Ex Parte PRULL

Patent Trials and Appeals Board

Jun 28, 2019

13897083 - (D) (P.T.A.B. Jun. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/897,083 05/17/2013
38513 7590
ROBERT E. HOW ARD
P.O. BOX 10345
EUGENE, OR 97440
07/01/2019
FIRST NAMED INVENTOR
GREGORY G. PRULL
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
4793
EXAMINER
SHIRSAT, VIVEK K
ART UNIT PAPER NUMBER
3762
MAIL DATE DELIVERY MODE
07/01/2019 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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY G. PRULL
Appeal2019-000540 1
Application 13/897 ,083 2
Technology Center 3700
Before PHILLIP J. KAUFFMAN, JEREMY M. PLENZLER, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
FINAMORE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's decision to reject claims 1-3, 6-8, and 11-18. We have
jurisdiction under § 6(b ). We reverse.
1 We reference herein the Specification filed May 17, 2013 ("Spec."), Final
Office Action mailed February 10, 2016 ("Final Act."), the Substitute
Appeal Brief filed December 9, 2016 ("Br."), and the Examiner's Answer
mailed April 6, 2017 ("Ans.").
2 Appellant identifies Gregory G. Prull as the real party in interest. Br. 1.
Appeal2019-000540
Application 13/897,083
CLAIMED SUBJECT MATTER
Claims 1 and 13 are independent. Independent claim 1 is illustrative
of the claimed subject matter, and we reproduce it below, emphasizing the
limitation at issue.
1. An open flame control device for weed control
compnsmg:
an open framework flame containment structure having a
front side, a back side, an upper end, and an open lower end;
at least one flame producing burner located within said
flame containment structure adjacent said upper end thereof and
configured to direct a flame and hot gases generated thereby
towards and out of said open lower end of said flame
containment structure;
a porous metal fabric liner surrounding the inside of said
flame containment structure and attached thereto, said porous
metal fabric liner extendingfrom an area adjacent the bottom of
said at least one flame producing burner to an area adjacent to
the bottom of said flame containment structure, said porous
metal fabric liner configured to capture and contain said flame
and hot gases generated by said at least one flame producing
burner and direct them out of said open lower end of said flame
containment structure;
at least one metal flame reflector located adjacent said
lower end of said flame containment structure and occupying a
portion of said back side thereof; and
means allowing a user to move said device into killing
proximity to weeds.
Br., Claims App. (emphasis added).
REJECTIONS
The Examiner rejects the claims on appeal as follows:
claim 16 under 35 U.S.C. § 112(b) as indefinite;
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Application 13/897,083
claims 1-3, 11, 12, and 18 under 35 U.S.C. § 103 as unpatentable over
Newson3 and Ihlenfield4;
claims 6-8 under 35 U.S.C. § 103 as unpatentable over Newson,
Ihlenfield, and Murakami 5; and
claims 13-17 under 35 U.S.C. § 103 as unpatentable over Newson,
Murakami, and Ihlenfield. 6
ANALYSIS
Indefiniteness
Claim 16 recites the "device of claim 13 wherein said metal flame
reflector occupies about one-half of the back side portion of said basket."
Br., Claims App. The Examiner determines the relative term "about"
renders claim 16 indefinite because it is unclear what extent the flame
reflector is encompassed by "about one-half." Final Act. 3.
A claim is indefinite when it contains words or phrases whose
meaning is unclear to a person of ordinary skill in the art. Ex parte
McAward, 2017 WL 3669566 at *5 (PTAB Aug. 25, 2017) (citations
omitted). In particular, "[t ]he use of the word 'about,' avoids a strict
numerical boundary to the specified parameter. Its range must be interpreted
3 US 2005/0143259 Al, published June 30, 2005.
4 US 4,657,506, issued Apr. 14, 1987.
5 US 3,367,318, issued Feb. 6, 1968.
6 Although the heading of this rejection lists only claims 13-16
(Final Act. 8), the Examiner addresses claim 17 in the body of the rejection
(id. at 10). Accordingly, we understand the rejection includes claim 17,
which is consistent with Appellant's understanding of the rejection (Br. 13),
and we treat the omission of claim 1 7 from the heading as a harmless
oversight.
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Application 13/897,083
in its technologic and stylistic context." Pall Corp. v. Micron Separations,
Inc., 66 F.3d 1211, 1217 (Fed. Cir. 1995). It is appropriate to look to what
purpose the limitation that includes the word "about" serves for guidance as
to how broadly or narrowly the limitation is to be construed. Cohesive
Techs., Inc. v. Waters Corp., 543 F.3d 1351, 1368 (Fed. Cir. 2008)
(interpreting the phrase "greater than about 30 µm" in terms of the purpose
described for the size limitation in the written description).
Appellant points out the Specification teaches that "[a]s best seen in
Fig. 6, metal reflector 60 covers approximately Yz of the inside surface of the
basket 20 adjacent the bottom, thereby preventing flames, heat and
exhaust gases from exiting behind the basket 20 and only to a portion of
each side." Br. 5 (quoting Spec. 6:20-22). The Examiner replies
"'approximately Yz' is no more definite than about one half since defining
relative terminology in terms of other relative terminology does not provide
clarity or insight into how the limitation should be interpreted." Ans. 10.
Although we agree with the Examiner that "approximately" does not
provide clarity as to the scope of "about," the Examiner does not address
whether the function described in quoted portion of the Specification, i.e.,
"preventing flames, heat and exhaust gases from exiting behind the
basket 20 and only to a portion of each side" (Spec. 6:21-22), would provide
such clarity to a person of ordinary skill in the art. Accordingly, the
Examiner has not shown persuasively that the meaning of the claim term
"about" is unclear so as to render claim 16 indefinite. Therefore, we do not
sustain the rejection of claim 16.
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Application 13/897,083
Obviousness
The Examiner finds Newson discloses substantially all of the
limitations of independent claim 1. Final Act. 4--5. As depicted in Figure 2
of Newson, a device for killing or controlling weeds includes metal
cylinder 1 defining a chamber having open end 4. Newson ,r 22. Heat
shield 10 surrounds an upper portion of metal cylinder 1. Id. ,r 24. Gas
burner outlets 5 heat air supplied through compressed air line 11 to a
temperature of 450° C to 750° C. Id. ,r,r 23-24.
The Examiner acknowledges Newson does not disclose "a porous
metal fabric liner ... configured to capture and contain said flame and hot
gases generated by said at least one flame producing burner and direct them
out of said open lower end of said flame containment structure," as recited in
independent claim 1, and relies on Ihlenfield for teaching this limitation.
Final Act. 4--5. Ihlenfield describes a gas burner used in a furnace.
Ihlenfield 1 :4---6. As depicted in Figure 1, the burner includes tube 40;
cylindrical metal support member 22 surrounding tube 40 to form annular
space 53; and woven metal fabric 35 surrounding cylindrical support
member 22. Id. at 1:55-58, 2:4---6, 15-17, 24--27. Combustion occurs on
the outer surface of woven metal fabric 35. Id. at 2:27-33.
The Examiner then determines it would have been obvious to provide
Newson's metal cylinder 1 with a woven metal fabric, such as that taught by
Ihlenfield, "in order to allow some combustion to take place along the side
of the burner tube, in order to destroy tall plants both along their length and
at their roots." Final Act. 5. Appellant persuasively challenges the
Examiner's proposed combination. Br. 8-9. As Appellant asserts, a porous
metal fabric liner added or substituted for the purpose of allowing
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Application 13/897,083
combustion to take place along the side of the burner tube would not have
been "configured to capture and contain said flame and hot gases generated
by said at least one flame producing burner and direct them out of said open
lower end of said flame containment structure," as recited in independent
claim 1. Id. at 9.
In view of the foregoing, we do not sustain the rejection of
independent claim 1 and claims 2, 3, 11, 12, and 18 depending therefrom.
The rejections of the remaining claims suffer from the same deficiency as
the rejection of independent claim 1. Final Act. 6-10. Accordingly, for the
same reason as independent claim 1, we do not sustain the rejections of
claims 6-8 and 13-1 7.
DECISION
The Examiner's decision to reject claim 16 under 35 U.S.C. § 112(b)
is reversed.
The Examiner's decision to reject claims 1-3, 6-8, and 11-18 under
35 U.S.C. § 103 is reversed.
REVERSED
6