Ex Parte Kessler et al

Patent Trial and Appeal Board

Oct 30, 2013

11358468 (P.T.A.B. Oct. 30, 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.
11/358,468 02/21/2006 Terry Kessler 10033.0001US01 1508
44305 7590 10/30/2013
WITHERS & KEYS, LLC
P. O. BOX 2049
MCDONOUGH, GA 30253
EXAMINER
NAMAY, DANIEL ELLIOT
ART UNIT PAPER NUMBER
3749
MAIL DATE DELIVERY MODE
10/30/2013 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 TERRY KESSLER and KEITH CRANE
____________________

Appeal 2011-011919
Application 11/358,468
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, JOHN W. MORRISON, and
ADAM V. FLOYD, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Terry Kessler and Keith Crane (Appellants) appeal under 35 U.S.C.
§ 134 from the Examiner’s decision rejecting claims 1-3, 5-7, 9-12, and 18-
26.1 Appellants do not appeal the rejection of claim 8.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
The Claimed Subject Matter
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A grease filtration system comprising:
a housing, an exhaust gas inlet for supplying exhaust gas
to said housing, an exhaust gas outlet for expelling exhaust gas
from said housing, at least one vertically-extending housing
side wall extending between said exhaust gas inlet and said
exhaust gas outlet, at least one first filter comprising metal
filtration media and positioned within said housing such that an
outer perimeter of said at least one first filter extends along and
is proximate to an outer surface of said at least one vertically-
extending housing side wall, and at least one second filter
comprising non-woven non-metallic material and positioned
proximate said exhaust gas outlet such that exhaust gas passing
through said housing passes through said at least one first filter
prior to said at least one second filter;
wherein said at least one first filter is positioned within
said housing so that any grease accumulating on said at least
one first filter flows along said at least one first filter toward
and down said at least one vertically-extending housing side
wall.

1 The Examiner withdrew claims 4 and 13-17 from consideration.
2 App. Br. 3. We suggest that the Examiner cancel claim 8 upon return of
jurisdiction of this application to the Examiner. See Ex Parte Ghuman, 88
USPQ2d 1478, 1480 (BPAI 2008) (precedential).
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Evidence
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Giles
Rogers
Hammes
Saltzman
Bartos
US 4,902,316
US 5,063,906
US 5,167,677
US 5,771,879
US 6,099,612
Feb. 20, 1990
Nov. 12, 1991
Dec. 1, 1992
Jun. 30, 1998
Aug. 8, 2000
Maier US 2003/0101986 A1 Jun. 5, 2003
Rejections
Appellants request our review of the following rejections:
Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rogers and Bartos.
Claims 1-3, 5, 9, 18, 19, and 21-24 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Rogers and Giles.
Claims 6, 11, 25, and 26 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Rogers, Giles, and Bartos.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rogers, Giles, and Hammes.
Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rogers and Maier.
Claim 20 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Rogers, Giles, Maier, and Saltzman.
OPINION
Claim 10
Claim 10 requires that the two first filters be parallel to one another.
The Examiner concedes that Rogers fails to disclose two first filters parallel
to one another. Ans. 7. The Examiner finds that Bartos discloses “multiple,
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parallel panel filters as the pre-(first) filter of a filter bank (#26A-26F –
Fig[s]. 4, 5, 10, 12, 13) spaced apart from each other (Via Tracks #30, 32,
34, 36).” Id. Relying on this finding, the Examiner determines it would
have been obvious to “incorporate the multiple, parallel first filters of
[Bartos] into the grease filtration system of [Rogers] to allow for the use of
multiple, standard-sized, off-the-shelf filters for larger and/or odd-sized
grease filter housing installations.” Id.
Appellants argue that Rogers does not provide any reason that would
have led one skilled in the art to incorporate multiple first filters as taught by
Bartos into the grease filtration system of Rogers so that the multiple first
filters are “spaced from one another and parallel to one another (i.e.,
downstream from one another so that air flow G passes [through] each first
filter as shown in Appellants’ FIG. 1, as [opposed] to within the same plane
as taught in Bartos),” positioned away from the second filter, and installed in
a non-parallel relationship relative to the normal incidence of fluid flow of
exhaust gas through the housing. App. Br. 13.
Appellants’ argument is not commensurate with the scope of claim
10. Claim 10 does not require that the first filters be disposed in different
planes from one another. Rather, claim 10 calls for the two first filters to be
“spaced from one another and parallel to one another.”3 Bartos teaches such
an arrangement of pre-filter elements 26A-26F. See Bartos, col. 4, ll. 52-55
(disclosing a first row of pleated pre-filter elements 26A-26C and second

3 An ordinary and customary meaning of “parallel” consistent with
Appellants’ Specification is “separated by an equal distance at every point;
never touching or intersecting: parallel walls.” Parallel. (2000). In Collins
English Dictionary. Retrieved from
http://www.credoreference.com/entry/hcengdict/parallel (last visited Oct. 23,
2013).
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row of filter elements 26D-26F, confined between vertically spaced filter
guide tracks 30, 32, 34, 36); figs. 4, 5. Further, a plurality of filter elements
placed in an operative position, even in the same plane, across the flow
passage, as taught by Bartos (Abstr.), would be contacted by fluid flow of
exhaust gas through the housing, as called for in claim 10.
Appellants’ argument further appears to demand that a teaching,
suggestion, or motivation for the modification be found in the applied prior
art. However, “[t]he obviousness analysis cannot be confined by a
formalistic conception of the words, teaching, suggestion, and motivation, or
by overemphasis on the importance of published articles and the explicit
content of issued patents.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 419
(2007). Instead, the relevant inquiry is whether the Examiner has set forth
“some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006) (cited with approval in KSR, 550 U.S. at 418). In this case, as noted
above, the Examiner has articulated such a reason, namely, “to allow for the
use of multiple, standard-sized, off-the-shelf filters for larger and/or odd-
sized grease filter housing installations,” and Appellants do not identify any
flaw in that reasoning.
We sustain the rejection of claim 10 as unpatentable over Rogers and
Bartos.
Claims 1-3, 5, 9, 18, 19, and 21-24
Appellants argue all of these claims as a group in contesting the
rejection based on Rogers and Giles. See App. Br. 16. Thus, in accordance
with 37 C.F.R. § 41.37(c)(1)(vii) (2011), we select claim 1 as representative
to decide the appeal of this rejection as to all of the claims in the group.
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Appellants argue that “Giles does not disclose, teach or suggest a filter
comprising non-woven non-metallic material.” App. Br. 16. Rather, “Giles
discloses a charcoal filter.” Id.; see Giles, col. 3, l. 40 (disclosing “charcoal
filter 20”). In response, the Examiner finds that “a charcoal filter neither [is]
woven nor metallic.” Ans. 22. Appellants do not specifically contest the
Examiner’s finding, which appears reasonable, as Giles does not disclose a
woven material, and “charcoal” is “[a] black, porous, carbonaceous material,
85 to 98 percent carbon, produced by the destructive distillation of wood and
used as a fuel, filter, and absorbent.”4 Consequently, Appellants do not
apprise us of error in the Examiner’s rejection. We therefore sustain the
rejection of claims 1-3, 5, 9, 18, 19, and 21-24 as unpatentable over Rogers
and Giles.
Claims 6, 11, 25, and 26
Appellants group claims 6, 11, 25, and 26 together in contesting this
rejection. See App. Br. 18. We select claim 11 as representative to decide
the appeal of this rejection.
Appellants simply reiterate the arguments asserted against the
rejections of claims 1 and 10, which, for the reasons discussed above, do not
apprise us of error in the Examiner’s rejection. App. Br. 18. Thus, we also
sustain the rejection of claims 6, 11, 25, and 26 as unpatentable over Rogers,
Giles, and Bartos.

4 Charcoal. (2007). In The American Heritage® Dictionary of the English
Language. Retrieved from
http://www.credoreference.com/entry/hmdictenglang/charcoal (last visited
Oct. 23, 2013).
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Claim 7
Claim 7 depends from claim 1 and further requires a means of
adjusting an orientation of the at least one first filter with respect to the
exhaust gas inlet. The Examiner found that Rogers fails to disclose this
feature, but that Hammes teaches providing a filter system with adjustable
filter racks. Ans. 16; see Hammes, Abstr. (stating that “[i]t is possible to
provide the filter elements with the facility of enabling different inclination
. . . to be adjusted to the optimum value for filter efficiency in the air flow
for cleaning”). The Examiner then determined it would have been obvious
to incorporate the feature of adjustable filter racks as taught by Hammes into
the grease filtration system of Rogers “to adjust the filter orientation for
optimum filter efficiency in the airflow for cleaning.” Ans. 16.
Appellants’ arguments on pages 19 and 20 of their Appeal Brief do
not identify any error in the Examiner’s findings or reasoning, but, rather,
baldly assert that Rogers does not provide any guidance to incorporate the
features of Giles and Hammes as proposed by the Examiner, and that the
only motivation for the proposed modification is gleaned from Appellants’
Specification. We sustain the rejection of claim 7 as unpatentable over
Rogers, Giles, and Hammes.
Claim 12
Claim 12 depends from claim 8 and further requires an exhaust fan,
wherein the housing (and thus the first and second filters positioned along
the housing) is positioned downstream of the exhaust fan.
Rogers discloses a fan 60 disposed downstream of the filters, and thus
does not disclose the arrangement called for in claim 12. Rogers, fig. 1; col.
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3, ll. 57-68; see Ans. 17 (acknowledging Rogers does not disclose the
housing positioned downstream of the exhaust fan).
The Examiner determined it would have been obvious to locate the
filters of Rogers downstream of a fan, as taught by Maier, “to optimize the
air velocity for the filters.” Ans. 17 (citing Maier, para. [0007]).
Appellants argue that even if the air filtration system of Rogers were
combined with the air extraction device of Maier, the resulting air filtration
system would still fail to comprise the housing of the grease filtration system
positioned downstream of the exhaust fan, as required in claim 12. App. Br.
22.
We agree with Appellants that even if the teachings of Rogers and
Maier were combined, the resulting system would still fail to comprise the
arrangement called for in claim 12, with the housing of the grease filtration
system positioned downstream of the exhaust fan. Maier teaches that, since
the grease separating filter and the odor filter may have different pressure
drops, arranging the grease separating filter 30 upstream of the blower 26
and the odor filter 32 downstream of the blower 26 “makes it possible to
adjust the air velocity optimally for the respective filters.” Paras. [0007],
[0047]. This teaching would not have prompted a person of ordinary skill in
the art to position the housing containing the grease separating filters of
Maier downstream, rather than upstream, of the fan, because Maier, like
Rogers, discloses a filtration system wherein the grease separating filter 30
is positioned upstream of the fan. The Examiner’s articulated reason for the
proposed modification of Rogers to locate the filters of Rogers downstream
of a fan lacks rational underpinnings.
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Thus, we do not sustain the rejection of claim 12 as unpatentable over
Rogers and Maier.
Claim 20
The rejection of claim 20, which is directed to a method comprising,
inter alia, a step of positioning a grease filtration system downstream of an
exhaust fan, as unpatentable over Rogers, Giles, Maier, and Saltzman suffers
from the same deficiency as the rejection of claim 12. Thus, we do not
sustain the rejection of claim 20.
DECISION
The Examiner’s decision rejecting claims 1-3, 5-7, 9-12, and 18-26 is
affirmed as to claims 1-3, 5-7, 9-11, 18, 19, and 21-26, and is reversed as to
claims 12 and 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).

AFFIRMED-IN-PART

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