Ex Parte Gass et al

Patent Trial and Appeal Board

Sep 24, 2018

13182307 (P.T.A.B. Sep. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/182,307 07/13/2011
87598 7590 09/26/2018
Morgan Law Offices, PLC
4635 S. Lakeshore Dr. Suite 131
Tempe, AZ 85282
FIRST NAMED INVENTOR
Paul Gass
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P00554 6105
EXAMINER
MA,KUNKAI
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
09/26/2018 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):
docket@patentaz.com
info@patentaz.com
USPTO@dockettrak.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL GASS and JON SHRADER
Appeal2017---007272
Application 13/182,307
Technology Center 3700
Before WILLIAM A. CAPP, ARTHUR M. PESLAK, and
SEAN P. O'HANLON, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Paul Gass and Jon Shrader ("Appellants") appeal under 35 U.S.C.
§ 134(a) from the Examiner's Non-Final decision rejecting claims 1-19. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
Appeal2017---007272
Application 13/182,307
THE CLAIMED SUBJECT MATTER
Appellants' invention relates to "an evaporative cooling system
installed in a structure wall." Spec. ,r 1. Claim 1, reproduced below, is
illustrative of the claimed subject matter.
1. A cooling system installed within a structure wall,
compnsmg:
in a housing, the housing disposed between a pair of
studs of the wall,
a water reservoir;
a pump;
a pad;
a water distributor;
a motor; and
a fan, wherein at least a portion of each of the water
reservoir, the pump, the pad, the water distributor, the motor,
and the fan in the housing are disposed between an exterior side
and an interior side of the structure wall.
REJECTIONS 1
1) Claims 17-18 are rejected under 35 U.S.C. § I02(b) as anticipated
by Kucera (US 2005/0000241 Al, published Jan. 6, 2005).
2) Claims 1, 2, 4--7, 11, and 13-15 are rejected under 35 U.S.C.
§ I03(a) as unpatentable over Kucera and Fosnes (US 2,808,237,
issued Oct. 1, 1957).
3) Claim 3 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Kucera, Fosnes, and Palmer (US 2005/0268636 Al, published
Dec. 8, 2005).
1 A rejection of claims 17-19 for failure to comply with the written
description requirement of 35 U.S.C. § 112, first paragraph is withdrawn in
the Examiner's Answer. Ans. 2; Non-Final Act. 3.
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Application 13/182,307
4) Claims 8-10 are rejected under 35 U.S.C. § I03(a) as unpatentable
over Kucera, Fosnes, and Lakmaker (US 3,996,314, issued Dec. 7,
1976).
5) Claim 16 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Kucera and Su (US 2009/0107162 Al, published Apr. 30, 2009).
6) Claim 19 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Kucera and Thorpe (US 4,732,012, issued Mar. 22, 1988).
DISCUSSION
Rejection 1
The Examiner finds that Kucera anticipates claim 1 7 because,
according to the Examiner, it discloses "in a means for mounting ( 64, 66,
and 6 8, a set of screws) within a structure wall ( 12; abstract), a means for
evaporative cooling ( evaporative cooler, Page 2, Paragraph [0025], line 1 ). "
Non-Final Act. 5. Appellants contend that "Kucera discloses an evaporative
cooler attached to the outside of a building" rather than "mounted between
wall studs" as disclosed in Appellants' Specification. Br. A8. For the
following reasons, we do not sustain the rejection of claim 17.
Claim 1 7 requires that "a means for evaporative cooling" be "in a
means for mounting within a wall structure." Appellants' Specification
provides that "[b ]y the middle part of the 20th Century typical designs for
evaporative coolers included a water reservoir, a pump to circulate water
over evaporative pads, and an electric blower to draw outside air through the
pads, cooling the air by evaporation." Spec. ,r 2.
Kucera discloses that "evaporative cooler 10 is attached to a building
or structure 12. Evaporative cooler 10 includes an evaporative cooler
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Application 13/182,307
housing 14" and "the rear side 22 of evaporative cooler housing 14 will be
the side that is in contact with building 12." Kucera ,r 25. Further, Kucera
discloses the evaporative cooler "having a front panel and a rear panel
including an extension extending from the rear panel ... placed partially
into an opening in the wall between standard spaced studs." Id. ,r 11. Items
64, 66, and 68, which the Examiner finds correspond to the recited means
for mounting within a structure wall, form part of the extension from the rear
panel 30. See id. ,r 26, Fig. 3. Figure 3 of Kucera discloses that blower 186,
water pump 134, and media pad 130 are located outside of the wall structure.
Id. Fig. 3. Therefore, we do not sustain the rejection of claim 17 because the
Examiner has not established by the requisite preponderance of the evidence
that Kucera discloses a means for evaporative cooling in a means for
mounting within a structure wall as required by claim 1 7. Claim 18 depends
from claim 17. Br. A12 (Claims App.). We do not sustain the rejection of
claim 18 for the same reason.
Rejection 2
Appellants argue claims 1, 2, 4--7, 11, and 13-15 as a group. Br. A4-
A6. We select claim 1 as representative of the group and claims 2, 4--7, 11,
and 13-15 stand or fall with claim 1. 37 C.F.R. § 41.37 (c)(l)(iv).
The Examiner finds that Kucera discloses most of the limitations of
claim 1 but fails to disclose that at least a portion of each of the recited
elements in the housing "are disposed between an exterior side and an
interior side of the structure wall." Non-Final Act. 6. The Examiner finds
that Fosnes discloses "wall mounted air circulating heat exchangers having a
housing disposed between a pair of studs" and that "encloses the elements
such as, blower (24), filter (22), [and] heat exchanger coil (23)." Id. The
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Application 13/182,307
Examiner determines that it would have been obvious to modify Kucera with
the teachings of Fosnes "so that the cooling system of Kucera would be
disposed within the wall and between a pair of studs in order to save
environmental space." Id. at 6-7. The Examiner also determines that
incorporating Fosnes's "removable front cover plate which includes louvers
... into the cooling system of Kucera would provide easy access for
repairing and cleaning of the inside units." Id. at 7 (citing Fosnes, 3:45--49).
The Examiner concludes that it would have been obvious, with this
modification to Kucera, "that the side louvers (110, Kucera) would be
modified to the front of the cooler ... to avoid boundary layer formation and
noise creation due to surface friction effect from the wall when the fluid or
air is being drawn into the cooler from the side louvers." Id.
Appellants' first contention is that "if the evaporative cooler of
Kucera reference was modified as suggested, the centrifugal blowers would
not be able to intake air, since the intake portion of the blower would now be
sealed within the wall" because "Kucera utilizes centrifugal blowers
mounted outside of the building wherein the intakes for the blowers are
located on the sides of the evaporative cooler." Br. A5. The Examiner
responds that "Fosnes explicitly teaches the housing includes an air inlet
(20b) and air outlet (20c) at the front of the apparatus." Ans. 3 (citing
Fosnes, Fig. 3). According to the Examiner, one of ordinary skill in the art
would understand that modifying Kucera with the housing of Fosnes results
in "the side intakes (110) of the evaporative cooler of Kucera would be
modified from the left and right sides of the housing to the front side of the
housing for the cooler" as disclosed in Figure 3 of Fosnes. Id.
Consequently, "the suggested modification of Kucera in view of Fosnes
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would not seal the intake portion of the blower." Id. at 4. Appellants' first
contention is, thus, not persuasive because it is based on attacking the
disclosure of Kucera individually when the rejection is based on the
combined teachings of Kucera and Fosnes. See In re Keller, 642 F.2d 413,
425 (CCPA 1981).
Appellants' second contention is that "the side louvers (110, Kucera)
cannot be positioned to the front of the cooler since there are already a pair
of left and right front panels ... of Kucera that would prevent boundary
layer formation and noise reduction ... when the fluid or air is being drawn
into the cooler from the side[] louvers 110." Br. A5. The Examiner
responds that in the rejection, "the side intakes (side louvers 110) of Kucera
would be modified from the left and right sides to the front of the housing in
order to avoid the intake air blockage due to the studs (70) and the interior
wall." Ans. 5. Appellants' second contention is not persuasive because it is
not responsive to the rejection. While we appreciate the Appellants'
reference to the fact that Kucera discloses left and right front panels, the
rejection specifically replaces Kucera's front panel with the front panel and
louvers of Fosnes so that air can enter and exit the housing through the front
panels.
Appellants' third contention is that the proposed modification of
Kucera would render it unsatisfactory for its intended purpose because "it
would be required to drastically reduce the size and capacity of the pump
and blowers in order to dispose them within the wall." Br. A6. The
Examiner responds that the suggested modification of Kucera "would not
require extensive physical modification since the combination is based on
obvious suggested features from the reference rather than actual physical
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modification of body" and "reduction of size for the evaporative cooler does
not necessarily mean reduction of capacity, cooling effect and overall
utility." Ans. 6. Appellants' third contention is not persuasive because
Appellants do not provide persuasive evidence or technical reasoning why
any reduction in size of Kucera's evaporative cooling apparatus would be
required or, if required, why the reduction would necessarily be such a
drastic reduction in size that it would result in an evaporative cooling
apparatus that would be unsatisfactory for its intended purpose.
Appellants' fourth contention is that the rejection is based on
impermissible hindsight because Fosnes discloses a wall mounted heat
exchanger with an air inlet for the heat exchanger located on the same side
as the air discharge, while Kucera discloses an evaporative cooler where air
is drawn in from outside the building and discharged into the inside of the
building. Br. A6. This contention is based on the same premise as
Appellants' first contention which we found to be unpersuasive. As we
noted above, the rejection is based on the combined teachings of the
references resulting in the modification of Kucera by Fosnes' disclosure of a
housing for a heat exchanger located between studs in a wall. Appellants'
hindsight argument is not persuasive because the Examiner has stated a
rationale for the modification of Kucera with Fosnes that we determine is
reasonable and supported adequately by sufficient facts. See In re Cree, 818
F.3d 694, 702, n.3 (Fed. Cir. 2016).
We have considered all of Appellants' contentions and determine that
Appellants fail to persuasively apprise us of error in the Examiner's findings
or rationale for the combination of Kucera and Fosnes which we determine
to be reasonable and supported by the disclosure in the cited references. See
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KSR Int 'l Co. v Teleflex Inc., 550 US 398, 416 (2007) ("the combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results."). We, thus, sustain the
rejection of claim 1. Claims 2, 4--7, 11, and 13-15 fall with claim 1.
Rejection 3
Appellants do not submit arguments for the patentability of claim 3.
See Br. A3-A9. Therefore, we summarily sustain the rejection of claim 3.
Rejection 4
Appellants do not submit arguments for the patentability of claims 8
and 9. See Br. A3-A9. Therefore, we summarily sustain the rejection of
claims 8 and 9.
Claim 10 depends from claim 1 and adds the limitation that the
cooling system of claim 1 "further includ[es] a water drain." Br. Al I
(Claims App.). The Examiner states that "Kucera fails to disclose a water
drain" but relies on Lakmaker for disclosing "a cooling apparatus having a
drain connection (45)." Non-Final Act. 11. The Examiner concludes that it
would have been obvious to one of ordinary skill in the art "to have
modified the cooling system of Kucera to incorporate the drain connection
( 45), as taught by Lakmaker in order to provide a drain system that
conveniently drains out dirt from the water." Id. at 12.
Appellants do not dispute that Lakmaker discloses a cooling apparatus
with a drain connection. Br. A 7. Further, Appellants do not persuasively
argue that the Examiner's reasoning for combining the teachings of Kucera
and Lakmaker is in error. Id. Nevertheless, Appellants contend that the
"Examiner is using impermissible hindsight" without explanation of the
basis for this contention. Id. We sustain the rejection of claim 10 because
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Appellants fail to persuasively apprise us of error in the Examiner's findings
or rationale for the combination which we determine to be reasonable and
supported by the disclosure in the cited references.
Rejection 5
Appellants do not submit arguments for the patentability of claim 16.
See Br. A3-A9. Therefore, we summarily sustain the rejection of claim 16.
Rejection 6
Claim 19 depends from claim 17. Br. A12 (Claims App.). The
Examiner does not rely on the disclosure of Thorpe to cure the factual
deficiency in the rejection of claim 17. Non-Final Act. 13. We, thus, do not
sustain the rejection of claim 19 for the same reasons discussed above in
connection with the rejection of claim 17.
DECISION
The Examiner's decision rejecting claims 1-16 is affirmed.
The Examiner's decision rejecting claims 17-19 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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