Ex Parte Wang

Patent Trial and Appeal Board

Oct 28, 2015

12314273 (P.T.A.B. Oct. 28, 2015)

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.
12/314,273 12/08/2008 Jianping Wang 080101 1732
46064 7590 10/29/2015
The Law Office of Lau & Associates, LLC
10517 West Drive , Unit B
Fairfax, VA 22030
EXAMINER
MASHRUWALA, NIKHIL P
ART UNIT PAPER NUMBER
3749
MAIL DATE DELIVERY MODE
10/29/2015 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 JIANPING WANG1
____________

Appeal 2013-009059
Application 12/314,273
Technology Center 3700
____________

Before CHARLES N. GREENHUT, LEE L. STEPINA and
MARK A. GEIER, Administrative Patent Judges.

GEIER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from the
Examiner’s rejection of claims 1–21. Br. 12–13. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
THE CLAIMED SUBJECT MATTER
The claimed subject matter relates to “an all around [sic] radiation
heating apparatus.” Spec. p. 1, ll. 6–7. Claim 1 is illustrative and recites:

1 According to Appellant, the real party in interest is Changzhou Gardensun
Furnace Co. Br. 5.
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1. An all-around radiation heater, comprising:
a reflector panel;
a heat burner;
a post;
a cylindrical housing assembly with a hinged door and a
fastening mechanism having a same radius of curvature as the
cylindrical housing assembly;
a cylindrical base; and
a weight chamber;
wherein the reflector is removably attached to the heat
burner; the heat burner is removably attached to a top portion of
the post; a low portion of the post is removably attached to the
cylindrical housing assembly; the cylindrical housing assembly
is removably attached to the base; and the weight chamber is
removably attached to the cylindrical base.

THE REJECTIONS ON APPEAL
The Examiner rejected claims 1–7 and 11 under 35 U.S.C. § 103(a) as
unpatentable over Waters (US 6,470,877 B1; iss. Oct. 29, 2002) in view of
Konkle (US 2009/0223512 A1; pub. Sept. 10, 2009).
The Examiner rejected claims 8–10 and 12–15 under 35 U.S.C.
§ 103(a) as unpatentable over Waters in view of Konkle and Smith (US
7,614,600 B1; iss. Nov. 10, 2009).
The Examiner rejected claims 16–20 under 35 U.S.C. § 103(a) as
unpatentable over Waters in view of Konkle, Smith, and Eastman (US
6,907,875 B1; iss. June 21, 2005).
The Examiner rejected claim 21 under 35 U.S.C. § 103(a) as
unpatentable over Waters, in view of Konkle and Yao (US 2007/0101983
A1; pub. May 10, 2007).

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ANALYSIS
Rejection of Claim 1 over Waters in view of Konkle
Appellant first argues that the Examiner’s proposed modification of
Waters with Konkle “would change the principle of operation of the prior art
invention Waters being so modified.” Br. 20. According to Appellant,
“Konkle and Waters are structurally and functionally very different from
each other and they utilized very different principles of operation pertaining
to installation and removal of LP tank 30.” Id. 19. In particular, Appellant
argues that “the principle of operation of Waters is to have a shroud 246 that
is totally independent from structural support members inclusive of legs 240,
242, 244, base 236, [sic] standard 228.” Id. This is in contrast to Konkle,
Appellant argues, because “[t]he principle of operation of Konkle is to have
a pedestal 14, base 12, table top 16 and elongated support member 18 to be
integral parts of the structural support members.” Id.
Combinations of prior art that change the “basic principles under
which the [prior art] was designed to operate” may not support a conclusion
of obviousness. In re Ratti, 270 F.2d 810, 813 (CCPA 1959). However,
“[i]t is well-established that a determination of obviousness based on
teachings from multiple references does not require an actual, physical
substitution of elements.” In re Mouttet, 686 F.3d 1322 (Fed. Cir. 2012)
(citing In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc) (further
citations omitted).
Appellant’s argument does not apprise us of Examiner error. As the
Examiner finds, each of references “discloses an outside patio heater
assembly having a burner assembly, a tank, a shroud, a post, [and a] reflector
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panel” and each discloses a heater that operates in a manner similar to that of
the other. Ans. 12. Appellant does not challenge the Examiner’s finding
and, instead, focuses only on the manner in which the two references support
the heating element and cover the fuel tank. See Br. 16–20. We agree with
the Examiner that in light of the similarities in the disclosures of the two
references, the nature of the Examiner’s proposed modification would not
change the basic principles of operation of the heating apparatus disclosed in
Waters in generating and distributing heat.2
Appellant also argues that Examiner used impermissible hindsight in
reaching the conclusion of obviousness. Id. 21–27. In particular, the
Appellant argues that the Examiner used the Appellant’s disclosure to
supply the reasoning that modifying Waters to include the door of Konkle
would make it more convenient for an operator to replace the fuel tank. Id.
21–22. Appellant notes that the foregoing reasoning also appears in their
Specification, which discusses the difficulties of replacing a fuel tank in a
heater with a slidable shroud and states that the described invention
overcomes such problems. Id. (quoting Spec. 1:11 to 2:19); see also id. 23–
27 (discussing the impermissibility of the Examiner’s purported hindsight
analysis).

2 In addition, we note the Appellant does not challenge the Examiner’s
findings regarding the nature of proposed modification and that the proposed
modification would yield predictable results. See KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 416 (2007) (holding where “a patent claims a structure
already known in the prior art that is altered by the mere substitution of one
element for another known in the field, the combination must do more than
yield predictable results”).
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Appellant’s arguments do not apprise us of Examiner error. The
Examiner identifies three reasons why one of skill in the art would have
combined Waters with Konkle:
By providing a similar door 26 on the heating apparatus
assembly of Waters in view of Konkle, [sic] [a)] it would [be
easier] for the operator to replace the old tank with a new one
with out [sic] lifting it by using the door. [sic] b) the cylinder
assembly 12 of Waters already has a small opening 58 to
operate the gas control knob [and] igniter and by having a
bigger door like 26, Waters would have a bigger [and] better
access to the inside of the cylinder assembly 12 for an easy
clean up without lifting it. [sic] c) the curvature of the door
matching with the curvature of the cylinder would look much
better.
Final Act. 2; see also id. 4; Ans. 13. Appellant challenges only the first
reason. See Br. 21–27. We find that the Examiner’s unchallenged reasons
to combine provide the required rational underpinnings for the Examiner’s
combination of Waters with Konkle and are not indicative of impermissible
hindsight. See KSR, 550 U.S. at 418.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 1.
Rejection of Claim 2 over Waters in view of Konkle
Claim 2 adds the limitation “the reflector panel comprises a plurality
of partial panels of equal dimensions detachably surrounding a reflector
plate.” Br., Claims App. Appellant argues that Konkle and Waters each
approach this aspect of their inventions differently. See Br. 27. As such,
Appellant argues, “Waters and Konkle are separate and distinct inventions
with different features.” Id. 27–28. Appellant concludes by arguing that
claim 2 is patentable because claim 1 is patentable. Id. 28.
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For the same reasons stated with respect to claim 1, Appellant’s
argument does not apprise us of Examiner error. The Examiner made the
required findings and provided a rational underpinning for combining the
references. As such, for the reasons stated supra, we also sustain the
Examiner’s rejection of claim 2.
Rejection of Claim 3 over Waters in view of Konkle
Appellant argues the patentability of claim 3 based upon its
dependency from claim 1. Br. 28. As such, for the reasons stated supra, we
also sustain the Examiner’s rejection of claim 3.
Rejection of Claim 4 over Waters in view of Konkle
Appellant argues the patentability of claim 4 based upon its
dependency from claim 1. Br. 28–29. As such, for the reasons stated supra,
we also sustain the Examiner’s rejection of claim 4.
Rejection of Claim 5 over Waters and Konkle
Claim 5 depends from claim 1 and adds the limitation “the heat burner
is attached to the top portion of the post by inserting a low portion of the
heat burner into the top portion of the post then install a set of four bolt
screws perpendicular to and penetrating into both the top portion of 15 the
post and the low portion of the heat burner . . ..” Br., Claims App. The
Examiner finds that “fig 5A-B of Konkle discloses a post having four bolt
attachment for connecting reflector and a burner which would obviously be
used for connecting the lower portion of the heat burner with the top portion
of the post.” Final Act. 4; see also Ans. 14. The Examiner concludes that
“[i]t would have been obvious . . . to provide such bolt connection to Waters
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. . . so as [sic] provide better replacement feature along with firmness of the
post with [sic] burner head.” Final Act. 4–5.
Appellant argues that Konkle’s use of screws “is totally unrelated to
‘connecting the lower portion of the heat burner with the top portion of the
post’” and that the screws are “not perpendicular to and penetrating into both
the top portion of the post and the low portion of the heat burner.” Br. 29–
30. We agree with the Appellant’s assessment of Konkle. Figure 5A of
Konkle depicts the use of threaded members 86 to secure heater 20 to the
canopy or cap. Konkle ¶ 43; see also id. Fig. 5A. Figure 5A does not depict
a connection between the heater and a top portion of the post. See Konkle,
Fig. 5A. Moreover, the Examiner’s findings do not explain how or why
Konkle’s disclosure of a different connection would render obvious the
specific connection claimed in claim 5.
For the foregoing reasons, we do not sustain the Examiner’s rejection
of claim 5.
Rejection of Claim 6 over Waters and Konkle
Claim 6 depends from claim 1 and adds the limitation “the low
portion of the post comprises a flange perpendicular to a length of the post
and the flange comprises a set of holes spaced equal distance apart from
each other . . . .” Br., Claims App. Appellant argues that Waters does not
include a “disclosure or teaching of a low portion of the post 316 [that]
comprises a flange . . . perpendicular to a length of the post . . . and the
flange comprises a set of holes . . . spaced equal distance apart” and that has
the features recited in the wherein clauses of claim 6. Id. 31–32.
The Examiner finds that “Waters discloses the lower portion of the
post 228 (fig 5B) connects with a perpendicular flange 254 of the
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housing/shroud 246 below in its recess 252.” Final Act. 5; Ans. 14. Based
upon that finding the Examiner concludes that “[i]t would be obvious to use
the teaching of four bolt assembly of Konkle (as described in claim 5, per fig
55A,5B) for connecting cylindrical housing of Waters so as to get removable
secured cylindrical housing assembly connected to the post.” Final Act. 5;
Ans. 14.
We agree with Appellant that the Examiner erred. In particular, the
Examiner has not accounted for each aspect of claim 6; including, that the
post comprises a flange and that the flange comprises a set of holes. See
Final Act. 5; Br. 31–32. The Examiner has not provided adequate findings
explaining how a heater including these elements would have been obvious
in view of the disclosures in Waters and Konkle. As such, the Examiner has
not provided sufficient reasoning in support of the rejection. See KSR, 550
U.S. at 418.
Rejection of Claim 7 over Waters in view of Konkle
Appellant argues the patentability of claim 7 based upon its
dependency from claim 1. Br. 32. As such, for the reasons stated supra, we
also sustain the Examiner’s rejection of claim 7.
Rejection of Claims 8–10 over Waters, Konkle, and Smith
Claim 8 depends from claim 1 and adds the limitation “the weight
chamber comprises a closable opening.” Br., Claims App. Claim 9 depends
from claim 8. Id. Appellant argues claims 8 and 9 as a group and we select
claim 8 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Smith discloses “weight chambers 53 are
accessible by an opening with cover 70” and that these chambers “would
hold sand or water in cavities 53 as weight.” Final Act. 5–6 (citing Smith
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Figs. 1–5). Based upon that finding, the Examiner concludes that “[i]t
would have been obvious . . . to provide such accessible weight chamber to
Waters in view of Smith so as to access for putting it in or taking it out for
shipment and reinstalling the heater for its use.” Final Act. 5–6. Appellant
argues that Smith teaches away from the claimed invention because it
“teaches against the screw cap 1102 as shown in Figure 11 of the present
invention.” Br. 34.
Appellant’s argument does not apprise us of Examiner error because it
is not commensurate with the scope of the claim. Appellant’s argument
focuses on Smith’s purported teach away from use of “a narrow fill
opening” and a “screw cap.” Br. 34–35. The claim does not recite either
element. See id., Claims App. Moreover, Appellant does not explain why
the claims require either element. See id. 34–35.
For the foregoing reasons, we sustain the Examiner’s rejection of
claims 8 and 9.
Appellant purports to argue claim 10 as a group with claims 8 and 9,
see Br. 33–36, but claim 10 depends from claim 1 and adds the limitation
“the weight chamber is secured to the base via a plurality of holes . . ..” Id.,
Claims App. As such, claim 10 does not include a limitation regarding the
opening in the weight chamber, see id. The Examiner finds that Smith
“discloses brackets/snaps 32a in its top rim of the base 50 per fig 2 and fig 4
of Smith discloses plurality of fasteners 71 (in plurality of holes for
fasteners) to hold the weight chamber in place with its cover.” Final Act. 6.
Appellant’s briefing does not challenge this finding. See Br. 33–36.
Accordingly, we sustain the Examiner’s rejection of claim 10.

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Rejection of Claim 11 over Waters in view of Konkle
Appellant argues the patentability of claim 11 based upon its
dependency (indirectly) from claim 1. Br. 32. As such, for the reasons
stated supra, we also sustain the Examiner’s rejection of claim 11.
Rejection of Claims 12–14 over Waters, Konkle, and Smith
Appellant argues claims 12 and 13 (which depends from claim 12)
together. Br. 36–37. Appellant also argues claim 14 on the basis of claim
13. Id. 37–38. We select claim 12 as representative. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Claim 12 depends from claim 11, which indirectly depends from
claim 1. Br., Claims App. Claim 12 adds the limitation “a plurality of
L-brackets installed adjacent the top rim [of the base] and spaced equal
distance apart from each other.” Id. The Examiner relies on Smith for this
element and finds “Smith discloses brackets/snaps 32a in its top rim of the
base 50 per fig 2 and fig 4 of Smith discloses plurality of fasteners 71 (in
plurality of holes for fasteners) to hold the weight chamber in place with its
cover.” Final Act. 6.
Appellant argues that the Examiner’s findings do not “identify in
Smith any equivalent of a cylindrical housing assembly 314 and L bracket
1312 of the present invention.” Br. 37. As a starting point, we note that
Appellant’s arguments regarding the absence of the cylindrical housing
mirror those made with respect to claim 1. See id. We have rejected those
arguments for the reasons stated supra. With respect to the L bracket, the
Examiner, however, does not provide any findings or reasoning explaining
why the claimed L brackets would have been obvious as a result of the
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Examiner’s proposed combination of references. See Final Act. 6. As such,
we do not sustain the Examiner’s rejection of claims 12–14.
Rejection of Claim 15 over Waters, Konkle, and Smith
Claim 15 depends from claim 1 and adds the limitation “a set of
wheels installed onto the base with a brace having a same radius of curvature
as that of the cylindrical base.” Br., Claims App. The Examiner finds that
“Smith discloses wheels 65 installed unto its base 54 per fig 1-4 with a brace
for easy movement of the unit and it would be merely a choice in design per
MPEP 2144.04 to install the wheels with brace having the brace radius as
that of cylindrical base.” Final Act. 6.
Appellant argues that “[a] visual review of the wheels and brace 324
in Figure 3 of the present invention and wheels 65 in Figures 1–4 of Smith
could lead a person of ordinary skill in the art to conclude that they are very
different from each other and they are not merely an obvious matter of
design choice.” Br. 38–39. Specifically, Appellant argues that the wheels
differ in that “Smith teaches a set of bottom mount wheels normally engaged
on the ground and rotatable” while “the set of wheels 1202 in the present
invention are normally not engaging the ground.” Id. 39. As a consequence,
the wheels of Smith require brakes, while the claimed wheels do not. Id.
Appellant’s argument relies entirely on unclaimed features. See Br.,
Claims App. Claim 15 does include any language regarding a brake or
regarding the wheels “normally not engaging the ground.” See id.
Appellant has not persuasively explained how these features affect the scope
of claim 15 or are the result of any of the features recited in claim 15. See
Id. 38–39. As such, the Appellant’s arguments do not identify any errors in
the Examiner’s findings or conclusions. See Final Act. 6; see also Ans. 15.
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For the foregoing reasons we sustain the Examiner’s rejection of
claim 15.
Rejection of Claims 16–17 over Waters, Konkle, Smith, and Eastman
Appellant argues claims 16 and 17 together. Br. 41–43. We select
claim 16 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 16
depends from claim 1 and adds the limitation “a set of base toes installed on
an exterior surface of the cylindrical base and are spaced equal distance
apart from each other . . ..” Br., Claims App. The Examiner finds “Eastman
discloses a set of base toes per fig 1 [sic] (L shaped toes at its side-bottom of
base 11 b) installed on an external surface of the base at equal distance.”
Final Act. 6–7. Based upon that finding the Examiner concludes that “it
would have been obvious for a person of ordinary skill in the art to provide
such base toes to Waters in view of Eastman so to protect the gas heater
from toppling.” Id. 7.
Appellant argues that the Examiner misinterprets Figure 1 of Eastman,
which, according to Appellant, depicts a cut-away view of a circular rim.
Br. 43–44. Accordingly, Appellant argues, “there would not be a presence
of any L shape [sic] toes to be installed on an external surface of the base at
equal distance.” Id. 44.
We agree with Appellant that Figure 1 does not support the
Examiner’s rejection. The Examiner relies on aspects of Figure 1 that the
specification does not identify or describe. See Final Act. 7. In addition, we
can discern no context or basis from either the Figure itself or the associated
description that indicate anything regarding the Examiner’s purported L
shaped toes. See Eastman, Fig. 1. Moreover, the Appellant is correct that
Eastman’s description identifies the figure as “a cut-away, perspective
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view.” Id. 3:13–14. In light of the foregoing, we determine that a
preponderance of the evidence does not support the Examiner’s finding
regarding Eastman. We determine that the Examiner’s findings amount to
mere speculation regarding Eastman’s structure. See In re Warner, 379 F.2d
1011, 1017 (CCPA 1967) (“The Patent Office has the initial duty of
supplying the factual basis for its rejection. It may not, because it may doubt
that the invention is patentable, resort to speculation, unfounded assumptions
or hindsight reconstruction to supply deficiencies in its factual basis.”). As
such, we do not sustain the Examiner’s rejection of claims 16–17.
Rejection of Claim 18 over Waters, Konkle, Smith, and Eastman
Claim 18 depends from claim 1 and includes the additional limitation
“the cylindrical housing assembly includes a number of holes serving as
ventilation openings.” Br., Claims App. The Examiner finds that Eastman
discloses unnumbered “holes” that “would serve as ventilation to the
cylinder.” Final Act. 7 (citing Eastman Figs. 1–2).
Appellant argues that “[o]ne cannot say with definitiveness that
multiple rectangles shown in Figures 1–2 are indeed openings and not
simply ornamental emboss designs.” Br. 45. Appellant further argues that
even if the depicted rectangles are openings, “their presence is ineffective
for ventilation purposes because LP gas are more dense than ambient air and
leaked LP gases are trapped below the rectangles within the internal cavity
11a of Eastman and could not escape there-from [sic] once [a] fuel line
plugs-up portal 11c.” Id.
Appellant’s arguments do not apprise us of Examiner error. With
respect to the first argument, we find that other aspects of Figure 1 would
have suggested to a skilled artisan that the rectangles are holes. See
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Eastman, Fig. 1. In particular, it is relevant that the rectangles appear both
on the outer and inner surfaces of the support base 11, see Eastman, Figs. 1
and 2, and the rectangles are drawn in a manner similar to portal 11c, which
Eastman identifies as a hole in support base 11, see id. Fig. 1 and 4:6–9.
Each of the foregoing would have suggested to a skilled artisan that the
rectangles are holes in Eastman’s support base 11. Accordingly, we
determine a preponderance of the evidence supports the Examiner’s
interpretation of the rectangles in Figure 1.
With respect to Appellant’s second argument, the Appellant bases its
arguments upon limitations not in the claims. See Br. 45. The claim
language does not require any particular purpose or effectiveness of the
recited openings. Moreover, Appellant has not explained why the claim
requires such effectiveness. See id. In our view the claim requires only that
the assembly includes holes and that these holes serve any ventilation
purpose. See id., Claims App.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 18.
Rejection of Claim 19 over Waters, Konkle, Smith, and Eastman
Claim 19 depends from claim 1 and includes the additional limitation
“the door includes an elongated oval opening serving both as a door handle
and a ventilation opening.” Br., Claims App. The Examiner finds that
Konkle discloses door handle 32 and Eastman discloses a vent in the
cylindrical base. Final Act. 7. Based upon these findings, the Examiner
concludes that it would have been obvious “to provide such ventilated door
handle to Waters in view [sic] of Konkle (and Eastman) so as the door
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handle would serve as an [sic] ventilation of the gas cylinder and the door
would look good decent [sic] from outside.” Id.
Appellant makes several arguments. First, that Konkle does not
include any suggestion that there is an opening underneath cap 32 and that
such an opening would be redundant in that cap 32 is sufficient to allow one
to grip and remove the door. Br. 47. Second, “Waters already includes a
cutout 58 . . . making it unnecessary to cut another opening.” Id. 48. Third,
“Waters does not have any opening on base 12 to allow leaked LP gases to
escape there-from [sic].” Id. Fourth, “Waters does not have a door that
would require a handle.” Id.
Appellant’s arguments do not apprise us of Examiner error. First, the
Examiner does not find that Konkle discloses an opening – Konkle is merely
one reference in the Examiner’s rejection of the claim over several
references. See Final Act. 7. As such, Appellant’s argument is not
responsive to the Examiner’s rejection. Appellant’s other arguments fail for
similar reasons. In particular, Appellant is not arguing in the context of the
Examiner’s multi-reference combination, but is instead arguing the
references individually, ignoring the Examiner’s incorporation of different
aspects of each reference to form the combination. One cannot show
nonobviousness by attacking references individually where the Examiner
bases the rejections on combinations of references. See In re Keller, 642
F.2d 413, 426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 19.

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Rejection of Claim 20 over Waters, Konkle, Smith, and Eastman
Claim 20 depends from claim 1 and includes the additional limitation
“the door includes a top ridge and a bottom ridge situated on an interior side
of the door to provide proper alignment of the door to a door frame of the
cylindrical housing chamber.” Br., Claims App. The Examiner finds that
“Konkle discloses a tongue-in-groove or detent mechanism for the
retainment [sic] or sealing of the door which would provide proper
alignment of the door to the frame of the cylinder housing.” Final Act. 7
(citing Konkle ¶ 29).
Appellant argues that it does not “understand” the combination of
Konkle and Waters. Br. 48–49. Specifically, Appellant reiterates arguments
made with respect to claim 1, noting the differences between Waters’
slideable shroud and Konkle’s door. Id. 49. As discussed with respect to
claim 1 supra, this argument does not apprise us of Examiner error. As
such, we sustain the Examiner’s rejection of claim 20.
Rejection of Claim 21 over Waters, Konkle, and Yao
Claim 21 depends from claim 1 and adds the limitation
the fastening mechanism further comprises a strap latch situated
on an exterior portion of the cylindrical housing chamber and a
hook situated on an exterior surface of the door, wherein the
door is securely shut when a loop of the strap latch is placed on
the hook and the latch is placed in a lock position.
Br., Claims App. The Examiner finds that “Yao discloses a clasp/latch 8 . . .
situated outside of the door cylinder 16 which securely locks the door of the
housing.” Final Act. 7–8. Based upon this finding, the Examiner concludes
that it would have been obvious “to provide such clasp/trap on outside of the
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door to Waters in view of Yao so as to secure the door for closing and get
better safety with [the] gas tank inside.” Id. 8.
Appellant argues that the Examiner’s conclusion of obviousness is in
error because “Waters does not have a door.” Br. 51. Hence, according to
Appellant, “there is no motivation for a skilled person . . . to secure a non-
existent door.” Id. Appellant again miscomprehends the Examiner’s
rejection. Although the Examiner erroneously refers to a door in Waters, the
rejection is expressly over Waters, in view of Konkle and Yao. Final Act. 7
(rejecting the claim as unpatentable “over Waters and Konkle as applied to
claim[ 1] above, and further in view of [Yao]”). The Examiner’s rejection,
therefore, reasonably relies upon Konkle for disclosing a door. See, e.g., id.
3–4. As such, we view the Appellant’s arguments as an ineffective attack on
Waters while ignoring the Examiner’s proposed combination. See Keller,
642 F.2d at 426; Merck, 800 F.2d at 1097.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 21.
CONCLUSION
We affirm the Examiner’s rejections of claims 1–4, 7–15, and 18–21
as unpatentable under 35 U.S.C. § 103(a).
We reverse the Examiner’s rejections of claims 5, 6, 16, and 17 as
unpatentable under 35 U.S.C. § 103(a).
No time 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