Daniel A. Newman et al.

Patent Trials and Appeals Board

Jan 23, 2020

14739155 - (D) (P.T.A.B. Jan. 23, 2020)

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.
14/739,155 06/15/2015 DANIEL A. NEWMAN 04709.0201USU1 3463
127749 7590 01/23/2020
M&G Spectrum
P.O. Box 2903
Minneapolis, MN 55402
EXAMINER
NGUYEN, VY T
ART UNIT PAPER NUMBER
3761
NOTIFICATION DATE DELIVERY MODE
01/23/2020 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):
USPTO127749@merchantgould.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DANIEL A. NEWMAN, JOSE MANUEL TORRES PEREZ,
DEREK JAMES MEYERS, and JOSEPH CHRISTOPHER CARLEY
____________

Appeal 2018-008148
Application 14/739,155
Technology Center 3700
____________

Before LINDA E. HORNER, MICHELLE R. OSINSKI, and
GEORGE R. HOSKINS, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 3–9, 12–14, 17, and 20.2 We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Spectrum Brands,
Inc. Appeal Br. 3.
2 Claims 2, 10, 15, 18, and 19 are cancelled, and claims 11 and 16 are
withdrawn. Appeal Br. 17–19 (Claims App.).
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THE CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below.
1. A basking heater comprising:
(a) a housing defining a bottom and defining an interior;
the bottom having an opening in communication with the
interior; the housing including a top opposite of the bottom;
(b) a heating element within the housing interior; the
heating element being connected to a power source and oriented
to radiate heat through the opening in the bottom;
(c) an attachment arrangement adapted to selectively
attach the heater to a terrarium; wherein a height of the housing
from the bottom to the top is not greater than 3 inches;
(d) a porous grill in the housing interior extending over
and covering the opening in the bottom; the porous grill being
between the heating element and the bottom; the porous grill
being opposite of the top of the housing; and
(e) a power switch controlling an amount of power to the
heating element; the power switch having at least 3 settings
including no power, low power, and high power.

EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Ueda US 6,040,564 Mar. 21, 2000
Thomas US 2002/0148410 A1 Oct. 17, 2002
Wang US 2014/0001171 A1 Jan. 2, 2014

REJECTIONS
I. Claims 1, 3–7, 9, 12–14, 17, and 20 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Wang and Thomas. Final Act. 3–10.
II. Claim 8 stands rejected under 35 U.S.C. § 103 as unpatentable over
Wang, Thomas, and Ueda. Id. at 10–11.
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OPINION
Rejection I
The Examiner finds that Wang discloses, among other things, a
basking heater comprising (a) a housing defining both a bottom and an
interior, the bottom having an opening 21 in communication with the interior
and (b) a heating element 13 within the housing interior. Final Act. 3–4
(citing Wang Fig. 5). The Examiner acknowledges that Wang does not
disclose “a porous grill in the housing interior extending over and covering
the opening in the bottom; the porous grill being between the heating
element and the bottom.” Id. at 5.
The Examiner turns to Thomas, finding that Thomas teaches, among
other things, a porous grill (“‘simple heater grill’ 40 in Fig. 22”) in the
housing interior (“‘housing’ 6, wherein housing 6 comprises an interior as
seen in Fig. 22”), where the porous grill is “between the heating element [4]
and the bottom” and “opposite of the top . . . of the housing.” Id. (italics
omitted). The Examiner includes an annotated reproduction of Figure 22 of
Thomas to illustrate what the Examiner considers the top and bottom of the
housing. Id. at 6. The Examiner’s annotated version of Figure 22 of
Thomas is reproduced below.
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Application 14/739,155

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Figure 22 of Thomas depicts a perspective view from underneath of heater
2200 with housing 6 that encloses control circuit 17 (not shown) and simple
heater grill 40 placed in front of heating element 4 (shown as a lightbulb) in
heater element housing 32. Thomas ¶¶ 27, 84, 187. The annotated figure
includes notations indicating what the Examiner considers to be the “top”
and “bottom” of the housing as referenced in independent claim 1. Final
Act. 6. The Examiner concludes that it would have been obvious to
modify the heater of Wang [as] taught and/or suggested by
Thomas wherein the heater comprises a porous grill in the
housing interior extending over and covering the opening in the
bottom, the porous grill being between the heating element and
the bottom and the porous grill being opposite of the top of the
housing in order to protect the heating element when it is placed
in front of the heating element and its holes help to facilitate air
circulation and prevent excessive heat buildup . . . .
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Id. at 7 (bolded emphasis omitted).
Appellant argues “the structure 40 alleged by the Examiner to be the
porous grill is not within the housing interior, as claimed.” Appeal Br. 13.
We agree with Appellant that the Examiner has not shown by a
preponderance of the evidence that Thomas teaches or suggests a porous
grill within the housing interior. To the extent the Examiner is taking the
position that Thomas teaches structure 40 being within the interior of
housing 6 for control circuit 17, it is clear from Annotated Figure 22 that
structure 40 is not within or inside an interior of housing 6. To the extent the
Examiner is taking the position that Thomas teaches structure 40 being
within the interior of heater element housing 32, it is not clear from
Annotated Figure 22 that structure 40 is within or inside of an interior of
heater element housing 32. Rather, it appears that structure 40 simply may
be attached to a bottom surface of a perimeter edge of heater housing
element 32, rather than structure 40 being within or inside of an interior of
heater element housing 32. Thomas Fig. 22.
Moreover, Appellant argues that the Examiner has not shown how
porous grill 40 is “between the heating element (inner light bulb) and the
bottom because the Examiner is asserting the grill 40 and the bottom are the
same piece.” Appeal Br. 13 (underlining omitted). We agree with Appellant
that to the extent the Examiner is identifying the same element as both the
porous grill and the bottom of the housing, the Examiner has not shown
Thomas to teach the porous grill being between the heating element and the
bottom of the housing. To the extent that the Examiner is identifying the
bottom surface of the perimeter edge of heater element housing 32 as the
bottom of the housing, the Examiner has still failed to show by a
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preponderance of the evidence that Thomas teaches or suggests the porous
grill being between the heating element and the bottom of the housing. In
particular, as described above, structure 40 simply may be attached to the
bottom surface of the perimeter edge of heater housing element 32 such that
the Examiner-identified porous grill 40 is not between heating element 4 and
the bottom of heater housing element 32, but rather is on the same side of
both heating element 4 and the bottom of heater housing element 32.
In sum, we agree with Appellant that the Examiner has not shown by
a preponderance of the evidence that Thomas teaches “a porous grill in the
housing interior . . . between the heating element and the bottom [of the
housing],” as claimed. As such, the Examiner’s conclusion of obviousness
(Final Act. 7) is based on an erroneous finding as to the scope and content of
Thomas.
To the extent that the Examiner’s rejection may be predicated, not on
Thomas teaching or suggesting a position of a porous grill in a housing
interior between the heating element and the bottom of the housing, but on
the obviousness of utilizing Thomas’s porous grill in Wang’s housing
interior between Wang’s heating element and the bottom of Wang’s housing
(Ans. 3), the Examiner has not provided a reason with rational
underpinnings to explain why one of ordinary skill in the art would have
been led to utilize Thomas’s porous grill both in an interior of Wang’s
housing and between the heating element and the bottom of Wang’s
housing. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness”) (cited with approval in KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 419 (2007)).
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More particularly, the Examiner’s articulated reasoning of “to protect
the heating element when the heater grill is placed in front of the heating
element” (Final Act. 7; Ans. 3) explains only why Thomas’s heater grill 40
would be placed in front of Wang’s heating element at all (including in a
position on an underside of the bottom of Wang’s housing), not necessarily
why Thomas’s heater grill would be placed specifically in an interior of
Wang’s housing between the heating element and the bottom of Wang’s
housing. Similarly, the Examiner’s articulated reasoning of “the heater grill
having holes to help to facilitate air circulation and prevent excessive heat
buildup” (Final Act. 7; Ans. 3 (citing Thomas ¶ 187)) explains only why the
heater grill would be porous, not necessarily why Thomas’s heater grill
would be placed specifically in an interior of Wang’s housing between the
heating element and the bottom of Wang’s housing. See Reply Br. 3–4
(“The Examiner’s Answer provides no explanation for where one of
ordinary [skill] would learn to position the porous grill in the housing
interior and between the heating element and the bottom of the housing.”).
We note that in the Examiner’s Answer, the Examiner points out that
Wang’s “heating layer 13 is covered by a front heat-radiating face 11 of the
flat heater body 10.” Ans. 2 (italics omitted). To the extent that the
Examiner’s discussion of front heat-radiating face 11 of flat heater body 10
(id.) is meant to be indicative of some type of alternative rejection in which
Wang’s front heat-radiating face 11 is modified or the subject of a
substitution with Thomas’s simple heater grill, the Examiner’s only
articulated rejection is based on “modify[ing] the heater of Wang to include
the heater grill as taught and/or suggested by Thomas” (id. at 3 (emphasis
added)). Consequently, the Examiner’s articulated rejection is based on
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including or adding Thomas’s simple heater grill 40, not on modifying
Wang’s front heat-radiating face 11 or substituting Thomas’s simple heater
grill 40 for Wang’s front heat-radiating face 11. Moreover, even if we were
to consider the Examiner to be presenting an alternative rejection based on
modifying or substituting Thomas’s simple heater grill 40 for Wang’s front
heat-radiating face 11, the Examiner has not adequately accounted for how
Wang’s front heat-radiating face 11, as modified or substituted therefor,
would extend over and cover the opening in the bottom of Wang’s housing,
as is required by claim 1.
For the foregoing reasons, we do not sustain the rejection of claim 1
and its dependent claims 3–7, 9, 12–14, 17, and 20, under 35 U.S.C. § 103
as unpatentable over Wang and Thomas.
Rejection II
The Examiner’s rejection of claim 8 either relies on the same deficient
finding that Thomas teaches a porous grill in a housing interior between the
heating element and the bottom of the housing or the same deficient
reasoning lacking rational underpinnings to explain adequately why one of
ordinary skill in the art would have been led to include Thomas’s porous
grill in an interior of Wang’s housing and between the heating element and
the bottom of Wang’s housing. Final Act. 10–11. The Examiner does not
explain how Ueda would remedy the deficiency of the combination of Wang
and Thomas. Accordingly, we do not sustain the rejection of claim 8 under
35 U.S.C. § 103 as unpatentable over Wang, Thomas, and Ueda.

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CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 3–7, 9,
12–14, 17,
20
103 Wang, Thomas 1, 3–7, 9,
12–14, 17,
20
8 103 Wang, Thomas, Ueda 8
Overall
Outcome
1, 3–9, 12–
14, 17, 20

REVERSED