Timothy S. O'Brien

Patent Trials and Appeals BoardAug 2, 2019

13110465 - (D) (P.T.A.B. Aug. 2, 2019)

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. 13/110,465 05/18/2011 Timothy S. O'Brien 086090.0171 3517 5073 7590 08/02/2019 BAKER BOTTS L.L.P. 2001 ROSS AVENUE SUITE 900 DALLAS, TX 75201-2980 EXAMINER SANKS, SCHYLER S ART UNIT PAPER NUMBER 3763 NOTIFICATION DATE DELIVERY MODE 08/02/2019 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): ptomail1@bakerbotts.com ptomail2@bakerbotts.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte TIMOTHY S. O’BRIEN ____________ Appeal 2018-0090991 Application 13/110,4652 Technology Center 3700 ____________ Before MICHAEL C. ASTORINO, BRUCE T. WIEDER, and TARA L. HUTCHINGS, Administrative Patent Judges. HUTCHINGS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 9–16. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 Our decision references Appellant’s Appeal Brief (“App. Br.,” filed July 6, 2018) and Reply Brief (“Reply Br.,” filed Sept. 25, 2018), and the Examiner’s Answer (“Ans.,” mailed July 27, 2018), Advisory Action (“Adv. Act.,” mailed Mar. 2, 2018), and Final Office Action (“Final Act.,” mailed Nov. 2, 2017). 2 Appellant identifies Therma-Stor, LLC, as the the real party of interest. App. Br. 2. Appeal 2018-009099 Application 13/110,465 2 CLAIMED INVENTION Appellant’s claimed invention is directed to a split system dehumidifier. Spec. 1. Claim 9 is the sole independent claim on appeal, and is representative of the claimed subject matter: 9. A split-system dehumidifier, comprising: an evaporator unit located inside a structure and operable to: receive a pre-cooled airflow; receive a flow of refrigerant; and generate a cooled airflow by facilitating heat transfer from the pre-cooled airflow to the flow of refrigerant; a heat exchange unit located inside the structure and operable to: receive the cooled airflow generated by the evaporator unit; receive an incoming airflow from within the structure; and generate the pre-cooled airflow from the incoming airflow by facilitating heat transfer from the incoming airflow to the cooled airflow, the heat transfer from the incoming airflow to the cooled airflow transforming the received cooled airflow into an outgoing airflow, wherein the outgoing airflow has a relative humidity less than a relative humidity of the cooled airflow and is warmer than the cooled airflow; a supply fan located inside the structure and positioned downstream of the evaporator unit and the heat exchange unit, the supply fan operable to provide the outgoing airflow to inside the structure, wherein the outgoing airflow is not being reheated as it is being provided to inside the structure; a remote condenser system located outside the structure and operable to use ambient air from outside the structure to cool the flow of refrigerant; and a control unit operable to modulate the speed of the supply fan based on a humidity within the structure such that Appeal 2018-009099 Application 13/110,465 3 the supply fan is stopped when the humidity drops below a lower limit. REJECTIONS3 1. Claims 9–15 are rejected under 35 U.S.C. § 103(a) as unpatentable over Herzon (US 2008/0307803 A1, pub. Dec. 18, 2008), Stark (US 5,913,360, iss. June 22, 1999) (hereinafter “Stark ’360”), and US 2009/0165485 A1, pub. July 2, 2009) (hereinafter Stark ’485). 2. Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over Herzon, Stark ’360, Stark ’485, and Taras (US 2007/0033957 A1, pub. Feb. 15, 2007). 3. Claims 9–15 are rejected under 35 U.S.C. § 103(a) as unpatentable over Herzon, Stark (US 5,816,315, iss. Oct. 6, 1998) (hereinafter “Stark ’315”), and Stark ’485. 4. Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over Herzon, Stark ’315, Stark ’485, and Taras. ANALYSIS Rejection 1 We are persuaded by Appellant’s argument that the Examiner erred in rejecting independent claim 9 under 35 U.S.C. § 103(a) because Herzon does not teach or suggest the claimed “control unit” that is “operable to modulate the speed of the supply fan based on a humidity within the structure such that the supply fan is stopped when the humidity drops below 3 The Examiner has withdrawn the rejections of claims 13 and 14–16 under 35 U.S.C. § 112(a) and (b). Adv. Act. 1–2. Appeal 2018-009099 Application 13/110,465 4 a lower limit.” See App. Br. 16. The Examiner relies on Herzon as disclosing the argued limitation. See Final Act. 5–6 (citing Herzon ¶¶ 45, 57, Fig. 2); see also Ans. 3–4. Herzon relates to a system and method for controlling humidity, heating, ventilaction, and air-conditioning (HVAC) equipment. Herzon ¶ 1. Herzon describes that the equipment cycles on and off to control temperature within a space. Id. ¶ 45. Herzon describes with reference to Figure 2 a humidity-control routine that includes evaluating a humidity level (step 28). Id. ¶ 57, Fig. 2. If the temperature exceeds a set point (step 25) and humidity is not excessive (step 29), then the equipment continues to operate at the same speed (step 26). Id. ¶ 58, Fig. 2. If the fan speed is not operating at full or normal speed or had been reduced to reduce humidity, then the fan speed is increased after it is determined that humidity is not excessive. Id. In other words, rather than teaching to stop the fan when humidity drops below a particular limit, as required by claim 9, Herzon teaches to maintain or raise the fan to full speed when humidity is below the threshold and to drop the fan speed when humidity exceeds a threshold. The Examiner does not account for this discrepancy in the Answer, but instead maintains the position that Herzon teaches stopping the fan when humidity drops below a lower limit. Ans. 3, 11–12, 21–22. In view of the foregoing, we do not sustain the Examiner’s rejection of independent claim 9 and dependent claims 10–15 under 35 U.S.C. § 103 as unpatentable over Herzon, Stark ’360 and Stark ’485. Rejection 2 The Examiner’s rejection of dependent claim 16 under 35 U.S.C. § 103 as unpatentable over Herzon, Stark ’360, Stark ’485, and Taras (i.e., Appeal 2018-009099 Application 13/110,465 5 Rejection 2) does not cure the deficiencies in the Examiner’s rejection of independent claim 9 under 35 U.S.C. § 103 as unpatentable over Herzon, Stark ’360, and Stark ’485 (i.e., Rejection 1). Therefore, we do not sustain Rejection 2 for the same reasons set forth above with respect to Rejection 1. Rejection 3 Rejection 3, rejecting independent claim 9 and dependent claims 10– 16 under 35 U.S.C. § 103 as unpatentable over Herzon, Stark ’315, and Stark ’485, relies on the same erroneous findings set forth above with respect to Rejection 1. See Final Act. 13–14 (citing Herzon ¶¶ 45, 57, Fig. 2); see also Ans. 11–12. Therefore, we do not sustain Rejection 3 for the same reasons described above with respect to Rejection 1. Rejection 4 The Examiner’s rejection of dependent claim 16 under 35 U.S.C. § 103 as unpatentable over Herzon, Stark ’315, Stark ’485, and Taras (i.e., Rejection 4) does not cure the deficiencies in the Examiner’s rejection of independent claim 9 under 35 U.S.C. § 103 as unpatentable over Herzon, Stark ’315, and Stark ’485 (i.e., Rejection 3). Therefore, we do not sustain Rejection 4 for the same reasons set forth above with respect to Rejection 1. DECISION The Examiner’s rejections of claims 9–16 under 35 U.S.C. § 103 as unpatentable are reversed. REVERSED