Ex Parte 7,585,344 B2 et al

Patent Trial and Appeal Board

May 15, 2014

90012644 (P.T.A.B. May. 15, 2014)

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).
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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.
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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
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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,
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. . . 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”)).
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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
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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
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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
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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
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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”)).
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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. CAPITAL OF TEXAS HWY.
BUILDING 2, SUITE 300
AUSTIN TX 78746

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