Ford Global Technologies, LLC

Patent Trials and Appeals BoardNov 16, 2020

2019006667 (P.T.A.B. Nov. 16, 2020)

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. 15/625,106 06/16/2017 Paul Kenneth Dellock 83839775; 67186-401PUS1 5100 46442 7590 11/16/2020 CARLSON, GASKEY & OLDS, P.C./Ford 400 W. MAPLE RD. SUITE 350 BIRMINGHAM, MI 48009 EXAMINER BUCCI, THOMAS ART UNIT PAPER NUMBER 1711 NOTIFICATION DATE DELIVERY MODE 11/16/2020 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): cgolaw@yahoo.com ptodocket@cgolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PAUL KENNETH DELLOCK, JAMES J. SURMAN, STUART C. SALTER, JOSE GARCIA CRESPO, and BRAD NAPIER DOMAN ____________ Appeal 2019-006667 Application 15/625,106 Technology Center 1700 ____________ Before CATHERINE Q. TIMM, MICHELLE N. ANKENBRAND, and MERRELL C. CASHION, JR., Administrative Patent Judges. CASHION, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 2, 4–6, and 8–22. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Ford Global Technologies, LLC Company as the real party in interest. Appeal Br. 1. Ford Global Technologies, LLC is owned by Ford Motor Company. Id. Appeal 2019-006667 Application 15/625,106 2 The invention is generally directed to heating washer fluid for a vehicle. Spec. ¶ 1. Claim 1 illustrates the invention: 1. A washer fluid heating assembly, comprising: an outer layer about an innermost layer of a hose, the innermost layer providing an outer boundary of a fluid flow path, the innermost layer having a material composition including a base material and an additive that is more thermally conductive than the base material; and at least one heating element held by the innermost layer. Independent claim 16 is directed to a method of heating a water fluid using essentially the system described in claim 1. Appellant (see generally Appeal Br.) requests review of the following rejections from the Examiner’s Final Office Action: I. Claims 1, 2, 4, 8, 9, 11, and 15 rejected under 35 U.S.C. § 103 as unpatentable over Reusche (US 2014/0193143 A1, published July 10, 2014) and Chiles (US 5,022,459, issued June 11, 1991). II. Claims 5 and 6 rejected under 35 U.S.C. § 103 as unpatentable over Reusche, Chiles, and Schild (US 2010/0269917 A1, published October 28, 2010). III. Claims 10 and 12–14 rejected under 35 U.S.C. § 103 as unpatentable over Reusche, Chiles, and Ferrone (US 8,863,782 B2, issued October 21, 2014). IV. Claims 16–20 rejected under 35 U.S.C. § 103 as unpatentable over Shank (US 2005/0001058 A1, published January 6, 2005) and Reusche. V. Claim 21 rejected under 35 U.S.C. § 103 as unpatentable over Shank, Reusche, and Chiles. VI. Claim 22 rejected under 35 U.S.C. § 103 as unpatentable over Shank, Reusche, and Ferrone. Appeal 2019-006667 Application 15/625,106 3 OPINION After review of the positions the Appellant provides in the Appeal and Reply Briefs and the Examiner provides in the Final Action and the Answer, we AFFIRM the Examiner’s prior art rejections of claims 1, 2, 4–6, and 8–22 under 35 U.S.C. § 103 for the reasons the Examiner presents. We add the following for emphasis. REJECTION I In responding to the Examiner’s rejection of claims 1, 2, 4, 8, 9, 11, and 15 as unpatentable over Reusche and Chiles, Appellant presents arguments only for claims 1, 11, and 15 for this rejection. Accordingly, we select independent claim 1 as representative of the subject matter claimed. Claims 2, 4, 8, and 9 stand or fall with claim 1. We address claims 11 and 15 separately. Claim 1 Independent claim 1 recites a washer fluid heating assembly comprising an “innermost layer having a material composition including a base material and an additive that is more thermally conductive than the base material.” The Examiner finds that Reusche discloses a two-layer hose that differs from the claimed invention in that Reusche does not teach an innermost layer having a material composition including a base material and a thermally conductive additive. Final Act. 5–6. The Examiner finds that Chiles discloses such a flexible heated hose having a layer comprising a flexible polymer base material and a graphite additive for the purpose of enhancing thermal conductivity. Id. at 6; Chiles col. 4, ll. 27–41. Relying on Appeal 2019-006667 Application 15/625,106 4 the holding of In re Leshin, 277 F.2d 197 (CCPA 1960), the Examiner determines that it would have been obvious to one having ordinary skill in the art to modify Reusche’s hose by replacing its disclosed innermost layer with Chiles’s layer comprising a base material (e.g., polymer) and an additive (e.g., graphite) because it is within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. Final Act. 6–7. Appellant argues that Reusche and Chiles use their respective hosing element for opposite purposes. Appeal Br. 3. According to Appellant, Reusche’s hose is “intend[ed] to heat water carried by the hose,” while Chiles’s hose “is intended to transfer heat from a heat transfer fluid carried by the hosing to concrete (or another material) within which the hosing is embedded.” Id.; Reusche ¶ 4; Chiles col. 3, ll. 13–18. Appellant further contends that Reusche does not disclose an intent for inner tubular core 34 to be a thermally conductive layer. Appeal Br. 4. Appellant additionally contends that, given the fact that Chiles applies the additive to the outer layer of the hose for specific purposes, the Examiner has not explained how the enhanced thermal conductivity allegedly resulting from the modification of Reusche’s hose would be suitable for Reusche’s purposes. Id. at 5. Thus, Appellant contends that the Examiner does not provide an adequate explanation to modify Reusche’s hose in view of Chiles’s teachings. Id. We have considered Appellant’s arguments but are unpersuaded that they identify reversible error in the Examiner’s determination of obviousness. As the Examiner explains, Reusche, like Chiles, desires to transfer heat to prevent fluid from freezing. Ans. 14–15; Reusche ¶ 6 (discussing Appeal 2019-006667 Application 15/625,106 5 heating of the fluid to prevent it from freezing); Chiles col. 1, ll. 12–15 (discussing the need to “heat surfaces . . . to remove or to prevent the accumulation of ice and snow from the surface”). As the Examiner further explains, Chiles teaches that it is known to use an additive in a hosing component that is more thermally conductive than the base material, such as graphite, to enhance the heat transfer characteristics of a hosing element. Ans. 16; Chiles col. 4, ll. 37–44. Moreover, Chiles suggests incorporating the additive into the hosing component that more directly contacts the material desired to be heated (in Chiles’s case, the outer hosing component contacting the surface to be heated). Chiles col. 4, ll. 37–44. Given these disclosures, the Examiner provides a reasonable basis why a person of ordinary skill in the art would have combined the teachings of the cited art to arrive at the claimed invention. In re O’Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988) (“For obviousness under § 103, all that is required is a reasonable expectation of success.”). Appellant fails to explain adequately why one of ordinary skill in the art, using no more than ordinary creativity, would not have been capable of modifying Reusche’s hosing element by incorporating Chiles’s additive in the inner hosing component to enhance the thermal conductivity of the hosing element to heat the fluid passing through the hosing element (the material desired to be heated). See Spec. 1; see also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of ordinary skill is also a person of ordinary creativity, not an automaton.”); In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (presuming skill on the part of one of ordinary skill in the art). Claim 11 Appeal 2019-006667 Application 15/625,106 6 Claim 11 recites that “the inner layer and the at least one heating element together provide an extruded component.” The Examiner finds that Reusche teaches the claimed extruded component. Final Act. 8; Reusche ¶ 31, Fig. 2. We have considered Appellant’s argument for this claim, but are unpersuaded by it because the argument does not explain why the Examiner reversibly erred by relying on Reusche’s noted disclosure to meet the claimed extruded component. Appeal Br. 8; Ans. 20; 37 C.F.R. § 41.37(1)(c)(iv). Claim 15 Claim 15 recites that the washer fluid heating assembly further comprises a washer fluid. The Examiner determines that the claim limitation does not patentably distinguish the claimed invention over the cited prior art. Final Act. 8. We have considered Appellant’s arguments for this claim but find them unavailing for the reasons the Examiner expresses. Appeal Br. 5–7; Final Act. 8; Ans.17. Moreover, the recitation of a material intended to be worked upon by a claimed apparatus does not differentiate the claimed apparatus structure from the structure of a prior art apparatus. In re Rishoi, 197 F.2d 342, 345 (CCPA 1952). Accordingly, we affirm the Examiner’s prior art rejection of claims 1, 2, 4, 8, 9, 11, and 15 under 35 U.S.C. § 103 for the reasons the Examiner presents and those we provide above. Appeal 2019-006667 Application 15/625,106 7 REJECTION II Claims 5 and 6 Claim 5 recites that “the base material is a thermoplastic vulcanizate [(TPV)],” while claim 6, which depends from claim 5, further recites that “the additive comprises graphite.” The Examiner rejects claims 5 and 6 as unpatentable over Reusche, Chiles, and Schild. We refer to the Examiner’s Final Office action for the explanation of the rejection of these claims. Final Act. 8–9. Appellant argues that the Examiner did not provide a rational basis that demonstrates TPV, as Schild teaches, or graphite, as Chiles teaches, are suitable for Reusche’s purposes. Appeal Br. 7. That is, Appellant contend that the Examiner has not explained why one of ordinary skill in the art would have modified Reusche to prevent the hose from freezing in light of the above noted teachings. Id. The arguments do not identify reversible error in the Examiner’s determination of obviousness. As the Examiner explains in the Answer, Reusche discloses the heated hose assembly for the purpose of preventing the fluid passing through it from freezing. Ans. 18; Reusche ¶ 6. The Examiner also explains that Schild teaches it was known to use TPV materials to make heated hoses and Chiles teaches the use of graphite for the purpose of enhancing thermal conductivity of a flexible heated hose comprising a flexible polymer base material. Final Act. 6, 8; Ans. 18; Schild ¶ 10; Chiles col. 4, ll. 27–41. From these disclosures, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to arrive at the claimed invention from the teachings of the cited art. Final Act. 8–9. Appeal 2019-006667 Application 15/625,106 8 Based on this, the Examiner has provided a reasonable basis why one skilled in the art would have reasonably expected that the modified hose resulting from the combined teachings of the cited art would be suitable to function as a heated hose for Reusche’s purposes. In re O’Farrell, 853 F.2d at 904 (“For obviousness under § 103, all that is required is a reasonable expectation of success.”). Appellant’s arguments do not address persuasively the Examiner’s reasons for combining the teachings of the cited art. Accordingly, we affirm the Examiner’s prior art rejection of claims 5 and 6 under 35 U.S.C. § 103 for the reasons the Examiner presents and those we provide above. REJECTION III To reject claims 10 and 12–14, the Examiner adds Ferrone. Appellant presents separate arguments for claims 10, 12, and 13. Thus, we consider those claims separately. Claim 10 Claim 10 recites that “the at least one heating element comprises a Nichrome resistance wire.” The Examiner relies on Ferrone’s disclosure of a Nichrome wire as a known heating wire for electrically heated hoses. Final Act. 9; Ferrone Fig. 3, col. 1, ll. 14–18, col. 5, ll. 33–41. Appellant argues that the Examiner does not explain how Nichrome resistance wires are suitable for Reusche’s purposes. Appeal Br. 7. This argument also fails to point to reversible error in the Examiner’s determination of obviousness. Appeal 2019-006667 Application 15/625,106 9 As the Examiner explains, it would have been obvious to one having ordinary skill in the art to substitute Reusche’s heating wires with Ferrone’s Nichrome resistance wires because both wires are used to heat a hosing element and such substitution would result in an electrically heated hosing element that would predictably heat the fluid in the hose. Final Act. 9; Ans. 19–20. Appellant’s arguments do not address adequately the Examiner’s reasons for combining the teachings of the cited art. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413, 425–26 (CCPA 1981) (citations omitted) (“The test [for obviousness] is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). Claim 12 Claim 12 recites “an electrically conductive connector fluidly coupling [a] first hose to a second hose.” The Examiner relies on Ferrone’s disclosure of brass male/female couplings to connect 1st and 2nd hosing elements together as meeting the limitations of this claim. Final Act. 10; Ferrone Fig. 1; col. 4, ll. 37–45. Appellant argues that Ferrone’s interconnection 22 (comprising the brass male/female couplings) is not electrically conductive because Ferrone teaches that an arch or loop is formed around hose it by an end portion of power cord 32. Appeal Br. 8; see Ferrone Fig. 1, col. 5, ll. 17–32. That is, Appellant argues that Ferrone does not teach conducting electricity via interconnection 22. This argument fails to identify reversible error in the Examiner’s determination of obviousness for the reasons the Examiner presents. Ans. 21–22. Moreover, the subject matter of claim 12 only recites that the Appeal 2019-006667 Application 15/625,106 10 connector is electrically conductive and does not recite that electricity is conducted through the connector. Claim 13 Claim 13 recites that “the electrically conductive connector comprises a nylon blended with a metal or metal alloy.” The Examiner determines that “it would have been obvious to one having ordinary skill in the art at the time of invention to utilize an electrically conductive connector comprising a nylon blended with a metal or metal alloy” given Ferrone’s teachings. Final Act. 10–11. Appellant’s argument for this claim is similar to the arguments presented for claim 12, which we find unpersuasive. Appeal Br. 8. Moreover, Appellant’s argument does not challenge the Examiner’s basis for the rejection. Accordingly, the argument is not persuasive of reversible error in the Examiner’s determination of obviousness. Claim 14 Appellant does not argue claim 14, dependent from claim 12, separately. Accordingly, this claim stands or falls with claim 12. Accordingly, we affirm the Examiner’s prior art rejection of claims 10 and 12–14 under 35 U.S.C. § 103 for the reasons the Examiner presents and those we provide above. REJECTION IV In addressing the Examiner’s rejection of claims 16–20 as unpatentable over Shank and Reusche, Appellant does not argue any claim separate from the other. See generally Appeal Br. Accordingly, we select Appeal 2019-006667 Application 15/625,106 11 independent claim 16 as representative of the subject matter claimed. Claims 17–20 stand or fall with claim 16. Claim 16 Claim 16 recites a washer fluid heating method using essentially the system described in claim 1. We refer to the Examiner’s Final Office Action for a complete statement of the rejection of this claim. Briefly, the Examiner finds that Shank discloses a washer fluid heating method that differs from the subject matter of claim 16 in that Shank does not disclose using at least one heating element held by the innermost layer, the at least one heating element providing at least a portion of an outer boundary of the fluid flow path. Final Act. 11. The Examiner relies on Reusche’s teachings to supply the missing feature. Id. at 12. Appellant contends that the teachings of Shank and Reusche cannot be combined because Shank teaches a hosing element having conductor wires located external to the hosing element so that they do not come into contact with the fluid while Reusche teaches the heating elements located inside the fluid path of the disclosed hosing element would contact the fluid. Appeal Br. 9. Thus, Appellant asserts that Shank’s hosing element conductor wires are used within an entirely different sort of system than Reusche’s hosing element and heating elements and, thus, there would be no predictable result from the substitution of Shank’s features with Reusche’s features. Id. at 10. Appellant’s arguments are not persuasive of reversible error because they argue the references separately without taking into account the Examiner’s reasons for combining the cited art. Ans. 25; see Merck, 800 F.2d at 1097; see also Keller, 642 F.2d at 425–26. Appeal 2019-006667 Application 15/625,106 12 As the Examiner explains, the rejection contemplates the substitution of Shank’s hosing element/conductor wires with Reusche’s hosing element/heating elements. Ans. 26. Appellant’s argument that such a substitution is contrary to Shank’s disclosure of having the conductor wires terminate at positions outside the fluid bottle for connection to a battery and a ground (Appeal Br. 9) does not take into account that Reusche provides the heating elements with lead wires to connect to a power source. Reusche Fig. 7; ¶ 47. Based on this disclosure, Appellant fails to explain adequately why one of ordinary skill in the art, using no more than ordinary creativity, would not have been capable of incorporating Reusche’s hosing element and heating elements for use in Shank’s washer fluid method by ensuring that Reusche’s lead wires terminate at positions outside the fluid bottle for connection to a battery and a ground to power the heating elements. See KSR, 550 U.S. at 421; Sovish, 769 F.2d at 743. Accordingly, we affirm the Examiner’s prior art rejection of claims 16–20 under 35 U.S.C. § 103 for the reasons the Examiner presents and those we provide above. REJECTIONS V (Claim 21) and VI (Claim 22) Claim 21 recites that “the innermost layer has a material composition that includes a base material and an additive that is more thermally conductive than the base material.” We addressed this limitation in our discussion regarding claim 1. The subject matter of claim 22 is the same as the subject matter of claim 12, also addressed above. Appeal 2019-006667 Application 15/625,106 13 The Examiner relies on the same evidence used to reject claims 1 and 12 to address these limitations of claims 21 and 22. See Final Act. 13–15. Appellant also relies on the same line of arguments presented for claims 1 and 12 to address the limitations of these claims. See Appeal Br. 10–12. We refer to our prior discussion of these arguments and again find them unpersuasive of reversible error in the Examiner’s determination of obviousness. Accordingly, we affirm the Examiner’s prior art rejection of claims 21 and 22 under 35 U.S.C. § 103 for the reasons the Examiner presents and those we provide above. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 8, 9, 11, 15 103 Reusche, Chiles 1, 2, 4, 8, 9, 11, 15 5, 6 103 Reusche, Chiles, Schild 5, 6 10, 12–14 103 Reusche, Chiles, Ferrone 10, 12–14 16–20 103 Shank, Reusche 16–20 21 103 Shank, Reusche, Chiles 21 22 103 Shank, Reusche, Ferrone 22 Overall Outcome 1, 2, 4–6, 8–22 Appeal 2019-006667 Application 15/625,106 14 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED