Ex Parte Chapman et al

Board of Patent Appeals and Interferences

Feb 10, 2009

11031296 (B.P.A.I. Feb. 10, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte JOHN GILMAN CHAPMAN, Jr., NICHOLAS ASHWORTH,
ROBERT BURT, and TIMOTHY E. WALLAERT
_____________

Appeal 2008-5292
Application 11/031,296
Technology Center 2600
______________

Decided:1 February 10, 2009
_______________

Before ROBERT E. NAPPI, KARL D. EASTHOM
and ELENI MANTIS MERCADER, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2008-5292
Application 11/031,296

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 6(b) of the final
rejection of claims 2 though 7, 9 through 15, and 17 through 20. Claim 8
was indicated as being allowable and claims 1 and 16 have been canceled.
We affirm-in-part the Examiner’s rejections of these claims.

INVENTION
The invention is directed towards an appliance control system that
senses high levels of carbon monoxide (CO) and disables the source of
combustion in the appliance. See page 2 of Appellants’ Specification.
Claim 2 is representative of the invention and reproduced below:
2. A method of controlling an appliance having a source of
combustion during a hazardous condition, comprising the steps of:
receiving a carbon monoxide (CO) warning signal;
disabling the source of combustion of the appliance; and
wherein the step of receiving a carbon monoxide (CO) warning
signal comprises the step of receiving by an electronic controller of
the appliance the carbon monoxide (CO) warning signal transmitted
by an external hazardous condition detector.

REFERENCES

Murase US 4,289,272 Sep. 15, 1981

Doi US 5,040,455 Aug. 20, 1991

Lewkowicz US 5,793,296 Aug. 11, 1998

Mueller US 6,484,951 B1 Nov. 26, 2002

King US 7,005,994 B2 Feb. 28, 2006
(filed Oct. 8, 2003)
2

Appeal 2008-5292
Application 11/031,296

REJECTIONS AT ISSUE
Claims 2 and 14 are rejected by the Examiner under 35 U.S.C.
§ 102(b) as being anticipated by Lewkowicz. The Examiner’s rejection is on
page 4 of the Answer2.
Claims 15 and 17 through 19 are rejected by the Examiner under 35
U.S.C. § 102(e) as being anticipated by King. The Examiner’s rejection is
on pages 5 and 6 of the Answer.
Claims 3 and 10 are rejected by the Examiner under 35 U.S.C.
§ 103(a) as being unpatentable over Lewkowicz. The Examiner’s rejection
is on pages 6 and 7 of the Answer.
Claim 4 is rejected by the Examiner under 35 U.S.C. § 103(a) as being
unpatentable over Lewkowicz in view of Mueller. The Examiner’s rejection
is on pages 8 and 9 of the Answer.
Claims 5 and 11 through 13 are rejected by the Examiner under 35
U.S.C. § 103(a) as being unpatentable over Lewkowicz in view of King.
The Examiner’s rejection is on pages 9 through 12 of the Answer.
Claims 6 and 9 are rejected by the Examiner under 35 U.S.C. § 103(a)
as being unpatentable over Lewkowicz in view of King and Doi. The
Examiner’s rejection is on pages 12 and 13 of the Answer.

2 Throughout the opinion, we make reference to the Answer, mailed
October 9, 2007 for the respective details thereof.

3

Appeal 2008-5292
Application 11/031,296

Claim 7 is rejected by the Examiner under 35 U.S.C. § 103(a) as being
unpatentable over Lewkowicz in view of King, Doi, and Murase. The
Examiner’s rejection is on pages 13 and 14 of the Answer.
Claim 20 is rejected by the Examiner under 35 U.S.C. § 103(a) as
being unpatentable over King. The Examiner’s rejection is on page 15 of
the Answer.
ISSUES

Rejection under 35 U.S.C. § 102(b)
Appellants argue, on pages 6 through 8 of the Brief,3 that the rejection
of claims 2 and 144 under 35 U.S.C. § 102(b) is in error. Appellants reason
that Lewkowicz does not teach the step of disabling the source of
combustion of the appliance. Brief 6. Appellants also argue that
Lewkowicz does not teach receiving by an electronic controller of the
appliance the carbon monoxide warning signal transmitted by an external
detector.
Thus, Appellants’ contentions with respect to the Examiner’s rejection
of claims 2 and 14 present us with two issues:
Have Appellants shown that the Examiner erred in finding that
Lewkowicz teaches disabling the source of CO recited in claim 2?
Have Appellants shown that the Examiner erred in finding that
Lewkowicz teaches receiving a CO warning signal as recited in claim 2?

3 Throughout the opinion, we make reference to the Brief, received May 16,
2007 and Reply Brief, received December 6, 2007, for the respective details
thereof.
4

Appeal 2008-5292
Application 11/031,296

Rejection under 35 U.S.C. § 102(e)
Appellants argue, on pages 8 and 9 of the Brief, that the rejection of
claims 15 and 17 through 195 under 35 U.S.C. § 102(e) is in error.
Appellants reason that King does not teach a thermostat having means for
communicating with at least one appliance in addition to the heating
ventilation and cooling (HVAC) system as recited in independent claim 15.
Thus, Appellants’ contention present us with the issue of whether the
Examiner erred in finding that King teaches a thermostat as claimed in claim
15.

Rejections under 35 U.S.C. § 103(a)
Claims 3 and 10
Appellants argue, on pages 9 and 10 of the Brief that the Examiner’s
rejection of claims 3 and 106 under 35 U.S.C. § 103(a) is in error.
Appellants argue that as discussed above Lewkowicz does not teach
disabling the appliance’s source of combustion. Brief 11. Further,
Appellants argue that there is no reason to modify Lewkowicz to include a
step of the thermostat transmitting an appliance control signal commanding
the appliance to extinguish any source of combustion and that there is no
expectation of success with such a modification. Brief 10, 11.

4 Appellants’ arguments group claims 2 and 14 together, accordingly we
select claim 2 as representative of the group.
5 Thus, Appellants’ arguments group claims 15, and 17 through 19 together,
accordingly we select independent claim 15 as representative of the group.
6 Appellants’ arguments group claims 3 and 10 together, accordingly we
select claim 3 as representative of the group
5

Appeal 2008-5292
Application 11/031,296

Thus, Appellants’ contentions with respect to the Examiner’s rejection
of claims 3 and 10 present us with the issues discussed above with respect to
the rejection of claim 2 and additionally presents us with the issue of
whether the Examiner properly held that it would be obvious to modify
Lewkowicz’s system such that the thermostat transmits a control signal to
the controller of an appliance as claimed.
Claim 4
Appellants argue on pages 12 and 13 of the Brief, that Mueller teaches
away from being combined with Lewkowicz. Appellants argue that
Lewkowicz teaches prohibiting the thermostat from providing power to the
furnace, Mueller allows the thermostat to operate the furnace with a lower
set point, and that these teachings are incompatible.
Initially, we note that Appellants have not identified a claim with
respect to this argument; however as the Examiner rejected claim 4, over the
combination of Lewkowicz and Mueller, we assume that these arguments
are directed to the rejection of claim 4. Thus, Appellants’ arguments present
us with the issue of whether the Examiner erred in combining the teachings
of Lewkowicz and Mueller to reject claim 4.
Claims 5 and 11 through 13
Appellants argue on page 13 of the Brief, that there is no motivation
to combine Lewkowicz and King. Appellants argue that the Examiner’s
motivation to combine the references, to keep a room at a comfortable
temperature, would render the references unsatisfactory for their intended
uses.
Appellants have not identified a claim with respect to this argument,
however as the Examiner rejected claims 5, 11 through 13, over the
6

Appeal 2008-5292
Application 11/031,296

combination of Lewkowicz and King, we assume that these arguments are
directed to the rejection of claims 5, 11 through 137. Thus, Appellants’
arguments present us with the issue of whether the Examiner erred in
combining the teachings of Lewkowicz and King to reject claim 5.
Claims 6 and 9
Appellants argue on pages 13 and 14 of the Brief, that there is no
motivation to add Doi with the combination of Lewkowicz and King.
Appellants argue that the system of Doi has nothing to do with detection of
CO and that Doi’s teachings do not apply to a CO monitoring system. Thus,
Appellants argue that applying Doi to the teachings of Lewkowicz and King
would render them unsatisfactory for their intended purpose of mitigating
high concentrations of CO.
Appellants have not identified a claim with respect to this argument,
however as the Examiner rejected claims 6 and 9, over the combination of
Lewkowicz and King and Doi, we assume that these arguments are directed
to the rejection of claims 6 and 9. Thus, Appellants’ arguments present us
with the issue of whether the Examiner erred in combining the teachings of
Lewkowicz, King, and Doi to reject claims 6 and 9.
Claim 7
Appellants argue on page 14 of the Brief that the combination
Lewkowicz, King, Doi, and Murase as proposed by the Examiner would
render them unsatisfactory for their intended purpose of mitigating high
concentrations of CO.

7 Thus, Appellants’ arguments group claims 5, and 11 through 13 together,
accordingly we select independent claim 5 as representative of the group.
7

Appeal 2008-5292
Application 11/031,296

Appellants have not identified a claim with respect to this argument;
however as the Examiner rejected claim 7, over the combination of
Lewkowicz, King, Doi, and Murase, we assume that these arguments are
directed to the rejection of claim 7. Thus, Appellants’ arguments present us
with the issue of whether the Examiner erred in combining the teachings of
Lewkowicz, King, Doi, and Murase to reject claim 7.
Claim 20
Appellants argue on pages 8 and 9 of the Brief that King does not
suggest all of the limitations of claim 15, upon which claim 20 is dependent.
Thus, Appellants’ arguments as directed to the Examiner’s rejection of claim
20 present us with the same issue as discussed with respect to claim 15.

PRINCIPLES OF LAW
In analyzing the scope of the claim, Office personnel must rely on
Appellants’ disclosure to properly determine the meaning of the terms used
in the claims. Markman v. Westview Instruments, Inc., 52 F.3d 967, 980
(Fed. Cir. 1995). “[I]nterpreting what is meant by a word in a claim is not to
be confused with adding an extraneous limitation appearing in the
specification, which is improper.” (Emphasis original) In re Cruciferous
Sprout Litigation, 301 F.3d 1343, 1348 (Fed. Cir. 2002) (citations and
quotations omitted).
Where a patentee uses the claim preamble to recite structural
limitations of his claimed invention, the PTO and courts give effect to that
usage. Bell Communications Research, Inc. v. Vitalink Communications
Corp., 55 F.3d 615, 620 (Fed. Cir. 1995). Conversely, where a patentee
defines a structurally complete invention in the claim body and uses the
8

Appeal 2008-5292
Application 11/031,296

preamble only to state a purpose or intended use for the invention, the
preamble is not a claim limitation. Id.
On the issue of obviousness, the Supreme Court has recently stated
that “the obviousness analysis cannot be confined by a formalistic
conception of the words teaching, suggestion, and motivation.” KSR Int’l
Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007). Further, the Court stated
“[t]he combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.”
KSR, 127 S. Ct. at 1739. “One of the ways in which a patent’s subject
matter can be proved obvious is by noting that there existed at the time of
the invention a known problem for which there was an obvious solution
encompassed by the patent’s claims.” Id. at 1742.
The test for non-analogous art is first whether the art is within the
field of the inventor's endeavor and, if not, whether it is reasonably pertinent
to the problem with which the inventor was involved. In re Wood, 599 F.2d
1032, 1036 (CCPA 1979). A reference is reasonably pertinent if, even
though it may be in a different field of endeavor, it logically would have
commended itself to an inventor's attention in considering his problem
because of the matter with which it deals. In re Clay, 966 F.2d 656, 659
(Fed. Cir. 1992).

FINDINGS OF FACT
1. Lewkowicz teaches a system to detect carbon monoxide (CO) which
shuts off a combustion type heating system if high concentrations of
CO are detected. Abstract, col. 1, ll. 12-15.
9

Appeal 2008-5292
Application 11/031,296

2. Lewkowicz’s teaches several embodiments, in one embodiment a CO
detector is connected in the thermostat circuit of the heating system.
If CO is detected, a detector opens up a contact (item 14) in the
thermostat circuit to shut down the heating system (which includes
disabling the combustion source (source of heat in the system)).
Another contact (item 15) will close enabling an alarm. Figures 1a,
1b, col. 4, ll. 3-25.
3. In the embodiments where the connection is through the thermostat,
circuit, the CO detector is mounted on an adaptor plate which allows
the thermostat and CO detector to be mounted side by side.
Lewkowicz, Figures 2-4, col. 4, ll. 35-53.
4. Lewkowicz teaches another embodiment where the CO detector is
connected to a transmitter and the heating system is connected to a
receiver and control means. When the CO detector senses CO, a radio
frequency signal is transmitted to the receiver and the control means
shut down the heating system. In this embodiment the CO detector is
mounted in any location in the premises (i.e. remotely located).
Figure 5, col. 5, ll. 4-21.
5. King teaches a fire alarm system that includes CO detection. When
CO is detected the system triggers an alarm and ventilates the area
where CO is detected. Abstract.
6. King’s system makes use of several CO detectors (item 20) located
throughout the building. These detectors provide input to control
circuit (item 22) via wired connections. Figures 1, 3, and col. 2, ll.
45-56.
10

Appeal 2008-5292
Application 11/031,296

7. The control circuit is connected to other systems in the building such
as the garage door opener, dampeners, fans so that the system can
control ventilation of areas of the building. The control of these
systems is via wired connections. King, col. 4, ll. 38-55, Figures 1, 3,
and 5-7.
8. The control circuit is also connected to the water heater and furnace,
and will shut down these devices if CO is detected in the vicinity of
the devices. King, col. 4, ll. 58-67.
9. When used with a heater, a contact is placed in the thermostat circuit
such that heater can be controlled by disabling the thermostat circuit.
King, Figures 8, 9, and col. 6, ll. 40-56.
10. Mueller teaches a thermostat with a CO detector, when CO is
detected the thermostat’s setting is lowered to 50 deg. When CO is
detected, an audible alarm is sounded. Also a CO warning is
displayed on the LCD display of the thermostat. Abstract.
11. Doi teaches a system for ventilating the interior of a car. The system
ventilates the interior of the vehicle only if the exterior temperature is
above a predetermined temperature. Abstract.

11

Appeal 2008-5292
Application 11/031,296

ANALYSIS
Rejection under 35 U.S.C. § 102(b)
We are not persuaded that the Examiner erred in finding that
Lewkowicz teaches disabling the source of CO recited in claim 2. Claim 2
recites “[a] method of controlling an appliance having a source of
combustion,” thus, we consider this recitation broad enough to include an
appliance having one or more sources of combustion. Claim 2 further,
recites “disabling the source of combustion of the appliance.” We consider
the scope of this limitation to mean that the source of combustion is
disabled, i.e. made to no longer be a source of combustion. While we
recognize that Appellants’ Specification, on page 9, discusses that all
sources of combustion are disabled, we decline to import such a limitation to
the scope of the claim and consider the claim to be met if one of the
appliance’s sources of combustion is disabled.
The Examiner has found that Lewkowicz teaches a system which
when CO is detected, provides a control signal to shutoff or disable the
appliance. Answer 17. We concur with the Examiner’s finding and find that
there is ample evidence to support it. Facts 1, 2, and 4. Appellants’
arguments, on page 6 of the Brief concerning Lewkowicz not disabling the
pilot light are not persuasive. We note that Lewkowicz makes no mention of
a pilot light in the appliance (furnace) being controlled. Additionally, King,
which Appellants refer to as showing a standard wiring configuration of a
furnace also does not discuss that the furnace includes a pilot light. Further,
the portion of Appellants’ Specification, paragraph 29, which Appellants
argue discusses shutting off the pilot light, does not discuss a pilot light in a
furnace, it only discusses a pilot light in a stove or water heater. Thus, we
12

Appeal 2008-5292
Application 11/031,296

consider Appellants’ arguments that Lewkowicz does not shut off the pilot
light to be based upon speculation alone as there is no evidence of record
that furnaces which would be used with Lewkowicz’s control have a pilot
light, let alone whether the control leaves it on. Appellants’ argument
directed to disabling a pilot light is also not persuasive as it is not
commensurate in scope with the claim. As discussed supra, claim 2 does
not recite disabling all sources of combustion in the appliance, thus, even if
there were a pilot light in the furnace controlled by Lewkowicz’s device, the
claim is met by disabling the heat producing burner and not the pilot light.
Accordingly, Appellants’ arguments have not persuaded us that the
Examiner erred in finding that Lewkowicz teaches disabling the source of
CO recited in claim 2.
Similarly, we are not persuaded that the Examiner erred in finding that
Lewkowicz teaches receiving a CO warning signal as recited in claim 2.
Claim 2 also recites “wherein the step of receiving a carbon monoxide (CO)
warning signal comprises the step of receiving by an electronic controller of
the appliance the carbon monoxide (CO) warning signal transmitted by an
external hazardous condition detector.” Thus, the scope of the claim
includes that the hazardous condition detector (CO detector) is external to
the appliance.
The Examiner, on page 18 of the Answer, finds that this is taught in
Lewkowicz, Figure 5. Appellants’ arguments on pages 7 and 8 of the Brief,
focus on the embodiments of Lewkowicz where the CO detector is
collocated with the thermostat see Figures 2-4 and do not address the
embodiment shown in Figure 5. We find that the Figure 5 embodiment
clearly teaches the CO detector is remote (and thereby external) to the
13

Appeal 2008-5292
Application 11/031,296

furnace control circuit. Fact 4. Further, with regard to the embodiments of
Figures 2-4, we find that the CO detector, item 11, is mounted next to (there-
by external to) the thermostat thus, they also meet the claim. Accordingly,
Appellants have not persuaded us that the Examiner erred in finding that
Lewkowicz teaches receiving a CO warning signal as recited in claim 2. For
the aforementioned reasons we sustain the Examiner’s rejection of claims 2
and 14 under 35 U.S.C. § 102(b).

Rejection under 35 U.S.C. § 102(e)
Appellants’ arguments have not persuaded us that the Examiner erred
in rejecting claims 15 and 17 through 20. In the Answer, the Examiner
states that:
the recitation of ‘thermostat’ has not been given patentable weight
because the recitation occurs in the preamble. A preamble is
generally not accorded any patentable weight where it merely recites
the purpose of a process or the intended use of a structure and where
the body of the claim does not depend on the preamble for
completeness.

Answer 18. Appellants argue on pages 9 and 10 of the Reply Brief that the
preamble of claim 15 should be afforded patentable weight. Regardless of
whether we afford the preamble of claim 15 patentable weight, Appellants’
arguments have not convinced us of error in the Examiner’s rejection.
The preamble of claim 15 identifies that the device claimed is a
thermostat and recites that it includes control circuitry configured to control
a HVAC system. Appellants’ Specification in paragraph 18 identifies that a
thermostat controls heating of the home environment. Further, paragraph 40
of Appellants Specification, states “in embodiments of the present invention
in which an intelligent thermostat provides this central point, the user
14

Appeal 2008-5292
Application 11/031,296

interface and the control portions of such a thermostat need not be integrated
into a single housing.” Thus, we find that the term thermostat is not limited
to a device mounted in a single housing, but broad enough to encompass the
claimed components being separately mounted.
On page 5 of the Answer, the Examiner finds that the CO monitoring
system of King anticipates independent claim 15. We concur with the
Examiner’s findings that King teaches a control system which communicates
with CO detectors and appliances, in addition to the HVAC system which it
controls (Facts 5-7, 9). Thus, we find that the control system of King
performs all of the functions of a thermostat including controlling a heating
system. Appellant’s Specification identifies that the means for
communicating with the appliance and the CO detectors includes wired
connections (paragraphs 19 and 21). King teaches that the control system
controls appliances such as the garage door opener and ventilation system
via wired connections. Fact 7. Also, King teaches that the CO detectors
communicate with the control system via wired connections. Fact 6. As
such, Appellants’ arguments have not persuaded us that King does not teach
a thermostat as recited in independent claim 15. Accordingly, we will
sustain the Examiner’s rejection of claims 15 and 17 through 19 under 35
U.S.C. § 102(e).

Rejections under 35 U.S.C. § 103(a)
Claims 3 and 10
Similar to our holding with respect to claim 2, Appellants’ arguments
have not persuaded us that the Examiner erred in finding that Lewkowicz
teaches disabling the source of CO recited in claim 3. Claim 3 recites
15

Appeal 2008-5292
Application 11/031,296

limitations similar to claim 2 regarding the disabling of the source of
combustion. As with claim 2, we decline to import the limitation that all
sources of combustion in the device are disabled.
Appellants’ arguments also have not persuaded us that the Examiner
erred in finding that it would be obvious to modify Lewkowicz’s system
such that the thermostat transmits a control signal to the controller of an
appliance as claimed. Claim 3 recites that the step of disabling the source of
combustion “comprises the step of transmitting by the thermostat an
appliance control signal to an electronic controller of the appliance
commanding the electronic controller of the appliance to extinguish any
source of combustion.” Claim 3 does not identify what form of transmission
this control signal takes, thus we construe the limitation broadly to include
any type of signal.
Lewkowicz teaches that the system works to open up a contact in the
thermostat circuit; i.e., the system is providing an indication to the furnace
control circuit to not operate the furnace (disable the source of combustion).
Fact 2. The Examiner has found that this does not meet the claimed
transmitting a signal, but that such would be obvious. We concur with the
Examiner. Lewkowicz teaches in another embodiment, of Figure 5, a
system in which a signal to disable the furnace is transmitted to the furnace
control system via an RF link. Fact 4. Thus, Lewkowicz also teaches that it
was known to transmit a disable signal via RF link. We consider that the use
of transmitting a signal, as opposed to opening the thermostat circuit, to be
nothing more than the use of known methods which achieve their known
solutions. Here, the use of the transmission merely provides an alternate
method of providing communication and achieves no unexpected results.
16

Appeal 2008-5292
Application 11/031,296

Further, given that Lewkowicz teaches both forms of communication we
consider there to be a reasonable expectation of success in modifying the
teachings. Thus, we are not persuaded that the Examiner erred holding that
it would be obvious to modify Lewkowicz’s system such that the thermostat
transmits a control signal to the controller of an appliance as recited in claim
3. Accordingly, we sustain the Examiner’s rejection of claims 3 and 10.

Claim 4
Appellants’ arguments have not persuaded us that the Examiner erred
in combining the teachings of Lewkowicz and Mueller to reject claim 4.
Claim 4 is dependent upon claim 3 and recites a step of displaying, on a
display of the thermostat, an indication of a hazardous condition. In
rejecting claim 4, the Examiner identified that Lewkowicz does not teach a
display of a hazardous condition on the thermostat, but that Mueller does
include such a display. Appellants’ have not contested these findings, and
we find that the evidence supports these findings by the Examiner. Fact 10.
Appellants’ argument that Mueller’s teaching of changing the thermostat
setting to 50 deg. when CO is detected is incompatible with Lewkowicz’s
system is persuasive on its face but has no bearing on the Examiner’s
rejection. This feature of Mueller is not relied upon in the rejection and has
no relation to a claimed feature. Rather, Mueller clearly teaches that it was
known in the art that when CO is detected an indication is provided on the
display of the thermostat. Fact 10. Further, as Lewkowicz teaches that there
is an alarm, associated with the thermostat and CO detectors (Fact 2), but
does not teach the form of the alarm, we consider Muller to teach that the
form of the alarm may be a visual display. Thus, we consider using a visual
17

Appeal 2008-5292
Application 11/031,296

display of a warning of a hazardous condition, such as taught by Mueller, in
the system of Lewkowicz, to be nothing more than using known devices for
their known function. Here, the display is merely a form of notifying a user
of an alarm. Accordingly, Appellants’ arguments have not persuaded us that
the Examiner erred in combining the teachings of Lewkowicz and Mueller
and we sustain the Examiner’s rejection of claim 4.

Claims 5 and 11 through 13
Appellants’ arguments have not persuaded us that the Examiner erred
in combining the teachings of Lewkowicz and King. Claim 5 is dependent
upon claim 3 and further recites a step of energizing a ventilation system to
provide fresh air. The Examiner states in the Answer:
It would have been obvious to one of ordinary skill in the art to
implement the control module 22 of King's with the controller with
thermostat as taught by Lewkowicz wherein King control module 22
is coupling with the ventilation, furnace, air condition and water
heater system as a single system because the thermostat of Lewkowicz
would provide relevant temperature information and data for the
system to adjust the operation of appliance while King's single module
would provide a convenience [sic] control unit to operate the entire
system which the combination would result as a convenience control
system with thermostat to control and monitor the temperature and
CO level of particular area by adjusting the activation and
deactivation of ventilation, furnace, air condition in order to lower the
carbon monoxide level within the area.

Answer 9-10. We concur with the Examiner’s reasoning and note that it
does not rely upon the rationale to keep a room comfortable. King teaches
that the system controls ventilation system in areas where CO is detected to
help clear CO from the area. Fact 7. Thus, King teaches that it was known
that CO detecting systems can be used to actuate ventilation systems, and we
18

Appeal 2008-5292
Application 11/031,296

consider that modifying Lewkowicz to include control of the ventilation
system to be nothing more that using a known solution to a known problem.
The combination would yield a predictable result of ventilating an area of
high levels of CO. Thus, Appellants’ argument has not persuaded us that the
Examiner erred in combining the teachings of Lewkowicz and King to reject
claim 5. Accordingly, we sustain the Examiner’s rejection of claims 5 and
11 through 13.

Claims 6 and 9
Appellants’ have persuaded us that the Examiner erred in combining
the teachings of Lewkowicz and King to reject claims 6 and 9. Claim 6 is
dependent upon claim 5 which in turn is dependent upon claim 3. The three
claims read together and recite:

controlling an appliance having a source of combustion during a
hazardous condition, comprising the steps of: ... receiving by a
thermostat the carbon monoxide (CO) warning signal transmitted by a
hazardous condition detector … wherein the step of energizing the
ventilation system comprises the steps of: monitoring an external
temperature; and enabling operation of the ventilation system when
the exterior8 temperature is above a first predetermined set point.

Claim 9 recites a similar limitation. Thus, the scope of claims 6 and 9 both
include that when CO is detected, a hazardous condition exists, and the
ventilation system is turned on if the exterior temperature is above a
predetermined level.

8 We note that “the exterior temperature” lacks direct antecedent basis, it is
assumed that this limitation refers to the “external temperature” previously
recited as being monitored.
19

Appeal 2008-5292
Application 11/031,296

The Examiner states in the Answer:
It would have been obvious to one of ordinary skill in the art
implement the monitor method of Doi's with the ventilation of
combination system as rejection of claim 5 because it would adjust
and maintain the desired interior temperature for comfort since
exterior temperature affects the temperature of interior overtime if the
exterior temperature is extremely hot.

Answer 12. We disagree with the Examiner’s analysis. Doi teaches a
system that allows the interior of a vehicle to be ventilated, the system only
operates if the exterior temperature is above a predetermined temperature.
Fact 11. Doi’s teaching is directed to maintaining comfort in the vehicle and
not with ventilation in response to a hazardous condition. Thus, we do not
find that Doi is analogous to the claimed system, as it is not directed to
ventilating in a hazardous condition nor is the teaching of ventilating if the
outside temperature is above predetermined level logically related to a
system of ventilating if a hazardous level of CO is detected. Accordingly,
we will not sustain the Examiner’s rejection of claims 6 and 9.

Claim 7
Appellants’ arguments have persuaded us of error in the Examiner’s
rejection of claim 7. Claim 7 is dependent upon claim 6. The Examiner has
not found, not do we find that the additional teachings of Murase solve the
deficiencies in the rejection of claim 6. Accordingly, we will not sustain the
Examiner’s rejection of claim 7.

20

Appeal 2008-5292
Application 11/031,296

Claim 20
Appellants’ arguments have not persuaded us of error in the
Examiner’s rejection of claim 20. Claim 20 is dependent upon claim 15, as
discussed supra Appellants’ arguments have not persuaded us of error in the
Examiner’s rejection of claim 15. Appellants have not provided any
argument as to why the Examiner’s rejection of claim 20 is in error other
that the arguments directed to claim 15. Accordingly, we sustain the
Examiner’s rejection of claim 20 for the reasons discussed with respect to
claim 15.

SUMMARY
In summary, we sustain the Examiner’s rejections of claims 2 and 14
under 35 U.S.C. § 102(b) as being anticipated by Lewkowicz; claims 15 and
17 through 19 under 35 U.S.C. § 102(e) as being anticipated by King; and
claims 3 through 5, 10, 11 through 13, and 20 under 35 U.S.C. § 103(a).
However, we reverse the Examiner’s rejections of claims 6, 7, and 9 under
35 U.S.C. § 103(a).

ORDER
The decision of the Examiner to reject claims 2 though 7, 9 through
15, and 17 through 20 is affirmed-in-part.
21

Appeal 2008-5292
Application 11/031,296

No 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-IN-PART

ELD

REINHART BOERNER VAN DEUREN P.C.
2215 PERRYGREEN WAY
ROCKFORD, IL 61107
22