10897909 (B.P.A.I. Sep. 7, 2010)

Ex Parte Ashworth

Board of Patent Appeals and InterferencesSep 7, 2010

10897909 (B.P.A.I. Sep. 7, 2010)

The date for filing an appeal or a request for rehearing should be determined from the MAIL DATE on the accompanying Form PTOL-90A. UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte RANCO, INC. __________ Appeal 2009-007129 Application 10/897,909 Technology Center 3700 ___________ Before: RICHARD TORCZON, SALLY C. MEDLEY , and MICHAEL P. TIERNEY, Administrative Patent Judges. TORCZON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-007129 Application 10/897,909 - 2 - The appellant ("Ranco") seeks review1 of the final rejection of claims 1-5, 7-10, 12-16, and 18-25.2 We AFFIRM.3 STATEMENT OF THE CASE The examiner finally rejected claims 1-5, 7-10, 12-16, and 18-25 on the following grounds: 1. Claims 1-5, 7-10, 12-16, and 18-25 under 35 U.S.C. 103(a) as unpatentable over the combined teachings of Gowan4 and Yamano;5 and 2. Claims 1-5, 7-10, 12-16, 18, and 20-25 under Â§ 103(a) as unpatentable over the combined teachings of Ho6 and Yamano7 or Yamamoto.8 ANALYSIS 1. Rejection based on Gowan and Yamano. Claim 1 recites a "thermostatic controller adapted for receiving a temperature input indicative of a temperature in a space, the controller 1 Appeal Brief 2-4 [hereinafter App. Br.] . All claim language is reproduced from the claims appendix to the Appeal Brief. The examiner has certified the copy as correct. Examinerâ€™s Answer 3 [hereinafter Ans.]. 2 35 U.S.C. 134(a). 3 35 U.S.C. 6(b). 4 W.A. Gowan, Temperature controller and method for facilitating the storage of wine and like perishables, U.S. Patent No. 5,343,712 (issued 6 Sep. 1994). 5 Y. Yamamoto, LED light fixture, Japanese Pub'd Appl. 2002-251903 (pub'd 2002). We do not reach the alternative involving Yamamoto. 6 J. Ho, Illuminating thermostat, U.S. Patent No. 6,726,112 (issued 27 Apr. 2004). 7 App. Br. 3. 8 App. Br. 3. Appeal 2009-007129 Application 10/897,909 - 3 - comprising a housing having a translucent portion thereof illuminated by a light that changes color as a function of the temperature in the space." Ranco contests the breadth of "translucent portion" and "housing".9 During examination, a claim must be given its broadest reasonable construction consistent with the disclosure.10 When, as here, the disclosure offers no express definition, a claim term is given its ordinary meaning.11 Broadly construed, "translucent" requires light transmission, including both transparency and light diffusion.12 Ranco does not provide a basis for requiring a narrower construction. Broadly construed, "housing" is something that covers or protects.13 Again, Ranco does not provide a basis for requiring a narrower construction. 9 App. Br. 4-5. 10 In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (reversing for reliance on a construction narrower than the broadest reasonable construction). 11 In re Bass, 314 F.3d 575, 577 (Fed. Cir. 2002); cf. Zletz, 893 F.2d at 321 and In re Priest, 582 F.2d 33 (CCPA 1978) (reversing for interpolating limitations from the disclosure). 12 See "Translucent." Websterâ€™s New Collegiate Dictionary (G. & C. Merriam Company 1976) (defining, in part, as "1: permitting the passage of light[;] a: CLEAR, TRANSPARENT â€¦ [;] b: transmitting and diffusing light so that objects beyond cannot be seen clearly â€¦"). See also "Translucent." Dictionary.com Unabridged. Random House, Inc. http://dictionary.reference.com/browse/translucent (last accessed: 23 Aug. 2010). 13 See "Housing." Websterâ€™s New Collegiate Dictionary (G. & C. Merriam Company 1976) (defining, in part, as "2: something that covers or protects[;] a: a case or enclosure (as for a mechanical part â€¦)"). See also "Housing." Dictionary.com Unabridged. Random House, Inc. http://dictionary.reference.com/browse/housing (last accessed: 23 Aug. 2010). Appeal 2009-007129 Application 10/897,909 - 4 - Yamano's Figure 1, reproduced below, illustrates a display of Yamano's vehicle air conditioning system.14 In the display, air transmission states are expressed as arrow-shaped switches 2-7,15 which are made of "semi-light-permeable materials"16. Light-emitting diodes (LEDs) behind the switches 2-7 illuminate them.17 The switches 2-7 can be push-type (i.e., can mechanically open and close a switch contact point) or touch-type.18 Yamano's push-type switches 2-7 are semi light permeable and, thus, "translucent". Moreover, the push-type switches 2-7 cover or protect the LEDs behind them, and thus form a "portion" of the system's "housing". Nothing in claim 1 requires the controller housing to be a unitary structure.19 Indeed, Ranco's Figure 4 shows an embodiment where the translucent portion is a door. On this record, the "translucent portion" of the "housing" can be one or more substructures that cover or protect system components 14 Yamano, p. 6. 15 Yamano, p. 6. 16 Yamano, p. 7. 17 Yamano, p. 7. 18 Yamano, p. 6. 19 Cf. In re Morris, 127 F.3d 1048, 1055 (Fed. Cir. 1997) (declining to read "integral" as "unitary"). Appeal 2009-007129 Application 10/897,909 - 5 - like LEDs. Alternatively, Yamano's touch-type switches 2-7 are integrated into the electronics of the display, but transmit light from LEDs behind the switches.20 In this embodiment, Yamano's translucent switches are a unitary part of the display face. Gowan discloses a temperature controller for a wine storage unit.21 Ranco argues that there is no motivation to combine Yamano and Gowan because Gowan's controller does not need diffused light.22 This argument relies on a narrow construction of "translucent" that is not supported in this record. Moreover, Gowan changes LED brightness rather than color to indicate temperature change23 so the modification implied by the combination Gowan and Yamano involves more than just changing the display cover. While a light-diffusing cover might not work well with Gowan's intensity-changing LED, even if we accepted Ranco's narrower construction of "translucent", light diffusion is consistent with Yamano's use of color to indicate temperature. Use of a known alternative is still obvious.24 We note in passing that claim 1 is broad enough to read on Yamano alone. Specifically, Yamano's system senses vehicle cabin temperatures and accordingly changes the colors using the LEDs that backlight the translucent switch portions of the display panel.25 For the above reasons, we conclude that the combined teachings of Gowan and Yamano teach or suggest the subject matter of claim 1. As 20 Yamano, pp. 6-7. 21 Gowan, abstract. 22 App. Br. 8-9. 23 Gowan at 5:36-41. 24 E.g., Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1366 (Fed. Cir. 2007). 25 Yamano, pp. 3, 5, and 10-12. Appeal 2009-007129 Application 10/897,909 - 6 - Ranco presents the same arguments for claims 2-5, 7-10, 12-16, and 18-25,26 those claims fall with claim 1. 2. Rejection based on Ho and Yamano. Ranco also argues that Ho does not teach a "translucent portion" of a "housing" as in claim 1.27 Ho's Fig. 1, reproduced below, illustrates an exemplary embodiment of a thermostat.28 The thermostat includes room temperature LED indicators 140.29 The distance or position from a lit LED 140 to the centered optimal state LED 141 indicates the difference between a sensed temperature and a preferred temperature.30 The LEDs 140 may be "covered by a color plate", which 26 App. Br. 6. 27 App. Br. 7. 28 Ho at 3:10-12. 29 Ho at 4:3-9. 30 Ho at 4:3-29. Appeal 2009-007129 Application 10/897,909 - 7 - causes the display to appear increasingly blue or red as the position of the active LEDs 140 left or right of the optimal state LED 141 increases.31 Ho's color plate transmits the light of the LEDs 140, 141, and thus is "translucent". The extremes of the color plate are colored red or blue, while the center portion is white or neutrally colored,32 so Ho even teaches a less than clear translucent portion since the pigmented portions will necessarily block or diffuse some of the light. Ho's color plate covers Ho's LEDs 140, 141, and thus forms part of the thermostat's housing. Ranco argues that Ho's thermostat would be unsatisfactory for its intended purpose if modified to include a translucent covering because the user could no longer distinguish which LEDs 140, 141 were active.33 In this instance, Ranco's construction of translucent is even narrower since the cover would have to be substantially opaque for it to significantly obscure the underlying LEDs. Ranco has not pointed to any evidence or language in claim 1 to support such a high degree of opacity. Indeed, Ho's teaching of pigmentation in the color plate is consistent with our construction of translucent and inconsistent with Ranco's inoperability argument. Accordingly, we conclude that the combined teachings of Ho and Yamano teach or suggest the subject matter of claim 1. As Ranco presents the same arguments for claims 2-5, 7-10, 12-16, 18, and 20-25,34 those claims fall with claim 1. 31 Ho at 4:30-44. 32 Ho at 4:30-44. 33 App. Br. 7-8; Reply Brief 10. 34 App. Br. 9. Appeal 2009-007129 Application 10/897,909 - 8 - CONCLUSIONS The record before us supports the examiner's holding that the combined teachings of Ho and Yamano teach or suggest the claimed invention; and the examiner's holding that the combined teachings of Gowan and Yamano teach or suggest the claimed invention. DECISIONS We affirm the Â§ 103(a) rejections: 1. Of claims 1-5, 7-10, 12-16 and 18-25 over the combined teachings of Gowan and Yamano. 2. Of claims 1-5, 7-10, 12-16, 18 and 20-25 over the combined teachings of Ho and Yamano. AFFIRMED KMF REINHART BOERNER VAN DEUREN P.C. 2215 Perrygreen Way Rockford, IL 61107