Ex Parte Schrock et al

Patent Trial and Appeal Board

May 22, 2017

12863122 (P.T.A.B. May. 22, 2017)

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.
12/863,122 01/06/2011 Derek W. Schrock 1455-0045US01 3683
137713 7590 05/24/2017
Potomac Law Group, PLLC
5335 Wisconsin Avenue
Suite 440
Washington, DC 20015
EXAMINER
LAU, JASON
ART UNIT PAPER NUMBER
3743
NOTIFICATION DATE DELIVERY MODE
05/24/2017 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):
patents @ potomaclaw. com
eofficeaction @ appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DEREK W. SCHROCK and ANDREY V. LIVCHAK
Appeal 2016-001088
Application 12/863,122
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
LYNNE H. BROWNE, Administrative Patent Judges.
BROWN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Derek W. Schrock and Andrey V. Livchak (Appellants)1 appeal under
35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 29, 39—41,
45—50, and 54—56, which are the pending claims. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
1 The real party in interest is identified as OY HALTON GROUP LTD.
Appeal Br. 3.
Appeal 2016-001088
Application 12/863,122
CLAIMED SUBJECT MATTER
Independent claim 29, reproduced below, is representative of the
claimed subject matter:
29. An exhaust enhancement apparatus for an exhaust hood,
the exhaust hood having a plurality of edges which define a
perimeter with a recess therein for capturing contaminated air
from a cooking appliance, the exhaust enhancement apparatus
comprising:
a plenum, with a distribution channel, configured to be
attached to and extend entirely along at least a front edge of the
exhaust hood edges, the plenum having an inlet and a plurality
of apertures extending along a length thereof; and
an ambient air supply configured to supply the plenum
inlet with a pressurized supply of ambient air,
said exhaust enhancement apparatus producing at least
one curtain jet by flowing the pressurized air through said
distribution channel and out through the plurality of apertures,
wherein the ambient air supply includes a fan module,
containing a blower and an air inlet grill in a housing thereof,
attached to the plenum,
the exhaust enhancement apparatus is a self-contained
unit constructed for retro-fit attachment as a unit to an exterior
surface of the exhaust hood, the plenum being separate from the
hood and attached external to the exhaust hood opposite the
recess and extending along the front edge of the exhaust hood
in a horizontal direction along a longitudinal dimension thereof
as well as horizontally away from the recess in a direction
perpendicular to said longitudinal dimension, the at least one
curtain jet emanates from the plurality of apertures at a location
spaced from the exhaust hood front edge,
wherein the ambient air supply has a low profile and lies
against an outer surface of the exhaust hood with the air inlet
grill on an outwardly facing side thereof.
Appeal Br. 17—18 (Claims App.).
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Appeal 2016-001088
Application 12/863,122
EVIDENCE
The Examiner relies upon the following evidence:
Russell
Imai
Hulick
US 4,467,782 Aug. 28, 1984
US 4,856,419 Aug. 15, 1989
US 5,831,822 Nov. 3, 1998
US 2006/0032492 A1 Feb. 16, 2006
US 2006/0254430 A1 Nov. 16, 2006
EP 1637810 A1 Mar. 22, 2006
Bagwell
Nevarez
Song
REJECTIONS2
I. Claims 29, 39-41, 45^47, and 56 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bagwell, Song, and Hulick.
II. Claims 48—50 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bagwell, Song, Hulick, and Imai.
III. Claims 54 and 55 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bagwell, Song, Hulick, Nevarez, and Russell.
2 The Examiner indicates that “[t]he ground(s) of rejection set forth in the
Office action dated 5/19/2014 from which the appeal is taken have been
modified by the Advisory Action dated 9/4/2014.” Ans. 2. Although page 1
of the Advisory Action does not indicate whether the proposed amendments
submitted after the final rejection on May 19, 2014, will or will not be
entered, page 2 discusses amended claim 29 (incorrectly identified as claim
1) including the limitations of claim 51 added to claim 29 in the Second
Amendment After Final dated August 19, 2014. See Advisory Act. 1—2.
Thus, it appears that the proposed amendments were entered. This is
consistent with the Examiner’s discussion at page 2 of the Advisory Action
and indication of the modified rejections. This is also consistent with
Appellants’ listing of the claims in the Claims Appendix. See also the
Notice of Panel Decision from Pre-Appeal Review dated Oct. 2, 2014,
indicating that claims 29, 39-41, 45—50, and 54—56 are rejected.
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Application 12/863,122
ANALYSIS
Rejection I—Claims 29, 39—41, 45—47, and 56
As to claim 29, the Examiner finds that Bagwell discloses that its
“exhaust enhancement apparatus is a self-contained unit constructed for
retrofit attachment as a unit to the exhaust hood (‘. . . plenum 2310 would be
installed in a wall-type hood . . . plenum 210 of Fig. 7B may be mounted in a
backshelf hood. . [. Ans. 3 (citing Bagwell 1179). The Examiner
explains that Figure 62A shows that the plenum 2310 has “a distinct outline
thereby showing a separate structure.” Id. The Examiner finds that Bagwell
fails to disclose
a fan module . . . where the ambient air supply has an air inlet
attached to the distribution channel and positioned on the
exhaust hood facing outwardly when the distribution channel is
attached to the exhaust hood . . . the distribution channel being
positioned external to the exhaust hood recess and extending
from the front edge of the exhaust hood in a horizontal direction
such that the at least one curtain jet emanates from the plurality
of apertures at a location spaced from the exhaust hood front
edge ....
Id.
The Examiner finds that Song teaches a fan module containing a
blower (710) attached to a distribution chamber and configured to supply the
distribution channel inlet (800) with a pressurized supply of ambient air,
wherein the ambient air supply has an air inlet (700) attached to the
distribution channel and positioned on the exhaust hood facing outwardly
when the distribution channel is attached to the exhaust hood. Id. (citing
Song, Fig. 9). The Examiner provides an annotated Figure 4 of Song (see id.
at 5), which the Examiner finds to disclose that the ambient air supply is a
low profile fan (710) located within the plenum (230) and placed on the
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Application 12/863,122
outer surface of the exhaust hood, and wherein the air inlet of the fan is on
an outwardly facing side of the outer surface of the exhaust hood. Id. at 4.
The Examiner concludes that it would have been obvious to modify
Bagwell
to include a fan module attached to the distribution chamber
and configured to supply the distribution channel inlet with a
pressurized supply of ambient air, wherein the ambient air
supply has an air inlet attached to the distribution channel and
positioned on the exhaust hood facing outwardly when the
distribution channel is attached to the exhaust hood, as taught
by Song, to provide a motive force to create an air curtain for a
more effective exhaust capture.
Id. at 3^4.
Claim 29 recites, inter alia, that “the exhaust enhancement apparatus
is a self-contained unit constructed for retro-fit attachment as a unit to an
exterior surface of the exhaust hood'1'’ (emphasis added).
Appellants contend that claim 29 requires that
the exhaust enhancement apparatus is self-contained and
includes its own ambient air supply that supplies pressurized air
to generate air jets without requiring modification of the pre­
existing exhaust hood. This is a discemable feature and
therefore concretely limits the claimed structure. For example,
a fan unit and plenum that share components with the hood
itself for air flow would not be self-contained. For another
example, fans built-into a hood would not be self-contained.
Appeal Br. 9. Appellants argue that the applied prior art fails to suggest
these limitations, which combine to facilitate the retrofit function. Id. at 10;
see also id. at 10—11.
The Examiner responds, with reference to Bagwell’s Figures 60, 62A,
and 62B, and paragraph 179, that: a person of ordinary skill in the art would
understand that Bagwell’s plenum is a separate unit from the hood and is
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Application 12/863,122
constructed for retro-fit; Bagwell states that its plenum would be installed on
a generic wall-type/backshelf hood; the definition of retrofit is to install
something on a pre-existing structure; and, therefore, “there is ample
showing in Bagwell that the plenum is a separate part from the hood and is
capable for retrofit onto preexisting hoods.” Ans. 9.
Appellants respond that:
[t]he Examiner erroneously asserts, at page 3, line 5, of the
Examiner’s Answer, that Bagwell discloses “the exhaust
enhancement apparatus is a self-contained unit constructed for
retrofit attachment as a unit to the exhaust hood” based on
paragraph 179 of Bagwell which states that “. . . plenum 2310
would be installed in a wall-type hood . . . plenum 210 of Fig.
7B may be mounted in a backshelf hood . .”. However, Claim
29 recites, inter alia, that the exhaust enhancement apparatus is
a self-contained unit constructed for retrofit attachment as a unit
to an external surface of the exhaust hood. The Examiner
appears to ignore the recitation of “to an external surface” in the
rejection of Claim 29. In stark contrast to the claimed
arrangement, the cited portion of Bagwell discloses that the
plenum would be installed in a hood. Bagwell thus fails to
disclose Appellants’ particular arrangement in which the
exhaust enhancement apparatus is a self-contained unit
constructed for retro-fit attachment as a unit to an exterior
surface of the exhaust hood, as recited in Claim 29.
Reply Br. 2.
Appellants’ contention that Bagwell does not disclose an exhaust
enhancement apparatus constructed for retrofit attachment to an exterior
surface of an exhaust hood is persuasive. Bagwell describes that “FIGS.
62 A and 62B illustrate the position of the plenum 2310 of FIG. 7A as would
be installed in a wall-type (backshelf) hood 2370.” Bagwell 1179
(emphasis added); see also id. at Figs. 62A and 62B. Even assuming
Bagwell’s plenum corresponds to “the plenum being separate from the
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Application 12/863,122
hood” recited in claim 29, Bagwell’s plenum is “installed in” the hood.
Bagwell 1179 (emphasis added).
Song discloses air spray means 700 and air direction guiding member
800 positioned within the interior of the apparatus. See Song generally,
Figs. 4, 9. Even assuming Song’s spray means 700 corresponds to “an
ambient air supply,” and guiding member 800 corresponds to “the plenum,”
as claimed, both of these elements are located within the interior of the
apparatus and do not appear to be separate and “attached external to the
exhaust hood,” as required in claim 29. Accordingly, it is not apparent why,
or how, one of ordinary skill in the art would attach Song’s air spray means
700 and air direction guiding member 800 to Bagwell’s plenum installed in
the hood, so that they are all “constructed for retro-fit attachment as a unit to
an exterior surface of the exhaust hood.”
The Examiner also finds that “Song does not disclose an air inlet
grill, and where the inlet grill is located on an outwardly facing side of the
outer surface of the exhaust hood.” Ans. 4. The Examiner provides an
annotated Figure 6 of Hulick (see id. at 6), which the Examiner finds
“teaches a low profile exhaust fan . . . that lies against the surface of a wall
. . . with an inlet grill... on an outwardly facing side of the outer surface”
{id. at 5). The Examiner concludes that it would have been obvious to
modify Bagwell to include a fan that lies against an outer surface with an air
inlet grill on an outwardly facing side thereof, as taught by Hulick, and
attach it to the outer surface of the exhaust hood. Id.
Appellants reply that “the inner wall of Song relied upon by the
Examiner cannot be equated with the claimed outer surface of the exhaust
hood.” Reply Br. 4.
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Application 12/863,122
We agree with Appellants. The Examiner does not establish that Song
discloses a fan on the outer surface of the exhaust hood. In contrast, Figures
4 and 9 show clearly that the blower fan is placed in the interior of the
apparatus. See Song, Figs. 4, 9. The Examiner’s application of Hulick does
not cure this deficiency.
Thus, we do not sustain the rejection of claim 29 and dependent
claims 39-41, 45—47, and 56 as unpatentable over Bagwell, Song, and
Hulick.
Rejection II—Claims 48—50
Claims 48—50 depend directly or indirectly from claim 29. The
Examiner finds that the combination of Bagwell, Song and Hulick fails to
disclose that flow of air “is adjusted based on the exhaust flow rate of the
exhaust hood,” as recited in claims 48—50. Ans. 7. The Examiner
concludes, however, that it would have been obvious to modify Bagwell in
view of Imai to meet this limitation. Id.
The Examiner’s application of Imai does not cure the deficiencies of
the rejection of claim 29. Accordingly, we do not sustain the rejection of
claims 48—50 as unpatentable over Bagwell, Song, Hulick, and Imai.
Rejection III—Claims 54 and 55
Claims 54 and 55 depend directly or indirectly from claim 29. The
Examiner finds that the combination of Bagwell, Song and Hulick fails to
disclose that:
the exhaust hood partially covers an appliance in a top-down
view, the appliance having a movable platen, in said top-down
view, the front edge of the exhaust hood is positioned between
a forward edge of the platen and a rear edge of the platen when
the platen is closed, and the at least one curtain jet is projected
at an angle away from the exhaust hood recess such that the at
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Application 12/863,122
least one curtain jet clears a passes immediately adjacent to and
clearing the forward edge of the platen when the platen is open.
Id. at 7.
However, the Examiner determines that it would have been obvious to
modify Bagwell “where an exhaust hood partially covers an appliance in a
top-down view, as taught by Russell, to provide a compact exhaust hood that
allows a user to more readily access the sides and back of the grill for added
convenience of cooking and cleaning” {id. at 8), and “where the appliance
includes a movable platen, as taught by Nevarez, to provide a dual surface
grill for faster cooking times” (id.).
The Examiner’s application of Russell and Nevarez does not cure the
deficiencies of the rejection of claim 29. Accordingly, we do not sustain the
rejection of claims 54 and 55 as unpatentable over Bagwell, Song, Hulick,
Russell, and Nevarez.
DECISION
We reverse the rejections of claims 29, 39-41, 45— 50, and 54—56.
REVERSED
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