Ex Parte 7,585,344 B2 et alDownload PDFPatent Trial and Appeal BoardMay 15, 201490012644 (P.T.A.B. May. 15, 2014) Copy Citation MOD PTOL-90A (Rev.06/08) APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. 90/012,644 11/02/2012 PATERSON et al. EXAMINER MICHAEL BEST & FRIEDRICH LLP (TTiFC) 100 EAST WISCONSIN AVENUE SUITE 3300 MILWAUKEE WI 53202 TERRENCE TILL ART UNIT PAPER NUMBER 3900 MAIL DATE DELIVERY MODE 5/15/2014 PAPER 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. UNITED STATES DEPARTMENT OF COMMERCE U.S. Patent and Trademark Office Address : COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov UNITED STATES PATENT AND TRADEMARK OFFICE _____________________________________________________________________________________ UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte Techtronic Floor Care Technology Ltd. ____________ Appeal 2014-005755 Reexamination Control 90/012,644 Patent 7,585,344 B2 Technology Center 3900 ____________ Before DONALD E. ADAMS, ERIC B. GRIMES, and ULRIKE W. JENKS, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL Techtronic Floor Care Technology Ltd. (“Techtronic”)1 appeals under 35 U.S.C. § 134(b) and 35 U.S.C. § 306 from a final rejection of claims 1-10 under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. §§ 134(b) and 306. We affirm. 1 Techtronic Floor Care Technology Ltd. is said to be the real party in interest and assignee of the patent under reexamination (App. Br. 2). Appeal 2014-005755 Reexamination Control 90/012,644 2 STATEMENT OF THE CASE Reexamination Proceedings A request for ex parte reexamination of Paterson2 was filed on September 14, 2012, with a replacement request filed on November 2, 2012. The request for ex parte reexamination was assigned Reexamination Control No. 90/012,644 on December 20, 2012. Paterson’s Invention Paterson’s claims are directed to a tower air cleaner. Claim 1 is representative and is reproduced below: 1. A tower air cleaner, comprising: a base portion; a tower portion extending substantially vertically above the base portion; an air inlet extending at least partially around a first circumference of the tower portion; an air outlet; an air duct connecting the air inlet to the air outlet and including an inlet end and an outlet end; and at least one airflow shaper with a substantially cylindrical raised central region positioned in the air duct, wherein the airflow shaper transitions airflow in the tower air cleaner between a substantially vertical airflow and an airflow at an angle less than vertical. Claims 1-10 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Reisch.3 2 U.S. Patent No. 7,585,344 B2, entitled “AIR CLEANER AIRFLOW SHAPER,” issued September 8, 2009, to Christopher M. Paterson, Charles W. Reynolds, and Paul A. Moshenrose, based on Application No. 11/351,189, filed February 9, 2006. 3 G. J. Reisch, US 2,625,319, issued January 13, 1953. Appeal 2014-005755 Reexamination Control 90/012,644 3 ISSUE Would it have been prima facie obvious to modify the shape of Reisch’s deflector from a “frustoconical” shape to a “substantially cylindrical shape”? FACTUAL FINDINGS (FF) FF 1. Paterson’s Figures 2 and 4A- 4C are reproduced below: “FIG. 2 shows internal components of the air cleaner according to an embodiment of . . . [Paterson’s] invention” (Paterson, col. 2, ll. 15-16). “FIG. 4A shows the airflow shaper 207 according to an embodiment of . . . [Paterson’s] invention,” wherein the raised central region 302 comprises curved sides ending in a substantially cylindrical shape. The raised central region 302 can transition an impinging axial airflow A1 into a substantially Appeal 2014-005755 Reexamination Control 90/012,644 4 radial airflow A2 or impinging radial airflow A3 into a substantially axial airflow A4. This shape can reduce or eliminate recirculation of air above the air moving device 206. Consequently, the airflow shaper 207 can be used at the outlet end 211 of the air duct 201. The raised central region 302 can substantially match up to the air moving device 206 . . .. The raised central region 302 therefore substantially matches an exterior profile of the air moving device 206. In addition, the transition of the outer surface of the airflow shaper 207 to a corresponding outer surface of a motor or motor mount ring 220 is substantially smooth and uninterrupted. As a result, the transition between components generates a minimum of disruption in the airflow. (Id. at col. 4, ll. 37-55.) “FIG. 4B shows an alternative airflow shaper 207 according to an embodiment of . . . [Paterson’s] invention,” wherein “the raised central region 302 comprises a rounded, blended, or rounded and blended conical shape that is formed on the base 301. The raised central region 302 can comprise a substantially bell curve shape in cross-section” (id. at col. 5, ll. 34-39). “FIG. 4C shows another alternative airflow shaper 207 according to an embodiment of . . . [Paterson’s] invention,” wherein the raised central region 302 comprises a substantially curved conical shape formed on the base 301, including a sharp transition region 304 and an apex 305. This shape can keep all airflow velocities substantially equal as they are transitioned by the airflow shaper 207. Alternatively, the raised central region 302 can comprise any manner of curves and straight lines, including a rounded transition region 304, a rounded apex 305, etc. (Id. at ll. 40-44.) FF 2. Paterson’s airflow shaper 207 smoothly transitions the substantially cleaned, substantially vertical airflow into an airflow at an angle less than vertical, such as a substantially horizontal exhaust airflow or an angled airflow between vertical and horizontal, Appeal 2014-005755 Reexamination Control 90/012,644 5 . . . with a minimum of airflow turbulence in order to minimize the energy needed to create and sustain the airflow and in order to minimize noise generated by the tower air cleaner. (Id. at col. 4, ll. 12-19). FF 3. Reisch’s Figure 2 is reproduced below: FIG. 2 “illustrate[s] one embodiment of . . . [Reisch’s] invention . . . [a]s a side elevation partly in section” (Reisch, col. 1, ll. 17-21). FF 4. Examiner finds that Reisch “teaches a tower air cleaner (figure 2) comprising: . . . at least one airflow shaper 14, [having a frustoconical central region] wherein the airflow shaper transitions airflow in the tower air cleaner between a substantially vertical airflow and an airflow at an angle less than vertical (shaper 14 is positioned at an acute angle to the floor)” (Final Rej. 4; see also Ans. 3; Reisch col. 2, ll. 17-19 (“deflector 14 . . . provides a curved downwardly facing deflector surface 15 which projects down within the outlet louvres 5”)). Appeal 2014-005755 Reexamination Control 90/012,644 6 FF 5. Examiner finds that “Reisch does not teach the shaper having a raised central region being substantially cylindrical” (id.; see also Ans. 3 and 4). FF 6. Examiner finds that Reisch teaches the general principle that the exterior profile of the air shaper and the air mover should be blended in such that it creates a smooth continuous surface. See Reisch at col. 2, ll. 30-40 stating: “[o]n the lower end of shaft 22 is a dome 26 [deemed as the claimed air mover] which carries a fan blade 27. Dome 26 has a contour such that it blends in with the surface of deflector 14” [deemed as the claimed air shaper]. (Final Rej. 4-5 (alterations original); Ans. 5; App. Br. 7). ANALYSIS Examiner finds that Reisch’s air shaper does not have “a raised central region being substantially cylindrical,” but is instead “frustoconical,” which, according to Examiner, is similar in shape to the air shaper (207) illustrated in Paterson’s FIG. 2 (FF 3-5; Ans. 6). Examiner also finds that Paterson’s claimed device and Reisch’s device each have a “smooth transition . . . between components [that] generates a minimum of disruption in the airflow” (Ans. 4-5). In this regard, Examiner finds that Paterson suggests that by matching the shape of the air shaper to the exterior profile of the air moving device “the transition between components generates a minimum of disruption in the airflow” (FF 1). Similarly, Examiner finds that “Reisch teaches the general principle that the exterior profile of the air shaper and the air mover should be blended in such that it creates a smooth continuous surface” (FF 5). According to Examiner, [g]iven that Reisch teaches the claimed features of . . . [Paterson’s] claimed invention, absent the cylindrical shape, and also teaches the same concept of a smooth and Appeal 2014-005755 Reexamination Control 90/012,644 7 uninterrupted transition between the air mover and air shaper, it is the [E]xaminer’s position that one skilled in the art would reach the inescapable conclusion that the transition [between components] is important; not so much the shape of the air shaper; so long as the transition [between components] was smooth and uninterrupted. (Ans. 6.) In this regard, Examiner finds that “changes in shape are considered an obvious choice of mechanical design” (Final Rej. 5, citing In re Dailey, 357 F.2d 669 (CCPA 1966); see generally Ans. 3). Therefore, Examiner concludes that, at the time Appellants’ invention was made, it would have been prima facie obvious “to modify the shape of the raised central region of Reisch to be substantially cylindrical, as the particular shape of the raised central region, whether it be conical or cylindrical, is necessary only to provide a smooth airflow between the air mover and air shaper” (Ans. 3). Techtronic disagrees (App. Br. 7). Techtronic contends that “the shape of the raised central region is a critical aspect of the invention’s design and is necessary for more than providing a smooth transition between the air mover and the air shaper” (Reply Br. 2). In this regard, Techtronic contends that “[t]he raised central region 302 can transition an impinging axial airflow A1 into a substantially radial airflow A2 or impinging radial airflow A3 into a substantially axial airflow A4” (id. (alteration original); FF 1). Therefore, Techtronic contends that “[t]he specific shape of the raised central region is necessary to direct the flow of air within the tower air cleaner” (Reply Br. 2 and 3). We are not persuaded. Notwithstanding Techtronic’s contentions to the contrary, Paterson attributes the ability to “transition an impinging axial airflow A1 into a substantially radial airflow A2 or impinging radial airflow A3 into a Appeal 2014-005755 Reexamination Control 90/012,644 8 substantially axial airflow A4” with an air shaper having a variety of shapes (see FF 1 (“FIG. 4A shows . . . the raised central region 302 comprises curved sides ending in a substantially cylindrical shape,” “FIG. 4B shows an alternative . . . [wherein] the raised central region 302 comprises a rounded, blended, or rounded and blended conical shape . . .. The raised central region 302 can comprise a substantially bell curve shape in cross-section,” “FIG. 4C shows another alternative . . . [wherein] the raised central region 302 comprises a substantially curved conical shape . . . including a sharp transition region 304,” or, “[a]lternatively, the raised central region 302 can comprise any manner of curves and straight lines, including a rounded transition region 304”); Cf. Ans. 6; FF 3-4). In sum, the specific purpose of Paterson’s air flow shaper is to transition airflow in the tower air cleaner between a substantially vertical airflow and an air flow at an angle less than vertical as is defined by Paterson’s claim 1. Reisch and Paterson establish that an air flow shaper of any of a variety of shapes is capable of performing this task (FF 1 and 3). Thus, the evidence of record establishes that the specific shape of the air flow shaper is not significant. Therefore, notwithstanding Techtronic’s contention to the contrary, the evidence of record fails to support a conclusion that the change in shape, i.e., from a frustoconical shape to a substantially cylindrical shape, is “significant” (see Reply Br. 3; App. Br. 9). For the foregoing reasons, we are not persuaded by Techtronic’s contentions regarding In re Dailey, 357 F.2d 669 (CCPA 1966). At best, Paterson established that an air shaper with a curved conical shape as illustrated in Paterson’s FIG. 4C “can keep all airflow velocities substantially equal as they are transitioned by the airflow shaper 207” (Reply Appeal 2014-005755 Reexamination Control 90/012,644 9 Br. 4; see FF 1). Paterson’s claimed invention is not, however, concerned with airflow velocity. Instead, Paterson’s claimed invention requires only that the airflow shaper transition airflow in the tower air cleaner between a substantially vertical airflow and an airflow at an angle less than vertical (see Paterson’s Claim 1). Techtronic does not dispute Examiner’s finding that Reisch’s air shaper transitions airflow in the tower air cleaner between a substantially vertical airflow and an airflow at an angle less than vertical as is required by Paterson’s claimed invention, which, as Paterson discloses, is achieved by any number of variously shaped airflow shapers (see FF 4; Cf. FF 1). In sum, Techtronic failed to present persuasive argument or evidence to support a conclusion that Examiner erred in concluding that it would have been prima facie obvious “to modify the shape of the raised central region of Reisch to be substantially cylindrical,” while retaining the ability to transition airflow in the tower air cleaner between a substantially vertical airflow and an airflow at an angle less than vertical as is required by Paterson’s claimed invention. We recognize, but are not persuaded by, Techtronic’s contention that there is “no motivation to modify Reisch since the fan already includes the desired feature” (App. Br. 8). Instead, we find no error in Examiner’s conclusion that such a modification in shape is simply a matter of design choice (Final Rej. 5; see also Ans. 3 (“[a]ny shape can be used so long as it provides a smooth transition between the air mover and the airflow shaper”)). We recognize, but are not persuaded by, Techtronic’s contention that “Reisch does not discuss modifying the shape of the deflector to create a smooth transition with the dome,” but instead suggests that the shape of the Appeal 2014-005755 Reexamination Control 90/012,644 10 dome is modified to “blend with the deflector” (Reply Br. 2). The question is whether it would have been obvious to modify the shape of Reisch’s deflector from a “frustoconical” shape to a “substantially cylindrical shape.” Techtronic failed to provide persuasive argument or evidence to rebut Examiner’s conclusion that doing so is simply a matter of design choice. Therefore, we find no error in Examiner’s prima facie case of obviousness, even if a person of ordinary skill in this art would, after reading Reisch, modify the dome to blend with a deflector having a substantially cylindrical raised central region, rather than a “frustoconical” shape. We recognize, but are not persuaded by, Tectronic’s contention that “[t]he raised central regions in Figs. 2, 4B, and 4C [of Paterson] do not have smooth transitions,” therefore, “[t]he creation of a smooth transition is not the primary aspect of the raised central portion” (Reply Br. 3). Reisch suggests a smooth transition between the dome and deflector portions of the device (FF 6). Similarly, Paterson discloses that the airflow shaper illustrated in FIG. 4A, having a raised substantially cylindrically shaped central region, as claimed, “can match up to the air moving device” such that “the transition of the outer surface of the airflow shaper . . . to a corresponding outer surface of a motor or motor mount ring . . . is substantially smooth and uninterrupted. As a result, the transition between components generates a minimum of disruption in the airflow” (FF 1 (emphasis added); see Ans. 5; see also Paterson’s Claim 9 (“The airflow shaper . . . with the raised central region being adapted to substantially match an exterior profile of an air moving device”)). Appeal 2014-005755 Reexamination Control 90/012,644 11 CONCLUSION OF LAW It would have been prima facie obvious to modify the shape of Reisch’s deflector from a “frustoconical” shape to a “substantially cylindrical shape”. The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable over Reisch is affirmed. Claims 2-10 are not separately argued and fall with claim 1. TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED MICHAEL BEST & FRIEDRICH LLP (TTiFC) 100 EAST WISCONSIN AVENUE SUITE 3300 MILWAUKEE WI 53202 3rd Party MEYERTONS, HOOD, KIVLING, KOWERT & GOETZEL, P.C. 1120 S. 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