Ex Parte Grassmuck et al

Patent Trial and Appeal Board

Dec 26, 2013

12396688 (P.T.A.B. Dec. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MICHAEL DONALD GRASSMUCK, GARRICK
NEAL McFARLAND, and SCOTT EUGENE MILLER
____________________

Appeal 2012-000499
Application 12/396,688
Technology Center 3700
____________________

Before MICHAEL L. HOELTER, JAMES P. CALVE, and
PATRICK R. SCANLON, Administrative Patent Judges.

SCANLON, Administrative Patent Judge.

DECISION ON APPEAL
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Application 12/396,688

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STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
decision rejecting claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
THE INVENTION
Appellants’ invention “relates to an air louver for a refrigerated
display case.” Spec., para. [0001]. Claims 1, 10, and 19 are the independent
claims on appeal. Claim 1, reproduced below, is illustrative of the claimed
subject matter.
1. A louver for directing airflow in a
refrigerated display case, the louver comprising:
a plurality of fins positioned to define a
plurality of channels therebetween through which
the airflow is directed substantially in a first
direction, each fin being elongated in a second
direction substantially orthogonal to the first
direction to define a length, each fin having an
inlet end and an outlet end in a cross-section taken
along the length;
at least two wall sections extending
perpendicular to and supporting the fins, the at
least two wall sections having a rear edge; and
an inlet profile defined by the inlet ends of
the plurality of fins, the inlet profile having a width
perpendicular to the second direction and being
non-linear across its width and whereby the
distance of the inlet end of each of the fins relative
to the rear edges of the wall sections decreases
proportionally to the non-linear characteristic of
the inlet profile.
App. Br., Claims App’x.

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REFERENCES
The Examiner relies upon the following prior art references:
Beckwith
Hayes
Luik
US 3,256,799
US 6,240,739 B1
US 2003/0054750 A1
Jun. 21, 1966
Jun. 5, 2001
Mar. 20, 2003
REJECTIONS
The following rejections are before us on appeal:
Claims 1, 3-10, and 12-20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Beckwith and Hayes.
Claims 2 and 11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Beckwith, Hayes, and Luik.
ANALYSIS
Claims 1-9
The Examiner finds that Figure 3 of Beckwith discloses a louver
(nozzle 62) that directs airflow in a refrigerated display case and comprises a
plurality of ribs defining channels through which the airflow is directed.
Ans. 4. The Examiner further finds that the louver 62 has a parabolic or
non-linear inlet profile and at least two wall sections (i.e., the two walls
parallel to wall 52 in Figure 3) having a rear edge. Id. Lastly, the Examiner
finds that Hayes discloses a “louver having . . . fins 106” and concludes it
would have been obvious “to substitute the Beckwith [ribs] with the Hayes
fins because the substitution of one known element for another would have
yielded predictable results of transferring the air to the displaying area.”
Ans. 5-6.
Appellants present several arguments against this rejection in
connection with independent claim 1. App. Br. 11-13. In particular,
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Appellants assert Beckwith fails to disclose that “the distance from the fin
inlet ends relative to the support wall rear edges decreas[es] proportionally
to the non-linear characteristic of the inlet profile” as recited in claim 1.
App. Br. 13; see also Reply Br. 4.
We find Appellants’ focus on the claimed “rear edge” to be
persuasive. As noted supra, the Examiner relies on the two walls parallel to
wall 52 in Figure 3 of Beckwith as being the claimed “at least two wall
sections extending perpendicular to and supporting the fins.” We understand
these two walls to be partition 26 and top wall 12 as shown in Figure 1. We
agree with the Examiner’s finding that these two walls support Beckwith’s
nozzle 62, and thus support the ribs or fins of the nozzle as claimed.
However, while the Examiner simply contends that these walls have “a rear
edge” (Ans. 4), there is no indication as to what portion of each wall might
define a “rear edge” such that a distance to this undisclosed “rear edge”
would vary proportionally with respect to the non-linear profile of nozzle 62
illustrated in Fig. 3.
For these reasons, the Examiner has not established that the claim
limitations relating to the rear edges are disclosed or rendered obvious by the
combination of Beckwith and Hayes. Luik does not remedy this deficiency.
As such, we do not sustain the rejection of claim 1 and claims 2-9 depending
therefrom.
Claims 10-18
Independent claim 10 calls for a refrigerated display case including a
louver having a non-linear inlet profile but does not require the wall sections
having a rear edge recited in claim 1. App. Br., Claims App’x. Regarding
claim 10, Appellants argue that “[a]s explained above, Beckwith and Hayes
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each teach a louvered structure with a linear inlet.” Id. at 14. This argument
appears to refer to Appellants’ argument made in connection with claim 1
that only Beckwith’s Figure 5 embodiment discloses “a louver with fins,”
and the fins of this embodiment “define a linear inlet” rather than the
claimed non-linear inlet profile. Id. at 12. We do not find this argument
persuasive. Instead, we agree with the Examiner’s statements that
Beckwith’s Figure 5 embodiment was not relied on in rejecting the claims
and Beckwith’s Figure 3 embodiment discloses a non-linear inlet profile.
Ans. 4, 7. Contrary to Appellants’ assertion on page 3 of the Reply Brief,
this position is not a failure to consider the reference as a whole.
We also are not persuaded by Appellants’ argument that “[e]lement 62
of Beckwith is a honeycomb structure, not a louvered structure” and a
honeycomb structure “is distinct from a louvered structure.” App. Br. 11-
12; Reply Br. 3. We interpret the claim language, where necessary, giving
the claims their broadest reasonable interpretation in light of the
Specification. In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004). The term
“louver” is neither ambiguous nor highly technical. More importantly, there
is nothing in the claims, the Specification or prosecution history that would
suggest a meaning other than its ordinary meaning. See Lantech, Inc. v.
Keip Mach. Co., 32 F.3d 542, 547 (Fed. Cir. 1994). The ordinary and
customary meaning of “louver” in this context is “a finned or vaned device
for controlling a flow of air or the radiation of light.” MERRIAM-WEBSTER
ONLINE DICTIONARY, (2013), http://www.merriam-webster.com, accessed
Dec. 18, 2013. Thus, one of ordinary skill in the art at the time of invention
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would understand Beckwith’s nozzle 621, as modified by Hayes, to be a
“louver” for directing airflow.
Appellants’ argument that “the inlet profile of Hayes is linear[,] which
is in contradistinction from the claimed non-linear inlet profile” (App.
Br. 12) is not persuasive. This argument addresses Hayes individually and
does not address the proposed combination of Beckwith and Hayes. One
cannot show nonobviousness by attacking references individually where the
rejections are based on a combination of references. See In re Keller, 642
F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986).
Lastly, Appellants argue Beckwith’s Figure 3 embodiment has “a
secondary structure 64 with a linear inlet [that] is positioned between the
outlet of section 62 and the product display area,” resulting in “the airflow
[being] impeded before reaching the product display area.” App. Br. 14;
Reply Br. 3. This argument is not convincing because Appellants’ claims
employ the open-ended language “comprising,” and thus do not preclude
additional airflow-directing structure. Beckwith’s nozzle or “louver” 62
satisfies the claim 10 requirement of directing airflow toward the product
display area.
In view of the above, Appellants’ arguments do not apprise us of
error, and we sustain the rejection of claim 10 as unpatentable over

1 Beckwith discloses that the nozzles are preferably constructed of
honeycomb material, which is “characterized by a plurality of small
passages aligned in parallel relationship and the material is also adapted to
be provided in a greater number of shapes and sizes.” Beckwith, col. 3, ll.
17-23. Beckwith further discloses that “the provision of other constructions
which have the same characteristics as honeycomb materials is
contemplated.” Id. at col. 3, ll. 24-26.
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Beckwith and Hayes. Appellants rely on the same arguments made in
connection with claim 10 in asserting the patentability of claims 12-18 and
do not present any further arguments in connection with these dependent
claims. App. Br. 14. Claims 12-18 thus fall with claim 10. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2011). In addition, Appellants do not present additional
arguments regarding the patentability of dependent claim 11 separate from
those directed against the rejection of independent claim 10. App. Br. 14.
Accordingly, we also sustain the rejection of claim 11 as unpatentable over
Beckwith, Hayes, and Luik.
Claims 19 and 20
Independent claim 19 calls for a louver having a non-linear inlet
profile but does not require the wall sections having a rear edge recited in
claim 1. Id. at Claims App’x. Appellants rely on some of the same
arguments asserted in connection with claim 10 in arguing the patentability
of claims 19 and 20. App. Br. 14-15. Because these arguments are not
persuasive for the reasons discussed supra, we sustain the Examiner’s
rejection of claims 19 and 20.
DECISION
We reverse the decision of the Examiner rejecting claims 1-9 and
affirm the decision of the Examiner rejecting claims 10-20.
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)(1)(iv).

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Application 12/396,688

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AFFIRMED-IN-PART

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