Ex Parte Hallac et alDownload PDFPatent Trial and Appeal BoardSep 26, 201612376794 (P.T.A.B. Sep. 26, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/376,794 0210912009 9748 7590 LAITRAM, L.L. C. LEGAL DEPARTMENT 200 LAITRAM LANE HARAHAN, LA 70123 09/28/2016 FIRST NAMED INVENTOR Abdulkadir Hallac 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. 2527.1 1246 EXAMINER WARD, THOMAS JOHN ART UNIT PAPER NUMBER 3742 NOTIFICATION DATE DELIVERY MODE 09/28/2016 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): jcronvic@laitram.com cbishop@laitram.com dgwalker@laitram.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ABDULKADIR HALLAC and MICHAEL W. BUMGARDNER Appeal2014-005664 Application 12/376,794 Technology Center 3700 Before JENNIFER D. BAHR, BRANDON J. WARNER, and ARTHUR M. PESLAK, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Abdulkadir Hallac and Michael W. Bumgardner (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner's decision as set forth in the Final Action, dated May 22, 2013. The Final Action purports to reject claims 1-16, and Appellants appear to assume that claims 1-16 stand finally rejected. See Final Act. 1 (Office Action Summary, PTOL-326); Appeal Br. 3, 8-9. However, for reasons explained more fully in footnote 1 below, we do not discern, on the basis of the record before us, a pending rejection of claim 10 or claim 15, and, thus, do not consider a rejection of claim 10 or claim 15 to be before us for review in this appeal. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal2014-005664 Application 12/376,794 THE CLAIMED SUBJECT MATTER Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A T-junction microwave applicator comprising: a rectangular main waveguide of uniform width comprising a first arm and a second arm extending in opposite directions along a main axis from a central junction to distal end walls, each end wall having a port; a conveyor disposed to convey material to be heated along the main waveguide entering through one of the ports and exiting out the other port; a junction arm extending perpendicularly from the main waveguide at the junction through which electromagnetic energy is supplied to the main waveguide, wherein the junction arm forms a three-arm T junction with the first and second arms of the main waveguide; wherein the main waveguide includes a conductive ridge disposed opposite the junction arm and extending in length through and past the junction along the lengths of the first and second arms of the main waveguide between the end walls to achieve uniform heating across the width of the main waveguide along its length. 2 Appeal2014-005664 Application 12/376,794 REJECTIONS 1 I. Claims 11 and 14 stand rejected under 35 U.S.C. § 112, fourth paragraph. 2 1 The Final Action does not include a rejection of claims 10 and 15. The Non-Final Action, dated January 18, 2013, which immediately preceded the Final Action from which the present appeal is taken, included a rejection of claims 10and15 as anticipated by Edgar (US 3,794,874, iss. July 31, 1973). Non-Final Act. 3. However, the Examiner's remark on page 11 of the Final Action that "[w]ith regards to arguments concerning claims 10 and 15, [DeGroot] is introduced to overcome deficiencies," suggests that the Examiner no longer believes Edgar anticipates the subject matter of claims 10 and 15 and that the omission in the Final Action and the Answer of the rejection of claims 10 and 15 as anticipated by Edgar was not inadvertent. To the extent that this remark may hint at a rejection of claims 10 and 15 based on a combination of Edgar and DeGroot, the Examiner does not explicitly present such a rejection, much less articulate the basis of such a rejection with sufficient specificity to permit any meaningful review thereof. The Answer states that "[c]laims 10 and 15 are rejected under 35 U.S.C. [§] 103(a) as being unpatentable over Focht (US 4,275,283) in view of DeGroot ... (US 7,034,266)." .,A .. ns. 8. Hmvever, as already indicated, no such rejection is contained in the Final Action; further, no such rejection is indicated in the Advisory Action, dated August 13, 2013; and the Examiner's Answer does not issue such a rejection in compliance with the requirements of37 C.F.R. § 41.39(a)(2) (providing that "[fJorpurposes of the examiner's answer, any rejection that relies upon any Evidence not relied on in the Office action from which the appeal is taken (as modified by any advisory action) shall be designated by the primary examiner as a new ground of rejection" and requiring the examiner to "obtain the approval of the Director to furnish an answer that includes a new ground of rejection"). Thus, a rejection of claims 10 and 15 as unpatentable over Focht and DeGroot is not before us for review. See 37 C.F.R. § 41.39(a)(l) (stating that "[a]n examiner's answer is deemed to incorporate all of the grounds of rejection set forth in the Office action from which the appeal is taken (as modified by any advisory action and pre-appeal brief conference decision)." 2 The Examiner states that "[t]he amendments [of] 22 July 2013 overcome the [35 U.S.C. §] 112 rejection of claims 11 and 14." Ans. 12. However, the Examiner did not enter this Amendment. Advisory Act. (PTOL-303), 3 Appeal2014-005664 Application 12/376,794 IL Claims 1, 8, and 16 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Edgar and Wong (US 5,047,738, iss. Sept. 10, 1991).3 III. Claims 2 and 4-7 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Edgar, Wong, Sensiper (US 2,584,162, iss. Feb. 5, 1952), and Carr (US 3,806,837, iss. Apr. 23, 1974). IV. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Edgar, Wong, Sensiper, Carr, and Kimrey (US 5,543,605, iss. Aug. 6, 1996). V. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Edgar, Wong, and Naumann (US 4,324,965, iss. Apr. 13, 1982). VI. Claim 12 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Edgar and Sensiper. VII. Claim 13 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Edgar, Sensiper, and Carr. VIII. Claims 11 and 14 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Edgar and Wong. dated Aug. 13, 2013. Moreover, although the Examiner does not repeat this rejection in the Answer, the Examiner does not expressly withdraw the rejection. Thus, in the interest of completeness, we review this rejection as part of the present appeal. In the event that the Examiner has reconsidered the decision denying entry of the Amendment filed July 22, 2013, and decided to enter the Amendment, the Examiner may wish to clarify this point upon return of jurisdiction of this application to the Examiner. 3 Claim 16 is omitted from the statement of this rejection on page 3 of the Final Action and on page 3 of the Answer. However, the detailed explanation of the rejection addresses claim 16. Final Act. 4; Ans. 3. 4 Appeal2014-005664 Application 12/376,794 DISCUSSION Rejection I The stated basis of the Examiner's rejection of claims 11 and 14 under 35 U.S.C. § 112, fourth paragraph, is that these claims are "of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends," and that "[ c ]laim 14 is dependent upon a preceding claim." Final Act. 2. We do not discern in this statement any cogent indication of an impropriety in claim 11 or claim 14. The Examiner does not identify any limitation in claim 10, from which claim 14 depends, that is not included in claim 14, nor does the Examiner identify any limitation in claim 14, from which claim 11 depends, that is not included in claim 11. Further, the Examiner does not identify any element in either claim 11 or claim 14 lacking antecedent basis. Appellants surmise that the Examiner's rejection may be taking issue with the fact that claim 11 depends from a claim (i.e., claim 14) having a chronologically higher claim number than claim 11, rather than from a claim previously set forth, as provided in 35 U.S.C. § 112, fourth paragraph. For the reasons presented by Appellants on page 5 of their Appeal Brief, we do not sustain the rejection. 4 4 We leave it to the Examiner to take appropriate action as provided in the Manual of Patent Examining Procedure (MPEP) to address the claim numbering/claim dependency issue raised in the rejection. See MPEP § 608.0l(n) I. F, 9th ed., Rev. 7, November 2015. The Examiner's statement on page 12 of the Answer that "[t]he amendments [of] 22 July 2013 overcome the [35 U.S.C. §] 112 rejection of claims 11 and 14" suggests that the Examiner recognizes that any perceived informality with the numbering or dependency of claims 11 and 14 may be overcome by renumbering claims 5 Appeal2014-005664 Application 12/376,794 Rejection II The Examiner acknowledges that Edgar does not disclose the main waveguide (waveguide tunnel means 14, 16) "includ[ing] a conductive ridge" as called for in claims 1 and 8. Final Act. 3--4. The Examiner finds that Wong discloses rectangular ridged waveguide hybrid 10 having ridges 26 and 28 extending along the entire length thereof. Id. at 4. The Examiner also finds that Wong teaches that "such a configuration allows for reducing the cost and complexity of manufacturing or fabricating the waveguide hybrid." Id. The Examiner determines that "[i]t would have been obvious to modify the tunnel means 14 and 16 of Edgar to include ridged waveguide hybrid 10 of Wong ... to provide a waveguide which allows for reducing the cost and complexity of manufacturing or fabricating." Id. at 4-5 (boldface omitted). The Examiner further explains that "[t]he key element from Wong ... which is being used with Edgar is the elongated ribs 26." Advisory Act. 2. According to the Examiner, Edgar's tunnel means "can be adapted with the hybrid of Wong ... would indeed prevent leakage of energy from the oven chamber [sic]," and "[t]he combination of Edgar and Wong ... would achieve uniform heating across the width of the main waveguide along its length." Id. Appellants argue that "Edgar clearly teaches away from using [a] rectangular waveguide whose dimensions 'are uniform throughout' for the tunnel means (14, 16), as in Wong." Appeal Br. 5 (citing Edgar, col. 3, 11. 34--45). Appellants also contend that Edgar uses a smaller-dimension top portion of its tunnel means to prevent energy leakage from oven enclosure 11 and 14, as would commonly be done by an examiner upon allowance of an application. 6 Appeal2014-005664 Application 12/376,794 12 and that Wong's rectangular waveguide ofunifonn width is not designed to prevent leakage. Id. at 5-6. In addition, Appellants submit that the Examiner provides no detail as to how one could adapt Wong's four-port hybrid to accommodate Edgar's conveyor belt. Id. at 6. Appellants add that the addition of Wong's ridge 26 to Edgar's tunnel would not prevent microwave leakage, even if the ridge is the only portion of Wong's hybrid device that the Examiner proposes to add to Edgar. Id. Thus, according to Appellants, combining Wong's hybrid "with Edgar's applicator would render Edgar's tunnel unsatisfactory for its intended purpose of preventing microwave leakage." Id. Appellants also argue that one of ordinary skill in the art would not consider Wong's hybrid (which has ridges, a central wall interrupted by a coupling window, and a capacitive button) to be less complex or costly than Edgar's waveguide tunnel means 14, 16. Id. Thus, according to Appellants, one of ordinary skill in the art would not have been prompted to replace Edgar's waveguide tunnel means 14, 16 for the reason articulated by the Examiner in the rejection - namely, to reduce the cost and complexity of manufacturing or fabricating. Id. Moreover, Appellants submit that one of ordinary skill in the art would not have been prompted to incorporate even just Wong's ridge into Edgar's waveguide tunnel means, which would "change the cutoff frequency of the two waveguide paths to increase bandwidth, for the purpose of creating uniform heating," as reasoned by the Examiner in the Advisory Action. Id. We agree with Appellants on all of these points. It is not apparent, nor does the Examiner adequately explain, why one having ordinary skill in the art would consider Wong's hybrid to be less complex or costly to 7 Appeal2014-005664 Application 12/376,794 fabricate than Edgar's waveguide tunnel means 14, 16. Further, even if the Examiner's rejection proposes merely to incorporate the ridges of Wong into Edgar's waveguide tunnel means 14, 16, we agree with Appellants, for the reasons that follow, that a person having ordinary skill in the art would not have been prompted, in view of the combined teachings of Edgar and Wong, to do so. Edgar is concerned with preventing, or at least minimizing, microwave energy leakage through the open ends of the tunnel means. Edgar, col. 1, 11. 36--41; col. 2, 11. 15-18; col. 3, 11. 24-29, 40--45. To do so, Edgar provides an upper waveguide portion in each of the waveguide tunnel means having a reduced width that is as near as possible to half the wavelength (A.c/2) of escaping radiated energy, so that the cutoff frequency wavelength (Ac) of the upper waveguide portion matches the wavelength of the escaping energy. Id., col. 1, 11. 29-31; col. 2, 11. 18-23; col. 3, 11. 29-33. Wong teaches providing a ridge on the floor of the waveguide to lower the cutoff operating frequency of the waveguide. Wong, col. 4, 11. 4-6. Wong teaches that providing such a ridge increases the cutoff wavelength (Ac) of a rectangular waveguide of width a from 'Ac=2a (without the ridge) to A.c=2a to 6a (with a ridge), depending on the size of the ridge. Id., 11. 9-18. Thus, providing a ridge enables a reduction in the overall size and weight of the waveguide hybrid. Id., 11. 20-21. A person having ordinary skill in the art would not wish to reduce the cutoff frequency of Edgar's waveguide. To the contrary, Edgar intentionally increases the cutoff frequency (i.e., decreases the cutoff wavelength) of the waveguide by providing a reduced-width upper waveguide portion. Moreover, the Examiner does not direct us to any evidence that supports the Examiner's statement in the Advisory Action that 8 Appeal2014-005664 Application 12/376,794 providing ridges in Edgar's waveguide tunnel means would promote more uniform heating. See Reply Br. 2 (submitting that "the purpose of the tunnels of Edgar ... is to prevent leakage of microwave energy - not to heat the product uniformly in the tunnels"). For the above reasons, the Examiner fails to establish that the combined teachings of Edgar and Wong render obvious the subject matter of independent claims 1 and 8. Thus, we do not sustain the rejection of claims 1 and 8, or claim 16, which depends from claim 1, as unpatentable over Edgar and Wong. Rejections 111-V In rejecting claims 2-7, which depend either directly or indirectly from claim 1, and claim 9, which depends directly from claim 8, the Examiner does not articulate any additional findings or reasoning that would cure the aforementioned deficiency in the combination of Edgar and Wong. Accordingly, we do not sustain the rejection of claims 2 and 4-7 as unpatentable over Edgar, Wong, Sensiper, and Carr; the rejection of claim 3 as unpatentable over Edgar, Wong, Sensiper, Carr, and Kimrey; or the rejection of claim 9 as unpatentable over Edgar, Wong, and Naumann. Rejections VI and VII Claim 10, from which claims 12 and 13 depend, recites, in pertinent part, "a rectangular main waveguide extending ... in width from a first side wall to a second side wall" and "a rectangular waveguide segment ... having a first pair of opposite outer walls continuous with the first and second side walls of the main waveguide to form opposite inverse T-shaped side walls of the applicator." Appeal Br. 15 (Claims App.). Appellants argue that "Edgar does not disclose ... a rectangular waveguide segment 9 Appeal2014-005664 Application 12/376,794 having a first pair of opposite outer walls continuous with side walls of a main waveguide to form opposite inverse T-shaped side walls of an applicator." Appeal Br. 9; see also id. at 10, 11 (relying on this argument in contesting the rejections of claims 12 and 13). We agree with Appellants, and, further, note that the Examiner does not rely on Sensiper or Carr for any teaching that would overcome this deficiency in Edgar. See Final Act. 8-9; Ans. 8, 10. The Examiner reads the claimed "rectangular main waveguide" on Edgar's waveguide tunnel means 14, 16 or waveguide section 52. Ans. 14 (citing Edgar, Fig. 1 ). Notably, however, the Examiner does not articulate any findings addressing a rectangular waveguide segment having a pair of opposite outer walls continuous with side walls of the main waveguide to form opposite inverse T-shaped side walls, as required in claims 12 and 13. See Final Act. 8-9; Ans. 8, 10, 14. Accordingly, we do not sustain the rejection of claim 12 as unpatentable over Edgar and Sensiper or the rejection of claim 13 as unpatentable over Edgar, Sensiper, and Carr. Rejection VIII The rejection of claims 11 and 14 suffers from the same deficiency in the combination of Edgar and Wong as the rejection of claims 1, 8, and 16, discussed above. Thus, for the same reason, we do not sustain the rejection of claims 11 and 14 as unpatentable over Edgar and Wong. 10 Appeal2014-005664 Application 12/376,794 DECISION The Examiner's decision rejecting claims 1-9, 11-14, and 16 is reversed. REVERSED 11 Copy with citationCopy as parenthetical citation