Roger Pellenc

Patent Trials and Appeals BoardNov 13, 2020

14009498 - (D) (P.T.A.B. Nov. 13, 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. 14/009,498 12/26/2013 Roger Pellenc 1811-416 9862 24106 7590 11/13/2020 Egbert Law Offices, PLLC 1001 Texas Ave., Suite 1250 Houston, TX 77002 EXAMINER LETTMAN, BRYAN MATTHEW ART UNIT PAPER NUMBER 3746 NOTIFICATION DATE DELIVERY MODE 11/13/2020 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): KMCDANIEL@EGBERTLAWOFFICES.COM MAIL@EGBERTLAWOFFICES.COM USPTO@dockettrak.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ROGER PELLENC ____________ Appeal 2020-001867 Application 14/009,498 Technology Center 3700 ____________ Before BRETT C. MARTIN, WILLIAM A. CAPP, and LEE L. STEPINA, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 seeks our review under 35 U.S.C. § 134(a) of the final rejection of claims 24–35, 37–41, 43, and 44. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellant identifies PELLENC (SOCIETE ANONYME) as the real party in interest. Appeal Br. 5. Appeal 2020-001867 Application 14/009,498 2 THE INVENTION Appellant’s invention relates to portable electric blowers. Spec. ¶ 1. Claim 24, reproduced below, is illustrative of the subject matter on appeal. 24. A stand-alone electric blower apparatus comprising: an air guide assembly comprising: a tubular suction nozzle with an air inlet; a tubular exhaust pipe with an air outlet; and a tubular central part arranged between said tubular suction nozzle and said tubular exhaust pipe, said tubular central part housing a functional assembly, said functional assembly comprising: an electric motor adapted to be driven by a current source; at least one axial impeller driven in rotation by said electric motor, said axial impeller defining an axial fan; an exterior housing; an interior housing positioned axially within said exterior housing; a plurality of air rectifiers connecting said exterior housing and said interior housing, said plurality of air rectifiers defining cooling air circulation channels; and an electronic board connected to said electric motor for changing power settings of said electric motor; and a pair of half-shells fastened to said air guide assembly and surrounding said exterior housing, said tubular suction nozzle and said tubular exhaust pipe being respectively fastened to said tubular central part by said pair of half-shells. Appeal 2020-001867 Application 14/009,498 3 THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: NAME REFERENCE DATE Ponczek US 3,439,204 Apr. 15, 1969 Miner US 4,884,314 Dec. 5, 1989 Meyer US 5,538,074 July 23, 1996 Pellenc (US) US 2007/0108944 A1 May 17, 2007 Pal US 2012/0243177 A1 Sept. 27, 2012 Pellenc (WO) WO 2010/020720 A1 Feb. 25, 2010 The following rejections are before us for review: 1. Claims 24, 26, 30–32, 34, and 35 are rejected under 35 U.S.C. § 103 as being unpatentable over Ponczek and Pal. 2. Claims 25 and 33 are rejected under 35 U.S.C. § 103 as being unpatentable over Ponczek, Pal, and Miner. 3. Claim 27 is rejected under 35 U.S.C. § 103 as being unpatentable over Ponczek, Pal, and Meyer. 4. Claims 28 and 29 are rejected under 35 U.S.C. § 103 as being unpatentable over Ponczek, Pal, Meyer, and Miner. 5. Claims 37–41 are rejected under 35 U.S.C. § 103 as being unpatentable over Ponczek, Pal, Meyer, Miner, and Pellenc (WO). 6. Claims 43 and 44 are rejected under 35 U.S.C. § 103 as being unpatentable over Ponczek, Pal, and Pellenc (US). OPINION Appellant argues independent claim 24 and does not separately argue the remainder of the pending claims, all of which depend, directly or Appeal 2020-001867 Application 14/009,498 4 indirectly, from claim 24. Appeal Br. 16–21. We will consider the arguments for claim 24 and the remaining claims will stand or fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). The Examiner finds that Ponczek discloses the invention substantially as claimed except for an electronic control board being part of the functional assembly as claimed, for which the Examiner relies on Pal. Final Act. 2–5. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time of the invention to modify the apparatus of Ponczek with the electronic board location of Pal to achieve the claimed invention. Id. According to the Examiner, a person of ordinary skill in the art would have done this to cool the controller. Id. Appellant argues that the electronic board of Pal is not part of a “functional assembly” as claimed. Appeal Br. 16. In response, the Examiner finds that Ponczek teaches exterior housing 26, interior housing 25 positioned axially therein, air rectifiers 28 connecting the interior and exterior housings, and where the air rectifiers 28 define cooling air circulation channels. Ans. 13 (citing Ponczek Fig. 2, col. 48–62). Appellant’s argument is not persuasive. Claim 24 recites a functional assembly that includes a motor, an impeller, an exterior housing, an interior housing, and air rectifiers. Claims App. As shown in Figure 2, Ponczek features a motor and fan unit 19. Ponczek, col. 3, ll. 28–62. Inner member 25 forms a housing and mounting means for a motor. Id. Outer member 26 acts as a mounting member for the complete motor and fan assembly. Id. Cooling vanes 28 are provided between and integrally connected to members 25 and 26. Id. Vanes 28 dissipate heat from the Appeal 2020-001867 Application 14/009,498 5 motor. Id. col. 3, ll. 60–62. Motor and fan unit 19 may be considered to be a “functional assembly” within the meaning of claim 24. The Examiner relies on Pal as disclosing the electronic board limitation of claim 24. Final Act. 4–5. As shown in Figure 3, Pal features cooling assembly 10 which includes an assembly of electronic components disposed within inner housing 16 which, in turn, is disposed in outer housing 18. Pal ¶¶ 19–22, Fig. 3. Electronic components 38, 38a are disposed proximate inner housing 16 where they are cooled from air flow passing through air passage 20 and flow path 28. Id. Stator 34 is disposed proximate inner housing 16. Id. Stator 34 may be considered to be an “air rectifier” within the meaning of claim 24. Id. Electronic component 38 is a printed circuit board and constitutes an electronic board within the meaning of claim 24. Id. Pal’s cooling assembly 10 constitutes a functional assembly within the meaning of claim 24. In view of the foregoing, the Examiner’s finding that the combination of Ponczek and Pal discloses a functional assembly that includes all of the various elements of claim 24 is supported by a preponderance of the evidence. Similarly, the Examiner’s findings that the combination contains cooling channels and connections as claimed is supported by a preponderance of the evidence. Next, Appellant contends that it is “unclear” whether Pal’s electronic board would serve to change the power settings of the fan. Appeal Br. 18. “Pal lists a number of electronic components, but there is no explicit mention of changing the power settings of the fan, as required by Claim 24.” Id. In response, the Examiner finds that, apart from a blower, there is nothing else in Pal to which the disclosed power control components could Appeal 2020-001867 Application 14/009,498 6 control. Ans. 13. Thus, according to the Examiner, it is implicit that the disclosed control elements are used to control the disclosed blower. Id. The Examiner further finds that the disclosed transformers, by definition, change the power settings of the blower. Id. We have considered the competing positions of Appellant and the Examiner. The Examiner has stated a reasonable basis for believing that Pal’s electronic board controls the power setting of the fan. Appellant provides no evidence that it performs some other function. “[W]here the Patent Office has reason to believe that a functional limitation asserted to be critical for establishing novelty in the claimed subject matter may, in fact, be an inherent characteristic of the prior art, it possesses the authority to require the applicant to prove that the subject matter shown to be in the prior art does not possess the characteristic relied on.” In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). In the absence of any evidence from Appellant to rebut the Examiner’s position, we resolve this issue of fact in favor of the Examiner’s position. Next, Appellant challenges the Examiner’s findings regarding the pair of half shells limitation of claim 24. Appeal Br. 19. “[T]he ‘pair of half shells’ . . . carries out functions and achieve advantages neither taught or suggested by the prior art . . . .” Id. In response, the Examiner points out that the alleged advantages touted by Appellant are not recited in the claims. Ans. 14. Appellant’s argument is not persuasive. Ponczek teaches the use of half-shells. Ponczek, col. 3, ll. 9–14, Figs. 2, 4 (elements 15, 16). Appellant admits that “using two half shells is a common way to assemble a three- dimensional molded plastic structure.” Appeal Br. 20. It is well settled that Appeal 2020-001867 Application 14/009,498 7 an otherwise obvious improvement or advantage over the individual references found in the prior art, without more, does not confer patentability on an invention. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 422 (2007) (explaining that a person of ordinary skill in the art would have seen the benefits of combining the prior art in the manner achieved by the claimed invention). Because the desire to enhance commercial opportunities by improving a product or process is universal—and even common-sensical—we have held that there exists in these situations a motivation to combine prior art references even absent any hint of suggestion in the references themselves. Dystar Textilfarben GmBH & Co, v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006). Finally, Appellant argues that Ponczek’s half shells do not fasten a tubular exhaust pipe to a central part, as claimed. Appeal Br. 20. In response, the Examiner states that Ponczek’s rings 29 are disposed at the ends of member 26. Ans. 14 (citing Ponczek col. 3, ll. 70–72). The Examiner maintains that tubular exhaust pipe 29 of Ponczek is held in positioned by half shells 15, 16. Id. We have reviewed Figures 1–4 of Ponczek, together with the column 3 passage cited by the Examiner. The Examiner’s position is supported by preponderance of the evidence. We have considered Appellant’s remaining arguments and find them to be without merit. We sustain the Examiner’s unpatentability rejection of claims 24–35, 37–41, 43, and 44. Appeal 2020-001867 Application 14/009,498 8 CONCLUSION Claims Rejected § References Affirmed Rev’d 24, 26, 30-32, 34 35 103 Ponczek, Pal 24, 26, 30-32, 34 35 25, 33 103 Ponczek, Pal, Miner 25, 33 27 103 Ponczek, Pal, Meyer 27 28, 29 103 Ponczek, Pal, Meyer, Miner 28, 29 37-41 103 Ponczek, Pal, Meyer, Miner, Pellenc (WO) 37-41 43, 44 103 Ponczek, Pal, Pellenc (US) 43, 44 Overall Outcome 24-35, 37-41, 43 44 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED