Ex Parte KATO et al

Patent Trial and Appeal Board

Nov 25, 2013

11765081 (P.T.A.B. Nov. 25, 2013)

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.
11/765,081 06/19/2007 Naoya KATO 006514.00008 6835
30752 7590 11/26/2013
BANNER & WITCOFF, LTD.
ATTORNEYS FOR CLIENT NO. 000449, 001701
1100 13th STREET, N.W.
SUITE 1200
WASHINGTON, DC 20005-4051
EXAMINER
LE, TUNG X
ART UNIT PAPER NUMBER
2844
MAIL DATE DELIVERY MODE
11/26/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte NAOYA KATO, MASATOSHI HIGASHI,
TOSHIO KAWAGUCHI, and SHINJI HAYASHI
____________________

Appeal 2011-012866
Application 11/765,081
Technology Center 2800
____________________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-012866
Application 11/765,081

2
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-5. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Disclosed and Claimed Invention
Appellants disclose “a magnetron used for a microwave heating
apparatus” (Spec. 1, ll. 8-9). Claim 1 is the sole independent claim on
appeal, and recites a magnetron (100 in Figure 1). Exemplary independent
claim 1 under appeal, with emphasis added to disputed portions of the claim,
reads as follows:

Claim 1. A magnetron comprising:

an anode part comprising an anode cylinder and a plurality of vanes
arranged radially from an inner wall of the anode cylinder toward a tube
axis,
a cathode part having a coil filament arranged along the tube axis of
the anode cylinder,
a pair of funnel-shaped pole pieces arranged at an output part side and
an input part side respectively of the anode cylinder face-to-face together
and having a base portion secured to the anode cylinder and a bottom portion
provided with a through-hole at a central portion thereof, and
a pair of annular permanent magnets each arranged outside the pair of
the pole pieces respectively; and
the magnetron being configured by, at an oscillation frequency of
2450 MHz band, number of the vanes being 10, a diameter of a circle
inscribing tip portions of the vanes on the cathode side being 8.0 to 8.8 mm,
a diameter of an outer periphery of the filament being 3.5 to 3.9 mm, a
height of the vane in a direction of the tube axis being 7.0 to 8.0 mm, a
mutual distance between the base portions of the pair of pole pieces being
21.5 to 23.5 mm, a mutual distance between the bottom portions of the pair
of pole pieces being 10.2 to 11.2 mm, an inner diameter of the through-hole
Appeal 2011-012866
Application 11/765,081

3
of the pole piece being less than 8.5 mm and an outer diameter of the bottom
portion being 11.0 to 16.0 mm.

Examiner’s Rejection
The Examiner rejected claims 1-5 as being unpatentable under
35 U.S.C. § 103(a) over Ishii (US 7,023,137 B2, Apr. 4, 2006), Lee (US
2004/0140207 A1, Jul. 22, 2004), Baek (US 2006/0219548 A1, Oct. 5,
2006), and Ogura (US 5,635,798, Jun. 3, 1997). Ans. 4-8. With regard to
claim 1, the Examiner relies on Lee’s paragraphs [0023] and [0024] as
teaching the vane height of 7.0 to 8.0 mm (Ans. 7 and 9).
Appellants’ Contentions
(1) Appellants contend (App. Br. 6-9; Reply Br. 2-3) that the
Examiner erred in rejecting claims 1-5 under 35 U.S.C. § 103(a) over Ishii,
Lee, Baek, and Ogura for numerous reasons including:
(a) Ishii teaches away from the recitation in claim 1 of shorter vanes
because Ishii teaches vanes should be greater than or equal to 9.0 mm (App.
Br. 7);
(b) Ogura (see col. 8, ll. 23-26) also teaches away from and
discourages using shorter vanes than 9.0 mm (App. Br. 7);
(c) the Examiner has picked and chosen from the four references in a
piecemeal fashion without considering the references as a whole, and has not
provided a proper rationale or motivation other than impermissible hindsight
(App. Br. 6-7 and 9);
(d) there is no explanation why a person having ordinary skill in the
art, upon reading Ishii and Ogura, would seek to use Lee’s shorter vane
height (App. Br. 9; Reply Br. 2-3); and
Appeal 2011-012866
Application 11/765,081

4
(e) no single magnetron reference meets the dimensional requirements
of claim 1 (App. Br. 6).
(2) Appellants contend (App. Br. 9) that the Examiner erred in
rejecting claims 2-5 for the same reasons argued with respect to claim 1
discussed supra.
Issue on Appeal
Based on Appellants’ arguments, the following issue is presented for
appeal:
Did the Examiner err in rejecting claims 1-5 as being obvious because
the applied references are (1) not properly combinable, and/or (2) the
combination of Ishii, Lee, Baek, and Ogura fails to teach or suggest the
limitations of claim 1 at issue?

PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). The
Examiner’s articulated reasoning in the rejection must possess a rational
underpinning to support the legal conclusion of obviousness. KSR Int’l Co.
v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006)).

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions in the Appeal Brief (App. Br. 6-9) and the Reply Brief (Reply
Br. 2-3) that the Examiner has erred.
Appeal 2011-012866
Application 11/765,081

5
We disagree with Appellants’ conclusions. We adopt as our own
(1) the findings and reasons set forth by the Examiner in the action from
which this appeal is taken (Ans. 4-8), and (2) the reasons set forth by the
Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief
(see Ans. 8-9). We concur with the conclusions reached by the Examiner.
The Examiner has provided a factual basis and has articulated
reasoning with a rational underpinning to support the conclusion of
obviousness with regard to claim 1 (see Ans. 4-7). See KSR, 550 U.S. at
418. Because (i) all of the references of Ishii, Lee, Baek, and Ogura pertain
to the field of magnetrons, (ii) Lee (Fig. 2b; ¶ [0043]) discloses a magnetron
having a vane 12 having a vane height (Vh) in a range of 7.5 to 10.0 mm,
and (iii) the Examiner relies upon Lee as teaching the recited vane height of
7.0 to 8.0 mm (Ans. 6 and 9), we cannot agree with Appellants’ assertions
(App. Br. 6-9) that one of ordinary skill in the art would not have been
motivated to reduce or shorten a vane height for a vane in a magnetron in
light of Lee’s teaching and/or suggestion of reducing the size of magnetron
components and material costs by simplifying the fabrication process (Lee, ¶
[0024]).
Specifically, we agree with the Examiner (Ans. 7-9) that it would
have been obvious to modify Ishii’s vane height to the shorter height taught
by Lee. And, Lee’s disclosed vane height of 7.5 to 8.0 mm falls within the
range recited in claim 1 of 7.0 to 8.0 mm (see Ans. 6 and 9).
Appellants’ arguments that (i) the Examiner has picked and chosen
from the four references in a piecemeal fashion (App. Br. 6-7 and 9), and (ii)
no single magnetron reference meets the dimensional requirements of claim
1 (App. Br. 6), are unpersuasive, because reliance on a large number of
Appeal 2011-012866
Application 11/765,081

6
references in a rejection does not, without more, weigh against the
obviousness of the claimed invention. In re Gorman, 933 F.2d 982 (Fed.
Cir. 1991) (affirming a rejection based on thirteen prior art references).
In view of the foregoing, Appellants have not sufficiently shown that
the Examiner erred in finding that (i) it would have been obvious to modify
Ishii with the teachings of Lee, Baek, and Ogura, or (ii) the combination of
Ishii, Lee, Baek, and Ogura teaches or suggests the magnetron having the
dimensions recited in claim 1. Accordingly, we sustain the obviousness
rejection of claim 1 based upon the combined teachings and suggestions of
Ishii, Lee, Baek, and Ogura. Because Appellants assert that claims 2-5 stand
or fall with claim 1 from which these claims ultimately depend, and for
similar reasons as discussed with regard to claim 1, we also sustain the
obviousness rejection of claims 2-5.
CONCLUSION
The Examiner has not erred in rejecting claims 1-5 as being
unpatentable under 35 U.S.C. § 103(a), because (a) Ishii, Lee, Baek, and
Ogura are properly combinable, and (b) the combination of Ishii, Lee, Baek,
and Ogura teaches or suggests the limitations of claim 1 at issue.

DECISION
The Examiner’s rejection of claims 1-5 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED
ELD