Ex Parte Turner et al

Patent Trial and Appeal BoardMay 24, 2017

13345534 (P.T.A.B. May. 24, 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. 13/345,534 01/06/2012 Glyn Wilfred TURNER 6005.002US2 3345 86245 7590 05/26/2017 Schwegman Lundberg & Woessner/NORTEK P.O. Box 2938 Minneapolis, MN 55402 EXAMINER BLUM, GEORGE R ART UNIT PAPER NUMBER 3749 NOTIFICATION DATE DELIVERY MODE 05/26/2017 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): USPTO@slwip.com SLW @blackhillsip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GLYN WILFRED TURNER and LEE BRIAN HERBERT Appeal 2016-000533 Application 13/345,534 Technology Center 3700 Before LISA M. GUIJT, ERIC C. JESCHKE, and PAUL J. KORNICZKY, Administrative Patent Judges. GUIJT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 seek our review under 35 U.S.C. § 134 of the Examiner’s decision2 rejecting claims 1-3 under 35 U.S.C. § 103(a) as unpatentable over Jones (US 6,138,662; issued Oct. 31, 2000) and Guazzoni (US 4,218,266; issued Aug. 19, 1980). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Appellants identify the real party in interest as Reznor LLC. Br. 2. 2 Appeal is taken from the Final Office Action dated December 4, 2014 (“Final Act.”). Appeal 2016-000533 Application 13/345,534 CLAIMED SUBJECT MATTER3 Claim 1 is the sole independent claim on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal, with certain disputed claim language italicized for emphasis. 1. A radiant tube heater comprising a burner assembly, a radiant tube assembly and a combustion air pre-heater; wherein in use at least part of the combustion air supplied to the heater is preheated in said air pre-heater using the residual sensible heat of combustion gas produced by the heater, and where the air pre-heater comprises: a heat exchanger block having a first and second array of ducts arranged side by side, such that each array is contacted with hot combustion gas products at the same temperature, and held in place by end plate members', said heat exchanger block being arranged so that combustion air is preheated by passing inside and through the first array of ducts before turning and being further preheated by flowing in an opposite direction inside and through the second array of ducts; and where hot combustion gas products are cooled by passing in cross flow through a single enclosure, located between said end plate members. ANALYSIS Regarding independent claim 1, the Examiner finds, inter alia, that Jones teaches a burner assembly, a radiant tube assembly, and a combustion air pre-heater; however, the Examiner determines that Jones fails to teach a 3 There is no antecedent basis for the claim term “said straight tubes” recited in claim 3. 2 Appeal 2016-000533 Application 13/345,534 combustion air pre-heater comprising end plate members, as claimed. Final Act. 4. The Examiner relies on Guazzoni’s baffles 23 as corresponding to the claimed end plate members, finding that although Guazzoni’s baffles 23 “serve an additional function as baffles,” “Guazzoni teaches end plate members . . . which hold the heat exchanger block arrays in place.” Ans. 6. Appellants argue, inter alia, that Guazzoni fails to disclose end plate members, as claimed, because (i) Guazzoni’s baffles “are flow-directing or obstructing vanes or panels,” and not end plates that hold in place a heat exchanger block; and (ii) Guazzoni’s hot combustion gas products are not cooled by passing in cross flow through a single enclosure, located between the end plate members (i.e., baffles 23), as claimed. Br. 12. Guazzoni depicts baffles 23 in Figure 3, reproduced below. &XMAUS3 S&5ES 3 Appeal 2016-000533 Application 13/345,534 Figure 3 of Guazzoni is a schematic view of a heat exchanger, including baffles 23. See Guazzoni 1:60-61. Guazzoni discloses that, as shown in Figure 3, “a pair of baffles 23 configure the tubes 22 into a three-pass system.” Id. at 3:5-6. Although we agree with the Examiner that baffles may also function to direct air flow and as end plates (i.e., a plate providing an end to a structure), a preponderance of the evidence fails to support the Examiner’s finding that Guazzoni discloses, expressly or inherently, that baffles 23 function to hold the heat exchanger block in place. Further, a preponderance of the evidence fails to support the Examiner’s finding that Guazzoni discloses, expressly or inherently, that hot combustion gas products are cooled by passing through a single enclosure, located between baffles 23, as required by claim 1; rather, baffles 23 are depicted as being located within the single enclosure of Guazzoni’s heat exchanger 21. Accordingly, we cannot sustain the Examiner’s rejection of independent claim 1, and claims 2 and 3 depending therefrom. DECISION The decision of the Examiner to reject claims 1-3 is REVERSED. REVERSED 4