Ex Parte Alexander et al

Patent Trial and Appeal Board

Aug 1, 2017

12565592 (P.T.A.B. Aug. 1, 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.
12/565,592 09/23/2009 Glenn David Alexander 080433.0111 1758
5073 7590 08/03/2017
RAKFR ROTTST T P
EXAMINER
2001 ROSS AVENUE MCKENZIE, THOMAS B
SUITE 700
DALLAS, TX 75201-2980 ART UNIT PAPER NUMBER
1776
NOTIFICATION DATE DELIVERY MODE
08/03/2017 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):
ptomaill @bakerbotts.com
ptomai!2 @ bakerbotts .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GLENN DAVID ALEXANDER and
JOSEPH ANTHONY SALPIETRA JR.
Appeal 2016-008174
Application 12/565,592
Technology Center 1700
Before LINDA M. GAUDETTE, WESLEY B. DERRICK, and
JANE E. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 seek our review under 35 U.S.C. § 134(a) of a final
rejection of claims 1—24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
The subject matter on appeal is generally directed to a kitchen vent
hood filter assembly and its method of manufacture. App. Br. 7—8, 16, 18.
Independent claim 1 illustrates the appealed subject matter and is reproduced
below:
1 Appellants identify the real party in interest as Ellis Fibre USA. Appeal
Brief filed December 28, 2015 (“App. Br.”), 3.
Appeal 2016-008174
Application 12/565,592
1. A kitchen vent hood filter assembly, the filter assembly
comprising:
a filter pad comprising oleophilic fibers, such that the
filter pad is an oleophilic filter pad, formed through at least one
of thermo-bonding, air-laid, and spunbond, associated with an
exhausted filtration system, the oleophilic filter pad comprising
flame resistant viscose;
a bonding emulsion; and
a structural support coupled to the filter pad, the
structural support comprising a stabilizer frame embedded in
the filter pad such that the filter assembly is self-supporting',
wherein the stabilizer frame comprises a box frame.
App. Br. 16 (Claims Appendix) (emphasis added).
The Final Office Action entered March 25, 2015 (“Final Act.”) sets
forth the Examiner’s rejections of claims 1—242 under 35 U.S.C. § 103(a) as
unpatentable over Vogt et al. (US 4,689,058, issued August 25, 1987)
(“Vogt”) in view of More (US 6,293,983 Bl, issued September 25, 2001),
Kimura (US 5,935,303, issued August 10, 1999), Fushitani et al.3 (US
2009/0030131 Al, published January 29, 2009) (“Fushitani”), and Piana et
al. (US 2004/0121114 Al, published June 24, 2004) (“Piana”), Russell, S. J.
(ed.), Handbook of Nonwovens 330—31 (2007), or Leighton et al. (US
5,187,006, issued February 16, 1993) (“Leighton”), which the Examiner
maintains in the Answer entered June 28, 2016 (“Ans.”).
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants’ contentions, we affirm the Examiner’s rejection of
2 Claims 25—28 stand withdrawn from consideration. Final Act. 1.
3 Appellants do not contest the Examiner’s reliance on the English
equivalent of Fushitani et al. (WO 2007/023777A1, published March 1,
2007). App. Br. 10-14.
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Application 12/565,592
claims 1—24 under 35 U.S.C. § 103(a) for the reasons set forth in the Final
Action, the Answer, and below.
Appellants argue claims 1—24 as a group. App. Br. 10-14. Therefore,
we decide the appeal as to claims 1—24 based on claim 1 alone. See
37 C.F.R. §41.37(c)(l)(iv).
The dispositive issue on appeal is whether the Examiner erred in
finding that Vogt discloses a self-supporting filter assembly that comprises a
structural support comprising a stabilizer frame embedded in a filter pad.
On this record, we answer this issue in the negative.
Vogt discloses a composite stove hood filter comprising a primary
filter consisting of a rectangular metal frame and a metal mesh filter
element, and a secondary sheet-like, nonwoven filter element that removes
oil and grease from cooking fumes (oleophilic filter pad). Col. 2,11. 22—28;
col. 3,11. 13—22; Fig. 1. Vogt discloses stretching the sheet-like secondary
filter element across the front of the metal mesh filter element, and wrapping
the edges of the secondary filter element around the edges of the metal
frame, so that the edges of the secondary filter element overlap a portion of
the back side of the stove hood filter. Col. 3,11. 20—26; Fig. 3. Vogt
discloses securing the secondary filter element onto the metal frame by
attaching elastic bands diagonally across the comers of the frame. Col. 3,11.
28—34; Fig. 1. In an alternate embodiment, Vogt discloses securing the
secondary filter element onto the metal frame by adhesively attaching
Velcro strips to the comers of the metal frame, and Vogt explains that the
nonwoven material of the secondary filter element adheres to the Velcro
strips. Col. 3, 56-col. 4,1. 3; Fig. 3.
The Examiner finds that the metal frame disclosed in Vogt
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Application 12/565,592
corresponds to a structural support comprising a stabilizer frame (Final Act.
4; Ans. 16), and finds that the arrangement disclosed in Vogt in which the
edges of the secondary sheet-like filter element wrap around the edges of the
metal frame corresponds to a stabilizer frame embedded in a filter pad (Final
Act. 4). The Examiner further finds that the composite stove hood filter
disclosed in Vogt is self-supporting because it does not require any external
frames for support and can be removed on its own from a kitchen vent hood
for maintenance. Ans. 16—17.
Appellants contend that their Specification defines a “self-supporting”
filter assembly as a filter assembly that does not require metal filter support
frames, frame covers, or heat shields. App. Br. 12; Spec. 7,11. 2—8.
Appellants assert that, according to this definition, the filter assembly recited
in claim 1, even though it includes an internal stabilizer frame, need not be
supported by metal filter supporting frames. App. Br. 11—12. Appellants
further contend that, in contrast, Vogt discloses a disposable filter supported
by a metal filter supporting frame because the disposable filter disclosed in
Vogt is attached to, and supported by, a metal frame that forms a standard
metal filter external to the disposable filter. App. Br. 12; Reply Br. 2.
However, claim 1 requires the filter assembly to be self-supporting
(“the filter assembly is self-supporting”), but does not require the filter pad
to be self-supporting. Therefore, Appellants’ argument that the disposable
filter disclosed in Vogt is not self-supporting because it is supported by a
standard filter that includes a metal frame and a metal mesh filter lacks is
unpersuasive of reversible error because it is directed to subject matter that
is not recited in claim 1. In re Self, 671 F.2d 1344, 1348 (CCPA 1982)
(“[Ajppellanf s arguments fail from the outset because . . . they are not based
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Application 12/565,592
on limitations appearing in the claims.”).
In addition, due to the open nature of the “comprising” transition that
separates the preamble from the body of claim 1, and the open nature of the
“comprising” transition used in connection with the recited structural
support, claim 1 does not exclude additional components not recited in the
claim. Therefore, claim 1 does not exclude a standard metal filter as
disclosed in Vogt that includes both a metal frame and a metal mesh filter
element. Furthermore, Appellants do not direct us to a definition of
“embedded” in their Specification. See generally App. Br. In the absence of
any such definition, Vogt’s nonwoven filter element having edges wrapped
around the edges of the rectangular metal frame reasonably corresponds to a
stabilizer frame embedded in a filter pad as recited in claim 1. In re ICON
Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (During
prosecution of patent applications, “the PTO must give claims their broadest
reasonable construction consistent with the specification. . . . Therefore, we
look to the specification to see if it provides a definition for claim terms, but
otherwise apply a broad interpretation.”). Accordingly, contrary to
Appellants’ arguments, the composite stove hood filter disclosed in Vogt
that comprises a primary filter consisting of a metal mesh filter element and
a rectangular metal frame, and a secondary sheet-like, nonwoven filter
element stretched across the front of the metal mesh filter element and
having edges wrapped around the edges of the metal frame, corresponds to a
self-supporting filter assembly as recited in claim 1.
Appellants further argue that Vogt fails to disclose a stabilizer frame
that comprises a box frame as recited in claim 1 because the recited
stabilizer frame “may be composed of many different materials, including
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Application 12/565,592
the lightweight biodegradable material disclosed in the specification, which
may not be the same structure—or substantially the same structure—as [the]
rectangular metal frame” disclosed in Vogt. App. Br. 12—13; Reply Br. 3.
However, claim 1 does not require the stabilizer frame to be
composed of a particular material, and Appellants therefore impermissibly
read limitations from the Specification into claim 1. E-Pass Techs., Inc. v.
3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003) (claims must be
interpreted ‘“in view of the specification’” without importing limitations
from the specification into the claims unnecessarily (citation omitted)).
Although limitations from the Specification may not be read into the claims,
we nevertheless construe claim language as it would be interpreted by one of
ordinary skill in the art consistent with the disclosure provided in the
Specification. See, e.g., ICON Health, 496 F.3d at 1379. Accordingly, we
give the “box frame” recited in claim 1 its broadest reasonable interpretation
in view of the description provided in Appellants’ Specification.
Referring to Figure 2, Appellants’ Specification states that support
structure 34 may represent a box frame. Spec. 14,11. 1—2. As the Examiner
correctly finds, the stabilizer frame illustrated in Figure 1 of Vogt has
substantially the same structure as the stabilizer frame illustrated in
Appellants’ Figure 2 because both figures illustrate the general shape of a
box extending around the periphery of a filter assembly. Final Act. 4; Ans.
16—17. Contrary to Appellants’ arguments, Vogt therefore discloses a “box
frame” as this term would be interpreted by one of ordinary skill in the art in
view of the disclosure provided in Appellants’ Specification and drawings.
Appellants further argue that the Examiner’s rejection is based on
impermissible hindsight reconstruction of Appellants’ claims, and “fails to
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Application 12/565,592
give credence to the overall combination of features recited in the claims.”
App. Br. 13-14.
However, contrary to Appellants’ arguments, the Examiner articulates
a thorough, reasoned explanation for why one of ordinary skill in the art
would have combined the relied-upon disclosures of the applied prior art to
arrive at the kitchen vent hood filter assembly as recited in claim 1. Final
Act. 4—8; Ans. 17—21. Appellants’ conclusory argument fails to identify any
specific error in the Examiner’s rationale for the proposed combination, and
is therefore unpersuasive of reversible error.
Accordingly, on this record, the preponderance of the evidence
supports the Examiner’s conclusion of obviousness, and we therefore sustain
the Examiner’s rejection of claims 1—24 under 35 U.S.C. § 103(a).
DECISION
In view of the reasons set forth above and in the Final Action and the
Answer, we affirm the Examiner’s rejection of claims 1—24 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).
AFFIRMED
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