, Carlo Tomaselli et al.,1 appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 17—19, 21—23, 26—31, and
34^40.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Electrolux Home Products Corporation N.V. as
the real party in interest. Br. 2.
2 Claims 1—16, 20, 24, 25, 32, and 33 are cancelled. Br. 2.
Appeal 2015-000435
Application 12/309,103
THE CLAIMED SUBJECT MATTER
The claims are directed to a gas burner for cooking appliances.
Claims 17, 29, and 40 are independent. Claim 17, reproduced below, is
illustrative of the claimed subject matter:
17. A burner for gas-fired cooking appliances, the burner
comprising:
a burner body defining a chamber inside of which an
injector inputs gas which mixes with air to form a combustible
gas-air mixture;
a ring-shaped burner element positioned over the burner
body and over the chamber, wherein outlet ports for the
combustible gas-air mixture are arranged on a periphery of the
ring-shaped burner element; and
a burner-covering plate,
wherein the ring-shaped burner element includes a bottom
surface extending radially outwardly to the outlet ports,
wherein at least the ring-shaped burner element is made of
a metal or a metal alloy and is coated with a thin layer of material
having catalytic activity,
wherein a buffer layer is disposed on the ring-shaped
burner element and between the ring-shaped burner element and
the material having catalytic activity,
wherein the ring-shaped burner is configured such that the
combustible gas-air mixture reacts with the material having
catalytic activity upstream of the outlet ports, and
wherein the material having catalytic activity is one of
simple metal oxides and mixed metal oxides.
Br. 17 (Claims App.).
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Application 12/309,103
REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Karbowiak US 3,066,268 Nov. 27, 1962
Capy US 3,817,689 June 18, 1974
Pangbom US 3,955,556 May 11, 1976
Dalla Betta US 5,511,972 Apr. 30, 1996
Manohar US 6,145,501 Nov. 14, 2000
Herzog DE 197 248 12 Al Dec. 11, 1997
REJECTIONS ON APPEAL
The Examiner made the following rejections:
1. Claims 17, 22, 28, 39, and 40 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Capy and Pangbom.3
2. Claims 18 and 23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Capy, Pangbom, and Manohar.
3. Claims 19, 29, 36, and 37 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Capy, Pangbom, and Herzog.4
4. Claims 21 and 30-32 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Capy, Pangbom, Herzog and Manohar.5
5. Claims 26, 27, and 38 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Capy, Pangbom, and admitted prior art in
Appellants’ Specification (| 18 in US 2010/0000515 Al, published January
7, 2010).6
3 Dalla Betta and Karbowiak are also used to reject claims 28 and 39,
respectively. Final Act. 5.
Dalla Betta is also used to reject claim 36. Final Act. 8.
The Final Action referenced claim 32, but claim 32 is cancelled. Br. 2.
Karbowiak is also used to reject claim 38. Final Act. 10.
3
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Application 12/309,103
6. Claims 34 and 35 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Capy, Pangbom, Herzog and prior art in Appellants’
Specification (| 18).
Appellants seek our review of these rejections.
ANALYSIS
The Rejections of Independent Claims 17, 29, and 40
Appellants argue independent claims 17, 29, and 40 as a group. Br. 6—
14. We select claim 17 as the representative claim, and claims 29 and 40
stand or fall with claim 17. 37 C.F.R. § 41.37(c)(l)(iv).
In response to the Examiner’s rejection of claim 17, Appellants
present several arguments asserting that the rejection is improper. First, in
response to the Examiner’s finding that Capy’s venturi 1 constitutes the
“burner body” recited in claim 17 (Final Act. 27), Appellants argue that
“[tjhere appears to be no reason to believe that the venturi (1) meets the
requirements of claim[] 17 . . . that the burner body defines a chamber inside
of which gas mixes with air; in fact, the disclosure of Capy explains that a
structure separate and distinct from the venturi (1) constitutes such a
chamber.” Br. 6—7.
Neither Appellants nor the Examiner specifically construe the term
“burner body,” but the term is defined in both the claims and the
7 The Final Action states “a burner body ([venturi] 1; Fig. 6) defining a
chamber inside of which an injector inputs gas which mixes with air to form
a combustible air mixture (Col. 2, Ln. 56-58; Examiner notes that although
an injector is not explicitly described, one would be inherently necessary to
the creation and operation of the burner taught by Capy. Without a gas
injector, there could be no controlled gas-air mixture, as described in the
Specification of Capy).” Final Act. 4.
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Application 12/309,103
Specification. According to claim 1, a burner body “defm[es] a chamber
inside of which an injector inputs gas which mixes with air to form a
combustible gas-air mixture.” According to the Specification, a “burner
according to the invention has a structure (FIG. 1) that substantially consists
of: a body 10 defining a chamber 12, wherein an injector 14 inputs the gas
that upon mixing with the air forms the combustible air-gas mixture . . . .”
Spec. 117 (emphasis added). Thus, based upon the definition used in the
Specification and the claims, we understand that a “burner body” is a
structure defining a chamber where an injector inputs gas that upon mixing
forms the combustible air-gas mixture.
Appellants do not contest that Capy discloses an injector that inputs
gas which mixes with air to form a combustible air-gas mixture, but argue
about whether the air and gas mix inside the chamber formed by Capy’s
venturi. Specifically, Appellants state that:
The Examiner has not provided any evidence, let alone
substantial evidence, to support the assertion that gas inherently
mixes with air inside the venturi (1) of Capy. For instance, the
Examiner has not cited any portion of the Capy reference which
discloses or implies such an inherent function, the Examiner has
not cited any extrinsic evidence to support the idea that this
function is inherent, and the Examiner has not given any detailed
explanation or rationale based on the structure actually disclosed
in the Capy reference that would support the idea that this
function is inherent. The Capy reference does not appear to
disclose any air inlet in the venturi (1) or any other structural
reason to believe that air mixes with gas in the venturi (1).
Moreover, the fact that the Capy reference actually discloses that
air mixes with gas downstream of the venturi (1) in a chamber
(6) which is referred to as a “mixing chamber” (see column 2,
lines 56-66) tends to suggest that gas does not mix with air in the
venturi (1). The entire inherency argument set forth in the Office
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Action amounts to a conclusory statement and is not supported
by the record, let alone substantial evidence.
Br. 9.
In response to Appellants’ argument, the Examiner presents a detailed
explanation on pages 9-11 of the Answer, which provides a reasonable basis
to believe that in Capy’s venturi, “gas . . . mixes with air to form a
combustible gas-air mixture” as recited in claim 17. For example, the
Examiner explains that “both fuel and air must be entering the mixing
chamber through the venturi, since . . . Capy does not provide for two
individual openings in the mixing chamber for fuel and air respectively” and
“since both fuel and air would be present in the venturi body, and there is no
physical barrier to separate the fuel and air, it is inherent that some degree of
mixing will take place.” Ans. 10—11. Where, as here, the Patent Office has
reason to believe that a functional limitation is an inherent characteristic of
the prior art, Appellants have the burden to show that the prior art does not
possess that characteristic. See In re Best, 562 F.2d 1252, 1254-55 (CCPA
1977) (quoting In re Swinehart, 439 F.2d 210, 212-13 (CCPA 1971)).
Appellants do not respond to the Examiner’s findings and, thus, do not show
Examiner error.
Second, Appellants argue that “the entire mapping of the Capy
reference to the limitations of claim[] 17 is dependent on the flawed
assertion that the venturi (1) corresponds to the claimed burner body.” Br. 9.
As discussed above, Appellants do not show that the Examiner erred in
finding that Capy’s venturi 1 corresponds to the “burner body” recited in
claim 17. Thus, Appellants’ argument is not persuasive.
Third, in response to the limitation requiring the ring-shaped burner
element “is coated with a thin layer of material having catalytic activity,”
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Application 12/309,103
Appellants argue that “there is no disclosure in Capy . . . that these structures
are coated with a material having catalytic activity.” Br. 11. The Examiner,
however, states that Pangbom, not Capy, discloses this limitation. Final Act.
2, 4—5; Ans. 12. Appellants’ argument does not address the rejection as
articulated by the Examiner, and, thus, does not show error.
Fourth, Appellants argue that the “Office Action does not set forth any
rationalfl underpinning as to why a skilled artisan would view the catalytic
surface on the heating zones (15, 16) of the water heater disclosed in
Pangbom and see an apparent reason to change, relocate, add to, or
otherwise modify the catalytic surface of the burner of Capy,” and “an
obviousness rationale does not have a sufficient rational underpinning when
it does not cite portions of the prior art which give some indication or
direction leading toward the claimed configuration.” Br. 13.
Contrary to Appellants’ argument, however, in the Final Action, the
Examiner reasons that it would be obvious to modify Capy with the
teachings of Pangbom “to provide clean innocuous combustion.” Final Act.
4; see, e.g., Pangbom 6:11—17 (teaching that “a catalyzed surface ... to
assure sufficient excess air inspiration for complete combustion, . . . and
innocuous combustion products result so that no external venting to the
atmosphere is required.”). In the Answer, the Examiner further explains his
reasoning:
In Pangbom, the catalyst is provided on the walls of annular
catalytic heating zones [reference character 15 and 16 in Fig. 1
and column 2 lines 9-10 of Pangbom], the catalytic material is
provided on every surface that comes into contact with fuel and
air after the point of fuel/air injection [column 2 lines 7-34 of
Pangbom], Therefore, a person having ordinary having ordinary
skill in the art, when modifying Capy with Pangbom, would
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logically place the catalyst on all interior surfaces of the burner
that come into contact with fuel and air, which includes the
interior of the ring shaped burner element [reference character 6
and 8 in Fig. 6 and column 4 lines 8-15 of Capy]. Further, on pp.
13 the appellant argues that because Capy already provides a
catalytic surface on the cover [column 2 lines 37-39 of Capy]
there would be no apparent reason to “change, relocate, add to,
or otherwise modify the catalytic surface of the burner of Capy”
(pp. 13 of the brief) with the catalytic surface taught by
Pangbom. However, the modification of Capy with Pangbom []
does not change the catalytic surface disclosed by Capy; rather,
the modification adds a catalytic surface to the ring shaped
burner element that is in addition to the catalyst disclosed by
Capy. The rationale being “to provide clean innocuous
combustion” as stated in the Final Office Action.
Ans. 12. The Examiner’s articulated reasoning has a rational underpinning
and is supported by explicit teachings in the cited art. Appellants do not
show error by the Examiner.
Finally, Appellants argue that Pangbom’s
anodizing does not constitute providing an additional layer that
could constitute a buffer layer meeting the stmctural
requirements of claim 17. In other words, modifying the device
of Capy to be anodized in view of the teaching of [Pangbom],
would not result in a buffer layer disposed on the ring-shaped
burner element and between the ring-shaped burner element and
the material having catalytic activity. but instead would only
result in applying a surface treatment to a component of the
device of Capy.
Br. 14—15. In response, the Examiner correctly finds that “Pangbom clearly
states that the anodization process produces a thin porous high surface area
film (clearly interpretable as a ‘layer’) of aluminum oxide on the surface of
the metal,” and that “Pangbom explicitly discloses that the base metal
(aluminum) is covered with a buffer layer (aluminum oxide) which is in
between the base metal and the catalytic material, as required by the claims.”
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Ans. 13 (citing to Pangbom 5:13—26 (stating “[t]his produces a thin (less
than 1 mil thick) porous high surface area film of aluminum oxide”)).
Appellants do not explain why the Examiner’s finding that Pangbom’s
aluminum oxide “film” is not “interpretable [as] a ‘layer,’” and, thus, do not
show Examiner error.
For the reasons above, the rejection of claim 17 is sustained, and
claims 29 and 40 fall with claim 17.
The Rejections of Dependent
Claims 18, 19, 21—23, 26—28, 30, 31, and 34—39
Appellants argue that the “rejections of the remaining claims are
contingent on the above-discussed rejections of claims 17, 29, and 40. The
only other prior art disclosures relied upon are the Manohar reference and a
portion of the instant specification, and these disclosures fail to cure the
above discussed deficiencies in the rejection of claims 17, 29, and 40.” Br.
15. Because we are apprised of no deficiencies in the rejections of claims
17, 29, and 40, the rejections of claims 18, 19, 21—23, 26—28, 30, 31, and
34—39 are sustained.
DECISION
For the above reasons, the Examiner’s rejections of claims 17—19, 21—
23, 26—31, and 34-40 under 35 U.S.C. § 103(a) as being unpatentable over
the cited prior art are AFFIRMED.
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).
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AFFIRMED
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